Monthly Archives: August 2018

John McCain 1936-2018

John McCain was a mercurial figure, a genuine hero with at least one foot of clay. He was on the whole a very right-wing figure in US politics for about 35 years, but he had very important flashes of independence on some issues, including critically the Affordable Care Act which he consistently voted against — until he (literally) single-handedly saved it from repeal. At times he said just the right thing (rebuking a voter who said Obama was a frightening figure, an Arab); at times he took the low road, or, let ambition rule him on the campaign trail — although he himself later repented for one such “act of cowardice” and others, like Mike Huckabee, were much worse.

It’s worth remembering also, as Juan Cole reminds us in That Time the Republican Party Made McCain Black to Defeat his Presidential Bid, that long before Trump, key establishment figures in the GOP were race-baiting away. Nixon started the ‘southern strategy’; Reagan and Bush followed him through the electoral trail blazed by Roger Ailes and Karl Rove. In the long view, Trump is a culmination not an aberration, and McCain, for all his faults, is not simply the road not taken but a road that racial politics and demographics foreclosed.

McCain’s life had many fine moments, and his passing is a time to celebrate those while noting that the flawed vessels (which we all are) can contain greatness. Heroism in captivity trumps terrible carelessness as an aviator, and fed a consistent opposition to torture. McCain was (usually) anti-racist; he and his wife adopted a child from Bangladesh, leading to Rovian suggestions that McCain had fathered a Black child.

McCain’s selection of Sarah Palin for his vice-presidential running mate was irresponsible (another case of ambition and, here, desperation, displacing statesmanship), and in the view of some caused long-term harm by emboldening the know-nothing wing of the Republican party (I don’t much agree, I see it more as reflection than cause, as that wing was taking over anyway). But McCain’s concession speech when he lost the election to Barack Obama in 2008 was more than civil: the speech was noble in a way that now seems to belong to another age, and in a sign of things to come was greeted with boos initially by its Republican audience:

My friends, we have come to the end of a long journey. The American people have spoken, and they have spoken clearly. A little while ago, I had the honor of calling Sen. Barack Obama — to congratulate him on being elected the next president of the country that we both love.

In a contest as long and difficult as this campaign has been, his success alone commands my respect for his ability and perseverance. But that he managed to do so by inspiring the hopes of so many millions of Americans, who had once wrongly believed that they had little at stake or little influence in the election of an American president, is something I deeply admire and commend him for achieving.

This is an historic election, and I recognize the special significance it has for African-Americans and for the special pride that must be theirs tonight.

I’ve always believed that America offers opportunities to all who have the industry and will to seize it. Sen. Obama believes that, too. But we both recognize that though we have come a long way from the old injustices that once stained our nation’s reputation and denied some Americans the full blessings of American citizenship, the memory of them still had the power to wound.

A century ago, President Theodore Roosevelt’s invitation of Booker T. Washington to visit — to dine at the White House — was taken as an outrage in many quarters. America today is a world away from the cruel and prideful bigotry of that time. There is no better evidence of this than the election of an African-American to the presidency of the United States. Let there be no reason now for any American to fail to cherish their citizenship in this, the greatest nation on Earth.

Sen. Obama has achieved a great thing for himself and for his country. I applaud him for it, and offer my sincere sympathy that his beloved grandmother did not live to see this day — though our faith assures us she is at rest in the presence of her Creator and so very proud of the good man she helped raise.

Sen. Obama and I have had and argued our differences, and he has prevailed. No doubt many of those differences remain. These are difficult times for our country, and I pledge to him tonight to do all in my power to help him lead us through the many challenges we face.

I urge all Americans who supported me to join me in not just congratulating him, but offering our next president our goodwill and earnest effort to find ways to come together, to find the necessary compromises, to bridge our differences and help restore our prosperity, defend our security in a dangerous world, and leave our children and grandchildren a stronger, better country than we inherited.

Whatever our differences, we are fellow Americans. And please believe me when I say no association has ever meant more to me than that.

