The Case for Impeaching Federal Judge Mark Fuller

Suppose that you were having to sue someone. A car wreck, perhaps; or maybe you needed them evicted from the house you were renting them. You know you’re in the right, and you go to the courthouse on the day of the trial, confident that, with the facts and the law both on your side, the judge will render a proper judgment in your favor.

Then, when you lose the case, you are dumbfounded. You file an appeal, but you can’t figure out how you could have lost.

Only after the trial, while the appeals court is considering your case, do you find out that the judge who ruled against you has extensive business dealings with the party you were suing in front of him. Not only that, your opponent’s lawyer also represents your opponent in his business dealings with the judge.

If you picture yourself being outraged, then you have a pretty good idea how former Governor Don Siegelman felt about his 2006 kangaroo-court conviction before George W. Bush-appointed U.S. District Court Judge Mark Fuller.


At every turn of Siegelman’s trial, Fuller improperly ruled against Siegelman and co-defendant Richard Scrushy, and for the prosecution. He failed to take action when the Government failed to disclose evidence favorable to Siegelman, as he should have done under the rule of Brady v. Maryland, 373 U.S. 83 (1963). He silenced Siegelman’s

attorneys from making relevant and legal arguments to the jury. He let charges go to the jury which were later ruled improper by the U.S. Supreme Court. Not only that, Fuller failed to notify defense attorneys that a female juror, by the name of Katie Langer, had been passing notes through Judge Fuller’s bailiff, asking if the FBI agent sitting at the prosecution table was single. I can’t imagine how her not wanting Mr. Potential FBI Dream Date to be angry about an acquittal could have influenced her vote on the jury. (“In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial  is ... deemed presumptively prejudicial,” United States v. Khanani, 502 F.3d 1281, 1291 (11th Cir. 2007)).


Fuller’s conduct in the trial (I have only named a handful of his pro-Government rulings) gave Siegelman’s attorneys lots of ammunition in his partially-successful appeal, and is doubtless going to provide them more fodder in the “§ 2255 proceeding” that is likely going to be filed, now that the direct appeals are playing out.


But what do those violations of Siegelman’s rights have to do with the hypothetical case I described in the first paragraphs? To understand that, you have to know a little something about Judge Fuller. Even while serving as a district attorney for several years before being appointed a federal judge, Fuller found time to be a full-time businessman. His extensive business activity did not miss a beat when he took the presumably full-time job of federal judge.


Fuller was for years, including during the Siegelman trial, a principal of Doss Aviation, Inc.; some reports made him a 43% owner.¹ He was listed on corporate reports as the company’s CEO, even after becoming a federal judge. Doss Aviation’s 2002 Annual Report on file with the Alabama Secretary of State² shows Fuller as the corporate president, with his office listed as 1 Church Street in Montgomery. That just happens to be the United States Courthouse, where Fuller’s court sits.³ In his 2010 financial disclosure form as a federal judge, Fuller valued his interest in Doss at between $5,000,000.00 and $25,000,000.00; with an additional $500,000.00 t0 $1,000,000.00 in the affiliated Doss of Alabama, Inc. That’s enough coin to get even Mitt Romney’s attention.

So what does Doss Aviation do? I will let the homepage of its website speak to that: 

Founded in 1970, Doss Aviation, Inc. enjoys over 40 years [sic] experience in supporting the U.S. Government in flight training, aircraft maintenance, maintenance training, into-plane aircraft fuels and bulk fuels management, transient aircraft support services, air traffic control, and other airfield management/logistics services. The company built an enviable reputation in over 50 contracts performing a variety of services for the U.S. Army, U.S. Navy, U.S. Air Force, Defense Logistics Agency - Energy (DLA-E), NASA, FBI, and Department of Homeland Security.

In other words, Doss Aviation is extremely, if not exclusively, dependent on government contracts, many of them no-bid, that can disappear if the Air Force - or the administration in power - decides it isn’t happy with, say, the rulings of a leading shareholder. (Remember, at the time of the Siegelman trial, the administration was Republican.) The conflict of interest is obvious to even a layman. Despite this, Fuller has, throughout his career as a federal judge, regularly decided cases involving the Air Force.  A summary of the reported cases follows:

• Webster v. Wynne, 2010 WL 5394752 (M.D. Ala. 2010). Civil employee of the Air Force alleged employment discrimination against the Air Force. Summary judgment granted to Air Force. 
• United States v. 22.58 Acres of Land, 2010 WL 431254 (M.D. Ala. 2010). Action seeking condemnation of certain real property located in Montgomery County at the request of the Air Force. Landowner’s motion to dismiss denied.
• OSI, Inc. v. United States, 510 F.Supp.2d 531 (M.D. Ala. 2007). Owner of property adjoining Air Force base sued United States government and officials, stemming from alleged dumping of Air Force hazardous wastes into landfill on property. Summary judgment granted to Air Force.
• Waid v. United States, 2006 WL 1766808 (M.D. Ala. 2006). Driver of automobile injured in accident with Air Force vehicle sued for injuries. Claim against Air Force dismissed.
• Keel v. U.S. Dept. of Air Force, 256 F.Supp.2d 1269 (M.D. Ala. 2003). Plaintiff, a white male, claimed that defendants terminated him on the basis of his race and sex in violation of Title VII, and retaliated against him by barring his access to Air Force base. Summary judgment entered for Air Force.

In another questionable case where the Air Force was not a party, Houston v. Army Fleet Services, L.L.C., 509 F.Supp.2d 1033 (M.D. Ala. 2007), Fuller denied summary judgment to an employment discrimination defendant - which is a competitor of Fuller’s company. I did not find one reported opinion in which Fuller was the judge, in which the Air Force lost the case.

The legal standard for a judge to recuse himself is simple, straightforward, and clearly reaches Fuller:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). 

What person wouldn’t reasonably question the impartiality of a judge whose (at least) $5,000,000.00 investment could become worthless overnight if one of the parties is unhappy with his rulings? Yet, even after Siegelman’s and Scrushy’s attorneys learned of the Doss Aviation link (after the trial), Fuller repeatedly refused to recuse himself.

