Archive for May, 2011

The Speech

There have been and will be a lot of pixels spilled over Obama’s Middle East Address yesterday at the State Department.  Still, in all the discussion of whether or not the speech marked a change in US policy towards Israel (it did), I think it amounts to Obama going in and kicking over a sand castle because it’s not perfect yet, and because it was largely built by someone he doesn’t particularly like – Benjamin Netanyahu.

Yossi Klein Halevi – a lefty, but a pragmatic one – wrote a column for the Wall Street Journal about Netanyahu’s achievement in consolidating a political consensus in Israel on how to deal with the Palestinians:

Israeli Prime Minister Benjamin Netanyahu delivered a remarkable speech to the Knesset on Monday outlining future Israeli concessions to a Palestinian state. In doing so, he essentially ended the ideological debate within mainstream Israeli politics over the so-called two-state solution.

Mr. Netanyahu’s historic achievement has been to position his Likud Party within the centrist majority that seeks to end the occupation of the Palestinians but is wary of the security consequences. There is no longer any major Israeli party that rejects a West Bank withdrawal on ideological grounds. Instead, the debate is now focused where most Israelis want it to be: on how to ensure that a Palestinian state won’t pose an existential threat to their country.

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A Tale of Two Trains

Funny thing about trains.  They work well for people over short distances when the densities are high enough, but are terrible over long, wide-open spaces.  They work well for freight over long distances, but lose those efficiencies over short distances.

In the first instance, Amtrak, with record ridership, is losing more money than ever.  The northeast corridor is making money, but the long-haul trains through the sparsely populated Not Northeast gives it all back, and more.  Amtrak’s argument for keeping routes like the California Zephyr is that they provide a service to people who have no other means of transportation.  It’s exactly the same argument that led the ICC to require the Western Pacific to keep running this line even though they were hemmorhaging money.

How many people?  Well, let’s take the segment that I often use, the part between Denver and Omaha.  Now, people in Lincoln can drive to the Omaha airport.  If we add up all the alightings and boardings between Lincoln and Denver for 2010, not including Lincoln and Denver, we get 13,295 people.  That’s 13,295 people boarding and leaving the train at those four stations, for the whole year.  About 36 people a day.  Part of this is the time of night, but why do you think this part of the trip is overnight?

I love taking the train rather than flying.  I like that it’s overnight, that it’s less hurried, that I can get up a little early or stay up a little late and work, and that I don’t have to subject myself to a cavity exam.  But let’s not pretend this is an economical way to travel out here.

Freight is another matter.  Ever since the ICC went away, rail freight as a percentage of total freight has been rising.  In part, that’s because the lines have been able to invest a little in their operations, rather than being told that any profit is too much and being treated like utilities.   And in the last year, intermodal traffic – a combination of rail and truck – grew 9% year-over-year, even as total rail traffic increased only 0.5%.

Steven Hayward has an interesting post about rail efficiency, and the fuel efficiency of engines:

In fact, the energy intensity of locomotives has improved substantially, with BTUs per freight mile falling by 65 percent since 1960. In other words, although total freight-rail miles have tripled since 1960, total railroad fuel consumption has remained about flat. If railroad locomotives had made no efficiency improvements since 1960, we’d have needed 9.2 billion gallons of fuel in 2009 instead of the 3.1 billion gallons actually consumed.

Passenger trains may have cafe cars, but freight trains have no CAFE standards of which I am aware.


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Justice Kagan, You Got Some Splainin’ To Do

As we know, Elena Kagan was the Obama Administration’s Solicitor General at the time that Obamacare was being drafted, and its legal defenses were being constructed.  As a result, some Republicans have called on Justice Kagan to recuse herself from cases involving Obamacare when they come before the Court.


Now this, from the Daily Caller:

Newly released documents reveal Supreme Court Justice Elena Kagan was more involved with President Obama’s health-care law than she disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.

In an email dated Jan. 8, 2010, then-Deputy Solicitor General Neal Katyal sent an email to Senior Counsel Brian Hauck and Deputy Attorney General Thomas Perrelli that indicates Kagan played a key role in coming up with a legal defense.

“Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues … we will bring Elena as needed.”