It is natural tonight to feel some disappointment, but tomorrow we must move beyond it and work together to get our country moving again. …

Let’s remember that McCain today.

Posted in Politics | 1 Comment

Fauna Update: Hybrid Pythons

One of the, er, joys of living in South Florida is that some of the flora looks like it wants to eat you, and some of the fauna actually would be very happy to do so. Much of that fauna is indigenous — alligators, crocodiles, scorpions (non-fatal, I’m so relived), spiders, and a zillion other bugs, some of which carry Zika — but some like lionfish and pythons are imports, just like most of the people.

Turns out that the pythons — which get big enough to eat deer and alligators — are not just invaders, they’re hybridizing:

… a study from the U.S. Geological Survey (USGS) released Tuesday sheds light on why the reptiles have adapted so well to the River of Grass: Some are not full-bred Burmese pythons. Instead, the study suggests a portion of the snake invaders are a cross between the Burmese (Python bivittatus) and its close cousin, the Indian python (Python molurus).

That’s an important point, because Burmese pythons tend to prefer wetlands, while Indian pythons thrive on higher ground.

Sooo happy to learn that the new cross-breeds have “hybrid vigor” and are just as happy on dry land as in swamps.

And waiting in the wings: Meat-eating tegu lizards and invasive “super termites”.

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Plumbing the Entrails of the Cohen Plea Deal

One of the less-minor mysteries of yesterday’s twin courtroom bombshells was the absence of a formal plea deal between Cohen and the government.  Fortunately we have expert local lawyer David Oscar Markus to explain it to us:

The parties agreed that no variance arguments can be made, up or down. This is a BIG concession by Cohen’s lawyers and is sometimes seen in the SDNY when there is cooperation credit coming. Without the cooperation credit, it’s a terrible deal for Cohen. He’s basically pleading guilty to all of the offenses and not getting anything in return other than the 3 points. If he pleaded straight up, he would at least be able to argue for a sentence under the guidelines. Even with the potential of a cooperation deal, it seems very harsh.

That’s why it’s obvious that Cohen is cooperating, even though it’s not specifically mentioned in the plea agreement. Otherwise, the deal makes no sense. He said as much during his colloquy today and his lawyer, Lanny Davis, has been all over the news saying the same thing.

If he gets cooperation credit, the defense will be asking for a significant reduction below the guidelines — probably all the way to probation.

Okay.  Now I get it. Thank you.

Posted in Law: Criminal Law, The Scandals | 3 Comments

2018 August Ballot Recommendations: State Executive Offices (Democratic Primary)

There are three state executive offices on the Aug. 28, 2018 ballot: Governor, Attorney General, and Commissioner of Agriculture, and both Republicans and Democrats have primaries. People pay attention to the Gubernatorial race, but the others, especially the AG race, matter too. I’m a Democrat, so I’m only going to write about those races as I doubt I would have much credibility opining on the GOP primary anyway.

In most–but not all–cases my rule of thumb for elections that have primaries is that in the primary you vote your heart, and in the general election you vote your head (a process that also sometimes requires the very firm application of fingers to hold nose).  But not always. Sometimes you have to vote tactically.  Is this year’s Governor race one of those occasions?

Because I have the most to say about the Governor’s race, I’ll start with the others, so they don’t get left out.

Commissioner of Agriculture

The what? It’s actually an important job. The Ag Commissioner deals with consumer complaints, gun permits, gas pump and amusement park inspections and so on.  And it can be a stepping stone to better things too.

I like Roy David Walker He’s a genuine environmental scientist, and he’s also a advocate for the environment — he’s President of the South Florida Audubon Society, and sits on the Everglades Regional Conservation Committee.  He has a very unassuming and pleasant demeanor (plus he’s a 5th generation Floridian — how many white people can say that?) — that should work well on the stump; unlike the other candidates, he’s not a suit.  I’d be amazed if he beats the other candidates, the Mayor of Homestead and a local lawyer/lobbyist, but who knows.