You don’t have to take my word that there was a clear ethical mandate for recusal. Judicial ethics expert, and Georgetown University Law Center Professor, David Luban had this to say:

This one is a politically charged case involving a former governor in which political leaders in Washington, D.C., who ultimately exercise tremendous control over the process of military procurement contracts, are likely to take great interest. Given the amount of money Judge Fuller’s company gets from government contracts, any reasonable person would question how impartial he could be. He should not have taken this case, and with a recusal motion made, he had no option but to drop out.

So, we have established that Mark Fuller is an unethical

sleaze who flaunts his legal duty to recuse himself. Sadly, it doesn’t end there. In Don Siegelman’s case, there is an added Doss Aviation issue. One of the prosecutors at the table in the Siegelman trial was Assistant U.S. Attorney Stephen Feaga. Feaga’s smiling face may be seen in the photograph to the right. What’s that, you say? Feaga doesn’t look like a federal prosecutor? He looks like some sort of Air Force officer?? Well, that’s because he was an Air Force officer (he retired in 2011) - of the weekend warrior reserve variety. But not just of any sort; he was a Colonel in the Judge Advocate General Corps - the Air Force’s legal arm. And at the time of the Siegelman trial, he was in a unit that reviewed, and had to approve, Doss Aviation contracts.⁴

In the words of a Great American, “Whoa, Nellie!” 

Put aside the fact that Mark Fuller was appointed as a judge because of his Republican activism, and a Siegelman conviction was a Republican political priority. As Fuller presided over Siegelman’s trial, he knew that the George W. Bush administration could wipe out $5,000,000.00 (or more) of his personal wealth if it was unhappy with his rulings. But he also knew that one of the prosecuting attorneys probably could, too. Only “Choctaw Bob” Riley or Dick Cheney would deny that Fuller’s “impartiality might reasonably be questioned.”

If any member of Congress needs further reason to impeach Fuller, the hapless part-time judge is more than willing to provide it. It seems that, if the United States Congress and the Judicial Council of the Eleventh Circuit haven’t had enough of Mark Fuller, his wife, Lisa Boyd Fuller, has. In April, she filed for divorce after 30 years of marriage. While Mark Fuller’s lawyers promptly got the divorce file sealed, what emerged before then was serious enough to merit the investigation of any federal judge. Discovery requests served on Mark Fuller covered such judicially unbecoming topics as prescription drug addiction, driving under the influence, an extramarital affair with a Court employee whom he supervises, and domestic violence. Normally, such accusations are best viewed with a gimlet eye in a divorce case. But Ms. Fuller’s lawyers have listed the pharmacies whose records they want to subpoena, and the very number of different pharmacies sends up Limbaugh-like addiction warnings. There’s every reason to believe Ms. Fuller will settle the divorce case for a large chunk of Mark Fuller’s wealth before lots of judicial mud is made public, and it’s hard to blame her. But that doesn’t mean she can’t - or shouldn’t - be interviewed, and subpoenaed if necessary, by Congressional investigators.

As regular readers of my posts know, I always strive to provide them with some positive action to take. In this case, that action involves getting Congressional investigators talking to Lisa Fuller, and otherwise looking into Mark Fuller, and the Siegelman case generally. If this is going to happen, we are going to have to be the squeaky wheel that demands its grease. His Majesty, Barack the Appeaser I, has shown that his administration has its collective head inserted all the way to its collective hepatic flexure on any matter of interest to the Alabama Democratic Party. What I propose is that we do what we can to garner the attention of Democratic members of Congress who might be willing to do the right thing. I urge Alabama Democrats to contact the following members of Congress by the means indicated:

• Congressman John Conyers (D-Michigan). Conyers is the ranking Democrat on the House Judiciary Committee, which would have jurisdiction over any impeachment or investigative proceedings regarding Fuller or the Siegelman case. You can leave a message on his office website here.
• Congressman  Steve Cohen (D-Tennessee). Our neighbor from Memphis, Cohen is a lawyer, and has never worried about stepping on GOP toes. He is also on the House Judiciary Committee. You can leave a message on his website here.
• Senator Pat Leahy (D-Vermont). Leahy is the chair of the Senate Judiciary Committee, which has the corresponding jurisdiction in the Senate. He is a former prosecutor, so he’ll get his head around the issues in a heartbeat. You can leave a message on his Senate website here.
• Senator Amy Klobuchar (D-Minnesota). She is not only on the Senate Judiciary Committee, she chairs the Subcommittee on Administrative Oversight and the Courts, which would have primary jurisdiction at the subcommittee level. You can reach Senator Klobuchar on her office website here.
• Senator Bernie Sanders (I-Vermont). Although an independent, Sanders caucuses with the Democrats. He is also the most willing member of the Senate to call out Republicans on issues of greed, injustice, and corruption. Because of his state relationship with Leahy, his support could be invaluable. You can message Senator Sanders on his office website here.
• Senator Al Franken (D-Minnesota). We all know how courageous and outspoken Franken is. He is one of the few non-lawyers on the Senate Judiciary Committee. You can leave a message on his Senate website here.
• Congresswoman Terri Sewell (D-Alabama). Sewell is a lawyer who understands both the legal and political issues involved. She’s also the only Alabama Democrat in either house of Congress, thanks to the Obama Administration allowing Fuller to judicially defame the Alabama Democratic Party. I haven’t been thrilled with her silence on these issues to this point, but maybe if she realizes they are important enough to us, that will change. You can contact her Washington office at 202-225-2665, fax it at 202-226-9567, or write it at 1133 Longworth HOB, Washington, DC 20515. Or if you prefer to contact her online, she will take your message here.

Please include a link to this blog post in your message to these members of Congress. That will save you the effort of having to write in great detail about the underlying facts.

There is much at stake here. If Fuller isn’t stopped and discredited, and the Alabama Democratic Party allowed to start rebuilding, Alabama minorities will continue to suffer from political irrelevance they haven’t known since the days of Jim Crow. From a purely political angle, bringing Fuller’s sordid record to light will help remind Democratic and independent voters nationwide this fall how important it is to keep judicial selection out of GOP hands. And I wouldn’t be myself if I didn’t put on my Machiavellian hat and say to each of these members of Congress: Fuller is so dirty, that whoever comes after him first is going to look like a cross between Mother Freaking Teresa and Clarence Darrow. Happy hunting, and post a comment below or email me here if you need further help; I’ll get back in touch.

