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Friday, March 12, 2010
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State Of The Union: No Equal Time
From noted Philadelphia lawyer Arline Jolles Lotman comes a cogent and thought-provoking commentary on the true meaning and purpose of the State of the Union and how we may be able to avoid some of the controversies that have recently surrounded this annual event:
A local Philadelphia political writer once came to the astonishing conclusion that something is wrong with the response of the opposing political party to the President’s State of the Union address.
However, the commentator failed to identify what was wrong probably because no journalist had bothered to research the origin of the State of the Union that is constitutionally mandated in Article II, Section 3, which reads in part:
He [the president] shall from time to time give to the Congress information of the State of the Union, and recommend for their consideration such measures as he shall judge necessary and expedient.
Nothing in the Constitution or custom authorizes or requires a partisan response.
Commentary comes later-as well it should.
This notion of responding is one more media attempt at “being fair”, when fairness in this special case is actually an excuse to pander to the public at precisely the moment in history when the Constitution requires a report from only the Executive branch to Congress (and by extension, the public following the adoption of the First Amendment).
We citizens must and should support the First Amendment guarantee of a free press.
But the undermining (knowingly or unknowingly?) of the office (not of the occupant) of the presidency needs to stop.
Now it is the free press, or at least the electronic, inter alia, media’s turn, to support Article II, Section 3. In 1993, when a Democrat, Bill Clinton was president, then Governor of New Jersey, Christine Todd Whitman, a Republican, held the first open “audition” as a possible presidential candidate, following President Clinton’s State of the Union address. Governor Whitman even quipped that she "didn’t want equal time,” thereby suggesting she was entitled to any time and that the President had taken too long to address the Congress and the American people, thus helping to diminish the President’s message. [Note: the Democrats have likewise “auditioned’ when Republicans hold the Office]
Yet, nothing in the Constitution authorizes or requires the press to give equal time to a constitutionally mandated report by the Chief Executive. The Fairness Doctrine does not apply to this duty by the president. On the contrary, the Founders thought this report to be so fundamental to an open and free society, that they enumerated it among the specific presidential duties in the Constitution.
When the misplaced concept of “equal time” is invoked –as if this were just a continuation of the election process requiring an opposing point of view- we, as a nation damage the institution of democracy. Far more importantly, and more dangerous, we have made one part of the governance meaningless by stripping the Executive branch of its due respect-and by extension, its power.
By linking the State of the Union to sound bites and partisan response (the Framers could have easily written such a requirement into Section 3-but they did not), is to devalue the President; devalue the presidency; offend the separation of powers doctrine and bring unhealthy skepticism to the public.
This is entirely contrary to the constitutional mandate to hear from the incumbent and to hear from him or her as the single voice of the nation in that moment in time. There is more than ample time and opportunity to critique the Address; and more than equal time to hear from the critics. But we need to hear from them in a legitimate public forum, not at this precious moment of proffering our history, our destiny and our future.
What I fear is becoming irretrievably lost is the majesty and grandeur of the Constitution unfolding before our eyes, and the notion that our president, whoever he or she may be, is truly the leader of our nation, whether we like it or not. This encourages respect and faith in our government. It sets the tone for the coming year’s administration. It brings hope and renewal to our people, and it invites respect for and from the other two co-equal branches of government by their powerful but silent presence.
But when we ridicule the President’s message, or even offer alternatives made by the opposition contemporaneously, with the Address, we lose that accountability; that splendid moment when, we the people, have the absolute right to hear our president report to our Representatives and our Judiciary; not to the governor of a populous state; nor to a presidential wannabe; or telegenic politician: this isn’t “Hardball.”
Perhaps this assault on the last demonstrable frontier of representative democracy reflects the true state of our Union after all: government by Gallup poll. We can hope that this electronic media meddling will end and the office of the presidency can begin again to be shown proper respect by us all-including the present occupant- and regardless of who that may be in the future.