Attorney General

State AG’s are really important.  Think of all the harm Pam Bondi has done.  We are fortunate to have a good candidate in the race — and also an even better one.  The good candidate is Ryan Torrens, who while ever so slightly nebbishy (not that there’s anything wrong with that except when you are trying to get people to vote for you) seems like he’d be a perfectly fine AG.  Then there is Sean Shaw, who deserves to be AG, would be a major force in state cabinet meetings (Florida has them, and they vote on some policies) and could be a rising star in the Democratic party.  I’ve seen them both speak.  Torrens is fine. Sean Shaw is TERRIFIC.  (He also has a nice campaign video.)

Governor

There are seven candidates on the ballot, and at least four, maybe five, of them are for real.

Andrew Gillum

Andrew Gillum, the Mayor of Tallahassee is the most inspiring candidate.  He’s also the most progressive.  If you want a Governor who’s whole-heartedly for expanding access to healthcare, for taking climate change seriously, and fixing the state educational system, to mention only some of the headline policies, Gillum is your guy.  Even the Miami Herald, which endorsed someone else, admitted that “Of all the candidates, [Gillum]’s the most razor-sharp about governance.”

There are however, two negatives to be aware of.  First, every poll suggests Gillum isn’t going to win.  Second, there is chatter about a lingering scandal emanating from the Tallahassee city administration.  The FBI is investigating.  Gillum says he’s been assured he’s not a target, but just by failing to exonerate him the FBI has severely damaged Gillum’s candidacy and opened the door to whisper campaigns that “it” will all come out once he is nominated.

If there were anyone else that I’d actually feel good about voting for in this primary, those two facts might be enough to get me to cast a tactical vote for another more likely candidate.  Whether that person exists I can’t quite decide.

Gwen Graham

Gwen Graham is to politics what MOR is to radio.  Graham advertises herself as “mom, PTA President, Congresswoman”.  Despite those accomplishments, she’s best known as former Governor Bob Graham’s daughter.  Because it’s fashionable, Graham now claims to be a ‘progressive’.  But she’s not.  During her one term in Congress, Graham voted against Obama administration policies more often than she voted for them. She was awful on Obamacare, trying to sell a bothsiderism ‘they’re both wrong’ approach to Obamacare and the GOP’s fake alternatives (in so doing she demonstrated either ignorance or duplicity, arguing against some aspects of the plan that were necessary for it to function).  In this campaign, Graham has talked about having a Republican running mate. Indeed, to many of her fans, that mushy middle-of-road instinct is a feature, not a bug: her fans think of her as “electable”.

To me, not only is Graham only vaguely a Democrat, but worse she’s not electable.  She’s boring, over-cautious, and shifty (or under-informed) on the issues. I look at her, or listen to her, and I see Alex Sink (lost 2010), Jim Davis (lost 2006), Bill McBride (lost 2002), Buddy MacKay (lost 1998).  None of those guys had any charisma (try googling for ‘Buddy Mackay charisma‘, it’s almost funny), and even Sink didn’t have enough–and Graham has far less spine than Sink did.   I don’t see Graham winning even if nominated, and I don’t see her making much impact even if elected.

Jeff Greene

Another billionaire who wants to be a leader in politics without paying dues.  Jeff Greene‘s claim to your vote is that he’ll spend what it takes to get elected. Given the lousy polls for Democrats in Florida, and the financial advantage that the Republicans will have with Rick Scott running for Senate, that’s something to consider.  So too, for better or maybe worse, are the misleading attack ads Greene has run against Graham and Levine.  I’ve seen Greene speak; he’s not so bad on the stump, with a near-rags-to-great-riches story, although there is plenty of fodder for folks who say he can’t run a campaign (or a government?). He sounds sincere about wanting to give every kid a chance at a good education.  His issues page online has some good progressive stuff on it. He claims to be for higher taxes on the wealthy and a higher minimum wage.

