Wednesday, September 2, 2015

The Fight for the White House: Trump's Up


We are legion!

A few days ago, I wrote and briefly posted a short article on Jeb Bush. It wasn't quite right. I then replaced it with a somewhat longer article dealing with Trump (or, rather, on how he might lose the Republican primary race). And that wasn't quite right either.

Hmm. Why am I struggling?

I've given it a bit of thought, and I think the simple reason is that, like many others, I wasn't really sure why Trump is doing so well, or why Bush is doing so badly.

In the last few days, though, I do feel that some things have become a little clearer.

So let me try again.


The first Republican debate was held in the beginning of August. Just about everybody expected it to be, in some shape or form, a Trump show. And of course,  that's just what it was.

However, I, for one, hadn't expected Trump to do so badly. I thought then (and still do) that he preformed horrendously. I don't believe he gave a single answer (or made a single comment) which was in any way factually correct or, if it was, which was in any way appealing. 

And yet, from that moment on, the Trump machine has kept rolling. His popularity has kept growing. To the surprise of many, his favourability rating have increased tremendously. He has, quite simply, gone from strength to strength.

Before the August debate, very few pundits were talking Trump seriously at all. By now, everybody is. Most will still tell you that Trump has little or no chance of actually winning the nomination, but that's a different story. Trump is in this race, he's ahead, and he's not going anywhere soon. He's not some amusing distraction; he's real.

But why? He's not a true conservative at all. He's not Cruz, fighting for "religious liberty". He's not Santorum, with his extraordinarily odd views on abortion and women's rights. He's not Huckabee; he's not Perry. He's not Walker or Bush. In fact, in many ways, he shouldn't really be in this race at all. If you look at what the GOP has, in the years since Reagan, become, you realise that Trump just doesn't fit at all.

Yes, he is a loud-mouthed populist, but that just doesn't seem to explain all that much. As I said earlier, voters might at first find that refreshing, but after a little while, they'll realise it isn't enough. Once they start listening to what he says, and not how he says it, they'll scratch their heads and walk away.

Except that they're not doing that. Why?

Well, I'm beginning to think that the current views the GOP has - on conservatism, on religion and on just about every other "holy" aspect of Republicanism - aren't quite right. I'm beginning to think that the GOP may, in fact, be barking up the wrong tree. And I feel that Trump is making this apparent.

And it's not just Trump, either. You might wish to add Ben Carson to the mix, or Carly Fiorina.

Take, for example, a recent Iowa poll. Trump came in at 23%. But so did Carson. And Fiorina came third with a very respectably 10%. What does that mean? Well, it simply means that no less than 56% of those polled did not  support a Republican politician; instead, they supported a non-politician. And just to be clear, the people polled were "likely Republican caucus voters". The people polled were, essentially, the Republican electorate in that state.  

And the majority of them did not back their own politicians.

In another poll, again conducted in Iowa recently, 75% of likely Republican voters also said that they didn't like  the way Republicans were handling Congress. Republicans politicians hold majorities in both the House and the Senate, but three out of four likely Republican voters just don't like what they're doing.

Now of course these are just polls; they're more or less spur-of-the-moment things. In six months time, in a year's time, all the polls will have changed.

Nevertheless, what these two polls show is that the GOP is doing a terrible job. There's no other way to put it.  And what they also show is that voters - Republican voters - aren't all too happy to hop onto any of the readily available "conservative" bandwagons available. They're not rushing to any of the "real" conservative candidates out there, no matter how vehemently those candidates all profess to pray at the conservative altar. Instead, these voters are reaching out to outsiders, to people like the brash Trump, or, alternatively, the seemingly mild-mannered Carson.

And the reason for this is, it seems to me,  ultimately simple. The current conservative message of the GOP might well be of some importance, but it's not what voters are looking for. What voters are looking for, is someone who will Get Things Done. It doesn't matter if those things are all honest-to-God truly conservative; it doesn't matter if they are all religiously conformist; it doesn't even matter if taxes will never be raised again or if the size of the federal government is reduced. All these things are secondary (or tertiary) at best. 

What matters first and foremost is that Things Get Done. What matters is Thomas Jefferson, and Reagan, and Eisenhower. Not Walker, or Perry, or Cruz. 

