The Value of Team

Loyal readers know that I am a long-time fan of the San Francisco Giants. I’m hard pressed to identify why precisely I have been190px-San_Francisco_Giants_Logo.svg following the Giants since the days of Mays and McCovey, Marichal and Cepeda, but I have. They are my team and with the events of last night – if you missed it a 3-2 Game 7 win in the World Series – I may just make it through the winter.

There was much to like about the just completed World Series: two wild card teams playing for the big rings, a team in the Kansas City Royals who electrified their town and region and came darn close to a championship, two old school managers, some great pitching and some marvelous defense. While I’m glad my squad won, I love baseball and it was a good series to remind us again why we love the great game.

I’ve been following this Giants bunch even more closely than normal this year. The MLB app for your iPhone lets you listen to the radio broadcast of any game and I have been through all the ups and many downs of this Giants’ season, as broadcaster Jon Miller would say, “on the radio…”

My comments about the Giants are based on watching – or listening – to the evolution of a team that, let’s be honest, had little right to expect to win it all – again. Like all teams the Giants had injuries, tough breaks and a monumental losing stretch in mid-season that might have doomed many other teams. Some how this team kept scratching and winning.

World Series - Kansas City Royals v San Francisco Giants - Game FiveI have absolutely nothing original to say about Madison Bumgarner’s historic pitching performance in Game 7 and I’ll leave it to others to proclaim the franchise located South of Market as “a dynasty.” My thoughts on this first day until pitchers and catchers report turn to that one word: team.

In a game that seems fixated most of the time on individual performance: earned run averages, batting averages, on base percentages and some of the new metrics I can’t explain to my wife, I love that the new World Champions really seem like a team in a game that often celebrates the individual.

Taking nothing from the World Series MVP, who will be mentioned all his days for his 2014 Series performance, I revel in the small things that teams do that make for success. A young second baseman who few had heard of in August turns a spectacular double play at a pivotal moment. A defensive left fielder not hitting much above his weight makes a key catch. A wacky journeyman DH with enough hair and tattoos to star in a Harley commercial understands that his role as a teammate is to hit a fly ball to the outfield that scores a run and later take an outside pitch to right field to score another. An even wackier right fielder – what is with those Hunter Pencepants Hunter Pence – brings a head-long infectious enthusiasm, not to mention intensity, to everything he does and you can’t escape the fact that it rubs off on his locker room pals.

During one sweet moment in the game the camera caught Bumgarner in, what for him, was an unusual spot – siting in the bullpen between a couple of his relief pitching teammates. Starting pitchers don’t sit in the bullpen very often – maybe only in the World Series – and Bumgarner was there, of course, to do precisely what he ended up doing in the World Series. But before any of that, the star ace put his arm around the guy to his left, I think it was relief specialist Jean Machi, and just kind of casually patted him on the back. It didn’t appear that words were exchanged, just a knowing pat on the back of a teammate. It was non-verbal communication that said more than words, including that we’re in this together – the biggest big game pitcher and the guy they send in to get one out and then send to the shower.

I’m as cynical as the next guy about the big salaries and the even bigger egos in professional sports and I hesitate to make too much of isolated gestures and small, even routine events, but I think I detect in the San Francisco Giants what every corporate manager or Marine Corps platoon leader strives to create and sustain: teamwork. Teams need leaders, of course, and the Giants have their share – Manager Bruce Bochy, catcher Buster Posey and the wacky and wonderful Hunter Pence. But all leaders know you can’t lead well if your team doesn’t first want to be a team and doesn’t understand the power involved in being good teammates. Being part of a good team covers a multitude of individual shortcomings and that, I think, is why the Giants went all the way.

From the office conference room to the neighborhood Little League there is absolutely no substitute for team. A few good teammates can make the best player look and be even better. Unless your game is chess, we all need teammates. It makes the game more fun and enhances dramatically the chances that you will win all the marbles. Just ask the World Champion San Francisco Giants.

An Election About…

One of the tightest gubernatorial races in the country is unfolding in Wisconsin where I’ve spent the last several days. The yard signs are as thick as the autumn leaves and, while the outcome of the National League Championship Series was most appealing – my favorites won – the inane television commercials from incumbent Gov. Scott Walker and his challenger Mary Burke made me long to26446948.sf get back to Joe Buck’s inane play-by-play.

The race here has come down to whether Walker’s policies favor the “wealthy” or whether Burke is just another liberal Democrat. I’d say “yes” and “probably,” although neither label says much about what the candidates would do about Wisconsin’s crumbling highway infrastructure or rapidly rising college tuition. The race has also featured ethics complaints, an old email about Burke, and charges of plagiarism, which has become the new communism in American politics. But, hey, it’s a dead heat!

