GOP Takes Strike Three Looking

The Republican story line has taken another hit. Or three.

Late in the day Tuesday, word broke in Montgomery that State Senator Jim Preuitt, Republican of Talladega, had announced that he was throwing in the towel on his re-election bid. Preuitt made headlines on April 6 - the last day of qualifying for this year’s primaries - when he showed up at Republican headquarters to file, after serving as a Democrat since 1990. Before that, Preuitt’s main claim to fame was never sitting for a portrait in which he didn’t look like the magnesium citrate was taking too long to work.

Just how big is this? It’s huge. Every back-of-the-envelope calculation in both parties, and among the media, regarding Senate control next January, figured on Preuitt squeezing out the win in his new pachydermic garb. His Democratic opponent, retired Circuit Judge Jerry Fielding of Sylacauga, was seen by many as a good candidate - if not running against a 20-year incumbent with deep pockets. The Big List at Doc’s Political Parlor has carried the district as “Leans Republican” most of the year. There are only 35 members of the entire Senate, so a flip in any seat has disproportionate impact, especially when the chamber is as closely divided as is the current Senate. For the Republicans to lose a seat they hadn’t even treated as in play is even more significant when you consider that everyone who isn’t a GOP shill (sadly, that includes some in the media), has said that if the GOP can take control of the Senate, it only has a one-seat margin to do so. That margin is now gone.

How gone is it? Danny at Doc’s Political Parlor asked GOP State Representative Ron Johnson of Sylacauga if he were planning to seek the GOP nomination. His response:

“No way,” he tells the Parlor.

He states clearly that he has no interest in being in the Senate, and also notes that Senate District 11 is a very Democratic district. “I really don’t know any Republican other than Preuitt that would be likely to win that district.”

There may be even more good news, but stay tuned for this. There is a legitimate dispute as to whether the GOP can legally replace Preuitt on the ballot. The Code of Alabama does not provide a clear answer as to what is the last date a party may replace a withdrawn candidate. A Secretary of State regulation, adopted in 2003, says that:

Election officials are authorized to submit, accept and otherwise act on amendments to certifications of candidates to the full extent permitted by the circumstances or until the applicable ballots are printed, whichever occurs first.

In this case, absentee ballots have already been printed for Talladega County, which is in SD 11. Now, reports quote Beth “I wish I was Mrs. Dog” Chapman’s office as saying because all ballots haven’t been printed, the GOP can still substitute a nominee. However, at the infernal SDEC meeting in Montgomery on August 14, when the Kenya Marshall nomination was being debated, a point of inquiry was raised as to when the drop-dead date was for the Party to replace her if she were stripped of the nomination. Responding for the Chair, ADP ED Jim Spearman said the Secretary of State’s office had advised him that would be Friday, August 27. It was on the basis of that representation that the SDEC re-convened on August 26, to give Marshall the longest possible time to sort out her Bar case. Even if the Secretary of State is not legally bound by that representation, changing the advertised drop-dead date would constitute a change in a voting practice or procedure, requiring preclearance by the Department of Justice under § 5 of the Voting Rights Act of 1965. Even if that preclearance is obtained, it won’t be done before we have reached what all parties will have to concede is a for-real drop-dead date, by which ballots have to go out to comply with the Uniformed and Overseas Citizens Absentee Voting Act.

Meanwhile, back at the Supreme Court ... The number of Republican Supreme Court Justices who have donated to Democratic Supreme Court nominees has now doubled. Justice Champ Lyons, a Mobile Republican, acknowledged this week that he has given $1,000.00 each to the campaigns of Democrats Judge Mac Parsons and Rhonda Chambers. This, of course, follows the earlier $5,000.00 contribution to Parsons by GOP Justice Tom Woodall. Lyons explained his contributions by saying “My first loyalty is to the Alabama Supreme Court ... We’ve got two extremely qualified Democrats running for the Alabama Supreme Court.” King Pig Double Dipper, and GOP Chair, Mike Hubbard has been quoted as saying in response, “Oink.” Wait, excuse me. What he said was, “I have no idea, and I have not spoken with them. It’s obviously something we don’t condone.”