Republican voters are looking for a real and strong answer to the Democratic challenge. What they're not looking for is some sort of distorted and distasteful version of their own message, thrown in their face in the name of Grover Norquist tax pledges, or the suffocating concept of "religious liberty".    

If the GOP doesn't recognise this, and if their politicians do not recognise this, they are in very real trouble indeed. They're going to get trumped big time.


Sunday, August 23, 2015

The Fight For the White House: The Gortz Haus Controversy


Have a look at this:

The couple Ted Cruz is talking to in this video are Betty and Richard Odgaard. The Odgaards are (or perhaps I should say: were) proprietors of Görtz Haus.

Görtz Haus was a bistro, art gallery and event venue in a suburb of Des Moines, Iowa. When it came to events, it mainly "hosted weddings", an activity it was well suited to, given that the building had been (and still retained a lot of the characteristics of) a church.   

In 2013, the Odgaards were approached by Lee Stafford and Jared Ellers, who wanted to hire the venue. The Odgaards, however, turned them down on the grounds that Stafford and Ellers were a same-sex couple and that, given their Mennonite faith, they had objections to gay marriages.

Stafford and Ellers promptly filed a complaint with the Iowa Civil Rights Commission. Not to be outdone, the Odgaards in turn filed a petition with a district court in Iowa, requesting the court to declare that they had not violated the Iowan Civil Rights Act and had not discriminated against Stafford and Ellers on the basis of sexual orientation.

The court dismissed their petition, stating that the Commission would have to give its ruling before the court could be involved. The Odgaards appealed against this with the Iowa Supreme Court, but before that court could rule on the matter the case was settled out of court. The settlement effectively meant that the Odgaards paid out $ 5,000 to Stafford and Ellers; in turn, the complaint lodged with the Civil Rights Commission was withdrawn.

In 2007, the Iowa Civil Rights Act was passed, which meant that from that moment on discrimination on the grounds of sexual orientation was prohibited. In 2009, same-sex marriages became legal in Iowa.

Back to the video.

In it, Cruz refers to Görtz Haus as a "church". He also refers to the Odgaards actions as "refusing to allow to host a gay wedding" at this church.

The first claim is certainly false. Görtz Haus was not a church. It used to be, but when the Odgaards bought the property, it had lost its religious function. It was a privately owned but publicly accessible property that the Odgaards used for their own commercial endeavours; these endeavours were, however, to a certain extent shaped by their personal religious beliefs. 

The second claim is misleading at the least. After all, what does "hosting a wedding" actually mean? Well, in this case, we know what it didn't mean. We know, more specifically, that Stafford and Ellers did not wish to be married at Görtz Haus. They had, in fact, already wed elsewhere before they contacted the Odgaards. In other words, their desire was merely to host a party or ceremony to celebrate that fact.

This immediately makes the case very different to what Cruz is insinuating in the video. If, after all, Görtz had still been a church (a Mennonite church, say), it could of course have refused to conduct a gay wedding based on the principles of that church's faith. I do not believe that anyone would wish to dispute that.

If, alternatively, Görtz was simply a commercial enterprise open to the public (which indeed it  was), but had been requested to host the actual wedding (a wedding that would therefore be conducted on the premises), the question that arises is whether the Odgaards could be required to facilitate or accommodate that wedding in spite of the fact that it was contrary to their religious beliefs.

That question is, frankly, not an easy one to answer, since there are clearly two strong principles involved which clash. Furthermore it's basically an issue which would have to be decided on the basis of Iowan law, so that even if a clear answer could be given, its impact would be limited to that state.

Nonetheless, a few comments can be made. Firstly, the fact that same-sex marriages are legal in Iowa (and have been since 2009) obviously means that the Odgaards could not have refused to host a gay wedding simply on the grounds that such weddings were prohibited under the law.

More complicated are the provisions of the Civil Rights Act, as amended in 2007. The Act states that it is a discriminatory practice "for any proprietor (...) of any public accommodation (...) [t]o refuse or deny to any person because of (...) sexual orientation, the accommodations, advantages, facilities, services or privileges thereof". That seems reasonably clear, but it should be understood that, at the same time as this clause was added (2007) the Act also  stated that nothing in it could be construed as allowing same-sex marriage. (Remember: at that time same-sex marriages were not yet allowed; that only changed in 2009.)

