Thursday, June 17, 2010
The Maligning of BP
Everything is soothed by oil, and this is the reason why divers send out small quantities of it from their mouths, because it smooths every part which is rough.
— Pliny the Elder, Natural History
The British anger is really over the fact that Americans lack the stiff upper lip for which the British are so famous. Instead of just sucking it up and putting on a brave face we seem to be engaged in a constant state of whinging and it’s hard for the British not to believe that it’s nothing more than wanting to make them and one of their prized corporate citizens look bad.
In fairness to the Americans, one has to observe that the oil being spilled (the word that is consistently used to describe something that never having been contained except by nature, was hardly capable of being “spilled”) is having a devastating effect on the environment and its inhabitants. Millions of people are having their lives irreversibly altered if not shattered with no prospect of returning to a pre-spill way of life during their lifetimes, presidential promises to the contrary notwithstanding. The environment will be irreversibly altered for hundreds of square miles with no prospect that the life contained therein will recover within the foreseeable future.
And it’s not that BP (referred to as “British Petroleum” by some commentators, in an attempt, the British think, to create more anger towards their country) did not do everything within its power, sort of, to protect against the very disaster that occurred. So thorough was BP that in the response plan that it furnished the government describing how it would deal with disasters, it said it had plans to protect “Sensitive Biological Resources” in the Gulf. It defined those resources to include “Sea lions, Seals, Sea Otters and Walruses”. That shows an amazing thoroughness since sightings of any of those creatures in the Gulf have, in recent centuries, been extremely rare. (During the recent congressional hearings in which executives from other companies that were drilling in the Gulf testified, it was disclosed that many of the response plans prepared by them also promised to protect those animals.)
BP also identified its “primary equipment providers in the Gulf of Mexico Region for deployment of spill response resources on a 24 hour, 7 days a week basis.” One of those providers, identified in a link on the proposal, was to a Japanese Home Shopping site but that was just a mistake and does not suggest BP was negligent. The fact that it identified them was significant even though when the event occurred the providers, including the Home Shopping Network were, contrary to the representation, unavailable. In its response plan it also says it has “personnel, equipment, and materials in sufficient quantities and recovery capacity to respond effectively to oil spills from the “worst case discharge scenarios” covered by the plan and it is almost certain that it believed that.
A rarely mentioned fact about the response plan is that it is almost 600 pages in length. That, too, speaks to the thoroughness of BP’s work.
Considering all of the foregoing, it is easy to see why the British are so upset by criticism of the company and its consequential damage to BP’s reputation.
BP is a very important British company. It has historically paid really good dividends and its stock is widely held by teachers’ unions, pension funds, etc. Boris Johnson, the mayor of London spoke for the British public when he expressed worry about “anti-British rhetoric” and “name-calling” from American politicians. George Osborne, Chancellor of the Exchequer said it was important to remember the “economic value BP brings to people in Britain and America.” (The Americans will be forgiven if that benefit has been somewhat eclipsed by the disaster.) In addition, BP pays close to $1.4 billion in British taxes and any diminution in that amount would harm the British economy.
The Conservative peer, Lord Tebbit, was quoted in the New York Times as calling the American response “a crude, bigoted, xenophobic display of partisan, political, presidential petulance against a multinational company.” Sir Chrisopher Meyer, a former British ambassador to the U.S. said that the British government “must put down a marker with the U.S. administration that the survival and long term prosperity of BP is a vital British interest.” That is easy for Americans to overlook when contemplating the long-term survival and prosperity of residents of the gulf coast.
I am taking the concerns of the Brits to heart. I will, as I hope this column proves, say nothing but nice things about BP. And irrespective of what happens to the people who live on the Gulf coast, I join BP’s president in expressing the hope that he can get his life back. I am sure this has been an unpleasant and stressful time for him.
Thursday, June 10, 2010
Money vs. Judicial Merit Selection
No matther whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ iliction returns. — — Finley Peter Dunne,
It is yet another example of democracy in action and plaudits to the Wall Street Journal for coming to the defense of the millions of dollars that helps some states choose judges.
