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July 23, 2009


Copyright 2009 by Jay B Gaskill. Contact: law@jaygaskill.com




Jay B Gaskill


We are now at the tipping point that I predicted a couple of weeks ago – Link - http://www.jaygaskill.com/HeathCareTrainWreck.htm .

No one should be surprised that the administration's plan is stalled: We have been presented with mutating plan with shaky, not-credible cost projections, unrealistic revenue plans and an-ill concealed threat to the working private health care delivery system. This complex and problematic proposal has conspired with a deep recession and catastrophic deficits to produce a rare opportunity for caution.

Of course the democratic proposal should wait until after the summer recess. The only thing we have to lose by this delay is our fiscal sanity.

In today's Rasmussen Poll, we learn that 53% of all Americans oppose the current government health plan. Link - http://www.rasmussenreports.com/public_content/business/healthcare/july_2009/53_now_oppose_congressional_health_care_reform .

And Governor Bobby Jindal (in today's Wall Street Journal) demonstrates how an alternative plan would work better. Link - http://online.wsj.com/article/SB10001424052970203946904574300482236378974.html

And so does my own analysis referenced above. Here are the bottom line(s):

  1. Cost containment in health care means more consumer-driven purchase decisions, not fewer.

  2. The preexisting condition coverage rejection, cherry picking insurance practices are the product of the employer-provided group coverage system. The solution is a state-federal-private partnership to create much larger risk pools to which various individuals, employers and government agencies could link for a cost.

  3. Not all problems in the health care sector, real or perceived, can or should be addressed quickly or comprehensively.

Mr. Obama's political situation drives a false sense of urgency, but sound policy counsels a patient incrementalism. Too much is at stake to allow a Utopian disaster, however disguised by clever rhetoric and slick accounting, to degrade the delivery system and quality of care now provided to 80% of Americans....


July 21, 2009


Copyright 2009 by Jay B Gaskill

As posted on “The Out-Lawyer's Blog” -- http://www.jaygaskill.com/blog1/

Author contact via email: law@jaygaskill.com


Harvard Professor Henry Louis Gates Jr. was arrested last week on a charge of disorderly conduct.

Piecing together the various accounts, I glean that this prominent African-American scholar had just returned from China (a fifteen hour air ordeal) and was dropped at his rented and alarmed Cambridge residence, accompanied to his front door by the limo driver.

CBS48 Hours first reported that Professor Gates had ”returned from a trip to China on Thursday with a driver, when he found his front door jammed. He went through the back door into the home — which he leases from Harvard — shut off an alarm and worked with the driver to get the door open. The driver left, and Gates was on the phone with the property's management company when police first arrived.”

“Cambridge police say they responded to the well-maintained two-story home near campus after a woman reported seeing 'two black males with backpacks on the porch,' with one 'wedging his shoulder into the door as if he was trying to force entry.'”

“By the time police arrived, Gates was already inside. Police say he refused to come outside to speak with an officer, who told him he was investigating a report of a break-in.”

The CNN account, omitting the reference to the alarm, reiterated the essential details:

“Charles Ogletree, a professor at Harvard Law School who is Gates' lawyer in this case, told CNN on Tuesday that Gates -- the director of Harvard's W. E. B. Du Bois Institute for African and African American Research -- had returned from China on Thursday to his Cambridge home and discovered his front door jammed.

He opened his back door with his key and tried unsuccessfully from inside his home to open the front door. Eventually, Gates and his driver forced the door open from the outside, Ogletree said.”

“According to his lawyer, Gates told the officer he lived there and showed him his Massachusetts driver's license and Harvard University identification card. The officer followed him into his house and said he had received a report of a possible break-in, the lawyer said.”

The police report indicated that “Gates initially refused to show the officer identification, but eventually produced a Harvard identification card, prompting Crowley to radio for the Harvard University Police. Gates followed the officer outside and continued to accuse him of racial bias, the report said. After Crowley warned the professor twice that he was becoming disorderly, the officer wrote he arrested Gates for 'loud and tumultuous behavior in a public space'."

Predictably the charges were dropped today.

I have no opinion about the allegations surrounding this unfortunate incident, but a personal experience comes to mind.....

Once upon a time, when I was a working public defender in Oakland, CA, I drove my family from the Bay Area to visit my parents in Idaho. On the way, I was ticketed for speeding by an Idaho constabulary two jurisdictions away from my destination. The practice back then was that out-of-state drivers were required to pay the tickets in cash within hours at the local police station. But after a short discussion, I was allowed to pay at the station in my destination town.