But. While Greene now says he’s anti-Trump, back when Greene was a Mar-a-Lago member he spoke very warmly about the new President.  There’s the complicated legal/financial baggage. Plus, Greene likes to sue newspapers for libel. On the good side, however, according to Wikipedia Greene signed the Giving Pledge in 2011, although the link to the source seems broken.

Philip Levine

On paper Philip Levine looks formidable. He’s the Mayor of Miami Beach. He has a somewhat plausible case as a progressive, much better than Graham’s anyway.  His track record as Mayor isn’t bad, and he’s certainly done what he could to hold back the rising waters and raise roads. Levine says good stuff about the environment, education, and he’s for marijuana legalization.

On the other hand, a remarkable number of people I know who know Levine (this is pure hearsay – I’ve never met him) say what a horrible person he is, even when they support his positions on the issues. It’s perhaps no accident that in 2015 Levine was in a scandal involving a PAC he helped set up that, as the Herald put it, “was accused of strong-arming city vendors, developers, large commercial property owners and other businesses into making sizable “donations” that helped elect a slate of three commission candidates who had reportedly pledged their support to Levine. The PAC did receive the approval of the city attorney, but many considered it borderline unethical.”

I guess after Gillum, Levine would be my second choice, on the “our sonofabitch” theory.  And he’s a multi-millionaire, so maybe some self-funding could happen.

Chris King &tc

Chris King seems to have the makings of a real candidate, but he got little traction in this crowded field. Which is more than I can say for the other two candidates, whoever they are.

Bottom Line

According to the polls, Graham is in the lead, with Levine either a little or more than a little behind. If you are voting your heart, it is Andrew Gillum all the way.  Voting your head, tactically,  would be a vote for Philip Levine, because if Graham wins then I think any Republican with a pulse will have a good shot. Fortunately (?) the GOP leader, DeSantis, not just has a pulse, he has Trump’s endorsement. That could backfire; but, in Florida, it also might not.

Posted in 2018 Election, Florida | Leave a comment

2018 August Ballot Recommendations: Judges

There’s an election on Aug. 28, and vote-by-mail-ballots dropped a week ago so it’s time for me to offer a voter guide. I’m starting with the judicial elections because those are the ones that get the least attention — but they matter. Plus a lot of folks ask me for them, and I’ve come to suspect that these judicial recommendations may be the most (only?) important thing I do on this blog these days.

Summary of recommendations

  • Circuit Court
    • Group 8: David Miller (line 131)
    • Group 14: Renee Gordon (line 133)
    • Group 25: Yery Marrero (line 135)
  • County Court
    • Group 2: Kristy Nunez (line 138)
    • Group 32: Lizzet Martinez (line 140)
    • Group 33: Olanike “Nike” Adebayo (line 142)
    • Group 40: Michael Barket (line 144) (!)
    • Group 43: Milena Abreu (line 146)

Unlike most law professors I know, I support the idea of judicial elections at the state level as a reasonable democratic check on what I believe should be the expansive power of judges to interpret the state and federal constitutions.

As I’ve said often before, if it were up to me, I’d have the executive branch pick judges with legislative confirmation, followed by a California-style retention election every few years in which there would be an up or down vote on the incumbent. If the vote was down, the executive would pick a new judge. It seems to me that the right question is “has this judge done a good (enough) job” — something voters might be able to figure out — rather than asking voters to try to guess from electoral statements which of two or more candidates might be the best judge.

Florida’s system uses appointment plus retention elections for Supreme Court Justices and District Court of Appeal Judges, but not for trial courts. The Governor can appoint judges to fill vacancies between elections, but otherwise those jobs are straight up elected, so this election pits one or more challengers against the incumbent unless, lacking opposition, the incumbent wins reelection automatically; some trial judges were indeed unopposed this year. There are also open seats when the incumbent retires.