So the argument could be made (and was in fact made by the Odgaards' lawyers) that the Act's intent must be that the refusal to participate in or accommodate a same-sex marriage cannot on its own constitute a sexual orientation discrimination.

Such an argument (and there are others) might be plausible. I am not at all certain the Odgaards would have prevailed, but it seems to me that they would, at the least, have had a reasonable case. And even if it's still rather iffy from a legal standpoint, it seems morally acceptable to me.

The thing is, though, we'll never know. As I said, the Odgaards weren't asked to actually facilitate in or accommodate a same-sex marriage; they were only asked to rent their property to a gay couple who had already gotten married and now wanted to hold a party (or ceremony) for friends and family. And in any case, the Odgaards withdrew their lawsuit and settled the matter before the courts could give a substantive ruling on the issues.  

So, what are we left with here? Well, fairly little, really. We are left with a fledgling lawsuit that never hatched and a very modest settlement that couldn't really have hurt anyone, including the Odgaards. We are hardly left with, as Cruz states portentously, "an incredible journey fighting to defend religious liberty".


A few final words. In the video, the Odgaards are clearly depicted as victims. They stood up for their religious beliefs, and now, the video suggests, they have had to close down their business.

One wonders, however, whether the Odgaards are perhaps playing the victim card too vigorously.

Firstly, it seems they view themselves a little too optimistically. "I would never discriminate in any area", Betty Odgaard at one point told a local TV station, "that's not who I am". But clearly they had done just that against Stafford and Ellers. The question is not whether their actions were discriminatory, the question is whether such discriminatory action should in some instances be accepted on the grounds of religious conviction. Either the Odgaards do not quite understand this, or they are being purposefully abstruse.

Secondly, their decision to close down the "hosting of weddings" was a decision they made themselves, and it was one they made surprisingly readily. As I understand it, they had had just this one single complaint lodged against them in the period from 2009 through 2013, and no more. And that complaint never reached fruition, since neither the Civil Rights Commission nor the courts gave final substantive rulings. Nevertheless, they still decided to stop hosting all weddings and then decided to close Görtz Haus altogether. 

It is, of course, possible that public opinion had turned against them to such an extent that they simply didn't have enough costumers left; if that, however, was the case, then it clearly shows that it was time they started doing something else anyway; their "incredible journey" is nothing more than evidence of a failing business model. 

If, alternatively, that were not the case, their course of action seems to be a rather odd rush to victimhood.

Wednesday, August 19, 2015

The Fight For The White House: Emerging Majorities


Back in 1969, Kevin Phillips wrote a book called The Emerging Republican Majority. In it, he predicted that the Republicans would dominate American politics for some time to come.

He was more or less right, as least as far as the White House is concerned. A year earlier, in 1968, Nixon had become president; after that, the Republicans won another four elections in a row, the only exception being Carter's rather short lived victory in 1976.

So from 1968 onwards (and discounting, just for the moment, the Carter interregnum), the US elected a string of Republicans presidents all the way up to 1992. That year, of course, Bill Clinton managed to wrest the White House out of GOP hands.

Clinton went on to win a second term, and left office as one of the most popular presidents in recent times (in spite of severe scandals). And soon afterwards, John Judis and Ruy Teixeira published a book that in many ways took Kevin Phillips's idea and turned it on its head. It was, aptly, called The Emerging Democratic Majority, and in it, they argued that it would not be the Republicans, but instead the Democrats who would prevail in the foreseeable future.

In some ways, the authors did not make an auspicious start. Their book was published in 2002, two years after George W. Bush has reclaimed the White House for the Republicans. And in 2004, Bush quite comfortably won a second term.  It was not until 2008 that their theory seemed to bear fruit: that year, Barack Obama surprisingly won the Democratic primary race and, not so surprisingly, went on to become the 44th president of the United States. He was, of course, re-elected in 2012.

So is this, in fact, the proof (or, at least, the beginning of the proof) of a Democratic surge? Will the Democratic nominee end up winning in 2016 as well? And perhaps again in 2020?

Well, maybe. Sort of. In a we'll-probably-never-really-know sort of way. Here's why.