We rolled into the parental driveway at 2:30 AM, with sleeping kids, bags under eyes, luggage stowed in every spare cranny. So I took my mother's car at 3 AM to find the police station -- it had been relocated to a new building since my last visit. One wrong turn led me to an unlit dead end street near the railroad tracks. Immediately, a patrol car lit up in front of me and a siren blared. I backed up, assuming the officer was responding to a call.

My mistake. He was responding to me. Moments later, I was directed to exit the car in the glare of headlights and ordered to produce identification. This was at gunpoint. My first, sleep deranged thought was, “Where in the h.ll did Mom hide her vehicle registration?” It soon became clear that the officer was proceeding on the outrageous theory that I was a prowler. [Yes, I was unshaven, bedraggled and out of place, but no matter, I was innocent!]

When he asked for my ID, I angrily slammed my California Drivers' License down on the hood of the car.

Fortunately, during the ensuing conversation, we both calmed down. The gun was holstered and I was given amiable directions to the brand new police station. In the follow up conversation, I was allowed a rare glimpse of this officer's point of view. He was frightened. There were reports of recent burglaries in that area, and he was doing a slow prowl when he spotted my car at 3 AM. When he asked me to step out of the car, he couldn't see whether others were hiding in my vehicle nor whether I or they were carrying guns. [It's actually a big deal for a police officer to draw his weapon, and an even bigger deal to fire it. An overwhelming percentage of all police officers go through an entire career without ever firing their service pistols except at the range.]

The fourth amendment requires a warrant for a residential search, with all of the obvious hot pursuit and emergency exceptions. Over the years the 4th has been interpreted to loosely govern other police contacts like mine. Police are entitled to briefly detain and question suspects without a warrant, provided there is a reasonable suspicion of actionable wrongdoing. We citizens can then be required to produce ID and answer reasonable questions. Had I chosen to run or to physically resist the officer that night, he could have taken me into custody for resisting an officer in the performance of his duties. I have defended many of these cases over the years, winning some and losing others.

I was 'out of uniform' that night, still in my early 30's, wearing tee shirt and jeans, tired and unshaven. A white male like myself fit the appearance, attitude, time and place profile of a suspect. The officer was entitled to stop and question me and I was obligated to cooperate.


These two incidents, my own encounter with the law years before and Professor Gates' recent experience each represented the intersection of cultural bubbles.

We all live in our respective bubbles. In Professor Gate's bubble, he was a well known scholar living in a racist country...but respected in spite of his race. In the officer's bubble, he was acting on a credible citizen report, one that had to be handled “by the book.”

When we are confronted with an undignified situation, we all tend to become celebrities in our on minds. “How dare you!” we tend to think. My thoughts were exactly that on that long-ago Idaho summer night. But there is no celebrity exception when street crime is under investigation.

When a policeman aimed a loaded gun at me at a dark dead end road, I was on a first name basis with every judge in an urban California jurisdiction and several Idaho judges. I knew I had done nothing wrong. “How dare you!” I (foolishly thought). The perspective within the officer's bubble was temporarily invisible to me. But we finished the encounter on a first name basis, and I was the wiser for it.

The prosecutor's decision to drop all charges against the professor was the right one. Professor Gates' first reaction to his arrest was totally understandable, but the charges of police department racism may or may not be borne out. As today's Wall Street Journal reported, a second officer at the scene heard the professor yell:”This is what happens to black men in America!” I believe that is an accurate assessment. Many are stopped, few are charged.... And I will add, very, very few police departments are corrupted by racism.


July 16, 2009

Sotomayer and the Firefighters

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Back in the day when I was the head of the University of Idaho young democrats, I pressed hard for the Civil Rights Bill. Our members were instrumental in a major letter writing campaign that was the decisive factor in getting a key Republican Idaho Senator off the fence on the crucial cloture vote.  As history records it, once the southern democrat filibuster was overcome, the measure passed with overwhelming republican support.  Hubert Humphrey assured everyone at the time – in complete sincerity – that this landmark legislation was not intended to usher in reverse discrimination, just a level playing field. 


Years later, when I was the head of the Alameda County Public Defender’s office (the second oldest in the world, having been started at the urging of then head DA, Earl Warren in 1927), I actively recruited African American lawyers, with excellent success and I made no concessions to quality.  We hired the best.  Period.  Reverse discrimination cheapens the earned accomplishments of highly qualified minorities, by forever tainting them with the “lower quality, but a minority favorite” label.  I didn’t like it then, even less now.


