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.”

Politics is Motion

5112796991_002_ltBefore there was a Karl Rove or a James Carville there was John Sears. A Republican political consultant closely identified with Richard Nixon and Ronald Reagan, Sears plays a central role in a fascinating new book – The Invisible Bridge: The Fall of Nixon and the Rise of Reagan – by the great chronicler of the modern conservative movement Rick Perlstein.

Sears “brilliantly stewarded Ronald Reagan’s run from near impossibility to a dead heat” with President Gerald Ford in the 1976 Republican primaries, Perlstein writes. Reagan ultimately fell just short of grabbing the GOP nomination from the unelected Ford. It was the closest presidential contest since 1948. Had just a couple of things broken Reagan’s way he might well have won and, who knows, made it to the Oval Office four years earlier than he finally did.

Sears was a major force in that campaign. Reporters loved him for his candor and insight. Rivals, Republicans included, frequently snipped at him because he often was the smartest guy in the room and wasn’t shy about showing it.

Reagan once joked to journalist Theodore White that, “There was a feeling that I was just kind of a spokesman for John Sears.” Sears got canned during Reagan’s 1980 campaign when he clashed with the candidate’s California brain trust, but since he was a real pro he simply said it was Reagan’s right to get rid of him. Sears later worked as an analyst for NBC News.

Since Labor Day is now history and the kids are back in school, we can turn our gaze to elections that are now just two months away. Heading into the home stretch for Campaign 2014 there are some smart words from John Sears that are worth pondering for all candidates who want to win in November.

Sears’ trademark saying, Perlstein writes, was “politics is motion.” In other words, “When your campaign sets the terms of the political debate, you are winning. When your opponent has to catch up with one of your moves, he is losing.” Politics is motion. Let’s apply this notion to the race for governor in Idaho.

Electing an Idaho Governor

If you measure the common metrics of politics – the strength of the economy, support for education, party unity among them – the incumbent governor of Idaho, C.L. “Butch” Otter, ought to be in a world of hurt in 2014. Otter, a fixture of Idaho politics since the 1970’s, has been in the middle of a nasty intraparty feud that produced a virtually unknown challenger who gave him a run for his money in the May primary. mediaThe challenger ended up beating the two-term incumbent in some of Idaho’s largest counties, including Otter’s home base of Canyon County. Those party wounds are likely scabbing over as the election nears, but some deeply disenchanted Tea Party-type Republicans still say they would like to “punish” the governor for, among other things, embracing a state-based health care exchange. Many who have know him for years find it amazing that Butch can be attacked as being too liberal, but such is the state of Republican politics these days.

At the same time a brace of less-than-good news about education funding, a failed education reform initiative, Idaho personal income declines, and a botched prison privatization effort should further put Otter on the defensive. When it comes to funding schools and measuring personal income, it used to be said that “Idaho is the Mississippi of the West.” That can now be amended to “Idaho is Mississippi.” None of this should help the incumbent, but it doesn’t seem to be hurting much either.

The National Federation of Independent Business (NFIB) recently endorsed Otter for keeping Idaho taxes and spending low, which is also the flip side of Idaho’s Mississippi-like commitment to educational funding. To date the political discussion of school funding and the economy in Idaho has largely avoided the fact that while state spending on education has been shrinking in recent years due to a stingy state legislature and the governor, property taxpayers are paying more-and-more to keep the lights on at the school house. The need to pass supplemental levies at the local level, which is now virtually routine in many districts often means that the poorest school districts in Idaho just get poorer. The recent failure of a levy in Lapwai means kids in that district will get PE classes online. Nearly 40 Idaho school districts now operate only four days a week.

Another recent study, as reported by the Associated Press, indicates that “Idaho residents have among the lowest personal incomes in the nation but spend a higher percentage of their money on food, housing and other essentials compared with most others, according to data…by the U.S. Bureau of Economic Analysis.” Another report on the changing demographics of education in Idaho offered this sobering prediction over the next five years: “The state is expected to see net growth in lower income households and net declines in households with incomes above $50,000.” Ouch.

The governor once made funding highway needs the center point of his legislative agenda, but even with an overwhelming GOP majority in the legislature couldn’t bend his own party to advance his priority. Highway funding has virtually disappeared as a political issue. And the governor has to deal with at least one other issue – the political fatigue factor that often attaches to a politician seeking a third consecutive term. A third consecutive gubernatorial term has happened twice before in Idaho, but long ago – first in the early 1930’s and then again in the early 1960’s.

