Archive for the ‘Idaho Politics’ Category

So Goes Indiana…

Indiana Religious Freedom Law OppositionSomewhere, maybe, there is a political operative for one of the Republican presidential candidates who is sitting at a desk, hunched over a computer smiling at the viral news that the Grand Old Party has taken a another hard right turn into the war zone of culture, but some how I doubt it.

The #indiana has, at least for a few more days, reshaped and shuffled the pre-primary primary season for the Republican Party and I’m betting no one from Jeb Bush to Ted Cruz was really looking to be defined by the actions of the Indiana state legislature. But, you try to go to the White House with the issues you have, as Donald Rumsfeld might say.

Indiana, home to great basketball, fast motor racing and St. Elmo’s Steakhouse (one of the greatest I’ve ever visited), has discovered the power of social media this week. When Indiana Governor Mike Pence signed a “religious freedom” law into effect a few days ago he set off a national debate vastly beyond anything the Hoosier state has seen in a long, long time. The time that 30t-mushnick-300x3001former Indiana basketball coach Bobby Knight threw a chair hardly registers compared to the shock of Pence and Indiana Republicans touching a new third rail of American politics – discrimination couched as expressions of religious belief.

But first, let’s consider the politics. According to the Gallup polling organization, the level of acceptance of homosexuality in the country is at an all-time high – more than 60 percent – and even higher among younger Americans. Support for same sex marriage has crossed the same threshold of acceptance. According to Pew Research, opposition to same sex marriage stood at 65 percent in 1996, but by last year public opinion had shifted dramatically with 54 percent of Americans now approving of the idea.

It is not necessary to be an MIT math whiz to see that the world has changed and the pace of change is only likely to accelerate as younger Americans, vastly more accepting of all types of diversity, assert themselves in the economy and politics. The modern Republican Party is on the wrong side of this divide.

Second, in the wake of the still unfolding Indiana firestorm, Republicans find themselves in the almost always uncomfortable political position of debating the technical, legal aspects of a law. When a politician is forced, as Pence was, to say that a law he signed is not a license to discriminate against gay and lesbian Americans and then forced to explain legally how that is possible, you have the political equivalent of explaining how a watch is made when the public just wants to know what time it is.

Whether it has been completely fair or not, the Indiana legislation has been forever defined as at a minimum, opening the door to discrimination based on sexual orientation. Republican candidates have been reduced to explaining what the law doesn’t do rather than what it was reported to accomplish. So far they have mostly botched the task.

The backlash, both politically and otherwise, has been intense. One of the best Tweets I’ve seen was from the Indianapolis Motor CBcAf8RUQAEEr0q.jpg-largeSpeedway, home of the legendary 500 mile race. The Speedway’s famous sign simply spelled out: “We Welcome Everyone.”

A lengthening parade of some of the biggest business brands in the country – Nike, Walmart, Apple, Twitter, Yelp, Levi Strauss, Eli Lilly and Accenture, among others – have publicly opposed the Indiana law. The NCAA has essentially said it will not allow future big-time college athletic events in Indiana. (When the NCAA looks good in comparison, #indiana, you have a problem). All this, too, creates political fallout, as Bush will undoubtedly find when he goes calling for campaign cash in Silicon Valley this week. More importantly, business is signaling that discrimination is bad for, well, business.

So, if the politics of discrimination against gay and lesbian Americans – or even the appearance of discrimination – doesn’t make political sense, and with many of the usual business allies of the Republican Party in revolt against an Indiana-type law, why do it? [Arkansas Republican Governor Asa Hutchison apparently asked that question when presented with a similar proposal in his state. Hutchison, after first indicating he would, now says he’ll not sign the legislation.]

I think Amy Davidson, writing in The New Yorker, has the answer to the why question.

“The Indiana law is the product of a G.O.P. search for a respectable way to oppose same-sex marriage and to rally the base around it. There are two problems with this plan, however. First, not everyone in the party, even in its most conservative precincts, wants to make gay marriage an issue, even a stealth one—or opposes gay marriage to begin with. As the unhappy reaction in Indiana shows, plenty of Republicans find the anti-marriage position embarrassing, as do some business interests that are normally aligned with the party. Second, the law is not an empty rhetorical device but one that has been made strangely powerful, in ways that haven’t yet been fully tested, by the Supreme Court decision last year in Burwell v. Hobby Lobby. That ruling allowed the Christian owners of a chain of craft stores to use the federal version of the RFRA (the Religious Freedom Restoration Act) to ignore parts of the Affordable Care Act. Ruth Bader Ginsburg, in her dissent, argued strongly that the majority was turning that RFRA into a protean tool for all sorts of evasions.” She was correct.