This support from Justices Woodall and Lyons is significant. Both have been working alongside Justice Parker, Parsons’s opponent, for the last five years, and have seen his what-me-worry approach to his judicial duties at first hand. They have also likely had the occasion to review some of Judge Parsons’s work, when his decisions were appealed to the Supreme Court. Likewise, Justice Lyons has had the opportunity to closely review the work of Judge Kelli Wise, who is currently on the Court of Criminal Appeals, and whose opinions go up on appeal to the Supremes. (Judge Wise, since her election, has reminded me of the advice of the late Lewis Grizzard, who cautioned against proximity to “women whose first name ends in ‘i’.”)

And, down in the Wiregrass. Democratic nominee Jennifer Adams, who is also the Houston County Democratic Chair, has withdrawn from the race for the Alabama Senate in District 29. You will recall that the Republican Party refused to allow incumbent Senator Harri Anne Smith qualify to run in their primary because of her support in 2008 for Democratic Congressman Bobby Bright. (This, after the GOP has called Democrats “insular,” “power hungry,” and “dictatorial” for decades for enforcing the Radney Rule.) Smith has qualified as an independent for the seat. I have two guesses about this. First is, that some deal has been hatched for Smith to caucus with the Democrats if she’s elected. The second is this: she may well win. In her GOP Congressional primary campaign against Jay Love in 2008, she mopped the floor with him in that part of the Second Congressional District which she represents in the Senate. And Bright, whom she endorsed, did well there, too. At the very least, this is another instance of where the GOP is going to have to drop some serious coin on what should be a safe, base district.

Finally, a late development with the shoe on the other foot. Word has broken that gubernatorial nominee Ron Sparks has said some nice things about Richard Shelby:

“I want Richard Shelby helping me to save the Redstone Arsenal in Huntsville. I want Richard Shelby to help me when we start looking at military closures in Alabama because they are extremely important. Can you imagine the economic impact of the military leaving Alabama?”

Understandably, this has caused some blowback in Democratic circles. That might be more understandable if many of those same critics hadn’t been among those blindly singing the praises of Artur Davis as he voted against health care reform, and otherwise pandered to the GOP. I am not sure this one slip, buried in the news on a holiday weekend, will make that big a splash among the wider Democratic base.

For one thing, Shelby has always had a way of maintaining a foot in the door of the Democratic base, even after his 1994 party switch. In his last Democratic run in 1992, against black icon (the not-yet-indicted) Chris McNair, Shelby coasted to a 46.4%-36.6% win in Macon County. (Disclosure: after Shelby announced his switch the day after the 1994 General, it was yours truly who thought of the bumper stickers later seen around Montgomery: “DON’T BLAME ME: I VOTED FOR McNAIR”. Someone with a couple hundred bucks left in their campaign paid for printing them, and I still have one.) In the 1998 General, he carried Colbert County, a reliable Democratic bastion, by 54.0%-46.0%. Shelby has always known how to put out street money to enervate Democratic opposition without the media catching on.

I see two possible explanations of this move by Sparks, and they can be classified as (1) cynical, and (2) very cynical. Don’t get me wrong, I don’t approve of either, but if either helps regain the Governor’s Mansion, my criticism will be tempered. The cynical explanation is the Cult of the Consultant. It has become Conventional Wisdom among Democratic “experts” that the key to victory is appearing to try to be reasonable and bipartisan. While poll respondents tell pollsters they want politicians to be bipartisan, I don’t buy it. It’s what they tell pollsters; it doesn’t describe how they vote. Fighting works, as the decline in Obama’s approval ratings while he continues to try to be the Philosopher-in-Chief shows. The Commissioner may have fallen victim to some bad advice about how to handle this issue. It wouldn’t be the first time it’s happened to a Democrat of unquestioned party ideals and loyalties. One of my favorite memories of the 1996 cycle is watching as a DC hack, sent down to “advise” Roger Bedford on how to campaign, stood trembling for his life as a 250-pound Steelworker, who had not one ounce of fat on his frame, told the “expert,” from a range of about three inches, what he thought of his Bedford radio ads in which Bedford was touted as “a Reagan Democrat, not a Kennedy Democrat!” (The ads were pulled as soon as the DC hack could change into some clean trousers.)