Somewhere in that mix of issues and impressions, amid the studies on incomes and educational support, and complicated by the GOP internal turmoil, there might be a coherent message for a challenger, something like Idaho is off on the wrong track and Otter has had his chance. But if politics is motion, as John Sears would say, the motion at this post-Labor Day moment still seems very much with the incumbent.

His liabilities notwithstanding, including a third-party challenger coming from the far, far right who could take five of more percentage points in the general election presumably at Otter’s expense, the Idaho governor’s race seems to be unfolding just the way Butch Otter and his supporters might have hoped it would. The old tried-and-true Republican playbook, the corners tattered and worn, is opening up as it always has, and as it so very predictably would, against Democratic candidate A.J. Balukoff.

The state’s big business lobby, the Idaho Association of Commerce and Industry (IACI), which actually supported development of a state-based health insurance exchange, as did Gov. Otter, is on television attacking Balukoff for being a Obamacare loving “liberal,” a word as bad in red states today as Communist was in the 1950’s. Balukoff says he voted for Mitt Romney last time, but no matter. IACI also takes the Democrat to task for supporting tax increases. Those taxes, of course, are the regular levies that Boise School District patrons regularly pass in an effort to keep their schools among the best the country. Balukoff supported those efforts as a long-time member of the school board, but no matter.

The Farm Bureau, which of course doesn’t endorse candidates, has weighed in saying the Democrat doesn’t understand rural Idaho. Soon Balukoff will be giving away Idaho’s water and going door-to-door picking up guns. It may be an old and tattered political playbook that is being dusted off one more time, but it has worked time and again in Idaho and given a tepid challenge there is little reason to change a winning formula.

Politics is Motion

Meanwhile, the Otter campaign is on the air with a entirely positive commercial touting an improving Idaho economy and a governor that stands up to the feds. It almost reminds me of a Cecil Andrus spot in 1990, including the line that “Idaho is a great place to live, work and raise a family.” It’s morning in Idaho. Otter can take the high road when he has others more than willing to take the low.

Balukoff’s task in this race – any Democrat’s task – is to say something coherent and meaningful about the shortcomings of Otter’s eight years as governor – and there is plenty of raw material – and then present a picture of what a better future might involve. He doesn’t need to be nasty, but he does need to be pointed and specific. When your campaign sets the terms of the political debate, you’re winning. Politics is motion and time is short for a challenger to define the Idaho race in a way that just might make it competitive. Balukoff’s campaign so far seems very much like the campaigns that have come up short for Democrats for the last 20 years – too timid and ironically too conservative.

History tells us that generals always want to fight the last war. Politicians want to run the last campaign. You can often do that as an incumbent, but you don’t beat an incumbent, particularly an incumbent Republican in a state like Idaho, by doing what hasn’t worked before. To make it a race the challenger needs to make it a real choice for voters. You start framing the choice by establishing what the race is about – and its not a health care exchange and Barack Obama – and by taking a few risks.

Right now the Idaho race is about a Republican incumbent without much to brag about against a Democrat from Boise who is being defined as “a liberal.” It is not difficult to predict how that script plays out in November.

 

Criminalizing Stupidity

Warren-G-Harding-9328336-1-402Teddy Roosevelt’s only daughter, Alice, was one of the great characters of the nation’s capitol for most of the 20th Century. She knew everyone, married the Speaker of the House,  Nicholas Longworth, and had a long and passionate affair with Sen. William Borah of Idaho, who was likely the father of her only child. The outspoken Alice widely and freely shared her deliciously candid opinions about politics and people with anyone and everyone.

The embroidered pillow in her living room said: “If you can’t say something good about someone, sit right here by me.”

Alice famously said of President Warren Harding, who she knew well and was perhaps our worst president, that he “was not a bad man. He was just a slob,” which reminds me of Texas Gov. Rick Perry.

To paraphrase Alice Roosevelt Longworth: “Rick Perry may not be a bad man, but he really isn’t a very smart one.”

Perry, the long serving Republican Governor, has been indicted by a grand jury in Austin accused of abusing his power. Imagine that, a Texas governor doing such a thing, but I digress.