In an email on March 21, 2010, Katyal urged Kagan to attend a health-care litigation meeting on defending the law. “I think you should go, no?” wrote Katyal. “I will, regardless, but feel like this is litigation of singular importance.”

This isn’t open-and-shut, of course.  The first email says that Elena wanted OSG, not herself, to be involved.  But Katyal’s response isn’t to name the deputy that Kagan wants to go in her stead, it’s to name Kagan herself.

Later, indeed 10 weeks later, Katyal is telling Kagan he thinks she should be at another meeting to craft legal strategy.  There are two ways to read this.  The first is that 10 weeks later, it’s not clear to Katyal that Kagan – his boss – wants nothing to do with this bill.  The other is that the tenor of the email is slightly pleading, making the case for the importance of the legislation.  Would Katyal need to do that if Kagan had been involved before, or perhaps the SG was busy enough that, like all subordinates, is struggling to get on his boss’s calendar.

Either way, the House Judiciary Committee should immediately subpeona any and all OSG emails concerning Obamacare, and get a court order barring the OSG or Main Justice from destroying any of them.

I’ve always personally felt that this was a matter of the appearance of impropriety as much as anything else.   While I really couldn’t imagine any Solicitor General being cut out of discussions on any administration’s signature pieces of legislation, in the absence of an actual paper trail, we’d have to take Kagan’s word for it that even if her office was involved, she was kept out of the loop.

In fact, in an article I saw several months ago (I can’t find it online now, but I’m pretty sure it was the Washington Post), a major media outlet reported that careful steps were taken to keep Kagan out of the loop on Obamacare, even before she was nominated for the Court, indeed, even before she was being discussed as a nominee.  This can only be because all parties concerned knew what was going to happen.  And indeed, at the time, Republican senators did raise the issue:

Two challenges have been levied at the law by attorneys general in Florida and Virginia. Kagan has said she would recuse herself if she had participated in reviewing a draft of a position on the law or had participated in discussions to formulate the government’s position on the legislation.

Then there’s this exchange, from Kagan’s confirmation hearings.  Most of the interrogation on the health care matter looked at Kagan’s opinions on the Commerce Clause.  But right at the end, this:

COBURN: Thank you. And my — I have two final questions. One, was there at any time — and I’m not asking what you expressed or anything else — was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?

KAGAN: There was not.

That contention now appears to be seriously in doubt.

The Democrats have also engaged in a strategy not so much to politicize the Court as to recognize that the Court’s legitimacy is as much political as it is legal.  The left has, for some time, been launching frankly pathetic attacks on the right of Justices Thomas and Scalia to hear the Obamacare cases, mostly centered on the fact that Thomas and his wife hold opinions.  But if they can muddy the waters enough, they can get one of two acceptable outcomes: either both Kagan and Thomas recuse themselves, or neither does.  It’s sort of the legal version of the hockey tactic of bringing in your enforcer to start a fight with the other team’s star, in hopes that they both get thrown out.  That this sort of warfare will ultimately degrade the Court is of little consequence to those on the left, seeking a pre-determined outcome.

I’d very much want to reserve judgment on Kagan herself until we see the rest of the emails, both the ones that Daily Caller has, and the ones that they should have, but don’t.  At the moment, however, Kagan should, without doubt, recuse herself.

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The 49th Parallel

How many states can be 49th?  Let us count the ways.

A few years ago, my friend Ben DeGrow noticed that whenever the subject of budget restraint touched on public education, the state teachers union would immediately make one of two claims: either the state was 49th in school spending, or would be after the change was made.

You’ll notice that I declined to name the state in question just now.  That’s because this claim was being made, simultaneously, all over the country by various Education Associations.  Apparently, we are all 49th now.

Nebraska, welcome to the club:

Two of the state’s largest public employee unions gave a hearty thumbs down Monday to a new proposal generated by state business groups to reform the state’s much criticized labor court, the Commission of Industrial Relations.

Officials who represent state K-12 teachers and state employees said the new plan would “eviscerate” collective bargaining and force down public employees’ wages as much as 15 percent.

Karen Kilgarin, a spokeswoman for the Nebraska State Education Association, said the plan would put Nebraska at 49th in the nation in teachers’ salaries.