It is clearly past the time that we as attorneys, public policy framers, educators, need to convene a meeting with the media representatives to help them understand the constitutional mandate that they are inadvertently undermining in their mistaken belief that partisanship( under the pretext of “fairness”) is more important than preserving the institution of a constitutional form of government. They have framed the question wrongly: it is up to us to put it right. We as lawyers, are, after all, custodians of the law and, sworn to uphold the Constitution.
So, Where Are The Jobs?
AMERICANS WANT OBAMA TO SHOW THEM THE JOBS
56: Percentage Of Americans Who "Say Joblessness Is The Most Pressing Economic Issue Right Now."
(Paul Steinhauser, "CNN Poll: Jobs Number One Issue With Most Americans," CNN's "Political Ticker" Blog, 2/21/10)
52: Percentage Of Americans Who Say Obama Has Spent "Too Little Time On The Economy."
(Stephanie Condon, "Poll: Economy Brings Down Obama's Job Approval Rating, CBS News" "Political Hotsheet" Blog, 2/11/10)
51: Percentage Of Americans Who Disapprove Of Obama's Handing Of Creating Jobs.
("In 2010 Election Politics, Republicans Are In The Hunt," ABC News, 2/10/10)
Christie Moves To Privatize State Jobs
Facing state employee contracts entered into by the prior administration that include raises of between 7 percent and 11 percent for thousands of public employees in 2011, Governor Christie said he must do all that is necessary to blunt those poorly conceived and ill-timed contractual obligations that will now heavily burden budgets for Fiscal 2011 and Fiscal 2012.
“We are stuck with this problem, but that does not mean I am barred from finding a way to fix it,” said Governor Christie. “I don’t think you will find private sector employees anywhere enjoying the luxury of an 11 percent raise next year. It was a promise that the state cannot afford and should never have been made in the first place.”
The task force was created to examine areas where government services and functions can be provided by the private sector.
"Delivering programs and services to our citizens is government’s primary job, but I have asked the Task Force to look for places where we can do this in a more efficient, cost-effective way by having the private sector do it,” Governor Christie added. “This full review will allow the Lt. Governor and me to make carefully informed decisions on where and how to do this as we continue to responsibly manage state government. It will also make recommendations for how privatization could improve operations and reduce costs for municipalities, school districts and counties.”
The Task Force will be chaired by former Congressman Dick Zimmer and include Todd Caliguire, Kathleen Davis, John Galandak, and Dr. P. Kelly Hatfield.
According to Executive Order 17, the Task Force will serve without compensation and be dissolved after issuing its final report on May 31, 2010. The report will include specific recommendations for privatization initiatives for implementation by state government during the Fiscal Year beginning July 1, 2010.
Among other things, the Task Force will look at issues, including:
· Which government functions are or may be appropriate for privatization;·
Current legal and practical impediments to privatization; and;·
Ensure that scope and quality of services is not inappropriately diminished by privatization.
Wednesday, March 10, 2010
Reid's Attack On Chief Justice: Shameful!

It's come to this.
Cranky old Harry Reid has now weighed in on the continuing dustup between the Obama Administration, the Congress and the United States Supreme Court.
But before we get to Harry, let's talk about one of the few class acts left in Washington: Supreme Court Chief Justice John Roberts.
The Chief Justice said Tuesday that the scene at President Obama's January 28 State of the Union address was "very troubling" and the annual speech has "degenerated to a political pep rally."
You remember the State of the Union.
That's when Obama chided the court, with the justices seated before him in their black robes, for its decision on a campaign finance case.
Responding to a University of Alabama law student's question yesterday, Chief Justice Roberts said anyone was free to criticize the court, and some have an obligation to do so because of their positions but "there is the issue of the setting, the circumstances and the decorum."
"The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling."
Roberts told the students he wonders whether justices should attend the speeches.
"I'm not sure why we're there," said Roberts, a Republican nominee who joined the court in 2005.
Now, back to Reid.
It would have been nice if Roberts' was the last word on the subject.
After all, that is customary in such matters.
But that's not the way the Chicago-style White House and Reid/Pelosi Congress operate in the Age of Obama.
So, today Reid castigated Roberts as being out of touch and completely detached from political reality.