Meanwhile, in wacky Florida, a little fan – not that kind of fan – starred in the most recent gubernatorial debate. I’m old enough to remember Ronald Reagan grabbing a microphone in New Hampshire and saying something about how he bought the darn thing. I wanted XXX cbs4fanphotoCharlie Crist to tell Gov. Rick Scott the same. “Gov. Scott, I bought this fan…” At least we know how Crist stays so crisp in hot, muggy Florida. I’m left to wonder if carrying a little portable fan with you everywhere you go is a sign of intelligence or, well, something else. Right now put me down as leaning toward the fan.

Back in the great Northwest, Oregon Gov. John Kitzhaber has a gender gap problem. In the reverse of most candidates, Kitzhaber needs a gap. He needs to put some space between himself and his fiance who has been serving as Oregon’s First Lady, while also being the Wife-in-Waiting and a private consultant on the side with, ahem, particular access to the top levels of state government. Here come the conflict of interest allegations that, even if Kitzhaber wins a fourth term, will play out for many months. It’s complicated, but so is Oregon. Kitzhaber’s opponent is a hard right state legislator who normally wouldn’t be caught dead in Portland’s chic and lefty Pearl District – and won’t get many votes there – and is therefore unlikely to beat the beat up governor, but stranger things have happened. For the most part other issues important to Oregon are now floating down the Columbia. Roll on…

In Idaho, a hard right governor is in trouble with his own party for a variety of reasons, including new revelations that his staff negotiated the fine points of a controversial settlement with the state’s former private prison operator who has been a major contributor to the governor’s campaigns. On at least two recent occasions the governor has said he knew nothing, nothing about the deal his top staffers helped create.

Governors, of course, arechrischristie_ap_img expected to know everything until they don’t know anything. Paging John Kitzhaber! Is Chris Christie in the house? Andrew Cuomo…paging Andrew Cuomo! Governor, any insight into neutering your own state ethics commission?

Let’s call it the silence of the lames.

A remarkable feature of the Idaho election this year is that several dominate party Republicans candidates – I’m not even counting Gov. Butch Otter – are remarkable for the simple fact that they are so clearly inappropriate for the jobs they seek. The GOP candidate for state school superintendent hasn’t voted in 15 of the last 17 elections and before she (surprisingly) won her party’s nomination no one outside of her school district had ever heard of her. She now says she wants to give back for missing all those chances to participate in the democratic process. You can’t make this stuff up.

The Republican candidate for Secretary of State was so disliked by many in his own party that he was voted out of office as Speaker of the state House of Representatives, in part for his inept handling of various ethics issues involving his friends. He’ll be a credible referee of fair elections, right? The incumbent GOP candidate for state treasurer is so unknown to voters that jokes have been made about putting his photo on milk cartons. The real question in his race, however, centers on handling of various state investment accounts. The answer apparently is that he hasn’t exactly been Warren Buffett when it comes to managing state money. You’d likely fire your broker for less, but hey its only a few million in public money. He’s only the state treasurer, after all. Whomever he is.

And where are the “responsible” voices in the state’s ruling political class about such obviously flawed candidates? Is that the wind I hear?

In early November, if history is a guide, somewhere south of 40 percent of American voters will troop to the polls and elect a new, probably more Republican House of Representatives and turn the U.S. Senate over to the Republicans, as well. The lame duck in the White House will be even lamer and the divided government that does nothing – and that American voters say they hate – will have a a two-year mandate to do more of the same.

As Tim Egan noted recently, we hate the Congress – or you might substitute the state legislature or your county commissioner – so let’s have a heaping helping of more of the same. “How else to explain,” Egan writes, “the confit of conventional wisdom showing that voters are poised to give Republicans control of the Senate, and increase their hold on the House, even though a majority of Americans oppose nearly everything the G.O.P. stands for?

“The message is: We hate you for your inaction, your partisanship, your nut-job conspiracy theories; now do more of the same. Democracy — nobody ever said it made sense. Of course, November’s election will be a protest vote against the man who isn’t on the ballot, a way to make a lame duck president even lamer in his final two years.”

Mid-term elections, even more than those elections when we select a president, have become about nothing. If anything, in the age of Super PAC’s, when a handful of the nation’s oligarchs essentially create their own version of political parties, the campaigns have become more vacuous, more irrelevant to the nation’s real problems, and more likely to turn off a sizable majority of American voters.