First of all, there’s the obvious question of who’s 50th.  I mean, if you’re the least bit skeptical about this claim, you’d think that would be the first thing you’d ask, if only so that you could have a good laugh at their expense when you were filing your story.

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A Test For Governor Daniels

In a decision guaranteed to bring outraged barons all over America to the defense of their castles, the Indiana Supreme Court has ruled, in the course of one week, that 1) you don’t have the right to block a policeman from entering your home without a warrant, and 2) they don’t need to knock to serve the warrant.  (Moat, Mr. President?  Did someone say, “moat?”)

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge’s permission to enter without knocking.

This is what happens when you peel legal education free from Blackstone, Maine, Marshall, and Story.  I’m not even an attorney, but I’ve been to Runnymede and seen the Magna Carta monument there, and I can tell you that it’s going to take some Olympic-worthy mental gymnastics to turn overturning 800 years of English Common law precedent into solemn respect for stare decisis.

Now, we all remember when President Obama decided to use the State of the Union Address not only to berate the Supreme Court justices in attendance over the Citizens United ruling, but to encourage the Democrat members of Congress to rise in thunderous applause, surrounding those justices with their own reprimand.

This case should provide an opportunity for a prospective President Mitch Daniels to find a statesmanlike way to rectify this situation without sending out the landed gentry to hold their swords to the Indiana justices’ necks.

He does have some options.

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Redistricting East

The Omaha World-Herald this morning reports on Nebraska’s redistricting debate, mostly centering around the Omaha district, the only one that could possibly elect a Democrat Congressman:

State Sen. Scott Lautenbaugh, the main architect of the GOP map, denied that politics played a role, saying he never looked at voter registration numbers. He said his main focus was on keeping the major cities of Sarpy County whole.

His map does that.

State Sen. Heath Mello, a Democrat from South Omaha, said his map tried to maintain as much of the current district as possible. He also said he believes eastern Sarpy County — with its urban feel — has more in common with Omaha.

Mello also denied that he took voter registration numbers into consideration when he drew the map.

“My plan is trying to keep the district looking the same as it is,” Mello said.

The debate is taking place almost entirely in the context of keeping communities of interest whole and similar to the rest of the district they’ll be a part of.  I can even believe that neither senator (welcome to Nebraska’s unicam, where all legislators are senators) looked at the registration numbers, but only because they didn’t have to.  Any politician assigned the task would know which parts of which counties are home ground and which are hostile territory.

The debate on the Democrat side the other night took place almost entirely in terms of “competitiveness,” which as Sen. Lundberg pointed out, really does mean gerrymandering.  The Republicans eventually forced the Democrats to at least acknowledge the presence of other considerations, like communities of interest (or community of interests, if you’re Sen. Carroll), but that was after the Dems had decided to commit legicide on their own bill.

Nebraska is different in that it’s more heavily tilted to one party, and the population centers are fewer in number.  Nevertheless, the Dems would love to find a way to capture CD-2 if they could, and Nebraska’s electoral votes are also based on how congressional districts vote, so it’s not as though nobody cares.

Redistricting, to adapt a phrase from Milton Friedman, is everywhere, at all times, a partisan process.  But there’s no reason that the parties can’t at least deal with how the districts will affect policy, rather than just elections.

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The Euro-Federal Crisis

The European Union is going through its federal-state crisis, forced into the debate on federal vs. national power by circumstance rather than by choice, just as we were 224 years ago.  There are significant differences, to be sure, and we’ll get to those.  But what it happening now is a result of similar tensions to our own, and it’ll be very interesting to see how the Europeans resolve them.

Since the Greeks threatened to do to contemporary Germans what they did to WWII Italians – swallow up large swatches of resources in the order to stay pacified – the question of just how far the rest of Europe in general, and Germany in particular, would allow themselves to be dragooned into backstopping the finances of the EU’s weak sows, Portugal, Italy, Ireland, Greece, and Spain.

Now, the Arab Spring is forcing Europe, through Denmark, to confront the issue of border control in a way that it has not in the past.

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Democrats Debate for Republicans

This should be interesting.

Tomorrow evening, May 11, from 7:00 – 8:30, at Denver West High School, Mayoral runoff candidates Chris Romer and Michael Hancock will square off in a debate sponsored by Denver County Republicans.