It was the typical Vegas-style sucker punch from Reid -- a man who doesn't trouble himself with facts or rational arguments.
"Do you think John Roberts knows or cares how people get elected?" he said, referring to the role the chief justice played in crafting the court's Citizens United decision.
Insisting that the court was engaged in "activism" for allowing corporations to spend unlimited amounts of money on congressional campaigns, Reid said that the time had come to stop appointing judges to the bench.
"I think we've had enough of them," he said. "I think what we need are people on that bench who have been legislators, people who are lawyers, people who are academics. You look at our Supreme Court and all these people, all they know is working with people in black robes. We have got to change that."
Roberts, out of touch?
What about Reid?
Who's Reid in touch with?
And what makes Reid think "academics" would be in touch with typical Americans?
Harry Reid has pretty much spent his whole life in Washington. His constituents in Nevada don't see him very much of him and, at the rate things are going, they don't care to see him. Reid's poll numbers at home are abysmal.
And Reid sure as hell isn't in touch with the American people. Just look at the way he rammed Obamacare through the Senate over the objections of ordinary Americans. And look at the way he continues to try to shove this massive government takeover down our throats even after Scott Brown's upset win in Massachusetts.
Harry Reid doesn't know what he's talking about.
He prattles on about putting lawyers on the Supreme Court bench. Well, every member of the court is a lawyer.
The truth is that President Obama's attack on the United States Supreme Court (in the presence of six justices) was presumptuous, beyond brazen and shockingly disrespectful.
But don't take my word for it. Listen to what professor Randy Barnett at Georgetown University Law Center said as quoted at Politico:
In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen?
To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked.
Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.
But we all know that no apology will be forthcoming.
Not from Obama.
Not from Reid.
Not from anybody who's in charge at the White House or on capitol hill.
No wonder Justice Clarence Thomas has stopped attending State of the Union addresses.
Next time around, damned few representatives of the high court may chose to be on hand to hear the president.
And who can blame them?
PA Judge Selections Rife With $$$, Influence
AJS reports that in 2008 and 2009, more than two-thirds of the civil cases decided by the Pennsylvania Supreme Court included a litigant, lawyer or law firm who previously had made a campaign contribution to at least one of the elected justices.
Commenting on the report, PMC Executive Director Lynn A. Marks said, “The high price-tag of judicial elections should worry Pennsylvanians. But what is of even greater concern is the source of this money. Judicial candidates receive donations from individuals, lawyers, businesses, unions and other entities that may later appear before them in court.”
In the 2009 Pennsylvania Supreme Court race, two candidates raised and spent almost $4.7 million. This was the most expensive judicial election nationwide for a single seat during this election cycle, and the most expensive ever in Pennsylvania.
AJS is a national nonprofit, nonpartisan organization working to improve the justice system. The organization’s study examined the 112 civil cases decided by the Court in 2008 and 2009 and determined the number of cases in which at least one of the litigants, attorneys, or law firms involved had previously made a contribution to the election campaign of at least one justice.* During the relevant period, six of the seven sitting justices had won their seats in contested elections; the seventh was appointed to fill an interim vacancy.
The degree of overlap between the list of contributors and the list of those appearing before the Court is eye-opening:
- In two-thirds of the cases (67%), at least one of the litigants, lawyers, or law firms had contributed to the election campaign of at least one justice.
- In nearly half of the cases (46%), a single litigant, lawyer, or law firm had contributed to at least four of the six elected justices’ election campaigns.
AJS further notes that its study “provides only a partial picture of the extent to which money in judicial campaigns has the potential to erode Pennsylvanians’ confidence in their courts. It does not track contributions from PACs other than attorney and law firm PACs.
Non-legal PACs, including political party PACs, provided nearly $2.9 million, or 36 percent, of the campaign dollars raised by the justices serving on the Pennsylvania Supreme Court in 2008 and 2009.”
The AJS study does not attempt to determine whether campaign contributors received more favorable rulings. PMC’s Marks explained, however, that “when one party to a case has contributed to a member of the Court deciding that case, it creates an appearance of influence that causes citizens to doubt the fairness of our judicial system.”