¹ Doss Aviation was acquired in December 2011 by J.F. Lehman and Company. It is unclear whether Fuller received cash, or Lehman securities, for his shares in Doss Aviation. Lehman is itself a defense contractor, so if Fuller is now a shareholder of it, the conflict of interest issues remain.

² For some mysterious reason, Doss Aviation’s Annual Reports for subsequent years - including those during which Fuller presided over the Siegelman case - are no longer available online on the website of Secretary of State Beth Chapman, a heavyweight Republican partisan. Since the company is still in good standing, it has obviously been filing those reports. I personally had previously viewed those reports online, and noted that they showed the registered office for service of process on Doss Aviation as c/o Mark Fuller, at his Courthouse address of 1 Church Street in Montgomery.

³ “Misuse of federal funds and equipment and the time of federal employees may be grounds for criminal convictions.” United States v. Wilson, 636 F.2d 225, 227 (8th Cir. 1980). Another basis for Fuller’s removal from office.

⁴ Besides not reporting the Katie Langer jury tampering to defense counsel, Feaga also failed to turn over conflicting statements of former Siegelman aide Nick Bailey, the Government’s sole witness who claimed that he witnessed Siegelman make the “deal” that was the basis of the Government’s case. Had Siegelman’s lawyers had those statements, Bailey’s credibility would have been destroyed. Alabama Rule of Professional Conduct 3.8 states that a prosecutor shall “not willfully fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.” Despite the fact his actions were well-documented, widely reported in the media, and not disputed by the Government, Feaga has not been publicly disciplined for this violation. After his partisan Republican protector, former U.S. Attorney Leura Canary, was finally replaced by the dilatory Obama administration, Feaga left the U.S. Attorney’s office for a staff job at the Alabama Securities Commission in February 2012.

Commitment Issues

Yes, commitment is a wonderful thing.

Alabama Primary 2012 has come and gone. The financial boon enjoyed by broadcasters, hoteliers and restaurateurs catering to the media, and attention-seeking middle-level Republican leaders being solicited for endorsements has passed, not to be repeated until 2016. Because Alabama will be deemed one of the least competitive states in this November’s election, the attention paid to our politics will enjoy a similar slumber. The national media’s terminal case of ADHD will compel it to focus on Illinois, until it’s some other unfortunate state’s turn.

The inability of the national media to analyze the results in any state for more than a couple of hours on its primary night often leads it to miss critically important facts about what happened on the ground that day. Even the pampered caucus-goers of Iowa don’t get any meaningful post-caucus analysis, and it would be foolhardy for Alabama to expect any better. When you combine these facts with the media’s obsession with the Republican Kill-Thy-Neighbor primary, it’s not surprising that something amazing in the Democratic primary could be overlooked.

I am referring to the relatively high number of Alabama Democrats who declined to vote for President Obama in our primary, and instead cast a vote for “uncommitted.” While total results are not available on the Secretary of State’s website, in those counties currently reporting, 16.8% of Democratic primary voters declined to vote for Obama, and voted “uncommitted.” Among those reporting counties, “uncommitted” actually beat Obama in at least seven counties.

Once upon a time - before the presidential campaigns of George Wallace - uncommitted delegates were quite common in Alabama presidential primaries. Sending uncommitted delegates to a convention gave the state bargaining leverage. A number of loyalist Democrats continued the tradition into the Wallace era, providing Wallace foes a voting option in the primary. Since the election of Jimmy Carter, however, the phenomenon has faded into disuse, although remaining a legal option. Until now.

Obviously, a significant number of Alabama Democrats felt compelled to register unwillingness to support the President. One caveat is in order about the 16.8% figure: as the map shows, a number of the counties not yet reporting in the Secretary of State’s system are in the Black Belt. Those counties will undoubtedly lower the 16.8% figure when full results are officially canvassed. But the figure will still be significant; those counties don’t account for enough of the state’s vote to lower it much. And the fact remains that “uncommitted” carried a number of counties.

Several explanations offer themselves for this phenomenon. The most obvious is that of race. Many of the counties carried by “uncommitted” are overwhelmingly white, and were carried by Hillary Clinton in the 2008 presidential primary. Obama got a mere 10% of the white vote in the 2008 general election. But there is at least one county where race isn’t such an easy explanation, and that is Washington County. Washington County is 26.2% black. Common sense tells us that the Democratic primary electorate is going to have a much larger percentage of black voters than that. Compounding the complexity of analyzing Washington returns is the fact that white voters have not, for the most part, abandoned the Democratic primary for the Republican. Only 16% of the total votes cast for President in the Washington County primary were cast in the GOP contest. The Democratic primary is still, apparently, a white-majority affair. Even so, in picking through the precinct results for Washington County, I noted at least a couple of precincts where Obama’s total fell below the black percentage of the population reported by the Census. In sum, race may be the explanation, but the data isn’t good enough to draw any conclusions. If only the media had exit-polled the Democratic primary.

The alternative explanation - and the two can coexist - is residual discontent among Democrats with the incompetent messaging of the Obama administration, which, as I have noted, has had disastrous effects on the Alabama Democratic Party. More serious are continuing concerns - which I also previously noted - that Obama’s team made a conscious decision to allow the Alabama GOP to torpedo the Democratic Party by leaving corrupt Bush U.S. Attorney Leura Canary in place in Montgomery, where her politically-motivated sham indictments contributed greatly to 2010 GOP gains. (Please sue me for defamation, Leura. I’d love to have subpoena power to take depositions and unearth bank records. You’d love Tallahassee. And congratulations to Milton McGregor, the other victims, and their legal teams.)

A look at the map above, and a passing familiarity with the 2010 Democratic casualty list, reveals that several of the “uncommitted” counties were represented in the Legislature by Democrats who lost their seats, or their leadership positions. Those Party leaders certainly weren’t motivated to support Obama in the primary, and it would take a very short leap of the imagination to see them, and their supporters, exacting a measure of revenge.