As the New York Times reports: “In 2010, the Citizens United decision by the Supreme Court effectively blew apart the McCain-Feingold restrictions on outside groups and their use of corporate and labor money in elections. That same year, a related ruling from a lower court made it easier for wealthy individuals to finance those groups to the bottom of their bank accounts if they so chose. What followed has been the most unbridled spending in elections since before Watergate. In 2000, outside groups spent $52 million on campaigns, according to the Center for Responsive Politics. By 2012, that number had increased to $1 billion.”

Elections are more and more about less and less, unless you talk money and then it’s the sky is the limit. A few enormously wealthy – not just rich, but oh-my-gosh really, really loaded – people are defining the nation’s political agenda, mostly for their own purpose and benefit, and issues like a better educated work force, a shrinking middle class, and the age old bugaboo of race and class are left to, well, they are just left.

I’m not one who finds a way to blame Barack Obama for everything from Ebola to the missing whack job in North Korea, but on one important count the President is responsible for at least some of the political malaise that Americans in the 21st Century have Theodore_Roosevelt_laughing3-e1316002011942-390x300started to accept as our fate. The recent Ken Burns’ documentary on PBS on the remarkable Roosevelts reminds us that the presidency, in good times and bad, is a bully pulpit where a leader – paging Teddy Roosevelt! – can help establish a national tone, a sense of urgency and, yes, a collective sense of responsibility for our shared fate.

Our national tone is now largely defined by Koch brother’s money or the latest flavor of the day from the political left. The nation turns it’s lonely eyes to Fox News or Jon Stewart. Charlie Crist’s fan aimed at his, er, pant legs becomes a defining moment. We want a leader to speak honestly and candidly about real things. We get the will-she or won’t-she from Hillary.

What might politics in 2014 be like if Butch Otter in Idaho or John Kitzhaber in Oregon or a Boehner or a Barack just said: “You know, I screwed up here. I didn’t handle it well. We really need to get on with the people’s pressing concerns.” I suspect we’ll never know.

If politics just becomes about winning an election by pandering to the lowest common fear and loathing in the electorate we get elections like the mid-terms of 2014. It’s the Seinfeld Show reduced to politics – a show about nothing.

 

When to Quit

One of the most difficult things to do in politics – perhaps the most difficult – is to quit. When do you cut-and-walk-away from a Marriageposition that is no longer correct, or defensible? How do you back down when time moves on and you are stuck on the wrong side of history? The wrong side of morality? The wrong side of the Constitution?

There are political calculations involved in quitting. There always are. What will constituents think who passionately continue to believe in a position that can no longer be sustained? When do you call off the lawyers, save the money and the time, and try to reconcile the age old problem of holding two conflicting ideas in your mind at the same time? How to admit that by continuing to advocate what you believe to be right, you will really be wrong?

The Ninth Circuit Court of Appeals has now presented Idaho with this most difficult moment. The most fierce advocates for denying Ninth Circuitsame sex marriage have now been told – repeatedly – that they are behaving in a manner not permitted under our Constitution. Those fierce advocates would be, in many cases, also the greatest defenders of the Constitution, at least the one they think they know. But now a bunch of faceless, nameless judges have said the Constitution’s guarantees of equal treatment under the law really do apply to all our people, even those who want to marry someone of the same sex. And what do you do?

Governor George Wallace stood in the school house door in Alabama to defy the Constitution. Governor Orval Faubus forced an American president to send paratroopers to Little Rock when he couldn’t bring himself to quit. Governor Ross Barnett permitted a riot to break out and people to die on a college campus in Mississippi rather than cut-and-walk away. Upholding the Constitution is difficult and dangerous business, just like quitting a position is difficult and, at least, politically dangerous.

Perhaps the most wonderful thing about America – and also the most difficult – is the idea that all the provisions of the sacred Constitution apply even to those we most fervently disagree with. I don’t like your speech, or your flag burning, or your race or religion, I disagree with your life style, but it doesn’t mean – it can’t mean – that my Constitution isn’t also your Constitution.

One can appreciate how far Idaho officials charged with defending the unconstitutional have gone by reading the Ninth Circuit’s decision (or, for that matter, Idaho federal Magistrate Candy Dale’s earlier decision). The arguments used by Governor Butch Otter’s lawyers to defend Idaho’s official position are, there is no nice way to say it, utter nonsense and if the matters at hand were not so serious the arguments would be just this side of laughable.

