Just Jake

Jake Highton is a journalism professor at the Reynolds School of Journalism, University of Nevada, Reno. He teaches media law, history of journalism and advanced reporting. Highton is the author of numerous books, including "Nevada Newspaper Days." He writes a weekly column for the Daily Sparks Tribune.

Location: United States

Thursday, April 26, 2007

Plea for appointment of Nevada judges

Undemocratic? Certainly. Elitist? Probably. But it is far better to have Nevada judges appointed rather than elected.

The main reason: most voters don’t know anything about judicial candidates.

Few need to be told who to vote for in high visibility races: president, U.S. senator and governor. But races of low visibility, like judicial contests, appear at the bottom of the ballot.

Voting dropoff is tremendous in judicial races. Eric Herzik, University of Nevada political science professor, has noted that “judical elections draw few voters and even fewer informed voters.”

Moreover, judicial races get so little media attention beyond biographical stories. People cannot vote intelligently on the basis of skimpy information and scant interpretive reporting of the candidates’ qualifications.

Other reasons abound for appointment of judges.

Running for office can mean justice for sale. As Jim Hulse, vice chairman of Common Cause Nevada, told CityLife of Las Vegas: “When highly funded special interests--gambling, real estate, construction--give money to campaigns, they obviously do that to get something in return.”

Lawyers who contribute to judicial candidates are likely to appear before them in subsequent litigation, undermining judicial independence. Judges are supposed to be impartial. They should not be mere politicians slavishly following public opinion.

A study by the Progressive Leadership Alliance of Nevada showed that the average amount raised to win a seat on the Nevada Supreme Court in 2004 was $500,000. No wonder PLAN titled the study “The Supreme Jackpot II.”

Bill Raggio, state Senate majority leader, rightly argues that the constant need to raise money is corrupting the judiciary, leading to public perception that the judicial system is unfair.

“Too often judicial elections become embroiled in politics,” Raggio notes. Law and justice should not be political matters.

Nevada’s “Missouri plan” calls for a judicial panel to submit the names of three highly qualified people for judgeships. The governor would pick one. The plan is like the Judicial Selection Commission used when a judgeship becomes vacant. On that panel are a state Supreme Court justice, three lawyers picked by the Nevada Bar and three nonlawyers appointed by the governor.

Yes, you cannot remove politics entirely from the judiciary. But the three potential judges would be highly suitable for the bench. Appointment would remove cronyism and end the need to raise absurd amounts of cash.

Then there is the unseemliness of it all. Judicial candidates campaigning like any other politician. Candidates promising to be tougher on crime than their opponents, descending into the maelstrom of dirty-trick politics. Such shabbiness should be beneath the dignity of judges.

Look what happened in Tennessee. Justice Penny White was voted off the Tennessee Supreme Court in 1996 because she was said to be soft on crime. But White was voting to preserve due process as guaranteed by the Fifth and Fourteenth amendments. She was not voting “to coddle criminals.” The public does not know the crucial difference.

The point was underscored by Edward Bennett Williams in his book, “One Man’s Freedom.” Asked why as an attorney he defended unsavory characters, Williams noted that one person’s guarantee of Bill of Rights protections is everyone’s guarantee. Yet public opinion so often evinces a herd instinct rather than an understanding of the law.

Voters kicked Chief Justice Rose Bird off the California Supreme Court in 1986 because she consistently reversed death penalty convictions. But Bird was a humane justice.

She voted her conscience. She knew that capital punishment is murder by the state. She did not follow the howling of the mob. And it was Bird who led the court in being pro-consumer, pro-environmentalist, pro-women, pro-black and pro-Latino.

Washoe District Judge Bridget Peck said that when she went door to door soliciting votes, many people asked her why judicial candidates are on the ballot.

Why indeed. Thirty-nine states elect judges. Nevada should no longer be one of them.