Sometime back Perry quite openly tried to force the resignation of a Democratic prosecutor in Austin who has jurisdiction over public corruption cases. The prosecutor made a fool of herself during a drunk driving incident and spent some days in jail. Perhaps seeing an opening to get rid of a pesky prosecutor who was apparently looking into some details of Perry’s 14 years in the governor’s office, the governor demanded that the prosecutor resign. She refused. Pretty standard political behavior, right? But wait a Texas minute and whoa there cowboy!

At this point in our tale, Perry failed to turn off the stupid. In public remarks the governor tied the resignation of the vodka-swilling Democratic prosecutor to the state appropriation for the political corruption unit she commanded. Viola! Intimidation. Retribution. Abuse of power. Stupid. And, of course, there was no resignation, but rather a grand jury.

Most governors, obviously Rick Perry included, can’t resist the “threat” of the veto. It is the ultimate power of the executive. The legislature can vote and vote and vote, but in the end only one vote – the governor’s – stands between a law and a piece of paper headed for the round file. Rick Perry’s real failure as the man-who-would-be-president was more his threat than his action. You’d think a guy who has been governor for all of this century would understand that the action of saying NO – decisive, final, surprising, perhaps even a little mysterious – has way more political impact that the threat of saying NO followed by the anticlimax of action.

Perry was playing hardball when hiding the ball would have been the politically smart and more effective tactic. Nothing inspires political fear in an opponent more than the belief that you might do something really surprising. It’s always a good idea to keep the other guy guessing and asking, “Will that crazy S of a B come out of right field and do something really bizarre?” That, my friends, is the exercise of political power. Don’t threaten. Act. And surprise.

Rick Perry showed up to be booked on the abuse of power charges wearing a swell blue necktie and a slightly off-kilter grin. He rick-perry-300must be calculating that being indicted for abuse of power actually helps him with the GOP-base in places like New Hampshire and Iowa and it will.

Republicans in Congress want to impeach President Obama for abusing his power, but when one of their guys is charged with abusing power – a felony in Texas – it actually helps his positioning for the 2016 nomination. Isn’t American politics great?

I suspect many Democrats would like to be gleeful about the Perry indictment, but most know, as nearly everyone from Human Events to the Washington Post also know, his actions really aren’t criminal. Stupid maybe, but not criminal. As the Post wrote in an editorial: “What everyone should recognize is that this particular kerfuffle fell within the bounds of partisan politics, which, as the saying goes, ain’t beanbag.” By criminalizing stupidity we just worsen the crowding crisis in our jails. Not smart.

Reuters photo

New York Governor Cuomo speaks during a cabinet meeting in AlbanyWhich brings us to Andrew Cuomo, the governor of New York where political scandals are about as prevalent historically as coyotes in Texas. If Rick Perry’s stupid threat followed by a veto was politics as usual, then Cuomo’s decision to appoint a high profile commission to investigate New York political corruption and then stonewall the commission’s work at every turn is potentially a whole lot more. The aggressive U.S. Attorney in Manhattan is on the case.

The New York Times, which, by the way, editorially called the Perry indictment silly, recently documented the extent to which Gov. Cuomo and his minions have tried to thwart the ethics commission’s work. This actually has the smell, as does Gov. Chris Christie’s Bridgegate problem across the Hudson River in New Jersey, of a real and lasting scandal.

Cuomo may one day look back on the much ballyhooed and very high profile launch of his ethics commission, complete with promises of transparency and candor, as a moment of gubernatorial hurbis that makes Rick Perry’s Texas stupid look pretty small town along side a New York perp walk.

But back to Warren Harding. When Harding died in 1923 under what are still not completely explained circumstances he was bedeviled by charges of corruption in his administration. Eventually his Secretary of the Interior went to jail and his Attorney General was forced to resign. Shortly before his death Harding complained that in the business of politics it always seems that your friends cause you the greatest amount of grief. It was true in 1923 and true today.

If it turns out that Gov. Perry has a problem it will be because he was trying, with his now criminalized veto, to clean up after his friends in the Texas Cancer Prevention and Research Institute, a favorite Perry cause where grants and such seem to flow steadily to his friends. The zeal of Gov. Cuomo’s staff in micromanaging the New York ethics commission may come close, if not cross the line, to obstruction of justice or witnesses intimidation. The same can be said for Christie’s staff in New Jersey and Gov. Scott Walker in Wisconsin, whose staff allegedly played fast and lose with the rules against mixing official business with political hijinks.