The basis of Judis's and Teixeira's theory is a relatively simple one. They state that the growth of minority populations (especially the Hispanic population), along with increasing Democratic strength among well-educated white professionals, will allow Democrats to outperform Republicans. Not for ever, mind, but for a considerable while to come.

That basis seems quite strong. The Hispanic population is indeed growing, and, yes, they predominantly tend to vote Democratic. The same is true of well-educated whites. Blacks (whatever their level of education) have almost always voted Democratic. Asians tend to more or less vote Democratic as well. So, at first glance, it would seem that the EDM thesis (as it is often referred to) is sound: the population is changing, and the changes favour the Democrats.

When you start to think about it, though, you begin to realise that it is just a theory, and that real life tends to be a bit more complicated and unpredictable. For example, look at each of the following Democratic victories. What's the first answer that pops into your head when you ask yourself why they won?

-               Carter in 1976. Surely his victory stems primarily from the debacle of Nixon (or, if you prefer, Watergate).
-               Clinton in 1992. Clinton was certainly helped a very great deal by the third-party candidacy of Ross Perot. That, and a certain "Read My Lips" pledge.
-               Obama in 2008. Think Iraq. Think, more generally, of Bush's abundant weaknesses and the domination of rather sinister characters such as Rumsfeld and Cheney.

These are not, of course, the only reasons Democrats won those elections, but they are decidedly important ones. And the thing is these reasons have little to do with any grand theory; instead they are simply the result of how the electorate viewed the guy in charge and whether they thought him (or his party's successor) fit for the job. 

To this example could be added many others, some similar, some very different. Take, for instance, the very real desire for change that occurs after four of eight years of things being the same. I'm certain this played a part in the Republican's defeat in 2008, and I'm also certain it played a part in Al Gore's defeat in 2000 (in spite of Clinton's popularity and the strength of the economy). And whilst it's impossible to predict exactly how things will work out in 2016, I think it's safe to say that this is a factor that will pop up again.

Take, also, the fact that every action leads to a counter re-action. It may well be true that, say, the growing Hispanic population favours the Democrats, but what if, in turn, the shifting demographics lead more whites to vote Republican? And what happens when more Hispanics become relatively affluent? Will they start voting Republican? (As an aside: earlier this year one of the authors of The Emerging Democratic Majority, John Judis, basically recanted his thesis, pointing out factors like the ones just mentioned.)

So clearly the outcomes of elections are dependent upon a wide variety of factors (did I mention the economy?), many of which profoundly but at times incomprehensibly influence each other. No election, let alone a whole string of elections, can be explained by virtue of a single all-encompassing theory.

And yet, having said that, there is still to my mind a fairly strong case to be made in favour of the EDM thesis (that is, when it comes to the presidency; the theory does not apply to Congress). The reason is simply that, whilst its conclusion need not necessarily be inevitable, it is certainly logical, whilst the foundation on which it resides is, in large part, true. In short, it makes sense.

There is, additionally, a final fact to consider. It is this. All through time, political parties shift and change. If their message becomes unpopular, well, they tend to change it. And, in doing so, they often manage to become popular again. So is the Republican Party doing this? The answer, at present, seems to be a fairly emphatic "Hell, no!". Republicans are, in fact, doing the exact opposite; they are doubling down on most of their previous mistakes. Hispanics? Women? Gays? They seem to want to alienate all these groups as quickly and as decisively as they possibly can. 

In doing so, they may well be pandering to their base (a part of their base, at any rate), but they run the very real risk of realizing their own worst nightmare.    

No single theory will determine the future of politics. But when backed by a great party, it certainly might seem that way.   

Friday, August 7, 2015

The Fight for the White House: The First Debates


Hurrah! The first Republican debates!

And it a fun format, too!

First off, we had The Kiddie Table, where those candidates who didn't really manage to register in the polling at all could happily pretend that they were all grown up and important. And they really did their best, appearing dressed up in fine clothing and wearing their most serious faces and appearing to be as presidential as any toddler might possibly be.

The Trumpster
And to be fair, there were some rather good toddlers there, too. In fact, they almost all performed rather well. As kiddies go, they were well-mannered and pretty convincing. If you were looking for youthful abrasiveness and puerile fisticuffs, look elsewhere.