One of those nameless, faceless judge is Judge Stephen Reinhardt. He certainly looks like a judge, doesn’t he? Writing for the Ninth Circuit, Reinhardt says at one point in his decision: “Same-sex marriage, Governor Otter asserts, is reinhardtpart of a shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.”

The Judge, it would appear, was attempting to get to the essence of why Idaho has so strongly resisted same-sex marriage, but as he traveled the state’s road and attempted to reconcile Idaho’s claims with what the Constitution says, he found there was no there there. In a footnote, the Judge said this, really:

“[Otter, or more correctly his lawyer] also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.”

The Constitution doesn’t say anything about being a good parent, or a good spouse. It says a lot about equality under the law and now the Ninth Circuit with its decision, and the Supreme Court with silence, has told Idaho you need to stop treating people differently, because the Constitution of the United States says so.

Moving on from a long-held position is not only difficult, it can also be constructive and help foster understanding and greater acceptance. It is a teaching moment if someone wants to teach. A leadership moment if someone wants to lead. The U.S. Constitution is the textbook.

When Governor Faubus in Arkansas couldn’t reconcile himself – and his constituents – to the fact that the fundamental law of his nation allowed black girls to go to school with white girls in Little Rock in 1957 he wrote the first sentence of how history has remembered him to this day. The Encyclopedia of Arkansas says this about Orval Faubus, the longest serving Governor in the state’s history: “His record was in many ways progressive, but he is most widely remembered for his attempt to block the desegregation of Little Rock’s Central High School in 1957. His stand against what he called “forced integration” resulted in President Dwight D. Eisenhower’s sending federal troops to Little Rock (Pulaski County) to enforce the 1954 desegregation ruling of the Supreme Court.

Faubus“The Governor is “most widely remembered” for defying the Constitution and clinging to his old, illegal and morally indefensible position. Not the epitaph any politician imagines for himself.

Will the arguments about same-sex marriage continue in Idaho? Of course, just as they continued regarding race and equality in Little Rock in the 1950’s and beyond. Can political leaders, particularly those who have so adamantly defended what they have now been told is indefensible, help begin a more constructive conversation about fairness and equality? Of course they can. But, will they? Courage and leadership are required. Can they do it?

In the wake of the Ninth Circuit decision, Idaho has filed another appeal, but they will have to quit eventually. The Constitutional logic is too obvious. How they do it, the walking away and quitting, will be almost as telling as what they fought so strongly to prevent – equality and fairness.

 

A New Judge for Idaho – Part 2

The New York Times reported recently on a little noted aspect of Barack Obama’s legacy that will have lasting impact for the country.LadyJusticeImage As the paper’s Jeremy Peters wrote earlier this month, “For the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. The Democrats’ advantage has only grown since late last year when they stripped Republicans of their ability to filibuster the president’s nominees.” Peters was writing about Obama’s appointments at the the federal Court of Appeals level, but the same impact applies more broadly to federal District Courts.

In fact, the U.S. Senate has virtually eliminated the old back log of judicial nominations, so much so that earlier this summer there were few pending judicial nominations in the confirmation pipeline. Part of the reason for that is apparently the fact that some Senate Republicans – particularly from states with two GOP Senators – have simply refused to engage in the time-tested process of working with the White House to get potential judicial appointees into the cue.

“Texas Sens. John Cornyn (R) and Ted Cruz (R) have 10 empty court seats without nominees,” Jennifer Bendery reported in June, and one of those Texas positions has been “vacant for more than 2,000 days; another is approaching 1,100 days. Making matters worse, six of the 10 open judgeships in Texas are ‘judicial emergencies,’ meaning the workload for other judges is now more than 600 cases. For seats vacant more than 18 months, judges are handling 430 to 600 cases.”

Since that was written, Cornyn and Cruz have helped advance at least three candidates to the Senate for consideration, but the long wait continues in a number of states.

As I noted in yesterday’s Post, one key question about the pending vacancy on Idaho’s federal bench – my friend Randy Stapilus has made the same point – is whether the state’s two GOP Senators will work with the Obama Administration to identify a candidate to replace long-time Judge Edward Lodge, or whether the Senators will run-out-the-clock on the Obama presidency, while hoping a Republican ends up in the White House to nominate federal judges in 2017. If Senators Mike Crapo and Jim Risch adopt a run-out-the-clock strategy, Judge Lodge’s decision to assume “senior status” next summer will, even in the best case scenario, leave the Idaho courts shorthanded for 12 to 18 months, or longer. More on that later.