In a recent editorial, the paper applauded the use of dollars to fund the campaigns of judges in states that still enjoy the direct elections of judges. The WSJ (that enthusiastically supported the Supreme Court when it rejected Arizona’s attempt to level the playing field between the independently wealthy candidate and a less affluent opponent calling it “freer Political Speech) is also campaigning in favor of the notion that we are entitled to the best judges that money can buy.
The system of non-partisan selection of judges that offends the editorial writers has been in place in some states for more than 40 years. It first appeared in Missouri in 1940 and was known as the Merit Selection System. At the present time more than 30 states use some form of the Merit Selection system. Although there are many permutations, the purest merit selection system involves a commission that consists of equal numbers of lawyers and laymen and in many of the jurisdictions, an equal number of members of both parties. The commissioners interview candidates and then furnish the governor with a list of those it has found to be the most qualified from among the applicants. The commissions are to avoid partisan considerations in making their selections but the governor may select any of those on the list using whatever criteria, including political affiliation, that he or she chooses. Within a relatively short time after their ascension to the bench, the appointed judges are subject to a vote of approval or disapproval from the general electorate. It is a non-contested election and there are no costs involved for the judge seeking retention. Campaigning by the judge, whose retention is being considered, is prohibited except under exceptional circumstances. The drawback to this system, the WSJ believes, is that the public has no opportunity to participate in the process in the most meaningful way-contributions of money. That is because there is no one to whom to contribute. The system that the WSJ favors gives money the opportunity to participate in the process.
One of money’s more amusing appearances was in the 1980s when the Texas Supreme Court decided a contract dispute between Pennzoil and Texaco in favor of the former with the result that Texaco settled with Pennzoil for $3 billion. Following entry of that judgment, wags observed that in one year the lawyers for the winning side had contributed in excess of $300,000 to members of the court for their reelection efforts whereas lawyers for the losing side had contributed less than $200,000. Only a cynic would believe that the contributions affected the justices’ decision, at least until West Virginia came along. Capperton vs. A.T. Massey Coal Company, decided in 2009, demonstrated that even the U.S. Supreme Court, a majority of whose members rarely take offense when money takes control, took offense.
Brent Benjamin, a West Virginia Supreme Court Justice, accepted $3 million in campaign contributions from Don Blankenship, the owner of A.T. Massey Coal Co. (Massey was most recently in the news, before being eclipsed by BP, when an explosion at one of its mines with countless safety violations killed 29 miners.) Justice Benjamin saw no conflict in accepting $3 million in campaign contributions from Mr. Blankenship or entities controlled by him and then, in two separate appeals, casting the deciding vote in favor of his benefactor. (A slim majority of the U.S. Supreme Court saw it differently and said he had a clear conflict and sent the case back to the W. Virginia Supreme Court where presumably Justice Benjamin will stay home when the case is again heard by the court.) A report by Justice at Stake discloses that in 2000 candidates seeking Supreme Court seats in the state of Alabama spent slightly more than $12 million. In 2006 that figure was $13.4 million and in 2006 the candidates seeking to become that state’s chief justice raised $8.2 million. Between 2000 and 2008, candidates for state Supreme Courts positions throughout the country where contested elections were permitted, spent close to $200 million.In its attack on non-partisan selection systems, the WSJ concludes that although the system is intended to take politics out of the selection of judges, “the plan has in practice handed disproportionate influence over the judiciary to lawyers and bar associations.” That conclusion is not supported by fact.
In the 2006 judicial elections, business interests outspent all other groups (including lawyers) by a 2 to 1 margin. There are no published studies to suggest that has changed since 2006. Not that that matters to the WSJ. All that matters it that money not be muzzled. With the present Court its free speech is virtually assured.
Thursday, June 3, 2010
Words and the Politician
— Abu Mohammed Kasim Ben Ali Hariri, (1054-1122 )We praise Thee, O God,
For whatever perspicuity of language
Thou hast taught us. . . .