Yet another fact that should be considered is that many of the “uncommitted” counties still have Democratic courthouses. Voters must vote in the Democratic primary to have a meaningful voice in the election of their local officials. Among the “uncommitted” counties, for example, Jackson had contested races for probate judge, circuit clerk, superintendent of education, and commission president. Neighboring DeKalb, which Obama carried, had only a single local race for superintendent to draw voters. A larger primary cohort could well have brought in voters more likely to express racial bias in their votes.

Those counties carried by “uncommitted” are, for the most part, the foundation of the historic Democratic base in Alabama. A problem in those counties, whatever its etiology, signals a problem the Obama campaign badly needs to address. While solving the problem might not make Alabama competitive in November, Obama has “reach” states in the South - Virginia, North Carolina, and maybe Georgia - where every vote will count. In those states, Obama can’t afford to leave base Democrats off the bus.

Having entered the White House like the fortunate prince of whom Machiavelli said, “Coloro e’ quali solamente per fortuna diventano di privati principi, con poca fatica diventono, ma con assai si mantengono; e non hanno alcuna difficultà fra via, perché vi volano: ma tutte le difficultà nascono quando e’ sono posti,” Obama had better hope that the sage was wrong in noting that “E chi crede che ne’ personaggi grandi e’ benifizi nuovi faccino sdimenticare le iniurie vecchie, s’inganna.” (Il Principe, Chapter VII. The quotes are the first and the penultimate sentences of the chapter. )

The Debt Impasse - A Modest Proposal

I want to apologize, gentle reader, for using the clichéd title originally (and brilliantly) coined by Jonathan Swift for his rational solution to an Irish famine. If only the Republican Party could read it without missing the irony, and lauding it as a damned sensible idea. One which they would no doubt think fine to impose on the millions of Americans unemployed by their laissez-faire approach to Wall Street regulation.

No, I am not making an ironic proposal. I am perfectly serious, and only wish that the current Administration had the political skills to recognize that this concept (1) would, merely by being introduced in Congress, substantially increase the President’s prospects for re-election; (2) would also make it likely that we Democrats would increase our Senate majority and take back the House in 2012, and (3) when and if enacted - even if only by a Democratic Congress in 2013 - go a long way toward ending the carnage inflicted on American families by the Bush II Administration, and by the current President’s asthenia in dealing with Republican opposition.

The current annual deficit is somewhere around $1.6 trillion, which is about 11% of GDP. Unlike Republicans who parrot absolutes, we Democrats know that, in the long run, those numbers need to come down. The question is, how to get there? The GOP’s balanced budget amendment proposals would be so disastrous, that any person seriously proposing it obviously lacks the wrenches in his or her intellectual toolbox to pursue a learned profession.

The win-win solution, for America and for Democrats, is a fairly unsophisticated tweak of the basic individual income tax rates. In Tax Year 2008, the most recent year for which final statistics are currently available, taxpayers in the so-called 35% bracket paid an actual tax rate of only 28.9%. This is because 35% is the “marginal” tax rate - these top taxpayers still pay the same rates as you and I on their income at the same level. In other words, Mr. Billionaire pays the same rate on his first $50,000 of income as the worker who only makes that much in total.

More important for our purposes is how un-progressive (“regressive,” to use the term used by economists and tax lawyers) the Bush II tax cuts have made the system. Those tax cuts were, of course, heavily weighted toward the very wealthiest taxpayers. In 2000, under Clinton, a married couple filing jointly paid at least 36% on everything over $161,450 and 39.6% on everything over $288,350. In 2008, the same couple paid only 33% above $200,000 and 35% on everything over $377,500.

What I propose we do is this - and the numbers aren’t carved in granite; some fine tuning would not ruin the concept - tax the top 6.4% of taxpayers at their marginal rate on all their income, and boost that marginal rate by a mere 3%. Keep in mind, in 2008, that would have been married joint filers with an income of over $200,000 a year. If a couple were making $199,000 a year, I wouldn’t raise their taxes a penny. How big a bite would that take out of your big, ugly, trillion-dollar deficit? Fasten your seat belts.

About $520,000,000,000 - over half a trillion a year. And the current crop of leaders is haggling over a package (I refer to the Obama-GOP “compromise” reported as of 7:00 p.m. CDT on July 31) that reduces the deficit by just $2 trillion - over a decade.

(You could do the same thing with corporate income tax rates, giving some smaller, mom and pop corporations a break, but the individual rates are where the real economic, and political, effects are to be seen. Also, by reducing the huge breaks fat cats get on corporate dividends and capital gains, which are almost exclusively enjoyed by these top tier earners, you could get even more.)

But wait, my modest proposal gets better. In the same bill, I would add a proposal to divert, say, $200 billion of this annual tax equity improvement, not to the deficit - but to a tax cut going exclusively to the 93.6% of Americans making under $200,000 per couple. Of course, I would weight it more heavily toward the lower tax brackets in that group. This would be, in effect, a $200 billion-a-year economic stimulus package. And it would be much more effective than the bank handouts of Bush II and Obama I. When that money is in the hands of people making $500,000 a year or more, they park it in a hedge fund or mutual fund, many of which do not create jobs in the United States. People living from paycheck to paycheck are always deferring necessary purchases, and when they get more cash, they run out and make them. That creates jobs in the United States. The resulting tax equity improvement would still reduce the deficit by more than the current leading prospect, and without cutting any benefit programs, and even without cutting defense spending! To get this done, I would not be averse to some very careful trimming of spending, just so the talking heads on “Meet the Press” didn’t cluck too loudly about no spending cuts - but I bloody sure wouldn’t have made my proposal the Republican fantasy that Democratic “leaders” are currently embracing.

Now for the politics. (I do enjoy writing about politics more than economics, but the economics was a necessary foundation for what follows.) Imagine this: beginning in the spring of 2012, Democratic TV spots, Democratic canvassers working door to door, and Democratic spokespersons in local news stories, all start reminding that 93.6% of voters that the Democrats were responsible for their tax cut - or, since the GOP in this Congress would have probably killed it, who was responsible for them not getting their tax cut. “MO BROOKS KEPT YOU FROM GETTING A TAX CUT!” “MARTHA ROBY BLOCKED YOUR TAX DECREASE!” Just imagine the possibilities. It’s even possible to correlate Census income data with the Alabama Democratic Party’s new VoteBuilder program (I have seen the future of that, and I like it) to target the vast majority of the households in that 93.6% with individual, specific, concrete persuasion: “YOU, AND EVERYONE ON YOUR BLOCK, WOULD BE PAYING LOWER TAXES IF ROBERT ADERHOLT AND THE REPUBLICANS HADN’T VOTED ‘NO’.” If the Republicans tried to sell this as a “tax hike” (which they would), “WHEN JEFF SESSIONS SAYS THE DEMOCRATIC BILL WOULD HAVE RAISED YOUR TAXES, HE’S LYING. YOU, AND EVERYONE ON YOUR BLOCK, WOULD BE PAYING LESS, NOT MORE!” It has to be carefully explained, but it would work. Imagine the chromatic effect on the current Speaker.