In short, the efforts in Indiana and Arkansas involve crafting laws sufficiently vague and open to wide interpretation expecting that the new statutes can serve as a vehicle to get a case in front of a judge who might rule in a way that creates an eventual avenue to the Supreme Court. The Indiana law is not so much about making public policy that can be debated and clearly understood, as it is about teeing up a legal argument that leaves the dirty work of defining the line between religion and discrimination to five conservative justices. Any bets on how that comes down?

Indiana’s governor, in denying the discriminatory intent of the law in his state, said the new statute, “only provides a mechanism Penceto address claims, not a license for private parties to deny services.” Or perhaps more correctly, as Davidson writes, the Indiana law provides “a mechanism to discriminate, rather than a license. What it certainly will do is give some people more confidence to discriminate. But is that what Indiana really wants? And is that what the G.O.P.’s 2016 candidates should be looking for?”

Interestingly, in a debate that mirrors the on-going debate in Idaho (and elsewhere) over creating specific state-level prohibitions against discrimination directed toward gays and lesbians, the perfect fix for the Indiana dilemma is merely for the legislature to create such protections in law. So far that remedy, a specific statement of public policy opposed to discrimination, hasn’t been a serious part of the discussion in Indiana. Of course, Idaho continues to dance around that clear choice, as well. As this debate continues to unfold, Idaho policy makers might want to listen closely. It is not completely farfetched to think that Idaho could become Indiana.

But here is the ultimate political, indeed moral, bottom line: If you are reduced to arguing that something you have done in the name of “freedom” isn’t really designed to create an ability for some people to deny freedom – that’s what discrimination is – against some other people, while couching it all in the smoke of “restoring religion” you are likely on the wrong side of a very dubious argument, not to mention history.

 

Third Act for a Bomb Thrower

He was one of the most polarizing political figures of the last half-century in Idaho, a union and gay rights basher who was part of the Tea Party before we called it that and before the Republican Party came to be too dominated by, well, guys like Gary Glenn.

GlennLong-time observers of Idaho’s politics – and now Michigan politics – will recognize his name and his tactics, including the brash one-liner, the scorched earth approach to every issue, the politics that reduce your opponent to a beast determined to ruin the culture. Those who long for a politics where opponents aren’t routinely demonized will not be surprised that Glenn, the one-time Idaho bomb thrower, is these days lobbing his grenades as a duly elected state representative in Michigan. You can be forgiven for thinking Idaho’s gain has become Michigan’s loss.

Wearing his religion on his sleeve, Glenn is in the forefront of efforts to deny marriage rights to gay couples in Michigan. Glenn’s American Family Association Michigan chapter – he’s the president – is widely described by human rights organizations as a “hate group.” As a legislator, Glenn is still advocating low taxes – or perhaps no taxes – and opposing a Republican governor’s plan to invest in Michigan infrastructure. And, of course, Glenn has ridden his “right-to-work” hobbyhorse for thirty years, all the way to Midland, Michigan, while preaching “freedom” for everyone but those unfortunate souls who happen to disagree with him.

At a state university in Saginaw, Michigan recently two dozen students showed up to protest an appearance by the former Idaho firebrand. According to the local newspaper the students, taking exception to Glenn’s harsh anti-gay rhetoric, chanted, “Hey, ho, Gary Glenn has got to go” and “2, 4, 6, 8, Gary Glenn is full of hate.” The Southern Poverty Law Center, the civil rights group Saginawthat once had a hand in driving the Aryan Nations out of Idaho, reports on its website that Glenn offered these helpful comments about gays in 2001: “As with smoking, homosexual behavior’s ‘second hand’ effects threaten public health….Thus, individuals who choose to engage in homosexual behavior threaten not only their own lives, but the lives of the general population.” Some things never change.