Indeed, the United States Supreme Court held in the 2008 Caperton v. Massey decision that in certain instances the mere appearance of impropriety is enough to violate the due process rights of litigants.
“Pennsylvanians must be confident that they will be afforded the opportunity to present their cases before impartial arbiters. But when judges have little choice except to raise money to campaign to reach the appellate bench, and the natural source for contributions is lawyers, law firms, and organizations with issues likely to reach the court, public confidence in our courts is diminished,” said Marks. “Without public faith in the fairness of the judiciary, the legitimacy of the courts is compromised.”
Legislation is currently pending in the Pennsylvania legislature to amend the constitution to implement Merit Selection for appellate court judges. “Merit Selection takes money out of the selection process and ensures that we select judges based on their qualifications and experience, not the size of campaign war chests,” concluded Marks.
Christie Again Vetoes Authority Actions
Continuing to take action on his long-term commitment to rein in wasteful and excessive spending in boards and authorities and throughout state government, Governor Christie vetoed two actions taken by the DRBA in the minutes of the authority’s February 16, 2010 meeting.
Governor Christie said, "The DRBA has not changed its process of approving open-ended and unspecified spending commitments. As I have stated when previously vetoing the DBRA’s actions and those of other state entities, New Jersey simply cannot afford blanket spending orders and ever-expanding budgets from these boards and authorities, now or ever. My Administration will continue to pay close attention when it concerns spending, contracts, and measures that continue to skirt accountability.”
The Governor’s veto concerns the Authority’s blanket authorization of expenditures to four vendors in unspecified amounts in excess of $25,000 for the period January 1, 2010 through December 31, 2010. Additionally, Governor Christie vetoed the Authority’s action regarding the authorization of a legal services contract that fails to specify any material terms of the contract – including the hourly rate of legal services, the term, or maximum annual compensation under the contract.
No veto power was exercised as to any other action taken by the Authority at its meeting on February 16, 2010.
Tuesday, March 9, 2010
Christie Saved SSS For Education
Gov. Chris Christie has been criticized for cutting spending to close this year’s massive state budget deficit. In truth, it was the only option he had.
If the governor had done nothing, the state would have run out of money before this current fiscal year is over. If the governor had raised taxes, people would have been hurt and an accelerated exodus of jobs and residents from New Jersey would have made our state’s financial problems worse. Cutting spending was the governor’s only option.
What pleases me, as New Jersey’s acting commissioner of education, is that Christie worked so hard to avoid reductions in state aid to New Jersey’s public schools.
Spending on education makes up well more than 40 percent of combined state and local spending in New Jersey — and there is no way you can close a massive state budget deficit without touching spending for education.
But the governor made deep cuts in all other areas of the state budget so he could keep aid to New Jersey’s school districts flowing to the maximum extent possible. As a result, the reduced state aid going to our school districts this year amounts to less than 2 percent of their total spending.
To ensure that this reduction of state aid to school districts didn’t force districts to lay off teachers or eliminate programs in the middle of a school year, the governor allowed me to withhold aid only where a school district had more than enough in its surplus and reserve accounts to offset an aid reduction. As a result, all of our school districts will be able to finish this year without any adverse consequences, and most still have remaining surpluses and reserves.
What about the new fiscal year — when the state faces an $11 billion budget deficit? Will state aid to school districts need to be slashed?
Not if the governor can help it. He has every single department of state government working to reduce its budget for the fiscal year ahead so that the state can close its budget deficit without a substantial decrease in total aid to school districts.
Keeping state aid flat from year to year may not be possible. The Corzine administration funded approximately 13 percent of this year’s state aid to school districts with a one-time revenue source — New Jersey’s federal stimulus dollars. We won’t have that money next year.
To keep total state aid to school districts at the same level next year as it was this year, we will need to take over $1 billion from other state programs at a time when the state is already facing a massive deficit. We are trying hard to accomplish this difficult objective — but it may not be possible.