Sadly, most of what I have been writing is a sand table exercise. The opportunity to paint the GOP into a corner with Grover Norquist and the Teabaggers was lost weeks, if not months, ago. For that, I blame the myopic lack of political skills, and political leadership, of the Obama Administration. As Maureen Dowd put it so well in The New York Times today:

Democratic lawmakers worry that the Tea Party freshmen have already “neutered” the president, as one told me. They fret that Obama is an inept negotiator. They worry that he should have been out in the country selling a concrete plan, rather than once more kowtowing to Republicans and, as with the stimulus plan, health care and Libya, leading from behind.

Of course, any single Democratic member of the House could have introduced a bill embodying my proposal, and any Senator could have introduced a substitute doing so. They have to share a little of the blame. It’s hard to do the kind of groundwork we need to win the 2012 and 2014 elections when our leaders aren’t giving us the right talking points. Or worse, letting the GOP define the talking points. Sometimes, the right thing is also the politically smartest thing. These are things worth remembering when voting in primaries in the future.

Meanwhile, as a quasi-Republican debt ceiling bill slouches toward Washington to be born, at least as far as the top of the Party is concerned,

The best lack all conviction, while the worst
Are full of passionate intensity.

Maybe we’re eating our children after all.

What’s in a Name?

One of the favorite games of political pundits is playing with the names of candidates. Candidates are perceived to have a greater, or lesser, appeal because their name sounds sufficiently stentorian when rolling off the tongue. Oddly enough, this is a hobbyhorse that has survived the election of one Barack Hussein Obama to some minor federal offices.

Some serious academic attention has been given to the so-called “ballot order effect,” which supposedly gives some marginal advantage to candidates whose alphabetical priority places them at the top of the ballot (usually in the primary; general election ballots are usually ordered by party). The results are far from certain, but there seems to be some small advantage to being the son of Mr. Aaron or Mr. Adams. The more imprecise efforts of the chattering classes to fathom the depths of a name’s “sound” are sometimes thinly-veiled efforts to favor those of us whose names are more Anglo-Saxon. Or, depending on the locale, more or less Jewish, Irish, or German. One “oops” moment in the 2004 Kerry campaign came when it was learned that presumed Boston Irishman John Forbes Kerry was in fact Jewish. His denials of knowledge that his grandfather had been born as Friedrich Kohn in Moravia gave Bush boosters a twofer: they could flag Kerry to the anti-Semitic vote, while pretending only to question his veracity.

The “American” ring of a (usually) Anglo-Saxon name (or the “un-American” sound of an opponent’s) has had apparent consequences. In one noted instance, the 1988 election for Democratic Party Chairman in Harris County (Houston) Texas, incumbent chairman Larry Veselka, a little known lawyer and activist, lost out to the more melodiously-named Claude Jones in a low profile race. Problem was, Jones was a groupie-supporter of perennial candidate and eternal fruitcake Lyndon LaRouche. (The local Party committee promptly amended the bylaws to strip the chair of all power and authority.) Local Democratic leaders uniformly blamed the name factor for Jones’s otherwise inexplicable win.

All of this contemplation, however, is not what gave birth to this post. What got me thinking about names was this week’s fundraising missive from the Obama for America Committee. Something about that name sounded slightly off-key, and it took a few minutes for me to realize what it was. Where is the Vice President’s name??

In 1984, the official effort to inflict four more years of Bonzo government was named the “Reagan-Bush ‘84 Committee.” In 2004, Americans (may have) voted for a narrow margin in favor of the campaign mounted by “Bush-Cheney ‘04 Inc.” The recognition of a sitting Vice President in the re-election letterhead is a bipartisan tradition. In 1996, we got behind the “Clinton/Gore ‘96 General Committee.” As far back as the halcyon “what’s a computer?” campaign days of 1980, we Democrats rallied around the “Carter/Mondale Presidential Committee, Inc.” (One of my first paid employers.)

So, where is the name, “Biden” in next year’s committee name?

Little happens at the level of a Presidential campaign without thought and planning; the malapropisms, errata, and gaffes of Bachmann and Palin notwithstanding. While I will certainly keep an eye on this post’s comments for other explanations, I can see three possible reasons for the absence of the Vice President’s name. (1) This could be just another manifestation of the narcissistic and borderline messianic tendencies of this President, and of his coterie of Chicago hacks, who have yet to realize he was elected President for the same reason he won the Nobel Peace Prize; his name isn’t “Bush.”

(2) There may be some measured consideration that Vice President Biden, whose open-mike flaps and other memorable moments are Leno-Letterman fodder, may be something of a drag on the ticket, or at least doesn’t give it a boost. This explanation could well coincide with (1). I would argue against it. Biden is a solid Washington presence, knows his way around the Hill, and brings a lot to the table that is lacking in the Oval Office. Voters want to know that the man or woman “a heartbeat away” is up to the promotion if, God forbid ... Remember the Palin drag as her lack of depth became apparent late in the 2008 campaign. Without it, we might have been challenging President McCain next year.

(3) - and I can’t believe this is the case and no one’s leaked it, the omission of Biden’s name might be a signal that has been missed by the entire punditocracy, blogosphere, and even the phone-tapping minions of Rupert Murdoch. Of course, if (2) reflects the perception in the Obama high command, then (3) becomes a more plausible scenario. The Vice President was not yet 30 on the day he was first elected to the Senate in 1972; he attained the Constitutionally-required age before Congress convened in January. Of course, that means he will be 70 at the beginning of the next Presidential term. That is not too old by recent historical precedent. However, the Chicago hacks place an excessive premium on the President’s “youth appeal,” and 70 may be a number that troubles them.