The even more cynical explanation hails back to the issue of Shelby’s money. Shelby’s cash on hand as of June 30, 2010 was $17,179,661.00, and he hasn’t been skimping on the fundraising canapés since then. That is an awe-inspiring sum of money, even for those of us who want to scream at Shelby himself. There are two salient facts about that figure. One is that it could do a lot of damage to the entire Democratic ticket if unleashed. That comes out to $256,412.85 per county. The other such fact is that, if this is (as many believe) Shelby’s last hurrah, when he leaves, he can do pretty much what he wants with the unspent balance. He can spend it on libraries, parks, and other shrines to which his name can be affixed, make contributions to other politicians (then earn fees lobbying them), and, depending on the accounting history, put some in his own pocket. Sparks’s statement certainly lessens the need for Shelby to spend money; by how much is open to debate. What is not open to debate is that Shelby is perfectly capable of cutting a deal with Sparks, to keep that $17,179,661.00 (or at least the vast majority of it) parked in the bank, in exchange for Sparks’s statement. Shelby is no more loyal to his current party than he was to his former. If this is what has happened, Sparks may have done a great service to the entire Democratic ticket - including, to an extent, William Barnes, his Democratic opponent.

Don’t shoot the messenger here. I am not saying I approve. I am merely speculating about what might be going on. But it bears watching to see. In the meantime, let’s all enjoy the collapse of Republican efforts to take the Legislature, and their problems holding their lead on the Supreme Court.

The Big Mac Attack Continues

Yesterday’s news brought gales of laughter in law offices and courthouses across Alabama. Word hit the state about midday that the Supreme Court campaign of Democratic Judge Mac Parsons of Jefferson County had gotten a $5,000.00 contribution. As I lamented in last Friday’s post, such contributions are neither unusual nor intrinsically noteworthy. What catapulted this particular subvention into the headlines was its donor: Republican Supreme Court Justice Tom Woodall.

Only last week, Judge Parsons, always one of Alabama’s most quotable politicians, had garnered statewide headlines with the pleasingly indecorous pronouncement that Republican Justice Tom Parker, the incumbent whom he is challenging, is “lazy.” In a world where the usual judicial campaign consists of touting how conservative one is, and how liberal one’s opponent, this was a bracing, fresh approach to judicial campaigning. Those who have never experienced Parsons’s wit - which is often as not self-deprecating - would do well to watch his brief remarks earlier this year to the Over the Mountain Democrats:

Both Parsons’s jab at Parker, and the likely motivation behind Woodall’s donation (Woodall refused to comment further) come from Parker’s clear unfamiliarity with the Protestant Work Ethic. Or, for that matter, the work ethic of any other faith or sect. When Parker first went on the Supreme Court in 2005, he was assigned the usual stack of pending cases, most of which had been previously assigned to his predecessor, the unlamented Justice Jean Brown, whom he had ousted in the GOP primary. Within months, whispers were being heard that no opinions had emerged from Parker’s outbox. His reputation for low output has continued throughout his term on the Court.

Probably in anticipation that his output would become a re-election issue, Parker has produced published opinions at (what is for him) a blistering pace this year: 6 since January 1, 2010. But a comparison of the current Justices’ output bears review at this point. Since January 1, 2008, the Court’s current justices have each produced the following number of published opinions of the Court:

Justice	Opinions
Bolin	81
Stuart	76
Lyons	75
Woodall	64
Murdock	64
Smith	60
Cobb¹	36
PARKER	35
Shaw²	21

Maybe Parker indulged a little too liberally (pun intended) at Winter Carnival while at Dartmouth, to be able to put in a full work day. Whatever the cause, he is clearly not pulling his weight on the high court. A number of his cases have, under the leadership of Chief Justice Cobb, been re-assigned to other members of the Court. Normally an insular and collegiate lot, even if ideologically divided, the Court is rumored to be ready to replace Parker. The Woodall contribution may only be the first of several cracks in the partisan edifice.