And The Kiddie Table also had a real winner. It wasn't Jindal, or Santorum, or even Perry. Instead, it was (surprise!) Carly Fiorina. She, more than any of the others, came across as calm, assured, and quite in command of the situation.

Of course, this was the Kiddie Table, and the questions asked of her and the others weren't too difficult.  She wasn't, for example, asked about her time as CEO of Hewlett-Packard, which ended with her forced resignation at a time when HP's debts had dramatically increased and its stocks had lost about half their value (gulp).  She faced no such hurdles and, whilst I do believe that she deserves more attention than she has been getting, it is also true to point out that further time on stage may not prove to be quite as flattering.

One final remark when it comes to the kiddies, just for fun. At the end, when making his closing arguments, Santorum happily stated that "you don't have seven children unless you're optimistic about this country." What he didn't mention, however, was that he is opposed to birth control, going as far as to decry a 1965 Supreme Court ruling (Griswold v. Connecticut) that struck down a ban on the use of contraception by married couples. Now, if having seven kids was a matter of choice, rather than a consequence of  simply having sex, wouldn't that sort of derail his own principles a bit? Ah well, never mind... It was the Kiddie Table, after all.

Did I mention abrasiveness and fisticuffs? I did, didn't I? Well, we got those too. The thing is, though, that all that happened at the Grown-Up Table, where the we got to watch how a real kid operates. And not a cute kid, or a smart one. Oh no, we got the best possible viewing imaginable: the spoilt and silly kid, getting justifiably wackamoled and becoming increasingly contrary and, as a result, amusing.

The kid's name is, of course, Donald Trump, and what an extraordinary mixture of thick-headedness and bullying he decided to display! It really was something to behold.  It seemed he was trying to be tough-talking and anti-establishment; in doing so, he only managed to prove that he is the very epitome of everything most conservative voters hate. I gave money to politicians, he stated proudly, and they did what I asked. I used the law and had companies declared bankrupt, and I made loads of money, even as hundreds of employees lost their jobs. I flip-flopped all over the place - that's just how versatile I am!

In short (the message appeared to be) I buy people to do what I want. I sack people because it makes me richer. I abuse others and am proud of it. I have no principles at all, except the principle of me.

There are those out there who support Trump because, as they put it, he "says it like it is". That's fine, and  these people will probably flock towards the Trumpster in even greater numbers after the debate. Those, however, who were actually listening to what he says, instead of how he says things, might find (now or in the near future) that they do not like him at all. I know that if I were a god-fearing, conservative, principled American, I would absolutely loathe everything Trump stands for.

Of course, to make things all the more hilarious, he then went on to attack one of the moderators in a series of after-debate tweets where he petulantly complained the moderator just wasn't "nice".

It was all vintage stuff, really. And it really makes you wonder what Trump is actually up to. To paraphrase the Big Mac: he can't be serious...

As for the rest at the Grown-Up table? Well, there's not much to say, really. They hung in there, with varying degrees of success. No-one really shone (although some needed to); no-one bombed (except, to my mind at least, perhaps Carson). It remains quite surprising - even inexplicable - how tentative and uncertain Jeb Bush seems to be, but in the end, I'm not sure it really matters.

After all, when all the Trumpness has (alas!) blown away, Bush may yet emerge, Romney-esque, as the Anointed One, and there may be little that the likes of Walker or Rubio can do about it.

Could it turn out differently? Of course, but we'll have to see.

The next debate will be on September 16th.

Tuesday, August 4, 2015

The Fight for the White House: Getting Started


Yesterday we had the first Republican debate.

Well, actually, we didn't. It wasn't a real debate; instead it was a forum. At St. Anselm College in New Hampshire, 11 Republican candidates gathered on the stage (with three others joining via an internet link) to introduce themselves; they were then in turn asked a few questions by the moderator and quickly ushered away. 

No actual discussion took place; instead, it was more of a prologue to what will follow, starting with the first real debate later this week.

As such, though, it is as good a place as any to provide a few opening comments on what will no doubt prove to be a long, often dull and occasionally spectacular show: the Republican fight for the Presidential nomination.

So, what did we learn?