It is possible that I am reading too much into these facts. Trying to interpret signals that may not even be there is as dicey as my (late) Cold War work parsing the photographs atop Lenin’s Tomb in Правда to determine who was in or out in the Kremlin. Whatever the explanation, this is an item that bears close scrutiny in the coming months. Obama need not make a move to replace Biden for some time, but any story of that magnitude will be hard to keep under wraps. If the Vice President is going to remain on the ticket, someone needs to take a crayon to the letterhead, pronto, not only to express the President’s confidence in his running mate, but to prevent the rumor mill from going to work. As I said, I am happy with the Vice President, and think it would be a mistake to replace him on the ticket. That said, speculation about potential replacements at least makes an interesting parlor game.

In a totally unrelated note, emptying my pockets earlier this evening, I discovered that someone, apparently mistaking it for a quarter, had given me a Susan B. Anthony dollar in change. Of course, I am not at all into omens or other irrational forms of superstition. Not at all.

I Say Obama, You Say Osama, Let’s Call the Whole Thing Off

Wow. What a difference a few hours makes in politics.

As a wise Democratic street fighter of my close acquaintance noted on Facebook early this morning, “I hate to allude to Ross Perot, but ... the giant sucking sound you hear is the wind exiting 80 GOP freshman Congressmen, who are contemplating an Obama approval rating of 91%.”

Is this wishful thinking, or sound political analysis?

Let’s look at the inexorable downhill slope that was George W. Bush’s Gallup Poll approval rating:



Bush’s approval had dropped near 50% on the day before the 9/11 attacks. In their immediate aftermath, they reached for the sky, topping near 90%. As Bush failed to produce the cooling body of bin Laden, permitted his escape at Tora Bora, and was ridiculed for declaring “Mission Accomplished,” that number began to drop until his invasion of Iraq in 2003. The American instinct to support the volunteer troops of a democratic republic pushed him back up to around 70% at the start of the ill-advised Iraq invasion. After events like Abu Grahib became public knowledge and the American people watched Bush’s understaffed occupation allow an insurgency to blossom, his approval dropped again to around 50% - low for a wartime President.

Following the capture of Saddam Hussein on December 13, 2003, Bush saw a quick uptick to about 64%, a gain of 14% or so. It would not regain that point for the remainder of his term, and made only transient reversals of the overall downhill trend. So, which of the gains in popularity does Obama’s potential upswing most resemble?

Bush’s 9/11 leap of near 40% was a natural response to a national crisis, and probably can be largely attributed to a rally-around-the-flag sentiment, not unlike that enjoyed by President Carter in the immediate aftermath of the seizure of the U.S. Embassy in Iran. The 14% Bush jump in the aftermath of Saddam’s capture was impressive. While Saddam was never been popular in the United States, opposition to the Bush diversion into Iraq tempered that dislike among all groups except die-hard, fact-immune Republicans.

Osama, on the other hand, had a 97% unfavorable rating in an ABC News/Washington Post poll in late 2001 (I want to find the other 3%), and he never enjoyed a similar attenuation of that disgust. Any President could have had a live Osama given the Edward II treatment at Ground Zero without serious public blowback. If Bush got a 14% boost from catching Saddam, it stands to reason that the death of the undisputed culprit of 9/11 will give Obama a substantially larger boost. Given that the 90% Bush rating in the immediate aftermath of 9/11 probably represents an historical ceiling in Presidential “popularity,” and that Obama’s current approval rating, pre-Abbottabad, was about 46%, a figure in the mid-80’s is perfectly reasonable. Remember, while Obama has suffered some recent political wounds (a few, as I have noted, self-inflicted), Bush was toting a lot of political baggage on 9/10, and his numbers were not much better than Obama’s on April 30. If you watch (or watched) the visuals of cheering thousands in Lafayette Park and Times Square at 3:00 a.m. this morning, you will agree the mid-80’s figure is sensible.

This can be a game changer, for the entire arc of his administration, if Obama finds the wit (and the killer instinct so far lacking) to use it. I would dread this week at work, were I a fundraiser for Romney or Pawlenty. Or for the RCCC. While Bush’s meteoric rise in September 2001 was reflexive on the part of voters, Obama’s is going to be substantive, and merit-based. More to the point, it’s going to come at the expense of Karl Rove’s favorite bullet point since 2000: that Democrats in general, and Obama at the moment, are soft, and unwilling to pull the trigger in the name of national security. This morning, that talking point is sharing the same briny grave as Osama. Being substantive, it should be far more durable than Bush’s 9/11 boost - and that popularity spike was still at a healthy 69% on Election Day 2002. Remember, gentle reader, that the GOP scored a gain of two Senate seats and eight House seats that day, as well as gaining stealing the Alabama governorship.

From a policy perspective, the potential parallel to classical Athenian history is hard to resist. In the aftermath of the Athenians’ triumph over the Megarians for possession of Salamis, c. 600 BCE, they were experiencing grievous turmoil between their wealthy oligarchs, and their growing population of disfranchised workers, debt slaves and tenant farmers. Solon had been the hero of the recent Athenian victory over Megara, and like the Americans to Washington in 1788, the Athenians turned to Solon to arbitrate their differences. What Solon accomplished made a true single payer health plan look like small potatoes. Using his military popularity as a springboard, he abolished debt slavery (freeing thousands), reformed citizenship laws to allow immigrants to attain citizenship, redistributed the property of large landowners to small farmers, and gave the poorest workers, the Θήται, voting rights, effectively founding Athenian - and Western - democracy. While worried, I am hopeful that Obama has actually read his Herodotus.

From a practical perspective, we Democrats have opportunities from this morning’s good news. Our talking points in the weeks ahead need to make several facts clear to voters:

• Bush and the Republicans pulled the Special Forces and other elite units out of Tora Bora in 2001, allowing Osama to escape. Obama sent the SEALs into Abbottabad.
• Competence and smarts - increasingly a Democratic monopoly - are more effective than swagger and bullying bravado in maintaining national security.
• While we certainly give due credit to the skills and courage of the military and intelligence personnel, without whom this could not have happened, any reasonable person has to give credit to the resolve, determination, and - try not to use this in your letters to the editor - cojones of the President, who rolled the dice, pulled the trigger, and engaged in any other positive metaphor applicable in the premises.