The Hired Gun…

If you want to mark a date on the calendar when Idaho politics truly began to change for the worse you could start with the day in 1985, when the Idaho legislature, after a bruising political battle, passed anti-labor “right-to-work” legislation over the veto on then-Governor John V. Evans. When unions succeeded in getting the issue on the ballot in 1986 the resulting campaign was particularly ugly. Glenn, a fresh-faced newcomer to Idaho – some called him not incorrectly a “carpetbagger” – orchestrated that nasty battle utilizing the kind of over-the-top tactics of intimidation and exaggeration – union “thugs” where threatening western civilization – that have become the norm in politics.

Before Glenn and the National Right-to-Work Committee targeted Idaho with bundles of outside money and deployed the politics of “if you’re not for us, you are against us,” Idaho was an organized labor backwater. In modern times the state had little history of labor unrest, but the unionized miners, timber workers and electricians tended to support Democrats who advocated for better schools and better paying jobs. Labor’s foot soldiers and campaign money never – at least not since the early 1950’s – gave Democrats a majority in the Idaho Legislature, but they did help keep the party competitive and helped elect guys like Evans, Frank Church and my old boss Cecil Andrus.

There are endless debates about the economic impacts of right-to-work on wages, job creation and the quality of employment opportunities and you can find studies and experts to support almost any point of view, but it’s beyond denial that the passage of the law in Idaho dealt a big blow to the Democratic Party. This was, one suspects, a big factor in Wisconsin Governor Scott Walker’s recent push to make that once labor friendly state the latest to put the state between union members and management.

It is also clear that Idaho’s ranking in one important economic category – personal income – is hardly an advertisement for the wonders of anti-labor public policy. According to Department of Labor statistics, “Idaho ranked dead last in 2013 with individual median income at $27,932 — likely aided by the fact it was at the bottom of all the states for the median income for women, $21,908. The Idaho median income for men was $33,623 — good for 48th place.”

If you like one-party government populated by a crop of legislators who now pass resolutions calling for the “impeachment” of federal judges who rule “incorrectly” on same sex marriage, oppose a Hindu prayer to open a legislative session, continue to defund education and deny basic human rights protections to the LGBT community then Gary Glenn deserves honorary Idaho citizenship. The do-almost-nothing Idaho legislature (remember, it wasn’t always so), is a monument to the lack of a political middle in the state and that too has roots in the long ago battles that Glenn and like minded allies stoked for maximum partisan mileage.

As an historical footnote, I remember some Idaho Republican legislators in the 1980’s who were dubious about right-to-work potatoes_0asking why it was OK to mandate that every Idaho hop or potato farmer pay an assessment to support a state-mandated commodity commission, but the principle of every union member paying dues to support has bargaining organization was “coercion” and “a denial of freedom.” One man’s freedom is another’s “compulsory” union dues or, if you prefer, mandatory, state-sanctioned assessments on pea and lentil growers. I’m still waiting for the Idaho “freedom” movement to outlaw mandatory assessments on farmers, which exist, of course, in order to market products and advocate political causes for a special interest group. Journeymen plumbers are obviously in a different class. Talk about a closed shop.

Right-to-work legislation has never about “freedom,” as Glenn peddled the concept, but rather represented a cynical two-pronged strategy to weaken collective bargaining and erode support for Idaho Democrats. It worked like gangbusters and had the additional benefitunion of depressing wages.

After steamrolling the right-to-work effort in Idaho, Glenn was hired as the political operative for the state’s cattle ranchers and tried, with some success, to use that platform to create his own path to political power. The cattle lobby was a “voluntary” organization were members paid “dues,” but you won’t find many cowboys who don’t volunteer and ante up. More freedom, I guess.

Cece Andrus famously refused Glenn admission to the governor’s office in those days and did not, as Glenn’s partisans incorrectly claimed, “throw him out” of the big office on the second floor of the Idaho Statehouse. Andrus, with no use for completely partisan hired guns like Glenn, loved to say that he most certain did not “throw” Glenn out, which would have been impossible since the hired gun never got his brand new Tony Lamas across the door jamb.

Glenn next brought his polarizing brand of partisanship to the Ada County Commission and spent two contentious terms mostly preening for television cameras and fighting with other elected officials. Before long he lost a Republican primary for Congress and decamped for Michigan and, one might hope, obscurity. But not so fast. In 2012 Glenn unsuccessfully sought the Republican U.S. Senate nomination in Michigan, but that run merely served to open his third act and he captured a seat in the state legislature in 2014. You have to give the guy credit; he is a political survivor.