All these ethically challenged guys have huffed and puffed that all they have done is practice politics as a high art. Nothing criminal about that, they say. No usual suspects to round up in these parts. Still, politics isn’t just about high fast balls thrown at the other guys head. It shouldn’t always be just bluster and fuss wrapped in raw power. At its best politics is both style and substance; skill and sophistication. Be a little subtle while gently sticking in the knife. Bring down the hammer, but wrap it in velvet. Above all don’t channel Nixon and give them cause to call you a crook. And, while you’re at it, don’t get mentioned in the same blog post with Warren G. Harding.

The unpopular Barack Obama has some advice for Perry, Cuomo and the current gang of governors forcing us to mix politics and crime: don’t do stupid stuff. Or, as the always quotable Alice Roosevelt might have said, don’t be a slob.

 

Big George

220px-George_V._HansenI have a string of enduring memories of former Idaho Congressman George V. Hansen that date back nearly 40 years. Hansen died this week in Pocatello at age 83 and to the extent he deserves a place in Idaho and American political history it will be as one of the most controversial politicians the state, maybe the nation, produced in the second half of the 20th Century.

On one memorable occasion years ago I ran into Hansen as he struggled to squeeze his six foot, six inch, nearly 300 pound frame into an undersized Horizon Airlines plane on a particularly hot summer afternoon in Pocatello. He was huffing and puffing, perspiration streaming down his face, but every hair on his slicked down pompadour in place, packing his own luggage, smiling his big grin, off again to slay his dragons.

Hansen, whose spectacularly controversial career as an elected official came to end in 1984, was not long out of jail for failure to file the required federal financial disclosure forms when I encountered him that day in Pocatello. Big George recognized me – I’d interviewed him many times, since publicity good or bad was the jet fuel of his political success – and, of course, he said hello and asked how I was doing. In turn I asked what he was up to and he pointed to the two oversized lawyer-style briefcases that were stuffed with paperback copies of his book assailing the Internal Revenue Service (IRS). Hansen was on-the-road again that day selling his books and preaching his never ending gospel about the evils of the IRS.

In his death, as in his life, we will no doubt hear strongly mixed assessments of his career as, ironically, the mayor of an Idaho town (Alameda) that no longer exists, as perhaps the most conservative Congressman in Washington over seven terms spread from the early 1960’s to the early 1980’s, as an unsuccessful three-time U.S. Senate candidate, as a felon who eventually saw his conviction overturned in a cloud of classic Hansen confusion, and later as a private citizen ordered to repay hundred of thousands of dollars to investors he bilked. The one consistent element of his wild career was his determined crusade against the IRS, a crusade conducted by a publicity generating gadfly who regularly neglected to file his own federal tax returns.

Hansen fits squarely into the gallery of Idaho political characters from Sen. Herman Welker to Rep. Bill Sali who largely held political office to fightGeorgeHansen against government, generating big headlines by tilting at windmills as they played fast and loose with political and personal ethics, not to mention the truth. It is not difficult to recall Hansen’s legislative accomplishments since there really weren’t any, but it has always been difficult to keep straight his various brushes through and around the rules most of the rest of us play by.

As news of Hansen’s death spread this week a friend reminded me once again of the spectacular story of Hansen’s failure over many years to file federal tax returns. The blockbuster story was broken by then-Lewiston Morning Tribune reporter Jay Shelledy who, as he wrote years later, had been tipped off by various anonymous sources about the fact the the self-styled congressional critic of the IRS apparently so disliked the agency that he took it upon himself not to file his own tax return. Hansen denounced the story, the newspaper and the IRS and his southern Idaho constituents promptly re-elected him, perhaps because they appreciated the audacity of his denials.

Shelledy, a brilliant reporter who went on to edit newspapers in Moscow and Salt Lake City and teach young journalists at Louisiana State University, revealed the story behind the Hansen tax returns in 1988 after the death of former Idaho state IRS director Cal Wright, who had been one of Jay’s confirming sources. The reporter had promised the sources confidentiality in exchange for information about a story of an elected official flaunting the law. Idaho being Idaho and Hansen being a darling of the right wing the story hardly registered on his political career.

Ironically officials in the Nixon Administration were the first to tumble to Hansen’s lack of tax filing while vetting the out-of-work former Congressman for a position at the U.S. Department of Agriculture in 1969. Hansen had given up his House seat the year before to challenge then-Sen. Frank Church. Despite Hansen’s best efforts to label Church as soft on Communism, Church won the election handily.