Should we use this for political advantage? One last time, I quote my acquaintance who was busy last night on Facebook. After some probable Dittohead chastised him for one of the earlier quotes, he responded:

Mr. XXXXXXX, I am touched by your gentle rebuke. I shall refrain from further political comment on this great national occasion - to the full and same extent that the Bush Administration and the Republican Party refrained from politicizing the war on terror in the 2002 elections, and painted everyone who questioned their competence as traitors and cowards. (insufferably smug grin)

Preach on, brother.

None Dare Call It Treason

No, I have not gone over to the cause of one of the all-time loopiest books ever written, which includes claims that Eisenhower was a Communist sympathizer, not to mention Kennedy and Johnson.

But the title of John Stormer’s book naturally leapt to mind when someone shared a bit of news this week that emerged from the always-interesting pen of Bob Martin at The Montgomery Independent. The lead item in Martin’s column was itself conspicuously absent from the pages of the state’s “mainstream media,” and will probably remain so until they can’t ignore it any longer. Martin cites a source who told him that outgoing Governor “Bingo Bob” Riley offered incoming Attorney General Luther Strange $2,000,000 in campaign financing for a 2014 GOP gubernatorial primary challenge against Governor Robert Bentley. Strange’s end of the quid pro quo would be to “protect” Riley’s two children (and from what would they need protection from the state’s lead prosecutor, pray tell?), and to divert state legal work to them when possible.

Unfortunately, that story wasn’t the shocker. Anyone with two brain cells and access to a media outlet not controlled by Si Newhouse knows what a crook Bob Riley is. The real alarm bells sounded as I read the second half of Martin’s column. In that, he revealed a plausible explanation for certain conduct of the Obama administration.

In other posts, I have taken the Obama administration to task for what I, perhaps with too much naïveté, presumed was inattention on Obama’s part to the continuing partisan reign of terror of Bush-appointed U.S. Attorney Leura Canary in the Middle District of Alabama. Martin cites a source who provides a far more troubling explanation. According to Martin’s source, Obama cut a deal with Senator Jeff Sessions, under which Sessions would not actively oppose Obama’s nominees to the U.S. Supreme Court, in exchange for which Obama would not remove Canary from her perch - a position from which she has masterminded the ethically-riddled persecution of Democrats from Don Siegelman to the bingo defendants.

(Blink.)

Yes, if Martin’s source is right, Obama wasn’t asleep at the switch. He and his politically inept White House actually knowingly cut a deal with one of the most rancid members of the United States Senate, and Obama’s part of the deal was to throw the Alabama Democratic Party under the bus. Obama cut this deal at a time when the Democratic Party had a 60-vote filibuster-proof majority in the Senate; Sessions should have been an ignorable, if odious, afterthought. This deal is just more proof of the political ineptitude of Obama and his Camelot-manqué staff.

Let’s put Obama’s action in perspective. Momentarily leaving aside the burning question of justice for Don Siegelman, leaving Canary at her post had the near-certain effect of further GOP politically motivated prosecutions in Alabama. Prosecutions that directly resulted in Republican political gains last November. Sessions knew that, and so did Obama. As a proximate and foreseeable result of Obama’s action, we not only have a Republican governor, we have a Republican legislature. As a proximate and foreseeable result of Obama’s action, African-American chairs of the House Ways and Means General Fund Committee and the Senate Education Finance Committee lost their positions to white Republicans. As a proximate and foreseeable result of Obama’s action, the national Party lost seats in the Second and Fifth Congressional Districts that were won by Democrats in 2008.

If Obama, who seems to know no fight from which he will not run, was determined to make a deal with Sessions, there were better ways to do it. Build the Air Force tanker in Mobile (oh, wait, the competitor for that is Boeing, based in Obama’s Chicago). Find some policy issue on which to throw him a bone, just don’t sell out the Democratic Party in an entire state.

John Stormer borrowed his book title from a line by Sir John Harington, one of the more interesting figures of the infinitely interesting Elizabethan era. A soldier, courtier, poet, and essayist, he also gained fame by being the inventor of the modern flush toilet (hence the term, “john”). Harington’s epigram has the ring of truth:

“Treason doth never prosper: what’s the reason?
Why, if it prosper, none dare call it treason.”

Perhaps. Even in the case of George W. Bush, many supposedly progressive Democratic voices in Washington flinched from the use of words like “idiot;” a word I would require considerable self-restraint not to use to Obama’s face after Martin’s revelation. Obama’s infantile political crew settled on Charlotte as the site for the 2012 Democratic Convention - the only contender with no unionized hotel staffs in the city - and organized labor is described as “fuming.” He appears more likely than ever to have some opposition in the 2012 primaries. He doesn’t need any embarrassing headlines, and we have something in Alabama called the “Radney Rule.” I’m just sayin’, Mr. President.

Postlude: For those of you who live in the Scottsboros, Andalusias, and Tuscumbias of the state, write the editor or publisher of your local paper, and suggest they contact The Montgomery Independent and start carrying Bob Martin’s column and other items. Yes, they frequently bust Democratic chops, when deserved. But when the deserving always get a chop-busting, Democrats win in the long run.

Reports of the Alabama Democratic Party’s Demise Have Been Greatly Exaggerated

After a few weeks off to catch my breath, and to deal with everything from the real world that could be put off until after the election (including an unforeseen family health problem; thanks again, all, for the calls and emails), it’s time to take a look at what happened, and why, in last November’s elections.

What, we know. For the first time since the votes were counted by funny-talking guys in blue uniforms, Alabama will have a Republican legislature, and the Tennessee Valley will be represented by an elected Republican in the U.S. House of Representatives. Democrats suffered our first shutout ever in statewide offices. A number of elected local Democrats went down, but the casualty count there wasn’t as bad as it was upballot. Just to pull out some examples, Democratic Sheriffs Jerry Studdard in Talladega County and Jimmy Harris in DeKalb County, as well as Democratic Sheriff nominee Chuck Phillips in Jackson County, handily beat their GOP opponents, even while the statewide ticket was taking a thumping in their counties. So let’s start our analysis with the fact that, despite what you heard a “political scientist” proclaiming on television on election night, Alabamians, even white Alabamians, will vote for at least some Democrats.