You can imagine my dismay when the current nominee ruled against a racially neutral promotion examination without a shred of evidence that there was any actual improper discrimination, solely it seems because the outcome was not “as good” as she might have expected. And you can imagine my satisfaction when the Supreme Court reversed Ms. Sotomayer, with the key vote of retiring Justice David Souter.  Surely, I thought, the days of reverse/remedial discrimination (read political promotions and hiring) are over.  Not so, apparently, if (as expected) the US Senate confirms President Obama’s Sotomayer nomination.


She seems to be an intelligent, serious jurist, one who meets the MQ for an appointment to the High Court, if formal qualifications were the sole test.  But I simply would not be able to vote for confirmation, as a matter of principle, unless and until I became convinced that she would not undo the Supreme Court’s New Haven promotion decision. 



July 07, 2009

Addiction and Liberalism

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In its most benign form, the liberal ethos enlists the power of government to make life better for those members of society who are struggling to make ends meet.  These are the paleo-liberals and the group now includes most conservatives.  Note the limitation here -- ‘struggling to make ends meet’ and ‘make life better’, not make our individual situations ‘perfect’ or ‘equal’.  This form of liberalism was grounded in the biblical reality that ‘we’ll always have the poor among us’ and in the social reality that ‘we are equal in dignity, but not ability’.


The slogan of Carl Marx, ‘from each according to his ability, to each according to his need’ was a formula for a temporary alliance of revolutionary cohorts during a period of oppression and struggle. It was not a valid prescription for a working social order any more than ‘take some time off’ is an effective prescription for a compound fracture of the tibia. 


When involuntarily administered by the state, Marxism became a clumsy parody of social policy, denying workers and capitalists alike legitimate payment for the fruits of their contributions to the economy and leading to economic paralysis.  A soviet factory worker captured the spirit of that system’s inevitable decline in her lament that ‘We pretend to work and they pretend to pay us’.


Addictive liberalism is addicted to the endless utopian quest for social and economic equality, and to debt-creation without payback as the magical path to that Holy Grail. 


Every family that has suffered through life with a son, daughter or spouse who is in the grip of drug or alcohol addiction knows the signs: denial, dysfunction, character disintegration, mendacity, and a downward life path.  These are the universal side effects of addiction to our social demons.  


Denial comes in many forms:  ‘It’s not my fault, or ‘I’m not really addicted’ or ‘it’s not that bad,’ or ‘with a little maintenance, I’ll be OK.’ 


And the variants of mendacity are as prolix as they are transparent and pathetic: ‘I’ll clean up and get a job tomorrow’ or ‘I did NOT take any of that sh.t!’ or ‘I promise to pay you back....’ 


The specter of an addicted political order headed to the bottom is on front stage at the moment, like some spectacular multi-vehicle freeway crash caught in stop-motion. The California fiscal morass and legislative paralysis is the US in 2014.    


The post-modern, boomer version of Marx’s slogan has degraded to this:  From each according to her whim, to each according to her greed.


There is a growing division among modern liberals.  The primary fracture point is revealed when the attractive persona of this administration’s leader is separated from the long term consequences of his unfolding agenda.  “Yes we can!” doesn’t seem to relate to paying the bills or curing the malignent debt problem. Frankly, “Yes we can!” is beginning to sound more like “I’ll clean up and get a job tomorrow.” 




Here is a simple liberal-addition detector examination.  To conduct it effectively, you need to be among those of us (liberals and conservatives alike) who have broken the addiction to utopian idealism and the magical thinking that there really are free lunches...just around the corner. 


It helps in administering this simple test if you have live in close proximity to the gritty subculture of substance addiction.   The real world has a lot to teach us. 


Talk your liberal friend about the recovery process from severe drug or alcohol addiction.  If you draw a blank or get some hand-wringing bromides about ‘giving those addicts a maintenance dose’ or that ‘it’s not a crime problem, it’s an illness’ or that ‘love solves everything’, you probably have a live one.  But if your friend actually understands that an arrest by police can be a life-saving moment, then there is real hope for addressing the six trillion dollar deficit issue...before its too late to recover.


Good luck with this.  The tough, realistic, conservative/centrist subset among American liberals has never been smaller than at the present moment. 



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