The Third Act…

I believe Glenn when he says, as he did in an Idaho Statesman piece marking the 25th anniversary of right-to-work coming to Idaho, that he is a “true believer” in his brand of ultra-conservative politics, the kind of politics that gains him regular attention from civil liberties groups who monitor the hateful drivel of Glenn and other divisive personalities like Glenn Beck and the radio preacher Bryan Fisher, two more professional agitators with Idaho antecedents.

Glenn is a true believer, but also a first-class opportunist, one of those people in politics who live to divide and chide. He’s made a living pumping out his anti-gay, anti-union, anti-tax mumbo jumbo, but beyond being against people not like him you have to wonder what he has to show for a lifetime of agitation?

Gary Glenn reminds me all these years later of the great question Lyndon Johnson asked of another fear and hate monger, George Wallace, during the darkest days of the voting rights struggle in 1965. “George,” LBJ said to the blustering Alabama governor, “what do you want left after you when you die? Do you want a Great…Big…Marble monument that reads ‘George Wallace – He Built?’…or do you want a scrawny pine board laying across that harsh, caliche soil, that reads, ‘George Wallace – He Hated?’”

Glenn left a questionable and negative mark on Idaho and now builds a dubious mark, as successful opportunists tend to do, in a new venue where, one suspects, all his nasty history is little understood. Still, his long “career” begs the question of just what has he built and what has his disdain for those who think differently really accomplished? He has certainly succeeded in keeping himself in the public eye and, ironically for someone who has so consistently preached the anti-government gospel, Glenn has once again landed on the public payroll, a perfect place from which to lament all the evils of government. As the same time, and in the name of “liberty” and “freedom” he has long championed causes that deny rights to others, while helping breed the absurd levels of animosity that are at the center of what passes for politics these days.

Michigan must be proud. Hate has a new lease on life. Mr. Glenn has opened his third act.

 

Study History

“Study history, study history,” Winston Churchill said long ago . “In history lies all the secrets of statecraft.”

I was reminded of those wise words from the 06n25churchill-382089great man recently during the latest dust up concerning the state of Idaho, the U.S. Department of Energy (DOE) and two former Idaho governors.

I’ll leave it to the former governors, Phil Batt and Cecil D. Andrus, to press their case as to why top Idaho officials are mistaken in granting DOE a second “waiver” permitting shipments of commercial spent nuclear fuel (SNF) to the Idaho National Laboratory (INL). My perspective, as Churchill  would suggest, is to remind us of the “history” behind the current and historical controversies. The two former governors share a lot of history with the Department of Energy.

Full disclosure requires that I mention for anyone who doesn’t know that I worked for Cece Andrus years ago, covered both men as a reporter, admire them greatly and consider both among the very best public officials Idaho has ever produced. Rather than a defense of their recent objections I offer some history that helps explain, I think, why Batt and Andrus feel as they do.

Begin at the beginning…

Senator-Harry-S.-TrumanTruman’s initial effort to find out what was going on in great secrecy at Hanford was politely rebuffed by Secretary of War Henry Stimson. Truman persisted, going so far as to send a committee investigator to the Hanford site. His investigator was turned away. As Truman biographer David McCullough has written in his extraordinary book Truman, the feisty Missourian grew annoyed at the stonewalling and became determined to press hard for answers about what his government was doing. Stimson, now annoyed himself, refused to tell the senator anything while writing in his diary, “Truman is a nuisance and a petty and untrustworthy man. He talks smoothly but acts meanly.” Truman would not learn about the Manhattan Project and the development of the atomic bomb until he had been President of the United States for twenty days.

As McCullough writes regarding the development of an atomic weapon, “In less than three years the United States has spent $2 billion, which was not the least of the hidden truths, and, one way or the other, 200,000 people had been involved, only a few having more than a vague idea of what it was about. That the diligent chairman of the Truman Committee had known so little was a clear measure of how extremely effective security had been.” McCullough notes that neither General Douglas MacArthur or Admiral Chester A. Nimitz “or a host of others in high command” knew what was going on.