My recommendations are based on:

  • My personal view that I will vote for an incumbent judge unless there’s reason to believe he/she is doing a bad job.
  • After supporting incumbents, my other rule of thumb in sizing up candidates before even getting to the details of biography and practice experience is that in all but the rarest cases of other important life experience we ought to require at least ten years of legal experience from our lawyers before even considering them as judges. Fifteen years is better. I will very rarely support a judicial candidate fewer than ten years out of law school. It just isn’t enough to get the experience and practical wisdom it takes to be a judge.
  • I look to see if the candidate filed a voluntary self-disclosure form with the state. I prefer candidates who take the trouble to fill out the form and give thoughtful replies. Normally I also look hard at the Dade County Bar Association Poll in which lawyers rate the candidates’ qualifications. The response rate is not that great on this poll, but I do think that if there’s a large majority one way or the other that tells me something. Unfortunately, this year the poll isn’t being released until tomorrow, and I’m already getting email from folks with mail-in ballots wanting my recommendations, so here they are. If something dramatic comes out of the poll, I’ll do an update.
  • If all else fails, I look at the Miami Herald’s view, although frankly I think the decision-makers there are so terrified of annoying establishment candidates that their endorsement only means something if they buck an incumbent. And when did that last happen?
  • And oh yes, I read local blogs and listen to gossip too.

There are three Circuit Court elections and five County Court elections in Miami-Dade. Both are trial courts, but the County Courts have a more limited jurisdiction, comprising Misdemeanors, small claims up to $5,000, civil disputes up to $15,000, and traffic court. Circuit Courts also hear some appeals from County Courts, while others go straight to the DCA’s, the District Courts of Appeal.

Here are my suggestions how to vote if you live in Miami-Dade County:

Circuit Judges

Group 8

The candidates are incumbent David C. Miller and challenger Elisabeth Espinosa, formerly an ASA and now a partner at Cole, Scott & Kissane, a big insurance-defense firm. Espinosa has only a decade’s experience as a lawyer. Judge Miller has a good rep at least for the past few years on the civil side (Justice Building blog complains of his “Maximum Miller” history when on the criminal side). Espinosa’s firm tried to get Miller recused on all their cases when she filed to run against him, which is dirty pool, and justly failed. It does raise the question to what extent her candidacy was a ploy to designed to get him off their cases–if true, surely a great recommendation for Judge Miller right there. The Miami Herald endorsed Miller too.

No-brainer: re-elect Judge David C. Miller (line 131).

Group 14
The three candidates are Vivianne del Rio, Renee Gordon, and Louis Martinez. I endorsed Renee Gordon the last time she ran, noting that she is is a “former Public Defender who has been litigating for 20+ years, of which twelve were in private practice. She also has a long resume of working with troubled children in various managerial and legal capacities. This is a great background for a Judge – in the trenches and there for a long time.” She almost won last time, and I’ll vote for her again. That said, both other candidates, Louis Martinez and Vivianne del Rio, sound like people who would make decent judges. Del Rio is an ASA, Martinez is a former AUSA. FWIW, the Herald endorses Gordon too

For experience and demonstrated compassion, vote Rene Gordon (line 133).

Group 25

Candidates are Yery Marrero and Joe Perkins. I don’t think I’ve ever met either one of them.

Yery Narrero (JD Loyola N.O.) has 29 years of trial experience as a lawyer, some of which he spent as a Traffic Court Magistrate, the rest in private practice. He lists his public service as: “Board Chair, St Stephen’s Episcopal Day School : involved in a capital campaign to enhance the growth of the school (2015-present); President, Homeowners Association; Board Member, Lambda Legal Defense and Education Fund; Youth Leader: St Stephens Episcopal Church”.

Joe Perkins has only 11 years experience since his JD from Boston University School of law. That’s on the low end of what I will accept but not disqualifying. He lists his pro bono service as “Children of Inmates–collect toys (every year) and hosted event in home (2015) to collect toys for children of inmates; various pro bono cases (routinely), including successfully resolving foreclosure litigation against a religious institution in an impoverished community. Miami Children’s Initiative (2051) — contributed manual labor to build playground in impoverished community National Black College Alliance (2007) – helped high school students prepare their college application essays. I volunteered with various immigration causes while in college and in law school.”