Time for a Woman…

Also yesterday, I suggested three highly-qualified, and largely non-political women who might make the Idaho selection process easier for both the Republican Senators and the White House. U.S. Magistrate Candy Dale, Idaho U.S. Attorney Wendy Olson and former Idaho Supreme Court Chief Justice Linda Copple Trout would be superb members of the federal bench and worthy successors to Ed Lodge. No doubt there are other Idaho women who have the qualifications, talent and temperament to be good federal judges. It is also clear that it is past time to have a woman on the federal bench in Idaho – Idaho has never had a woman as a federal judge – and for that matter it is past time to have women back on the Idaho Supreme Court. Idaho’s highest court once had two women among the five justices. Now there are none.

The National Women’s Law Center calculates that only 32 percent of the nation’s federal District Court Judges are women, and that number remains low despite the fact that, at least since 1992, women have made up at least 50 percent of the nation’s law school graduates. Idaho is one of only nine federal courts in the country that has never had a women district judge. As I said, it is long past time and no one can truthfully argue there are not qualified and, in fact, exemplary candidates.

The appointment and confirmation of federal judges has been one of the most contentious activities in our political system. Both parties have been guilty of the most blatant type of partisanship when it comes to staffing the supposedly non-partisan federal courts. It would be nice to think that Idaho, with a history of outstanding federal judges including Lodge, Lynn Winmill, Ray McNichols and Steve Trott to name just a few, could find a way to set the partisanship aside and identify and confirm a truly able federal judge. Stay tuned.

OK…and Some Men…

While appointing a highly qualified woman makes abundant sense to me, let’s play the “what if” game and consider four male possibilities that seem to me highly qualified, capable and possessed of the right temperament to do a fine job as a federal judge.

SGutierrez.sflbIf women are badly under represented on the federal bench, so too are Americans of color. Idaho Court of Appeals Chief Judge Sergio Gutierrez would be another historic appointment. The Judge has a compelling up-from-poverty story that took him from the Job Corps to a high school GED certificate to the University of California Hastings School of Law. Then-Gov. Cecil Andrus put Gutierrez on the District Court bench in Canyon County in 1993 and Dirk Kempthorne appointed him to the Court of Appeals in 2002. Gutierrez is a judge-as-role-model, a quiet, smart and decent fellow. He would be an historic and inspired choice for the federal bench and would shatter some old and persistent barriers.

I also think the current Chief Justice of the Idaho Supreme Court, Roger Burdick, is a truly fine judge, a stand-up guy, and Burdick could burdick-small-8-9-11 probably be voted the funniest federal judge in the country. The guy has a seriously good sense of humor, often displayed in a delightful, self deprecating manner. Burdick has been a prosecutor, a public defender, worked in private practice, served as a state district court judge and once oversaw the massive Snake River Basin adjudication. Burdick could not only do the federal job, he would do it very well.

lawrence-wasdenSince I’m a truly bi-partisan guy, I would suggest that current Idaho Republican Attorney General Lawrence Wasden is another qualified and talented guy who has show a real and important independent streak during his time in public office. Wasden has been a champion of open government, is a work horse, rather than a show horse, and has had the political courage to go against the prevailing sentiments of his own party more than once. If the federal judge process in Idaho eventually requires a nominee who could serve as a “compromise” candidate to bridge ideological gaps, Wasden could fill the bill. Along with retiring Secretary of State Ben Ysursa, Wasden is among the most non-partisan of the state’s elected officials.

Last, but hardly least, the politicians make these decisions could benefit from taking a long, hard look at the former Dean of the don-burnettUniversity of Idaho Law School Don Burnett. No knock against the new president of the University, but Burnett, who served as “interim” president of the U of I, would have been an inspired choice to run the state’s land grant university. Burnett has been a law school dean at the University of Louisville, as well as Idaho, was an original member of the Idaho Court of Appeals, appointed by Gov. John Evans, and is both a scholar and a gentleman having graduated from the Universities of Chicago and Virginia. Burnett is a deeply thoughtful legal scholar, who writes and speaks with a wonderful command of the law, history and common sense. What more could you want in a judge? Some might argue that Burnett is nearing the end of his very accomplished professional life, but I would argue that a few more years as a federal judge would be the perfect capstone to his already distinguished career in public service.

What’s Right, Rather than Political...

It has been nearly 20 years since Idaho has had a vacancy on the U.S. District Court. The decision about who replaces the respected Judge Lodge is about as important a public policy decision as the state has seen in some time. Perhaps as much as ever before it is falling to the nation’s courts to sort out society’s most complicated issues, often because partisanship and narrow interest has paralyzed the Congress. If partisan politics trumps what is best of Idaho, the decision on a replacement for Judge Lodge could drag on for months and months. It shouldn’t.