As I said, the nuclear age was born in secrecy without even the most basic degree of oversight. War time security certainly demanded a high degree of secrecy around the Manhattan Project, but in hindsight it seems impossible to justify that such a massive undertaking with such world-changing consequences should have been conducted completely in the dark. A bomb was born along the Hanford Reach of the Columbia in the 1940’s, but so too was a culture. Remnants of that old culture of secrecy, fueled by a belief that only a handful of highly trained people can know what’s best for the country and that pesky oversight is a “nuisance,” survived long into the Cold War.

For decades as the U.S. nuclear weapons program developed, the arid high desert in eastern Idaho became the home for much of the detritus of wipp01the nuclear age. Much of the weapons production was done at the Rocky Flats DOE site just north of Denver, Colorado. Tools, protective clothing and other materials contaminated during the weapons production process was routinely sent to Idaho for “disposal.” In the early days, the
disposal was something less than “state of the art” with flimsy boxes dumped in ditches scratched out of the desert soil and covered over. Later the material was packed in 55 gallon drums and stacked more safely on pads. The nuclear junk, often referred to as transuranic or TRU waste, piled up in Idaho for years.

Seeking Answers…

When then-Governor Andrus started asking questions in the 1970’s about why any waste was being “stored” in Idaho above the vast Snake River Aquifer he was told that the “storage” was “interim” pending the development of a suitable permanent repository. Andrus exchanged correspondence with the director of what was then called the Atomic Energy Commission (AEC), a forerunner of the current Dix Lee RayDepartment of Energy. The AEC was run at the time by a pugnacious, opinionated woman named Dixie Lee Ray, a marine biologist by training and an unabashed champion of nuclear energy. Ms. Ray, whose personality and to be truthful physical appearance, resembled a bulldog, later served one contentious term as governor of Washington. Her toxic spats with the Olympia press corps were legendary in those days. She named the pigs she kept at her Fox Island farm after individual Statehouse reporters. You get the idea. Dixie Lee Ray was one of those smart people who knew what was best for the country.

Shortly before Andrus went off to Washington to serve as Secretary of the Interior in Jimmy Carter’s Cabinet, Dixie Lee Ray wrote the governor that the AEC had a plan to dispose of the waste material stored in Idaho and it would be “removed by the end of the decade.” Usually public officials don’t make such certain claims unless they are sure they can follow through, or they are merely dissembling. Andrus assumed the best regarding the assurances from the head of the AEC even though he had crossed swords with federal officials in the early 1970’s when Idaho turned up on a short list of states being considered as national waste disposal sites. Andrus convened a “blue ribbon commission” at the time, which not surprisingly made the case that eastern Idaho – in large part because of the aquifer and active seismic activity – was a horrible place to dispose of waste. Seeds of distrust were deeply planted.

It’s worth a short digression here to note that the historical lack of oversight of DOE and its predecessor agencies has been a completely bi-partisan failing. Democrats and Republicans in Congress and in Idaho, as well as presidents of both parties, largely let the nation’s nuclear policy, including what to do with all the waste material, basically become an issue that was out of sight and therefore out of mind. It has long been an article of faith in Idaho politics that any statewide candidate had to embrace the state’s DOE site and welcome virtually any decision DOE made regarding the facility. Idaho is far from unique in this regard. The same dynamic exists in other states like Washington or South Carolina were a big DOE influence is felt in the economy. To use Tip O’Neill’s famous phrase, the DOE jobs and budgets make all politics local. That is both understandable as politics and regrettable as public policy. It’s far easier, of course, to praise the economics and avoid the oversight. As an historical matter this really only started to change in the 1980’s.

Creating a New Agency…

One of Jimmy Carter’s lasting legacies was to propose and sign into law the legislation creating of the U.S. Department of Energy which took place in August 1977 early in Carter’s administration. As DOE notes on its website, “The Department of Energy Organization Act of 1977 created one the most james-schlesinger-dies-665x385interesting and diverse agencies in the Federal government.” The scope of the DOE mission from weapons to waste, from research to reactor safety is about as “diverse” as any in the federal government. Carter made the new expansive agency even more interesting by putting the arrogant, pugnacious empire builder James Schlesinger in charge as the first secretary. It wasn’t one of Carter’s better personnel decisions.

Schlesinger, an economist by training, cut his political teeth in the Nixon Administration as a budget official and for a brief time as director of the Central Intelligence Agency before Nixon moved him to the Department of Defense. When Gerald Ford became president Schlesinger stayed on, but Ford – a better judge of character than Nixon – quickly came to dislike him.