The Corzine administration knew how strained the state’s finances would be in the fiscal year that begins this coming July and encouraged school districts to be prepared for the possibility of diminished aid. For some time now, districts across New Jersey have been preparing for the possibility of state aid being reduced by 5 percent, 10 percent or 15 percent. This is a prudent and responsible thing for districts to do, and that is why Christie and I have endorsed these actions. But it is the governor’s hope that total state aid to school districts will not have to be decreased drastically — that we will be able to find enough savings in other areas of the budget to be able to maintain it at a consistent level.
If we can at least get close to our goal, and if legislators and educators will support us as we work to provide school districts new ways to stretch their available resources to the fullest, our children will be the winners.
Monday, March 8, 2010
Inbred Party Bosses Pick Critz
Longtime John Murtha staffer Mark Critz on Monday won the Democratic Party’s nomination for a special election to finish out the late congressman’s term, as the party opted for a relatively untested candidate in a high-profile race, but one who knows the western Pennsylvania district in and out.
Details of the vote began to emerge Monday evening, after the state party’s executive committee had polled its members during the day. Multiple Democratic sources confirmed that Critz won 30 votes, compared to 18 for Barbara Hafer and one for Ryan Bucchianeri.
“For years I’ve been working hard to help bring jobs and economic development to our communities,” Critz said in a statement. “While I’m proud of what we’ve accomplished, more needs to be done so that we can get folks back to work and get our economy back on track. In Congress I’ll continue the fight to bring jobs and economic development to western Pennsylvania because nothing is more important right now.
“I’m honored to have the State Committee’s endorsement,” he added. “Today, I pledge to all western Pennsylvanians that I’ll work tirelessly to earn their support so that we can come together and get to work bringing jobs to our communities and getting our economy back on track.”
The vote came two days after local Democratic insiders in the 12th Congressional District gave their support to Critz in a non-binding vote. Hafer’s campaign had worked hard to paint him as unelectable, raising questions about past business associations and ethics inquiries. While those attacks served to alienate Hafer from Murtha loyalists on the ground, they also sparked serious concern about Critz’s electability, fears that surely remain in play. The other candidates have said they’ll remain in the May primary, which will be held on the same day as the special election.
Oscar Surprises And (For Some) Delights
OK, so I didn't watch the Oscars.I thought the evening would be the same old dreary, endless, liberal lovefest.
And since I put away my birkenstocks and love beads a long time ago, I figured I'd be hopelessly out of fashion anyway.
Well, as it turned out the ceremony was as long as usual and the two aging co-hosts were just as unfunny as most of the co-hosts who preceded them.
So, on that score I really didn't miss much.
But, I've seen enough clips and heard enough about last night's ceremony to know that there were some welcome surprises.
To begin with the evening was largely devoid of political statements and/or attacks on Republicans and conservatives. In fact, George Bush was never mentioned. "He's no long President," you say? Yes, I know. But that hasn't stopped the Hollywood crowd from continuing to attack him. Indeed, they still blame him for all of the nation's woes and then some.
But last night George Clooney & Co. stayed away from the political realm. Surprisingly, Clooney got most of his attention not by saying anything but simply by staring down the awkward co-hosts.
Also, it seems that most of the acceptance speeches were gracious and on-point. It made sense for Jeff Bridges (certified Hollywood royalty) to thank his parents. Ditto Mo'Nique and her homage to to the great Hattie McDaniel.
And then there was the evening's real stunner: The Hurt Locker as Best Picture of the Year.
Turns out that the picture's Best Director, Kathryn Bigelow actually thanked our fighting men and women not once, but twice. Now that really is a new development at the Oscars.
And the film itself appears to have absolutely no political agenda.
Of course, every party has a spoiler and in this case it was Barbra Streisand who seemed obviously ill at ease as Bigelow saluted the troops. Still, at least La Streisand stayed clear of political utterances.
And here's more good news: TV viewership for the Oscarfest was up for the first time in five years.
Does this all mean that Hollywood has finally grown up?
Nahhh . . . . don't bet on it.
It's more likely that most of the worst offenders: a) didn't win last night; b) weren't present; or c) were on their medication.
Sometimes ya just get lucky.
Hooray for Hollywood!