In February of this year, Idaho’s Republican Senators introduced legislation that would create a third District Judge position in Idaho. At the time, Mike Crapo said: “The need for an additional judge in Idaho has been widely recognized for years. The District of Idaho has been working to meet the needs of the district while facing growing personnel and financial challenges. Advancing this productivity by adding an additional judgeship to the court would help ensure effective access to justice for Idaho’s increasing population.” The Senators point out that its been 60 years since a second federal judge was authorized for Idaho, which argues both for expeditiously filling the new vacancy and passing legislation to create another position.

I have suggested seven potential candidates – three outstanding women, four highly qualified men. There are certainly more out there. Here’s hoping for an open, bi-partisan, efficient process that produces another Idaho judge as good as Ed Lodge has been.

 

A New Idaho Judge

It would be difficult to overstate the importance to Idaho of the various political and judicial decisions that will be made over the next few months at the White House, at the Justice Department, and in the United States Senate. These decisions will be made almost entirely behind closed doors. We’ll likely have to speculate about why the decisions that we eventually hear about were made and who influenced them. Lots of politics, partisan and personal, will be involved. Chances are some deals will be cut. In the end, the decisions will impact the state – and arguably all of its residents – for a generation.

As Joe Biden might say – nominating and confirming a federal judge is a pretty big deal.

LodgeLast week long-time U.S. District Judge Edward Lodge told President Obama and the Idaho Congressional delegation of his decision to assume “senior status” as a federal judge. That move allows Judge Lodge, on the federal bench for a quarter century, to gradually scale back his case load, and also paves the way for the President to nominate, and the Senate to confirm, the first new federal judge in Idaho in nearly two decades.

When I read the news about Lodge’s decision I had two immediate thoughts: Like most who know him and have followed his career, I reflected on his long and distinguished tenure (something I wrote about a while back) and then, like I would bet ever lawyer and political person in Idaho, I immediately started thinking about who might replace Lodge on the federal bench.

 You can bet there will be lots of volunteers for the job Ed Lodge now holds – it pays pretty well, the work load is substantial, but the working conditions aren’t bad, and there is that “life-tenure” provision (assuming good behavior) that the Founders wrote into the Constitution. One can almost see Idaho’s lawyers gazing into their bathroom mirrors and seeing a federal judge smiling back. Like every high school senior class president who secretly thinks of herself as President of the United States one day – and I use that “her” purposefully – most lawyers, if they are candid, will admit to thinking about becoming a federal judge. It is really a pretty big deal.

So, some modestly informed guessing about how this devilishly important and mostly secret process will unfold.

If Idaho had a Democratic elected official, even one, at the federal or even the state level it might be easier to predict the nomination path for a new judge, since that elected Idaho Democrat (who, of course, doesn’t exist) would no doubt be asked for recommendations. But, lacking much opportunity for the traditional forms of political vetting for an Idaho federal appointee, the politics around a federal appointment – particularly involving a judicial nomination – will get even more interesting. I’m betting a lot of telephone calls were made over the weekend on this subject.

Obviously, Republicans dominate the state’s politics, but just as obviously the person with the Constitutional mandate to do the nominating of Ed Lodge’s replacement is a Democrat. You can bet Senators Mike Crapo and Jim Risch, both lawyers, are working on a strategy to impact the appointment process, and in a more direct way than merely participating in the “advise and consent” role reserved to the Senate on such matters. Beyond those assumptions, we really slip into uncharted territory with the prospect of a new Idaho judge, particularly given the likelihood that the U.S. Senate will fall into Republican hands after November’s election. Presumably that would only give Idaho Republicans even more leverage over the appointment.

Idaho’s Senators could elect to approach the White House about forming a bi-partisan, merit-based panel to make a recommendation (as happened when Idaho Judge Lynn Winmill was nominated in 1995), but that would require both the Idaho Republicans and the Democratic administration to agree to work together and abide by the results of such  process, which may not be agreeable to anyone.

Risch has already hinted that he will invoke a little known Senate tradition – the blue slip – that allows a home state Senator to quietly block a nominee that a Senator finds objectionable for any reason. The Senator’s comment to the Coeur d’Alene Press last week mentioning the “blue slip” process wasn’t merely political analysis, but a signal about how long the new Idaho judge process will take, how complicated the decision can become, and the degree to which good old partisan politics will play a role.

