Debates

 

Noah

God began to flood the land
Raised his hand to heaven on high
And knocked that sun and the moon from the sky
Shook the mountains and disturbed the sea
Hitched his reins to his Chariot Wheel
Stepped on land and stood out on shore
Declared this time couldn't be no more
'Cause it's gonna rain

What if you flood with something other than water?

Steve Bannon, the convicted prisoner who can currently be reached at the Danbury Federal Correctional Institution, is an advocate of flooding the zone with bullshit/lies.  So apparently is Donald Trump, which he displayed during his “debate” with President Biden.  In debate, this strategy is called the Gish Gallop after creationist Duane Gish who often used the technique when challenging the scientific fact of evolution.  The problem in debate is that it takes more time to respond to the lies than it does to state the lies in the first place. 

When it is used in a debate, the victim appears confused.  When the victim had previously been characterized as old, this confusion can appear to be confirmation that this confusion was age induced senility.  Abbott and Costello tried to amuse us with this technique.  We were supposed to think that Lou Costello was stupid, not merely confused.  https://www.youtube.com/watch?v=kAkLzbq2K3I. 

During the debate, the confusion was supposed to be evidence of senility.  Flooding the zone with lies, especially when Jake Tapper and Dana Bash were of no help in fact-checking those lies,  couldn’t have worked, could it?

Ties

 

Heartbreaker

You're a heartbreaker
Dream maker, love taker
Don't you mess around with me

What about Tie breakers?

The outcome of any fair contest is a win, a loss, OR a tie. However, because in many cases a tie is considered to be like kissing your sister, if a contest ends in a tie, a tie breaker (which may be extra innings, sudden death, overtime, extra time, shoot outs, etc.) is often used. But that did not change the fact that the regular contest ended in a tie.

The reason that a tie breaker is used is because that contest may have been  trying to establish certainty. Certainty is the inverse of the odds of an outcome. If you have any outcome, the certainty is, by definition, less than 100%. If the outcome can be changed from a tie, then it can appear to increase the certainty. However while a win establishes dominance, so does a loss (the winner, not the loser. is dominant). A tie does NOT establish dominance. The problem is confusing certainty with dominance. A tie breaker only appears to increase the certainty to 50%. The fact that there was a tie breaker in the first place has to be considered, and the probability of that tie breaker being needed was 33%.

The National Hockey League, in its regular season, not Stanley Cup, games, recognizes this. After a regular season hockey game ends in a tie AND the following  overtime (which could end in sudden death) ends in a tie; AND the following shoot out of 5 shots ends in a tie, it awards one point for each side for that tie, while a win always gets 2 points, and tie during the regular contest gets a point, and a loss during the regular contest gets no points.

Pretending a contest has only two outcomes, Win/Loss when Tie is a valid outcome, is IMHO the source of much confusion. A trial verdict is Guilty or Not Guilty, not a verdict of Guilty or Innocent. Not Guilty includes Reasonable Doubt, in addition to Innocence. A win from a tie breaker only establishes dominance, it does not establish certainty.

Only the absolute can be certain. We can strive to approach certainty, but we can not achieve it. Do not confuse dominance with certainty. That “win” which indicates dominance can be the result of cheating which by definition is the opposite of Truth/Certainty.

Immigrants

 

Immigrant Song

We come from the land of the ice and snow
From the midnight sun where the hot springs flow
How soft your fields so green
Can whisper tales of gore
Of how we calmed the tides of war
We are your overlords

Should we afraid of immigrants?

I would like to cite another song lyric as a counterpoint.

How Have You Been

How have you been my darling children,
While I have been away in the west?
Though you are strangers,
I feel that I know you.
By the way that you treat me
 And offer to feed me
And eagerly ask if I'll stay for a rest.

My maternal grandparents were immigrants from Poland who never learned to speak English.  My paternal great-grandparents were all immigrants from Ireland.  ( My paternal grandmother was born in the US, but my father’s father was an illegal immigrant from Canada!).  Everyone in the United States is a descendant of immigrants.  You may fear new immigrants if you think that the world is a zero-sum game and immigrants/strangers will take what you have.  If the world is NOT a zero-sum game, a group is stronger when it is larger, and immigrants can contribute to your group, then it makes sense to treat immigrants/strangers well and welcome them into your group.  I understand that the fear of strangers (stranger danger) is part of out human psyche.  But every major religion has admonitions about treating strangers well.  So are you religious punk? Do you believe in taking or sharing?

Chevron Deference

                                                                                    I Believe 

I believe for every drop of rain that falls
A flower grows
I believe that somewhere in the darkest night
A candle glows
I believe for everyone that goes astray
Someone will come to show the way
I Believe 

There is a difference between believing and knowing. But I guess lawyers know everything! 

Even though I am not a lawyer, nor do I play one on TV, I have been an expert witness in court cases.  It is assumed that judges and juries do NOT know everything and require expert witnesses.  I have been an expert witness in bench cases, decided by a judge, and in jury cases.  The various regulatory agencies presumably include experts.  Even then any regulation has a mandatory Notice of Proposed Rule Making, NPRM, and comment period that is required before any rule/regulation can be adopted by a federal executive agency.  During the comment period of this NPRM various state and local agencies, and private stakeholders can offer their own expert testimony on the proposed regulation. I have submitted comments and I know that every comment is read, considered, and replied, and those comments and the responses are part of the public record in the Notice of Final Rule Making.  I have not always agreed with the clients who requested that I submit comments for them, but I think that I have always tried represent them ethically and truthfully. 