Many pundits took the opportunity of this election to call it an ideological refudiation (to borrow a word from an execrable source) of progressive, Democratic ideology. Under this paradigm, moderate and independent voters were reacting to the “liberal” or “leftist” tilt of the Democratic Party. While the message mismanagement (and in some cases, nonmanagement) of the Obama Administration made this a plausible hypothesis, a closer look at the numbers doesn’t bear it out.

The biggest problem suffered by Alabama Democrats in 2010 was nothing less - or more - than a significant upsurge in the white voter turnout. To see clearly how much the white vote increased this year, compare the Democratic and Republican vote totals in two overwhelmingly white counties, and three black-majority Democratic strongholds, in the 2010 and 2006 gubernatorial races:

	Democratic 2006	Democratic 2010	Republican 2006	Republican 2010
Shelby	10,696	13,577	37,161	49,118
Cullman	9,537	8,801	15,081	21,083
Macon	4,541	6,632	1,274	919
Green	3,260	3,666	973	665
Perry	3,025	3,277	1,237	1,138

Note that the Democratic vote in Cullman did not drop off that much, and the Democratic vote in Shelby actually made a small uptick. This was not a matter of traditional white Democratic voters switching parties in significant numbers. This was, purely and simply, a case of a lot of white folks, who had not been voting in recent cycles, coming out of the woodwork last November. (Don’t let anyone tell you that the significant increase in Shelby County is attributable to population growth in the last quadrennium. In the wake of the Bush Recession, housing starts there shrank to a trickle in the runup to the 2010 election.) Neither were the increases in Macon and Greene Counties indicative of a statewide (and offsetting) increase in black turnout; local bingo shutdowns by Bob Riley were almost certainly responsible for those numbers.

Of course, the increased white vote was seriously polarized. Heavily white, but historically Democratic strongholds like Cherokee, Franklin, Marion, and Jackson Counties, went for Bentley. The correlation between race and party choice in this election is obvious:

You may have noticed that the correlation is not so strong in those counties where the black population is under 10%. This is a long-standing historical phenomenon, and many of those counties have been part of the Democratic base. The correlation strengthens significantly as the black population approaches and passes 30%. While this is in part the mathematical result of an overwhelmingly Democratic black vote becoming a larger portion of the electorate, historical precinct-level studies have confirmed that the phenomenon has been manifest within those counties, at the precinct level. This failure of these Democratic base counties to polarize as extremely as other counties provides significant statistical support for a conclusion that it was “new” voters, not switching voters (as in the media narrative), that caused the Republican surge.

What is harder to say is, what caused this increase in white turnout, and its polarization. In part, this is because there is not the depth of exit polling data available that typically follows a presidential election. But it doesn’t take a very seasoned political hand to guess what it was. In 2006, only a handful of political junkies in Alabama knew who Barack Obama was. In 2010, he was President, and the constant focus of the Republican campaign at every level. His what-me-worry messaging style only allowed the GOP to paint him as a scarier, more liberal, and less American figure. Yes, Alabama once again ran the race flag up the pole, and saluted it.

I can see one objection to this analysis, and it bears answering. If race was the determining factor in this year’s white turnout, why did the same thing not happen in 2008, when Obama was actually on the ballot? Why were Lucy Baxley, Bobby Bright, and then-Democrat Parker Griffith (does anyone still remember him??) not swamped in the same racist riptide that caught Jim Folsom, Jr., Susan Parker, and a raft of veteran legislators? It is my rejoinder to this objection that gives me hope for the Democratic Party’s future in Alabama.

To understand what made 2006 and 2008 different from 2010, we have to reset our mental worldviews to the earlier years. We have to avoid the historical amnesia that is more characteristic of Republican voters. In each of the earlier election years, potential voters were treated to a steady diet of Republican incompetence. Katrina, an un-caught bin Laden, two wars dragging on without results, and a growing stream of Bush scandals were part of the national zeitgeist in both election years. By the time of the 2008 election, Lehman Brothers (which was founded in Montgomery) had failed, and the economy had gone into free-fall, on Bush’s watch. Even Bubba, watching Fox News, couldn’t avoid his daily dose of this bad news. Anyone who doubts that this sort of steady diet of bad news can overcome the deepest prejudices or sympathies, needs only look around to see how many Auburn or Alabama sweatshirts (as the case may be) vanish from public view when one of those football teams is going 5-7. In that respect, racists (to their horror) are just like everyone else. Fair weather fans. They simply were de-energized by a tidal wave (no continuation of the football pun intended) of bad news, and stayed home in the 2006 and 2008 cycles.

Since the day of Hippocrates, diagnosis has been the better part of prescription. We cannot replicate the national disasters of the Bush years. (Neither, like the GOP House, should we seek to for political gain.) We cannot, apparently, tutor the President on effective progressive advocacy. But we, as Alabama Democrats, can do a more effective job of sharpening the differences between us and the Alabama Republican Party. We can do a much better job of bringing to voters’ attention the sordid figure of the Wall Street Wizard behind the “Christian” curtain. We can, with skill, create a large measure of both paid and earned media to trim the edges of racist enthusiasm (and, thus, turnout). We can, at long last, and despite sputtering efforts to claim we were doing so, finally have a cycle where the Democratic Party rings the doorbell of every regular Alabama voter, greets him or her by name, and asks for his or her support. I am optimistic about the prospects of this from the comments of newly-elected SDEC Chairman, Judge Mark Kennedy. In his acceptance speech, he promised that “We are going to eat their elephant one sound bite at a time.” This (along with my years of knowing Judge Kennedy, and having helped in his judicial campaigns) tells me that he at least sees where the problem is. I suggest we all do what we can to help Judge Kennedy keep this focus, and resist the “wisdom” of the cliques who would tell him to keep doing things the old way.

Take heart in this. Whatever you read in the pro-Republican “media” in many parts of Alabama, do not become too discouraged. It may well be that the reports of the Alabama Democratic Party’s demise have been, like those of the Sage of Hannibal, greatly exaggerated.