Yes, appoint Regents too

Another excellent plan in the Legislature is for the Board of Regents, which governs higher education in Nevada, to be appointed rather than elected.

As with the judges, the candidates are largely unknown, get little media coverage and appear on the who-cares bottom of the ballot. Regent races become personality contests rather than an ability-and-issues contest.

Clemenceau, French premier in the first quarter of the 20th century, is supposed to have said: “Military justice is to justice as military music is to music.”

Similarly, education is too important to be left to politicians.

Thursday, April 19, 2007

Desperately seeking a state income tax

The horse-and-buggy days vanished a century ago but Nevada still has a horse-and-buggy government. It needs to enter the 21st century. And that means it needs a state income tax.

The mere hint of raising taxes is political heresy. It is the ultimate third rail of American politics. But the truth is that Nevada, with an ever-growing population, can ill afford to nickel-and-dime its way in the face of greater and greater needs.

Once again we hear from the governor and the legislators in Carson City that the state has no money for programs, or, that programs must be underfunded in order to balance the budget.

K-12 schools are badly in need of funds for new buildings and repair of old ones. Metropolitan school districts are crying for more funding. Higher ed was told to slash its budget, threatening jobs of part-time instructors and loss of many class offerings.

State roads are crumbling. Potholes abound. Road improvements are needed in Las Vegas to ease traffic tieups and frustrating commutes. A report just released notes that the state spends more for prisons than on education and health services.

A Nevada appeals court is essential with ever-increasing case loads for judges. Nevada needs annual sessions of the Legislature to replace outdated biennial sessions.

In the gubernatorial debates last fall, Jim Gibbons kept pointing to rival candidate Sen. Dina Titus while declaring: “She’ll raise your taxes. I won’t.”

It is doubtful that Titus would have dared to raise taxes. But she should have. She should have boldly declared something like this:

“Look, I don’t like tax increases any more than you do. But the state needs more revenue and it needs a more reliable income. Dependence on the state sales tax and ‘hidden taxes’ for everything is inadequate in the 21st century. We can no longer continue doing what we did ‘yesterday.’ ’’

It might take decades for a gubernatorial candidate to be brave enough to state what has been obvious for a long time. But that day must inevitably come.

Case in point: Governor Gibbons says there is no money for a proposed full-day kindergarten. Senate Majority Leader Bill Raggio, instead of leading, follows. He agrees with the governor.

“Full-day kindergarten is a good-sounding project,” Raggio says. “Unfortunately, it can’t be funded this session or probably the next session (2009).” He further laments that such a plan would cost about $130 million, adding: “With all the other needs and the revenue shortfall, it’s not realistic.”

An income tax would cure the problem. Everyone knows that education is the key to progress and advancement of the state and individuals.

The annual report by Quality Count in American education is devastating. And embarrassing. It lists Nevada 44th among the states for student proficiency in math, reading and graduation rates. It ranks Nevada 43th for student chances of going from kindergarten through college. So many rankings list Nevada near the bottom in nearly all areas.

People rail about big government. But big government is necessary if Nevada is ever to come close to meeting modern needs. The problem is nationwide: people want services--excellent schools and excellent roads--but they don’t want to pay for them.

Another measure in the Legislature should be passed: a bill amending the state constitution to allow a lottery.

Some Republican lawmakers, opposing a lottery, pretend that those who play lotteries are people who can least afford it.

We heard similar arguments four decades ago when most states would not allow gambling. Now most states have set aside moralistic qualms, permitting various forms of gambling because of the needed revenue.

The real reason Nevada does not permit lotteries is obvious. Casinos. They refuse to have any competition, even the humble purchase of lottery tickets. A lottery would generate something like $50 million annually for schools.

But casinos run this state. Ask political candidates who need money for their campaigns. Note too the statewide curb on smoking. Casinos are exempted.