In large part, this post has been a continuation of last Friday’s, with a special emphasis on the peculiar circumstances of one race. I noted the press given Parsons’s “lazy” comment in passing, but there is an object lesson there for the rest of our judicial candidates, and indeed all our nominees. The Republicans aren’t ten feet tall. They have vulnerabilities. Those weaknesses are usually not hard to find. (In the parlance of political pros, oppo research ain’t rocket science.) And if you take nothing else from either post, please note this - the media love an effective attack! When we dare to land a punch and draw blood, it will be covered! And whether you like or dislike this aspect of American politics, it is this sort of gamesmanship that reaches undecided voters. Unfortunately, if unanswered, it even works when there’s no basis to it. (Remember Willie Horton?) But when it is based on fact, it’s a game-changer.

So by all means, when you email your letter to the editor about the Supreme Court races, don’t forget to tell the reader about how little of his paycheck Republican Justice Parker is earning. More importantly, when you’re planning any other campaign, or ringing the doorbell of an undecided voter, don’t forget that the side that wants to win the most, usually does. Coach Steve Sloan will be remembered by most as a good quarterback, and a nice guy. He was the sort of warm, empathic individual you want calling on friends at the funeral home visitation. He never really showed anger as a coach. He also retired from college coaching with a 68-86-3 record. Nick Saban may not be the teddy Bear (another groaner, I know) type, but ... you get the point.

¹ Following the practice of Chief Justices of both parties for decades, Chief Justice Cobb only takes a half-load of opinions to draft, due to the duties of the Chief Justice as both the head of the Supreme Court, and administrative head of the entire Judicial Branch. Please note that if her total were doubled, she would have produced more published opinions than 5 of the 8 Republicans.

² Justice Shaw only came onto the Supreme Court in January of 2009, yet he is already on track to pass Justice Parker in published opinions released before the end of this year.

Judicial Selection - Curing the GOP Infection of the Appellate Courts

Awhile back, I had the opportunity to make a rather focused post on the sad state of racial diversity in Alabama’s appellate court system. Of course, that continues to be an overarching problem. All the justice in the world at the trial level doesn’t do any good, if it can be vacated on appeal. But the news this week has shown that much more remains broken in Alabama’s judicial selection process.

Granted, the imbroglio at the State Democratic Executive Committee (and the Alabama State Bar) over the nomination of Kenya Lavender Marshall is something of a one-off situation. It isn’t often that someone with that sort of matter pending ventures a judicial race, and the mix of politics, bar proceedings, and the law of replacing a disqualified judicial nominee had SDEC members, lawyers, and the occasional blogger all reaching for their copies of the party bylaws and other references.

What concerns me today is the wide range of problems with judicial elections in Alabama generally. And unlike many reform-minded writers, I am not engaged in some altruistic venture to produce enlightened philosopher-kings (or queens) in black robes. I am more concerned with the strong Republican bent the judicial branch has taken, especially at the appellate level. This Republican domination has permitted the ridiculous larceny of hundreds of millions of dollars from Alabama taxpayers by corporate behemoths like Exxon and pharmaceutical giant GlaxoSmithKlein.

The Exxon case would have any Alabama voter mad, who knew about the facts. Simply put, Exxon (now ExxonMobil), which has to pay the state royalties on natural gas it extracts from the waters of Mobile Bay, lied to the State of Alabama about how much it had gotten from the wells at issue. After a jury trial in 1999, a jury found that Exxon had lied to the State officers responsible for collecting the royalties, and assessed punitive damages of $3.5 billion. The Alabama Supreme Court, which by 2002 had a Republican majority, threw out that verdict on the specious grounds that some Exxon documents were “privileged” and should not have been shown to the jury. (I wonder what the result would have been if a Democratic officeholder had claimed his documents were “privileged”?) The case was tried again in 2003, and this time the jury really saw the extent of Exxon’s lies. The second jury rendered a verdict against Exxon - and for the people of Alabama - in the amount of $11.2 billion. Following U.S. Supreme Court rulings about punitive damages, the trial judge reduced the award to the same $3.5 billion that had been awarded in the earlier case. No matter, said our GOP court in 2007, the State should have been psychic and known the figures provided by Exxon were lies. It threw out the entire punitive damages award, and ordered Exxon to pay only the actual shortfall in its royalties. (It had “only” ripped us - the taxpayers of Alabama - off for over $51 million.) Exxon laughed all the way to the bank, making $40.6 billion in profits in 2007, and $45.2 billion in 2008.