The quaint, behind-the-scenes Senate practice “is not widely discussed, but it is a common practice in the United States Senate,” Risch told The Press. “Unless both U.S. senators sign the blue slip and return it to the judiciary and rules committee, that (nominee) will not leave the judiciary and rules committee.” Risch also said, as the paper reported, “that, by custom, every senator maintains some control of a nomination – with ‘veto power’ – over who is appointed from the senator’s state to the federal bench.”

Legal analyst and New Yorker writer Jeffrey Toobin says of “the blue slip” process: “Blue slips are not authorized or mentioned in the Constitution, in federal law, or even in the rules of the Senate. They are nothing more than a tradition, which has been in use off and on (mostly on) since the early twentieth century.”

In a piece analyzing the use of the Senate “blue slip,” Toobin predicted – in a case exactly like Idaho’s now – that two Republican Senators might just refuse to approve any nominee of a Democratic President, particularly when that President is Barack Obama. That begs the question of whether Crapo and Risch will just stall the selection of Lodge’s replacement until after the 2016 election hoping that a Republican ends up in the White House? It could happen.

No matter how this plays out, if there in fact is a nomination before the 2016 election, Ed Lodge’s replacement will have to pass muster, behind the scenes and quietly, with Risch (assuming he’s re-elected in November) and Crapo, just as happened with a Democratic president’s nomination of Judge Winmill the last time Idaho had a vacancy on the federal bench. You may recall that then-Senators Larry Craig and Dirk Kempthorne, as well as Gov. Phil Batt, embraced Judge Winmill’s appointment by President Bill Clinton.

Assuming the process works with only a high degree of partisanship, as opposed to a high degree of political obstruction, and that is a very big assumption, who then might Obama nominate who could survive the “veto power” of two Republican U.S. Senators? I’d guess that the White House would like to nominate a woman, and that should be a major consideration since Idaho has never had a woman U.S. District Judge. Let’s begin the vetting with that assumption.

Current U.S. Magistrate Candy Dale would have to be considered a serious candidate. Judge Dale, selected for her current Hon_Candy_Dalejob by a competitive, merit review process, is smart, well regarded by the state’s legal community and young enough to occupy a federal position for a long, long time. Her recent eloquent, courageous and, in my view, correct ruling overturning Idaho’s prohibition on same sex marriage no doubt got the attention of senior officials at the U.S. Justice Department. Those who do the administration’s vetting my well like Judge Dale’s guts and reasoning on that decision, but her ruling may also cut the other way with highly partisan Republicans. Still, on the merits, and given her experience on the bench and in private practice, Judge Dale would have to be on any administration short list.

The same can be said for the current U.S. Attorney in Idaho, Wendy J. Olson. A career federal prosecutor and
wolsonofficialStanford Law School grad, Olson was a widely praised choice for the U.S. Attorney position when she was nominated in 2010. She has a strong record prosecuting white collar crime and would also merit White House and Justice Department consideration because of her serious involvement in civil rights issues. She has conducted herself in a low-key, competent and non-partisan way in her current job and, like Judge Dale, is young enough to serve on the federal bench for a long time. If the White House wants to make it difficult for Idaho’s Republican senators to play overt politics with the federal judgeship, they could appoint either of this highly qualified, and not terribly political women. Either would make it difficult for Crapo and Risch to say “no.”

One more highly qualified woman who I suspect would sail through a confirmation process is former Idaho Linda Copple Trout
Supreme Court Chief Justice Linda Copple Trout. The first woman to serve on Idaho’s highest court, appointed by former Democratic Gov. Cecil D. Andrus, Trout has a first-class intellect, a solid record as a trial and appeals court judge and a winning personality. Justice Trout is also tough and no nonsense. It’s easy to see her commanding instant respect on the federal bench. She may not want the position, but it would be hard to argue that she isn’t qualified.

If the Obama Administration wants a relatively quick – and I mean relatively quick – process to replace the distinguished Judge Lodge, and wants to make Idaho history and appoint a woman, and also seeks a highly qualified candidate who is well respected in the legal community, and comes without a lot of partisan political baggage, they now have a short list.

There will be much about this important and far-reaching process that will be fascinating to watch. Not least will be whether the Obama Administration is smart enough and agile enough to manage the nomination and confirmation of a federal judge in a deeply red state so as to make it difficult – or even impossible – for the state’s two Republican Senators to throw sand in the political gears.