Unfortunately the Supreme Court in overturning the “Chevron” doctrine considers judges to be experts on everything, and thus apparently they do not need the advice of experts.  The fact that you do not like an opinion/regulation does not mean that it is not a valid opinion/regulation.  Sometimes you lose.  You may not like that, but that is how it works. I guess my services as an expert are no longer needed. Judges and legislators know everything!

Facts

 

I Second That Emotion

Oh, but if you feel like lovin' me
If you got the notion
I second that emotion
Said, if you feel like giving me a lifetime of devotion
I second that emotion

Are you thinking emotionally or intellectually?

The late Senator Daniel Moynihan famously said that “You are entitled to your own opinion, but you are not entitled to your own facts.”  Opinions are the result of emotional thinking. Facts are the result of intellectual thinking.

I understand this is hard. Emotionally I am convinced that when I ride a roller coaster I am going to die. Intellectually I know that I am perfectly safe. So emotionally I scream in fear, even though intellectually I know I should not scream. Rather than believing alternative facts, also known as lies, please think intellectually, not emotionally.

Limits to Growth

 

Taking A Chance on Love

I thought the cards were a frame-up
I never would try.
But now I'm taking the game up
And the ace of hearts is high.

Things are mending now;
I see a rainbow blending now;
We'll have our happy ending now
Taking a chance on love.

It is good to play the game, but hopefully it is NOT a zero-sum game.

There is a difference between the limits of growth and limits to growth. The first applies to a zero-sum game. It assumes that there never will be any additional growth. The second applies to any game, which recognizes the limits at the current time but recognizes that those limits can change, and even grow.

For example when the size of the US House of Representatives was set at 435 members in 1911, there were 46 states and a population of 93,863,000. The size of US Senate was by contrast was set at 2 senators per state. Thus in 1911 there were 82 Senators, while in 2024 there are 100 Senators, because the number of states has increased to 50 while the population of the United States has increased to 341,814,420. The current dysfunction in the House is arguably because of treating its size as a zero-sum game.

In 1867, the number of justices on the Supreme Court was set at nine because they were at that time 9 circuit courts of appeal. There are currently 13 circuit courts of appeal but the number of justices on the Supreme Court has not increased.

I have argued that the size of the House should follow the Wyoming Rule, which mandates that after every constitutionally required decennial census, the lowest state by population gets the constitutionally required one representative and every other state receives a number of  representatives based on the ratio of its population compared to the population of that lowest state (currently Wyoming). The Supreme Court should thus have 13 justices, one for each circuit court. The addition of a circuit court should automatically trigger an increase in the number of seats on the Supreme Court. These are both limits to growth, the Wyoming rule or equal to the number of circuit courts, not limits of growth, fixed at 435 or 9.

Term Limits II

 

So Long, Farewell

So long, farewell, au revoir, auf wiedersehen
I´d like to stay and taste my first champagne
So long, farewell, auf Wiedersehen, goodbye
I leave and heave a sigh and say goodbye
Goodbye!
I´m glad to go, I cannot tell a lie
I flit, I float, I fleetly flee, I fly
The sun has gone to bed and so must I

Justice Thomas, you have already tasted Harlan Crow’s champagne!  

Knowing when to say goodbye is important. Too important to leave to an individual to choose when to say goodbye.  Any appointment as a constitutional officer, to serve as a representative of its sovereign, the people, should have a limit. Legislative officers serve a term of two years in the House and six years in the Senate. The chief executive, the President, serves a term of four years. The officers of his executive branch, serve at his pleasure, so they de facto serve terms of four years, and given that the president is limited to two terms, practically no more than eight years. It is only judicial officers who appear to serve for life. As constitutional officers they represent all of the people, including wards of the people, children. Children eventually become adults and are no longer wards. The federal voting age is 18 years (from the date of birth), so arguably the term limit for any constitutional officer, including  members of the judiciary, should be no more than 18 years or else the wards have no say in their selection.

So why did the adopters of the Constitution not include a term limit? Members of the judiciary are traditionally not appointed until they are in their 30s. Life expectancy in the United States at the time the Constitution was ratified was only 36 years. It thus seemed unnecessary to impose a term limit of 18 years when Nature would get there first. But in 2022, life expectancy at birth in the U.S. was 77.5 years. 18 years seemed like a life appointment in 1789, but 18 years is a reasonable regency to what should never have been a lifetime appointment.

This is not to say that an individual  could not be reappointed after completing their first 18-year term. While it is unlikely that a single individual would complete all of that second term, serve for a total of 36 years, a limit of two terms should be imposed, in case life expectancy makes another unanticipated uptick. Chief Executive officers are already limited to two terms of 4 years. It seems prudent that legislative officers should also be limited to 36 years. That means that Representatives of the House would be limited to 18 terms, Senators would be limited to 6 terms. and judicial officers would be limited to 2 terms.  By then, it should be clear that the party’s over.