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Even though Republicans constitute about 1/6 of Denver’s registered voters, Democrats in the nominally non-partisan races tend to ignore them. Not this year. With such a close race, and with neither candidate having a clear, obvious appeal to Republicans, neither candidate can afford to take any votes for granted.  Thus, this debate.  Chuck Plunkett of the Denver Post will MC the event, and KHOW’s Caplis and Silverman will moderate.  The Denver GOP has solicited questions from the public.

The major concerns will surely be about the city budget deficit, taxes, and how the city can encourage job creation and businesses to relocate to Denver.  Given Hancock’s involvement in the Montbello school reforms, and Romer’s State Senate activity on the medical marijuana issue, those may also come into play.

What is particularly interesting is that these are both liberal Democrats, yet they’ll be subjected to an evening of questions from the Republican & small-l libertarian points of view.  They’re likely not used to getting that on a sustained basis, and while they can’t afford to pander (especially given that plenty of non-Republicans will be watching and hearing quotes from the debate), neither can they afford to be seen blowing off a significant opposing world view.

No doubt each will start off by acknowledging their differences with the crowd, but hoping to show that he’s open-minded, willing to listen, etc.  How they frame those positions, and whether or not either shows frustration with questions that routinely challenge his political philosophy will be fascinating to see.

The debate is free and open to the public, and should be very informative.

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So this is what Spring in the midwest is like.

Or rather, was like.

When I flew back in after Passover, two weeks ago, almost all of the trees were still leafless, although a few of the shrubs has started to wake up a little bit.  Then – whooomph! – inside of 10 days, everything went green, all at once. The trees had leaves, and most of them had full heads of hair, not little bits and pieces of foliage peeking through.  The magnolias, dogwood, plums, crabapples, all bloomed.  The lilacs were out.  It was still coolish driving into work, and while it was a little hot for the 5-mile Shabbat walk along the Big Papio Trail, overall, still pleasant.

Sunday night, Summer showed up.  When I drove into work at 8:30, someone had forgotten to turn off the burner, and it was humid enough that I was almost to turn on the car, lest the air intake get flooded.  Today: 97.  I know, I know.  I was also the one complaining that it took 2 weeks for the temperature to break freezing when I moved out here four months ago.  No pleasing some people.

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Yom HaAtzmaut

So today is Yom HaAtzmaut, Israel Independence Day. And 2011 is also the 50th anniversary of what is, to the best of my knowledge, the only Zionist Broadway musical, “Milk and Honey.”

As a kid, we had a copy of the LP in the house, and I’m pretty sure I ruined the record by playing it so much. I do know that the skip in “That Was Yesterday,” the up-beat First Act-ender was why I learned to put a penny on the tonearm. Later, in college, when I found another copy of the LP, I listened to the song again for the first time in what must have been 5 years, and found the absence of the skip jarring. Not jarring enough to try to reproduce it, but enough that even now it still doesn’t sound right without it.

DRG re-released the cast album a few years ago, and if you don’t mind actually hearing the actors move left-to-right on the stage through the magic of stereo, it’s still a great score. So much so that Musicals Tonight is reviving it this fall, starting almost exactly on the 50th anniversary of the show’s debut.

The story is that Gerard Oestreicher sent piano-player Herman and Don Appell on a field trip to Israel to help with the creative juices. For the record, it was also Oestreicher’s first show. Herman came back with a head full of ideas and a desire to avoid turning the show into Hagana-Doodle-Dandy. The result is phenomenal.

It was Jerry Herman’s first musical, but it ran over a year, 543 performances, and at least part of the reason you’ve never heard of it is that it was technically part of thre 1962 Tony Season, which means it was up against a couple of solid performers: “Camelot” and “A Funny Thing Happened on the Way to the Forum.” (When Herman got the Kennedy Center Honors last fall, the awards production barely quoted M&H, spending what sounded like 75% of the time on “La Cage Aux Folles,” a warning about the fickleness of politics and entertainment.)

He had help. Albert Marre, who had done “Kismet” and would do “Man of La Mancha,” staged it. Donald Saddler who had “Call Me Madam” and “Wonderful Town” under his belt, choreographed it. But still, the words and music were by a guy with a Dolly and a Mame in his future.