Last year, in another Supreme Court decision (the only dissenting vote was Democratic Chief Justice Sue Bell Cobb), the Court reversed $328 million in fraud verdicts against GlaxoSmithKlein and other big pharmaceutical companies, who had been caught fraudulently overcharging the State for prescriptions paid for by taxpayers through Medicaid. Again, it’s fair to say that the Supreme Court ruled that the State’s employees should have had psychic powers and known the numbers were cooked. (Memo to Future Governor Sparks: make Miss Cleo your Finance Director.)

How did Alabama’s highest courts get to be such a sanctuary for Fortune 500 thieves? The best place to trace this mess is to 1994, when the Business Council of Alabama brought Karl Rove to Alabama to run Republican judicial campaigns. With the help of ethically questionable rulings from Reagan and Bush appointees to the Federal courts, Rove was able to oust Democratic Chief Justice Sonny Hornsby. In following cycles, the GOP began to chip away at the appellate courts, ousting experienced judges with decades of service and high regard in the legal community. Some were replaced by Republican Party hacks, whose resumes were so thin, you would have hesitated to hire them to defend a speeding ticket.

Of course, the “genius” of Rove so acclaimed by the punditry was nothing of the sort. It was just a preview of his modus operandi in the two presidential campaigns of George W. Bush: dump tons of Wall Street money and forget ethical scruples.

There has been a lot of reformist talk across the nation about spending on popular-election judicial races, and Alabama has been one of the foci of that comment. To be fair, some of the talk has come from across the political spectrum, and Republican Justice Champ Lyons of the Alabama Supreme Court has called for reform of judicial selection and campaign finance. (Which is easier to do, I suppose, when you are age-limited to your final term in office, as he is.) Recently, a signal study was released by the Brennan Center for Justice at NYU, and other groups, calling for reform of judicial selection and campaign finance. In the foreword, former Supreme Court Justice Sandra Day O’Connor said:

We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justice, three out of every four Americans believe that campaign contributions affect courtroom decisions.

More telling for our present purpose were the state-by-state analyses, which broke out the largest contributors from each state holding judicial elections. The report on Alabama noted that:

One of the first states to experience the new politics of judicial elections, Alabama also has been the most expensive. Of the $40.9 million raised by Alabama Supreme Court candidates from 2000 through 2009, $22 million, or 53.7 percent, came from just 20 groups. Eight of the 10 biggest spenders were business or conservative groups, led by the Business Council of Alabama (No. 2, at $4,633,534) and the Alabama Civil Justice Reform Committee (No. 3, at $2,699,568), which was the leading funder of 2008 winner Greg Shaw. (emphasis added)

The report went on to note that the two anti-consumer, anti-worker groups named, by themselves, outspent the Alabama Democratic Party’s efforts on behalf of our judicial nominees - even before the other six of the top eight kicked in.

So what do we, as Democrats, do about this tidal wave of corporate cash? Is there any way to counter it, or are we doomed to see the laws enacted by a Democratic Legislature “interpreted” into nothingness by a Republican Supreme Court? Are we doomed, time and again, to have a Supreme Court that rubber-stamps Bob Riley’s War on [Bingo] Employment, or that steals elections for GOP candidates (as it did by blocking Siegelman’s 2002 recounts)?

Even though we are late in this cycle, and the three Supreme Court seats up this time make it an important year, it’s not too late to take some positive steps this round. In fact, there’s no reason we shouldn’t expect to do well in this year’s judicial elections. The careful reader will have already seen the prescription in the analysis above. For the benefit of those who missed it, I will repeat myself:

The Exxon case would have any Alabama voter mad, who knew about the facts.