According to Shelledy’s account, Nixon’s Attorney General John Mitchell, a man who knew something about breaking the law and going to jail, became aware of Hansen’s tax problems early in 1969. Wanting to avoid a political problem for the White House, Mitchell pulled strings. The attorney general, Shelledy wrote, ordered “the FBI and the IRS to let Hansen file back returns, pay what was owed, and forget about any legal action” that might embarrass the administration and, of course, derail Hansen’s federal appointment. Hansen, the great critic of the IRS, quietly flew to Boise and presented himself at the state IRS office on a Saturday, a day when the office was normally closed, to hand over the late  tax returns and a check. He went on to serve several years in a variety of top positions in the Nixon Administration and only years later did the story came to light thanks to Shelledy’s reporting.

It is impossible to escape the irony of a guy who made attacks on the federal tax agency the center point of his long political career, benefiting from the agency bending – or breaking – the rules to cover up his own repeated flaunting of federal law. The story is a lesson about Hansen, of course, but also one more indictment of the rottenness, 40 years after his resignation, at the core of the presidency of Richard Nixon. Years later Hansen was implicated in a massive investment scheme that cost one Idaho couple $300,000. In denying his appeal of a judgment that required him to repay the money, the Idaho Supreme Court said: “Hansen’s argument strangely assumes that he was unaware of his own assets until 2007. Moreover, there is no reason why the judgment would become inequitable simply because the judgment debtor cannot afford to pay it.” That sounds remarkably consistent with so much of Hansen’s tangled and genuinely strange career.

Say this much for Big George: he was a true believer of the Tea Party-type and a buddy of Ron Paul before such politics were fully in vogue. Never in doubt, Hansen styled himself a defender of the little guy against the excesses of Big Government. Google him today and you’ll find Big George lionized as a great defender of the Constitution who went to jail for his beliefs. At the same time, Hansen was a brilliant retail campaigner and as good a politician at working a room as I have ever seen, skills that were at the heart of much of his appeal to voters. Hansen was a rough and tough campaigner who played the race card against Frank Church in 1968, linking Church’s support for civil rights legislation with being soft on crime and Commies. When many Americans felt a growing disenchantment with the nation’s misadventures in Vietnam, Hansen criticized Church’s stand and argued for winning at any cost even if that meant using nuclear weapons. Seldom has a politician been so spectacularly wrong on so many things over such a long period.

Still it was hard not to like him on a personal basis. Hansen was a gregarious, fast talking, glib and even strangely charming salesman of his own brand of political hokum. He remembered names and genuinely seemed to be interested when he inquired about your health and how your kids were doing. Hansen would often introduce his gracious and politically astute wife – Connie Hansen died in 2013 – as the brains in the family and the one who should be in Congress. As Big George delivered that line you could often see heads nodding in agreement.

Reporters loved to interview him because he was good copy and he rarely failed to deliver with his analysis of the latest government outrage or administrative overreach, while skillfully evading every tough questions about his own foibles. When Hansen somehow managed to fly to Teheran in 1979 and literally placed a card table outside the U.S. Embassy in order to negotiate the release of American hostages, the image was unbelievable and irresistible. At the time I was producing a daily public television program in Idaho and, despite what seemed like the outlandish cost involved, my boss authorized a live satellite uplink so we could feature an interview with the Congressman immediately on his return from what, of course, was a failed mission to free the captives. No hostages were released by the intervention of the big, lumbering Congressman from Idaho, but Big George Hansen nevertheless commanded front pages. Like a Huey Long or Lester Maddox of any earlier time, one has to admire the sheer temerity of his career. Even in defeat in 1984, when Richard Stallings and his own ethics finally combined to end his run, Hansen lost by fewer than 200 votes. He had succeeded for a long time in fooling most of the people.

George Hansen’s obituaries mention his self-described identity as “a dragon slayer” of out-of-control federal agencies, and for sure the old Pocatello insurance salesman played his part in crafting his own bigger-than-life political personality. May God rest his soul, sadly the old dragon slayer never bested his own ethical dragons over 40 years in public life and it will be for those incredible shortcomings that he’ll be remembered, that and the fact that even Idaho will have trouble producing another politician so spectacularly over the top as George Hansen.