Tomorrow, I’ll make the case for a couple of other worthy candidates. But, feel free to forward this to Attorney General Eric Holder. Now that he has announced his departure once his successor is confirmed, he should have a little time to think about the Obama Administration’s legacy in Idaho. This appointment will be a pretty big deal out here and it could make history.

Boise and Baseball

BoiseHawksStadiumColor8-17-10-1It is likely good news that the Boise Hawks baseball team has a new Major League affiliation. At first blush, the Hawks’ four-year development deal with the Colorado Rockies makes more sense than the former relationship with the hapless Chicago Cubs. The Cubs never seemed to pay much attention to Boise and it’s been amazing to me that one of the most popular franchises in the great game (not withstanding 100-plus years of World Series futility) never figured out how to help market the local team. Just for example, you can buy any kind of Cubs’ merchandise in any shopping mall in the country, but not at Memorial Stadium.

The Rockies seem like a more natural fit, geography included.

A new, more engaged ownership group also seems to be a positive sign. The previous ownership of the Northwest League team were the worst kind of disengaged, absentee landlords. It’s no secret that they have been shopping the team for some time. Here’s hoping the new owners follow up on initial promises to breath new life into the organization and get really engaged in the community.

But what about a new facility? New ownership can help bring new focus to the decade-long conversation about the need for a new ballpark in Boise, but the underlying dynamics impacting a plan for a new sports venue really don’t seem to have changed very much. I hope I’m wrong.

With full disclosure, I’ve been riding this “new stadium” hobby horse for a long time and I continue to think the logic speaks for itself – secure professional baseball (and maybe soccer) for the long-term, create a new multi-purpose entertainment center, revitalize a neighborhood that needs some love, and create more local economic activity. If only it were that easy.

As I’ve written in the past, local governments in Idaho have been placed in handcuffs by the state legislature and the Idaho Constitution. The ability to support and finance local projects in Idaho is extremely limited. The miners and cowboys who wrote the state Constitution wanted to make certain that the state – and local governments – operate on a cash basis, so Idaho mostly does. The ability to create a special taxing district or levy a tax on entertainment tickets or rental cars, the types of financing tools available in most other places, just doesn’t exist in Idaho. In order to get a project like a new baseball (or soccer) venue off the ground – assuming there must be a role for government – requires a near immaculate conception of united interests. A city, a redevelopment agency, an auditorium district, and a private developer must align interests to pull off a four-way bank shot of financial and political support. It rarely happens and never will happen without local political leadership.

For a long time I’ve thought that the Northwest League with teams from Vancouver, B.C. to Boise, from Spokane to Eugene would do almost anything to keep a team in Boise. zwhillsborobaseball098jpg-bd16f1c282f8ce34Southwestern Idaho represents a large market by minor league baseball standards. Boise is a sports town. There is a track record. But, the announcement this week that the Hawks will have new owners and a new Major League affiliation for four years, while good news, may also represent the last chance – really the last chance – for professional baseball in Boise.

Here’s why: In the season that just ended, the Hawks had the second worst attendance figure in the Northwest League. Boise narrowly kept out of the attendance cellar by besting only the Tri-Cities at the turnstiles. Spokane, with an older, but lovely facility, lead the league in attendance, as it often does. The Indians drew in excess of 100,000 more fans than Boise and actually had one less home game than the Hawks. The newest team in the League – Hillsboro, Oregon – drew 50,000 more fans than Boise and won the league title for good measure. Hillsboro, a bedroom community west of Portland, has a spiffy new ballpark that came about when nearby Portland opted (perhaps wisely) to be a soccer town. Without a new facility in Boise, baseball’s importance will continue to decline right along with the league’s patience for a large market with a shrinking fan base. There is nothing inevitable about professional baseball staying in the Treasure Valley, particularly when other places can  and – as Hillsboro has shown – will step up and create exciting venues where fans want to go.

Here’s hoping the new Hawks’ owners sharpen up their promotions, create new engagements in the community, and do what the previous owners never did – put a monetary commitment and not just a rhetorical one behind a new facility. And here is also hoping that some local political leadership finally emerges to knit together the necessary coalition of interests that keeps Boise a baseball town. Local elected officials do this all the time in other communities and you can bet that it won’t happen in Boise unless local officials decide a new facility and new opportunities for professional sports is a real priority.

Just Google “new baseball parks” and you’ll find, among others, that Kokomo, Indiana has a 4,000 seat stadium under construction. Kokomo? Yup. And the team that will inhabit that new stadium next year won’t even have a relationship with a major league team.

What was that Joni Mitchell song? “You don’t know what you’ve got ’til it’s gone.”