As the Washington Post noted in Schlesinger’s obituary last year: “His aloof, arrogant manner,” as Ford described it, was off putting to the president. “I never could be sure he was leveling with me,” Ford told historian Walter Isaacson, and soon he was gone.

Schlesinger, a Republican, then supported Ronald Reagan against Ford in james-r-schlesinger-1976 and when Reagan lost the nomination Schlesinger switched sides to support Carter and become his energy adviser. On such turns of history are historically bad appointments made. The pipe smoking Schlesinger, a man steeped in the petty intrigues of Washington and the culture of secrecy at the CIA and the Pentagon, was just the man not to take a fledging Department of Energy into a new era of transparency and public accountability.

Andrus, I should note, observed a good deal of the creation of the new agency from a front row seat in the Carter Cabinet. The Interior Department had to assist with the birthing of DOE by transferring personnel and programs, including the northwest’s great legacy of the New Deal the Bonneville Power Administration, to the new Department of Energy.

Fast forward to 1987 and Andrus’ return to the Idaho Statehouse. During his first visit after returning to the  governorship to what was then called the Idaho National Engineering Laboratory, Andrus began asking questions, the same kind of questions he had asked in the 1970’s about that old Rocky Flats waste. Recall that he had been promised by Dixie Lee Ray that the TRU waste would be leaving Idaho “by the end of the decade” – the decade of the 1970’s – and now it was a good ten years later. In fact, the waste wasn’t leaving, but was continuing to accumulate due primarily to DOE’s inability to jump the regulatory hurdles required to open a permanent disposal site in New Mexico. The delays in opening the so called WIPP site in New Mexico involved both mismanagement and a lack of national will. DOE couldn’t get on the same page with the Environmental Protection Agency (EPA) and the project faltered for years and years.

Andrus went to New Mexico to see for himself and understand the delays. It’s fair to say he came away frustrated and feeling deceived by old promises not kept. Upon returning to Idaho he wrote a famous letter to then Energy Secretary James Watkins, a imperious four-star Navy Admiral accustomed to giving orders but out of his depth when it came to pulling and hauling the vast DOE bureaucracy into action. Andrus informed the admiral’s DOE that he was stopping shipments of Rocky Flats waste pending progress on the New Mexico site and later took similar action to halt shipment to Idaho of spent reactor fuel from the U.S Navy’s nuclear fleet. DOE had the responsibility of permanently disposing of that material, as well. Spent commercial waste from a nuclear power plant in Colorado was next and eventually action in federal court in Idaho.

The Andrus actions were both unprecedented and politically controversial. When Navy spent fuel started piling up at the Bremerton Navy Yard, Democratic Congressman Norm Dicks, a burly former football player who represented the area in Congress, howled and threatened. Virginia Senator John Warner said the governor a tiny western state was impacted national security by causing the undesirable spent fuel to sit in a port in Warner’s home state. Idaho Senator Larry Craig blasted the actions as damaging to INEL and some predicted the demise of the facility.

The national failures of nuclear waste policy rather suddenly became a issue no longer out of sight, but on the pages of the New York Times. The politicians, like Dicks and Warner, who wanted waste out of their states and in remote Idaho had to confront troubling and thorny issues. Those who blasted Andrus for threatening the Idaho facility soon found that sensible approaches to waste management trumped political bombast.

And apparently Idahoans understood what Andrus was doing, as well as what was at stake for Idaho and the nation. He was overwhelming re-elected in 1990. Shortly thereafter he was appointed to head, along with Minnesota Attorney General Skip Humphrey, a joint effort of the nation’s governors and attorneys generals to create a better regulatory scheme for federal facilities, including those operated by DOE and the Defense Department. Congress passed the Federal Facilities Compliance Act in 1992 as a direct result of the Andrus-Humphrey work and thanks to the personal interest of then-Senate Majority Leader George Mitchell.

rocky-flats-2As the Environmental Protection Agency notes on its website the federal facilities law required federal agencies to do something they had not been compelled to do before – observe federal, state and local laws related to hazardous materials. The law also waived federal “sovereign immunity” allowing the government to be taken to court over compliance issues.