Now, it’s one thing to do a show called, “Oklahoma,” and expect that your audience knows something about state fairs, horses, and surreys. But in 1961, even for New York Jews, Israel was an exotic place, something Jews had but not really someplace that too many of them identified with very closely. The audience would see Israelis through the eyes of Americans, in this case, a tour group of Jewish widows looking for husbands in what they hoped would be a target-rich environment. (“Our purpose here in Israel is to form a marriage between the two cultures: male and female.”)

I’ve never actually seen the play staged, so I can’t say much about the book, but the lyrics and music are Herman at his best, even as they’re Herman at his first. The opening song, “Shalom,” ends with this gem:

It means a million lovely things
Like “peace be yours,” “welcome home.”
And even when you say goodbye
If your voice has “I don’t want to go,” in it
Say goodbye with a little hello in it,
And say goodbye with Shalom.

That’s not a simple rhyme structure, but the ear follows it easily, and of course, there’s a little dramatic foreshadowing there, as well.

The title song captures all of the raw, naked audacity of trying to build a country where pretty much every force of man and nature is arrayed against you, and your major resources are the internal ones. The fact that the place was a desert surrounded by enemies wasn’t lost on Herman during his trip, and he enlisted an Israeli comedian to interrupt the title piece with a reminder that paradise it wasn’t:

The honey’s kind of bitter
And the milk’s a little sour.
Do you know the pebble
Is the state’s official flower?

Given what Jews had pretty recently come from in Europe, it’s enough to get you thinking of leeks and onions. Herman immediately redeems it with this ending:

What if the earth is dry and barren?
What if the morning sun is mean to us?
For this is a state of mind we live in,
We want it green and so it’s green to us.

For when you have wanted for plans for tomorrow
Somehow even today looks fine.
What if it’s rock and dust and sand
This lovely land is mine.

“If you will it, it is no dream,” indeed. But even here Herman’s touch is evident. Eddit Fisher liked it so much he released it as a single, but without the Sabra counterpoint, it’s just another in a string of milquetoast vocals that non-rock pop by anyone not named Sinatra was producing back then.

So yeah, the musical is Zionist after a fashion, but this is Broadway, so the real plot driver is love and the search for it. Herman was practially a kid when he wrote this, under 30. But the lead love interest is between an older couple (for the time), he 58, she 37. When I was 28, there’s no way on God’s dry and barren earth I could have understood what it was like to be single at almost 60. Herman has the characters witness a young couple’s wedding and gives us this:

Let’s not waste a moment, let’s not lose a day
There’s a short forever, not too far away

We don’t need to hear the clock remind us
That there’s more than half of life behind us.

Nowadays, 37 qualifies as barely post-adolescent, but back in the day, even widows of that age were facing a lifetime of wanting rather than having. It was 1961, somewhere between the first and second seasons of “Mad Men,” remember. The 60s hadn’t happened yet and nobody knew they were just around the corner. These two meet 10 years from then, and it won’t be that short forever keeping him young.

The show also featured that star of Yiddish screen and stage, Molly Picon, leading the tour, and her two numbers are the comic relief, as you’d expect. “Chin Up,” comes when the women discover that all the kibbutznik men are married. (The barely-audible little whimper of disappointment is a great touch that audiences probably wouldn’t have heard.) And her “Hymn to Hymie” is a soliloquym, a paean to married domesticity, asking herself for permission to remarry.

Given the turnabout in the culture of the last 50 years, I’m not sure either song could actually get staged these days without howls of protest from the professional feminist class. If they did get staged, they’d probably do some gender-bending role-reversal that would be hailed as a breakthrough of some kind, which the composer of “La Cage Aux Folles” would probably think was a little overstated.

Herman’s sheer versatility keeps you from getting bored. “Shalom” is a waltz. “Let’s Not Waste A Moment” is a duet/ballad. “Chin Up” is a march. “Hymn to Hymie” is a tango, for cryin’ out loud. “The Wedding” is part cantorial, part dance.

And now, since it’s Yom HaAtzmaut, I’ll just leave with these segments from the “Independence Day Hora,” and “Shalom.”

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