Cartoon by Ron Rogers (c) 2015
Well, firstly, it might be worthwhile to point out what we didn't learn. We didn't learn much about any of the candidates' prowess in the debating arena; the format used just didn't allow for that opportunity. We didn't really learn anything about which candidate is quick on his feet and which may stumble and fall flat on his face ("Oops", anyone?). We didn't learn anything about how good or bad Donald Trump will prove to be, once he's on stage and confronted by  his Republican opponents; he, along with Mike Huckabee and Jim Gilmore, wasn't in attendance.

Nevertheless, it was an interesting first step.

We learned , for example, that Things Aren't Right in America. Now, if you have been following the news for the last few years or so, you might be forgiven for thinking that things are actually looking up. The economy is growing, more people are back at work,  and a more or less universal health care system now offers insurance for hundreds of thousands of people who could never afford insurance before. America's participation in the Iraq and Afghanistan has long since been ended; Osama Bin Laden is no more.

If, however, you were thinking that things aren't all that bad, you have not been listening to the Republican candidates. Each and everyone of them will be quick to tell you that things are actually awful in America; their existence as candidates is, it would seem from yesterday's forum, to a large extent based on that assumption. 

So the first thing that struck me listening to what these guys (and one girl, Carly Fiorina) had to say was how their message (and how the validity of their message) was mired in negativity. That alone seems to me a bit of a problem. After all, it's just not that appealing. And it might prove even less appealing if a large proportion of the electorate simply doesn't agree with such a gloomy approach.

Part of the problem here is, perhaps, that these candidates are all talking to (one might say pandering to) a section of the population that is in itself becoming a minority. For example, you don't need to be a Nostradamus to predict that if the majority of Americans support gay marriage today, that majority will only grow as time moves on.  In ten or fifteen years time, I'm pretty sure we will have reached a point where we look back and simply shake our heads in bafflement at how the idea was once considered controversial. This is simply the way the world evolves; fighting it might at this point in time might seem to be advantageous for a little while, but will quickly prove insignificant and even a little petulant. And what is true for gay marriage is also true, in varying degrees, for other social issues. Indeed, I would suspect it to be true of religion in general. Talking almost resentfully against such changes will ultimately not help these candidates. Still, that is, to be sure, some ways off yet.

The second thing that struck me was how most of the candidates seemed intent on pointing out the existence of a Great Enemy (and then proposing that America unleash some sort of hell and damnation in its general direction). Iraq and Afghanistan might be behind us, but we still have ISIS, and these candidates all seemed fairly convinced that ISIS is not some rather regional and indeed insular movement (however radical it is), but rather a force that is directly threatening the very existence of the USA and therefore must be Stamped Out ASAP. The motto here seems to be: "if your enemy doesn't exist, it is necessary to invent him." 

I point to Jeb Bush especially on this issue (although he certainly wasn't alone in expressing this view). When he talked yesterday about "a war against Western civilisation", he probably couldn't be more wrong. ISIS, and the fight against that group's preposterous views, represent a struggle indeed, but it is essentially an Arab, or, if you like, a Muslim struggle. The USA and other Western countries may do well to get involved in some manner or another (and indeed, they may have little choice), but it is to my mind clearly inaccurate (and dangerous) to presume that ISIS's predominant target is the West.  

Why is this important? Well, if a country like the USA cannot live without having to invent and then fight its Great Enemies, it will simply be lurching from war to war. It will shamble from struggle to struggle, continually alienating others against it. It will foster ongoing resentment and ongoing animosity. The war in Iraq was an example of this; why on earth would anyone want to resurrect a new version of that debacle with ISIS?

The third thing that caught my attention was the relative weakness of a fair number of candidates. Given the restrictions of the format you really can't draw any conclusions, but it did seem to me that quite a few simply came across as, well, insignificant. Those would include Santorum, Perry, Graham, Jindal, Kasich, Pataki, Carson and Fiorina. I should perhaps add to this that Kasich at least showed a bit of heart, whilst Fiorina seemed more or less sincere (Carson, on the other hand, just seemed daft, which might lead to some fun later on).