On paper, Marrero (line 135) wins hand down. Both the Herald and Justice Building Blog, who’ve actually met them, seem to agree.

County Court

Group 2

Candidates are Rosy Aponte and I was pretty negative then due to lack of experience and (contested) issues relating to a dismissed bar complaint. I haven’t heard anything new to make me more positive. Fortunately, Nunez, an ASA with 12 years experience looks a lot better. The Herald and Justice Building Blog agree.

Vote Kristy Nunez (line 138).

Group 32

Lizzet Martinez vs. Christopher “Chris” Pracitto. They both look very competent on paper. Pracitto has 23 years experience since graduating from U.M. Law in 1995, all of it as a trial attorney in the County Court, and he’s running on that experience. Martinez has 20 years experience in private practice herself, since graduating from Drake University Law School. She says she’s handled over 1100 family law cases in that time “most of which involved litigation.” Her self-disclosure form shows a very long list of pro-bono activities including: Board Member, American Children’s Orchestra for Peace; Youth Co-op; Introduction to Florida law for Newly Arrived Immigrants; Kristi House, Volunteer; pro bono Guardian ad Litem; Dade County Bar Assoc. Legal Line, and more.

Pracitto’s list of pro-bono activities in his 23 years of practice is blank. Yes, blank.

So I’m voting for Lizzet Martinez even if Pracitto is a UM grad. He sounds very competent, but Martinez offers two decades of service in addition to competence. The Herald endorsed Martinez. Justice Building Blog went for the guy who “knows his way around the courthouse.”

I’m voting for Lizzet Martinez (line 140).

Group 33

Olanike “Nike” Adebayo (JD UM) vs. Eleane Sosa-Bruzon (who didn’t file a disclosure statement). Adebayo has 20 years experience, including time as an ASA (rising to chief of litigation for the juvenile division), and has served as a bar association official, and on the Board of Legal Services of Greater Miami. She describes her practice as 75% criminal law and 25% civil (family and forfeitures). The Herald describes Eleane Sosa-Bruzon as partner in a private firm, who previously spent six years in the Broward Public Defender’s Office.

I am voting for Olanike “Nike” Adebayo (line 142).

Group 40

Here’s an easy rule: If there are two candidates in the race and one of them is Elena Ortega-Tauler then vote for the other one — in this case Michael Barket.

Elena Tauler had a troubled history of being sued repeatedly for debt between 1982 and 2007; worse yet, the Florida Supreme Court, after a contested hearing, suspended her for three years, see 775 So.2d 944 (Fl. 2000), citing misappropriation of client funds albeit with some mitigating circumstances. Yet here she is, running again for a judgeship. DON’T LET IT HAPPEN.

Barket has 20 years experience in family law, probate, and landlord/tenant. But more importantly: He’s not Elena Ortega-Tauler.

Vote Michael Barket (line 144)!

Group 43

Milena Abreu vs Miguel “Mike” Mirabal (no disclosure form). Abreau has 20 years experience including eight years as a traffic hearing officer since graduating from Loyola Law (New Orleans). She’s been involved in numerous local bar groups, and describes her pro bono history as “hav[ing] dedicated my professional career to the representation of indigent criminal defendants.”

I don’t know much about Mike Mirabal. The Herald says “Mirabal has been an attorney in Miami-Dade and in Spain for 14 years, specializing in international, family and immigration law,” then endorsed Abreu. I endorsed her when she ran in 2016, and am happy to do it again.

Vote Milena Abreu (line 146).

See also 2018 August Ballot Recommendations: State Executive Offices (Democratic Primary).

Posted in 2018 Election, Miami | 2 Comments

Denmark Strikes Back

This video making the rounds, of Danish pol Dan Jørgensen devastating a Fox airhead, is pretty good:

Alas it likely will never pierce the epistemic bubble of most of the viewers of the original dystopian fantasy.

Posted in The Media | Leave a comment