 Andrus continued to shadow box DOE throughout his final term as governor, all the while maintaining that the agency born in secrecy and charged with such an expansive mandate could only be compelled to keep commitments through legally binding agreements. He persisted in making the case that Idaho was not a suitable place to store, even temporarily, nuclear materials. Promises, he had learned, were not enough.

Governor Batt, who succeeded Andrus in the Governor’s Office in 1995, took up the cause where his predecessor left off. Through hard work that featured several showdowns with DOE and the brass hats who ran the nuclear navy, Batt fashioned a legally binding settlement agreement with DOE. The agreement specified deadlines for waste disposal and treatment and detailed fines that might be levied on DOE. Like Andrus’ earlier actions the Batt Agreement was controversial and eventually became a ballot issue in 1996. Some thought Batt had given way too much, others thought his demands on DOE would harm the Idaho lab. But the governor had skillfully negotiated a unique deal for Idaho – deadlines and penalties – and once the issues were debated Idaho voters backed their governor and his agreement, which has now been in effect for nearly 20 years.

As the state Department of Environmental Quality notes on its website, when the Batt Agreement was signed: “there were 261 metric tons of heavy metal from spent fuel, 65,000 cubic meters of stored transuranic wastes, another 62,000 cubic meters of buried transuranic waste, approximately 2 million gallons of high-level liquid waste and 3,700 cubic meters of calcined (dried liquid) waste already stored at the INL when Governor Batt took office. Until the Settlement Agreement there was no legally binding commitment to remove any of this waste from Idaho until Governor Batt reached his agreement with federal officials.”

The current Idaho controversy has been sparked by a second “waiver” to this agreement. The waiver allows commercial spent nuclear fuel to come to Idaho for research purposes and, one assumes, storage for some period. The state says the “waiver” will only go into effect when DOE comes up with a new plan to meet milestones spelled out in the Batt Agreement, but, of course, those are milestones the agency has already missed. 

It is only right and fair to acknowledge that the Department of Energy has made great progress over the last decade or so on many waste issues in Idaho and elsewhere in the DOE complex. Thousands of dedicated people are working diligently to deal with environmental problems that literally date back to Harry Truman. Not surprisingly the massive effort is far from completed and remains both complex and extraordinarily expensive. The New Mexico site that had accepted significant amounts of the old Rocky Flats waste, for example, has been forced to indefinitely suspended shipments following an accident involving a breech of a waste drum. The Santa Fe New Mexican newspaper reported last week that the re-opening of the facility is “months behind schedule.” Obviously this impacts some of the material still in Idaho.

Additionally, the national plan to dispose of commercial reactor spent fuel, some of which will likely come again to Idaho under the agreed to yucca_tunnel0901waiver, has been stuck in neutral since the Obama Administration stopped work on the proposed Yucca Mountain disposal site in Nevada. Republicans in Congress are hoping to put the site back on the table, but for political reasons alone this seems unlikely any time soon.

The current Idaho controversy over waiving provisions of an agreement mandated by a federal court has been easily dismissed by some as simply not a big deal. Considered in isolation it might not be a big deal. But when you study the history and understand that the terms of Phil Batt’s agreement with DOE extend for 20 more years, and that Idaho meanwhile remains host to very significant amounts of material that should be disposed of some place else, the current controversy is more easily seen as part of a storyline that goes back a long, long way. This story will also continue long after many of us are gone.

The nation’s nuclear history is riddled with controversy and certainly a historic lack of planning for waste disposal. The history is also unfortunately wrapped in the legacy of an entire industry born in secrecy, which until relatively recently was unburdened by anything resembling vigorous oversight. It is a simple fact that Republican and Democratic administrations in Washington have been confounded by nuclear waste problems for generations and policy makers remain confounded today.

Churchill was right – in the study of history are all the secrets of statecraft. In the current case, one secret might be to clutch a hard fought and legally binding agreement close to the vest against all efforts to modify it, even a little. Given the long history and the timelines that extend far into the future the integrity of Idaho’s agreement with the Department of Energy will prove to be mighty important over the next 20 years. The state’s decades of experience with the DOE and the waste that hardly anyone believes should be in Idaho also helps explain why the two former governors – a Republican and a Democrat – so adamantly oppose modifications to the 1995 agreement.

DOE Secretaries come and go. Governors do, too. Legal agreements, as long as they are enforced, don’t.

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.