That would leave just Bush, Walker, Rubio, Cruz and (surprise!) Christie as having passed their grades.  In Bush's case, this wasn't really due to anything he said (and what he said was delivered quite haltingly). It's just because he's a Bush; as such, the grade he had to meet wasn't all that high. As for the others, I felt that Rubio did better than I expected, and I'd say the same for Christie. I fear, however, that the presence of Bush will simply leave Rubio too little room to breathe, whilst Christie, perhaps oddly, seems to have been pretty much brought down by Bridgegate.

Both Cruz and Walker also did fairly well, the difference being that Cruz is at heart a radical conservative and therefore doesn't seem a viable candidate in the long run, whilst Walker might very well prove a formidable contestant. He does perhaps have a problem, though: to put it simply, he doesn't seem to be very nice.

Did I forget anyone? Yes, I did. After all, there's Rand Paul, too. Of all the candidates, only he faced some difficult questions. It seemed the moderator had somehow set him apart from the rest, and perhaps that's understandable. Like his father before him, he appears at once quite likeable and  decidedly odd. He's at once too far to the right, too far to the left, and altogether too goofy.

So, an interesting introduction. The stage has been set. Let the debates begin!

Friday, March 27, 2015

11. The Meredith Kercher Case: A Supreme Surprise

Today, March 27 2015, Italy's Court of Cassation overturned the convictions of both Amanda Knox and Raffaele Sollecito.

And it didn't just overturn them. In fact, it also ruled that both should be acquitted, which effectively ends the case.

I must admit that I, for one, am astounded. This was already one of the most extraordinary legal cases of all time, and today's ruling emphatically underscores that.

We will, of course, have to wait a while to see what the court's reasoning has been, but whatever it is, it seems very difficult to see how it would fit in with the same court's earlier ruling of June 2013. After all, the Court of Cassation, at that time, overturned an earlier acquittal handed down by the Perugian Appeal Court. It did so in fairly clear terms, making it - at the time - an almost certainty that a guilty verdict would be required, something that the Florence Court of Appeal thereupon obligingly delivered.

Now, however, the Court of Cassation has decided to strike down that guilty verdict and, taking matters into its own own, has furthermore decided to acquit both Knox and Sollecito.

At first glance, that makes no sense whatsoever. After all, if, back in 2013, the Court of Cassation had agreed with the acquittal of both defendants but not with the reasoning of the Perugian Court, then it could, at that time, simply have confirmed the acquittal itself but amended the reasoning behind it. There would have been absolutely no need to refer the case to the court in Florence in the first place, and the whole trial could have ended two years earlier.

In other words: what the court decided today could as easily have been decided back in 2013. But the court didn't do that back then, so why now? To be frank, it's a total mystery. The only possible explanation I can currently think of is that the Court of Cassation has now discovered some huge and irreparable technical flaw - some statute of limitations, perhaps, or some such issue - of which it was blissfully unaware in 2013. Any other explanation would, I feel, point to an almost inconceivable ineptness on the part of Italy's highest court.

Back in January 2014, when the Florence court (acting upon the very guidelines the Court of Cassation itself gave it in 2013) convicted Knox and Sollecito, I stated that the end of a long, long battle had been reached. Well now, how wrong I was!  

I somehow think that perhaps a lot of us may be writing about this for a long, long time to come.

Thursday, September 11, 2014

The Pistorius Case IV: Gosh!

Today, the judge read out the first part of her verdict in the Pistorius case.

Pistorius, she stated, is not guilty of murder. Whether he is guilty of the lesser charge of culpable homicide will be made clear tomorrow (although it seems quite likely that he will).

So, not guilty of murder. Is that decision correct? Well, anyone who has read my earlier posts on this case will know that I do not believe it is. I accept the court's reasoning that Pistorius cannot reasonably be convicted of premeditated murder, but I disagree with the court when it states that he must be acquitted of murder altogether.

Let's look, firstly, at the following important part of the judge's ruling.

As anyone following the case will know, Pistorius lodged a putative self defense claim. That is, he said that he thought that he was in such a threatening situation that self defense (shooting through the closed toilet door, thereby killing his girlfriend) was justified.

This is what the judge said about this defense. 

She first set out that when it comes to putative self defense, a subjective norm should be applied. The question is not whether a reasonable man in similar circumstances would have assumed that self defense was justified; the question is, on the contrary, what Pistorius himself assumed. The question is, phrased another way, whether Pistorius honestly believed that he was under (severe) threat.