As Steve Sebelius, editor of CityLife in Las Vegas, writes: “Nevada’s golden rule: the casinos have the gold and they make the rules…No matter how much big casinos pay in taxes, it doesn’t give them the right to run the state in a way that only benefits big casinos. ”

An income tax should be progressive: the more you earn the more you pay. Both a sales tax and flat tax are regressive, the poor paying as much as the rich.

Until it has a state income tax, Nevada will continue to be one of the most backward states in the nation.

Thursday, April 12, 2007

EPA ruling still leaves nation at Bush’s mercy

As long as G.W. Bush is in the White House, there can be no hope for progess, no hope for enlightenment, no hope for decency. Bush uses his bully pulpit for reaction, not advancement, for the worst rather than the best.

Although the environmentalists are rejoicing over their victory in the Supreme Court last week, the nation is still at the mercy of a man who is better suited to rule a 14th century kingdom.

Bush, finally admitting that there is global warming after six years of denial, now calls it “a serious problem.” But he insists that efforts to curb heat-trapping emissions must not cut into economic growth.

Besides, he says in a magnificent non sequitur, the United States can do little about greenhouse gases until China and India do. Pollution is horrible in big cites of China and India. But to suggest that America should do nothing until Asian powerhouses do is a lame excuse.

Barbara Boxer, head of the Senate Environment and Public Works Committee, says as much: “The president still doesn’t get it. I find it offensive that the president is still using China as an excuse to do nothing.”

True. But Bush does not want to get it. Holding down business costs is all that matters to him. He sides with automakers and power-generator polluters. Threats to the planet do not matter to him. Predictions that one-third of animal and plant species will become extinct in 2050 mean nothing to him.

Rising sea levels mean nothing to him. Beach erosions and coral bleaching means nothing to him. The rise of global temperatures means nothing to him. Vanishing glaciers and melting snow on mountain tops means nothing to him. Drought, heat waves, disease, and food and water shortages mean nothing to him. Visions of an apocalyptic future means nothing to him.

His obtuseness in the face of facts is incredible but hardly surprising. His minions have stifled, delayed or downplayed any climate change research that does not support retrograde Bush policies.

When the Supreme Court under Chief Justice John Marshall ruled in favor of the Indians in a land removal case, President Andrew Jackson supposedly said: “Marshall has made his decision. Now let him enforce it.”

The court is powerless to enforce its rulings if the executive does nothing. In that case, such rulings amount to little more than a rebuke.

Nevertheless, the court declaration that the Environmenal Protection Agency is required by the Clean Air Act to regulate carbon dioxide and other greenhouse gas emissions from vehicles and smokestacks is a vigorous reminder that Bush is president not monarch.

Justice Stevens, writing for the majority in the 5-4 ruling, said the EPA has offered “a laundry list of reasons not to regulate” but none of them is valid.

The EPA reversed the wise policies instituted by Carol Browner, EPA chief under President Clinton. The Republican EPA inaction is a clear danger to public health and welfare.

As many liberal Supreme Court watchers had hoped, conservative Justice Kennedy is taking the pivotal role that retired conservative Justice O’Connor played. Kennedy, as O’Connor had, refuses to let the reactionaries take absolute control.

The spearhead of the reactionaries, Chief Justice Roberts, said in his dissent that the case was nonjusticiable. Retrograde Justice Scalia agreed. “This court has no business substituting its own desired outcome for the reasoned judgment of the (EPA).”

This is the same Scalia who made up the Retrograde Five that substituted its judgment for the law to make Bush president in 2000. Moreover, the EPA judgment, like most of the Bush administration judgments, was ideological rather than reasoned.

The Earthjustice organization of lawyers took out a fullpage ad in the New York Times calling the EPA decision a landmark. It said: “This ruling signals a sea change in environmental protection. And it marks the latest in a string of recent court victories that Earthjustice lawyers are helping to win.