Simply put, the key to winning these judicial races is putting the facts of Republican rulings into the minds of voters, and to do so with the sort of repetition and simplicity that assures the facts will stick there. This is something we simply haven’t been doing in judicial races. One key example of this was the negative run against current Justice Shaw by the campaign of Judge Deborah Bell Paseur in 2008. This was the principal ad that was run to point out Shaw’s funding by the oil industry:

This ad violates some of the “Negative 101” rules of running negative. First and foremost, it’s too vague and unfocused. While its vaguely menacing visuals make a good backdrop, there’s no simple message that can be digested by a semi-attentive voter. Connected with that is that there is no mention whatever of the Exxon decision, which had been handed down just a year earlier. (Keep in mind, the record-high gas prices of 2007 were still on voters’ minds in 2008, as well.) The ad should have featured the Exxon logo, and text mentioning the words “Republican,” “fraud,” and “taxpayers.” Never mind that Shaw wasn’t on the Supreme Court when that decision came down - does anyone really think that would have stopped a Republican ad from attacking Judge Paseur about a supposedly “liberal” decision? Shaw is part and parcel of the same movement, and it would have been totally fair to tar him with the same brush. Finally, the ad made a tactical error by coming out of Judge Paseur’s committee. That gave Shaw an excuse to go negative on Paseur, and to whine about her “firing the first shot.” Negative always works better when it’s put up by “The Committee for Mom and Apple Pie,” or, in this case, “Committee Against Big Oil” or some such. Witness the effectiveness of the “True Republican PAC” in derailing the Bradley Byrne campaign this year. (I don’t want to sound like I am picking on Judge Paseur. Her campaign is simply the most recent, and her positives - like the “Amazing Grace” ads - were brilliant.)

Alabama is home to some of the best plaintiff’s lawyers in the country. I sometimes stand in awe of their ability to persuade 12 men and women in a jury box to award the sums they do for fraud and wrongdoing, despite the constant media hogwash about “excessive verdicts.” Somehow, those persuasive gifts haven’t found their way to the ballot box. Although the plaintiff’s bar has historically been the largest contributor to Democratic judicial candidates, and their support has been generous in terms of dollars spent - well, 19 Republican appellate judges to 1 Democrat is a track record that speaks for itself.

A few things make this year’s campaign different from the Paseur-Shaw race in 2008, the first being that we have three Supreme Court seats up, not one. This will require us to choose our weapon carefully. When you’re being charged by a thick-skinned rhino, you don’t want a shotgun whose pellets will bounce off his hide. You want a carefully aimed rifle that will penetrate. If we spend our limited resources on limited GRP buys attacking each Republican nominee individually, we will be swamped by the overwhelming financial resources of the Business Council and its allies. Our negative should accordingly focus on the concept of “Republican judges,” in line with some of my earlier preaching on the issue of Selling the Party Brand. It’s going to be hard for our two (very well qualified, but still) rookie candidates, Rhonda Chambers and Tom Edwards, to gain traction against well-funded GOP opponents otherwise. And thank goodness, we have Judge Paseur running for Civil Appeals, and she will benefit from those efforts, too.

In passing, I do want to note that Judge Parsons has done a good job of getting free media in commenting on Justice Parker as “lazy.” Many lawyers, even those with Republican clients, have grown tired of the interminable delays in getting decisions in cases that are assigned to Parker to write the Court’s opinion.

At the end of the day, it comes down to this. I know that some people don’t like to run negative. But negative works, and no matter how moderate, or how Christian, or how ethical a Democratic candidate is, the GOP will continue to call him or her a “liberal,” “gay-loving,” “anti-gun,” “pro-high-tax” candidate, along with our entire Party. If we do not tell the truth about them, their lies will win. Nor should we be dissuaded from the fight by the size of their money bag. When the 180-pound cornerback wants a tackle more than the 230-pound running back wants another yard, my money is on the cornerback every time.