The judge then states, rather baldly, that "there is nothing in the evidence to suggest that this belief was not honestly entertained" by Pistorius. To substantiate this, she points out that:

  • the bathroom window was indeed open, "so that it was not his imagination at work when he thought he heard the window slide open";
  • Pistorius "armed himself with a loaded firearm and went to the direction of the noise";
  • he "heard a door slam shut; the toilet door was, indeed, shut";
  • he "heard a movement inside the toilet";
  • and that, "in his version, he was scared because he thought the intruder was coming out to attack him".

I will make a few comments about each of these aspects.

Firstly, the bathroom window. From any point of view it clearly does not follow from the fact that the window was open that Pistorius heard the window opening. There is simply no logic to that assertion whatsoever. The same mistake is made with regard to the toilet door; the fact that it was closed in no way implies that Pistorius actually heard it "slamming". A third and similar mistake is made when it comes to the "movement" inside the toilet, since all we have is Pistorius's word on this. In other words, we simply don't know if Pistorius did or did not hear any of these sounds and the simple fact that he claims to have done so in no way asserts his "honesty".

Secondly, there is the fact that Pistorius armed himself and headed towards the bathroom. That's true, of course, but it should be remembered that every single putative self defense case starts with some similar sort of action by the accused. The accused always acts and always causes harm, which is why he is accused in the first place. You simply cannot in good conscience argue that the defendant's aggression is itself a valid argument for assuming his innocence; such an assertion again clearly seems to defy logic. 

Finally, I am not sure what to make of Pistorius's assertion that he was "scared". This is, once more, just his own assertion; it does not mean that it should be held to be either true or false.

So all in all, when looking at these various elements, the conclusion must surely be that none of them in any way substantiate the notion that Pistorius acted "honestly". If, however, that is the case, then there simply is no substantiation for that belief at all (*).

There is a further problem in the court's reasoning. It's this: even if one where to assume that Pistorius heard various noises (the window opening, the toilet door closing, the sound of movement inside the toilet), the question arises whether this could constitute such a threat as to make Pistorius "honestly" believe he must act in defense. After all, self defense against what? Pistorius was not in any way being attacked; I simply do not see how a few noises - which, if they were made at all, were simply made by his girlfriend going to the toilet - would nevertheless make his belief "honest". (I accept that Pistorius may have an "anxious" disposition; it may also be true that, as one of the experts in the trial testified, he has a "fight not flight" reaction to danger. But those elements are, to my mind, clearly insufficient in this regard.)

And then, it must be added, there seems to be a third problem, which is not just down to this specific court but also stems from South African law itself. It has to do with the subjectivity of the norm descried above. It should be pointed out that the more "subjective" the norm becomes - the more it comes down to what the defendant himself claims, without any real objective substantiation - the easier it becomes for a putative self defense claim to be abused. If the law imposes upon you to judge according to what the defendant says, you are going to find it somewhat hard to convict all that many murderers.

Ultimately, however, it seems that we may perhaps forget all the above. Remarkably, you see, the judge doesn't give an answer to the question of whether or not the putative self defense claim is or is not justified. 

Instead, it seems, she rejects the basic premiss of this argument altogether, by stating that she believes that, whilst Pistorius may have shot four times through the closed toilet door (thereby killing his girlfriend) he did not have any intent to kill anyone. As a result, whilst she starts to discuss the putative claim, she then veers off to a different aspect altogether. That aspect deals with the issue of  "dolus eventualis", which has to do with the foreseeability of one's actions (i.e. if Pistorius did not have any real intenion to kill, could he nevertheless have the necessary indirect intent required for murder because he could and should have foreseen that shooting might cause someone's death). 

I will give a few thoughts on this very odd way of dealing with things (and, indeed, on the concept of dolus eventualis in general and the lack of intent to kill) in a further post.  

Once I get my head unbefuddled, that is....


(*) One might then point to the S v De Oliveira case. I'll not go into any detail here, but in that case a putative self defense claim failed, given that the defendant himself did not testify as to his state of mind. In this case, of course, Pistorius did testify, but the judge herself clearly considered him "untruthful".