“In West Virginia on March 23, a federal judge ruled that mountaintop removal mining violates the Clean Water Act. In San Francisco on March 30, a federal judge overturned an administration attempt to cut the public out of logging decisions in national forests. In Alaska on March 17, a federal court set a national precedent by stopping a gold mine from destroying a lake and gutting 30 years of clean water protection.”

Fine. But optimism is unwarranted. Bush has led the nation into hell. Americans have no hope until noon of Jan. 20, 2009.

Thursday, April 05, 2007

Bush team wrong on free speech issue

The Bush administration has been wrong about nearly everything in the past six years.

President Bush sold the Iraq war on lies. He still stubbornly refuses to withdraw from Iraq. He condones torture and outsourcing of torture. He violates the Constitution. The Bushites fire U.S. attorneys who do not hew to the White House line. They support mountaintop mining in violation of the Clean Water Act. And, among many, many other daily outrages. Bush puts gross incompetents in key positions.

So it is hardly surprising that the Bushites are wrong again on a student free speech issue.

The case, argued before the Supreme Court recently, deals with a high school student who displayed a sign that read, “Bong Hits 4 Jesus,” at a 2002 Olympic torch relay in Juneau, Alaska. (Bong hits is slang for using marijuana.)

The 9th U.S. Circuit Court of Appeals correctly ruled that the First Amendment rights of the student, Joseph Frederick, were violated. It cited Tinker as precedent, a 1969 decision declaring that wearing black armbands to school to protest the Vietnam War was symbolic speech deserving constitutional protection.

The opinion by Justice Abe Fortas said: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Fortas cited the 1943 ruling in which the court struck down a compulsory flag salute statute in West Virginia: “That they (public schools) are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

Fortas noted that “state-operated schools may not be enclaves of totalitarianism,” which they too often are, and proved to be in the Alaska high school case. He added: “Students may not be regarded as closed-circuit recipients of only that which the state chooses to communicate.”

The government is trying to make it a drug case, not a free speech matter. It argued, in effect, that the war on drugs takes priority over free speech rights. Kenneth Starr, arguing for the government, said: “Illegal drugs and the glorification of the drug culture are profoundly serious problems for the nation.”

Please. A harmless sign glorifies drug usage? The subterfuge is transparent.

Douglas Mertz, who argued the case for the American Civil Liberties Union, was emphatic: “This is not a case about drugs or drug policy. This case is about freedom of speech and teaching our young people the importance of free speech.”

The 9th circuit is the most liberal court in the land so it would not be surprising if it is reversed by the reactionary Supreme Court. Indications of that possibility cropped up during oral argument.

Chief Justice Roberts said schools need not tolerate student expression that undermines their educational mission. He asked: “Why is it that the classroom ought to be a forum for political debate simply because the students want to put it on their agenda?”

Answer: because it is essential that every public affairs issue be debated. High schoolers are no exception. Besides, the sign was not displayed in the classroom.

As attorney Mertz pointed out, schools that inculcate an antidrug message must permit students to offer opposing views. He noted that in an open forum, such as the torch parade, it is wrong to tell students that they “may not mention this subject.”

Just as the black armbands in Tinker were not disruptive of class, so the sign at the parade disrupted nothing.

Nevertheless, Justice Kennedy argued that the sign was “completely disruptive” of the school’s antidrug message. Nonsense. As a letter writer in the New York Times put it: “If a competing thought is disruptive of a fundamentally propagandistic message, that is precisely what the First Amendment was intended to promote and protect.”

Even an organization from the religious right, the American Center for Law and Justice, warns that public schools “face a constant temptation to impose a suffocating blanket of political correctness on the educational atmosphere.”

Justice Brennan, dissenting in another student free speech case in 1988, said that schools cannot act as “ ‘thought police,’ stifling discussion of all but state-approved topics.”

Some highly intelligent people of the Right, including the modern guru of conservatism, Bill Buckley, argue for the legalization of all drugs--not just marijuana.

Buckley is right. But even if he is wrong, the student message should be allowed in the marketplace of ideas.