Makamat. Prayer
The problem lies with the language and not the protagonist. It is virtually impossible for the politician to keep control of pen and tongue and not infrequently the politician is betrayed by one or the other. Newt Gingrich and Richard Blumenthal are their latest victims. Mr. Blumenthal’s betrayal is the more understandable and certainly less pernicious than the betrayal of Mr. Gingrich by his pen.
Mr. Blumenthal is running for the United States Senate in Connecticut. In May the New York Times disclosed that his repeated description of his military service in Viet Nam, while inspirational and helping create a sense of camaraderie with those returning from combat, was fictitious. Mr. Blumenthal never served in Viet Nam. His military service was like George Bush’s and Dick Cheney’s. Between 1965 and 1970, he received 5 deferments (by coincidence the same number as Dick Cheney). The reasons ranged from being a student, to working at the Washington Post, to serving in the Nixon White House. Betrayed by memory and tongue, in countless speeches to veterans and others he referred to his service in Viet Nam. Addressing a group of veterans and old folk in 2008 he explained how we have learned a lot since the days he served in Viet Nam. As a result of his repeated representations the Connecticut press frequently referred to him as a Viet Nam veteran and Mr. Blumenthal made no effort to correct their descriptions since having said it enough and read it enough, he believed it. The fault in his description can be found in one word.
Mr. Blumenthal may well have gone to Viet Nam long after the war was over, enjoyed a good meal, and in describing the experience to friends said he “was served in Viet Nam” referring, of course, to the meal. As time went on he dropped the “was” and pretty soon thought of himself as a veteran.
Mr. Blumenthal is angry about the NYT report and acknowledged that “On a few occasions I have misspoken about my service, and I regret that and I take full responsibility.” Regretful perhaps, but indignant at the New York Times that first reported his faulty memory, he said he “will not allow anyone to take a few misplaced words and impugn my record of service to our country.” Many a prevaricator would take comfort in knowing that by calling lies “misplaced words” the onus is lifted from their misplacement.
While Mr. Blumenthal was explaining his misplaced words, Newt Gingrich was once again seeking to establish himself as a force in the Republican Party. He had drifted out of sight for a few years after resigning from Congress. Prior to resigning he had demonstrated his ability to multitask. While leading the congressional effort to impeach Bill Clinton for conduct arising out of his sexual misconduct, Mr. Gingrich conducted an extramarital affair with a woman who was to become his third wife as soon as he could shed his second wife (with whom he had an affair while waiting to shed his first wife who was recovering from cancer surgery.) But this has nothing to do with his sex life, interesting though it probably is to the women involved. This pertains to his new book called “To save America”.
The name seems a bit hyperbolic since it is not obvious that America needs saving (except perhaps from British Petroleum and Sarah Palin). In the book Mr. Gingrich says that the current administration’s “secular-socialist machine represents as great a threat to America as Nazi Germany or the Soviet Union once did.” Whether the threat comes from the extension of health care benefits to millions of previously uninsured Americans, lowering the cost of drugs for seniors, beginning the withdrawal of troops from Iraq, or ending discrimination against homosexuals in the military, to name just a few, is not articulated.
In coming up with a comparison to Nazi Germany (that he has subsequently tried to soften) Mr. Gingrich may have been thinking of the new law in Arizona that permits the police when making a “lawful contact” with someone who gives them reasonable suspicion to believe the person is an alien, to determine, when practicable, the immigration status of the person. He may have thought that Arizona’s law bore a faint resemblance to Nazi Germany’s requirement that Jews wear yellow stars in public and may have forgotten that the Arizona law is a Republican creation that he should not criticize. The Arizona law is, of course, quite different from the Nazi law since the Arizona law places the burden of identifying the person on the police.
And then again, perhaps none of the foregoing explains Mr. Gingrich’s writing. Perhaps Mr. Gingrich just hopes to grab the mantle of Republican leader from Sarah Palin and to do that he has to say some really stupid things. His description of the Obama administration certainly satisfies that requirement.