Tag: Tinkerbell

Oh boy, the figures are rolling in on The One's stimulus package and that unbelievable recovery we're in! And the Enchanted Mitten is number 7 in the latest rankings!  

Our governor, whom we affectionately refer to in these pages as Tinkerbell, is no orator. Her speeches sound like they were written for mediocre high school oratory contests, and they are delivered with all the gravitas of a cheerleader. The phrase "a mile wide and an inch deep" comes to mind when I hear her speak, but her speeches -- scripted and controlled -- show the governor at her best (which is none too good).

When she is off-script, however, watch out. You just never know what might come out of Tink's mouth. Like the other day, during a factory tour in Grandville, when she said that the delay in the Chrysler bankruptcy proceedings (due to a stay issued by the U.S. Supreme Court) was caused by "some greedy lawyers." (The stay has since been lifted and the Chrysler bankruptcy is humming along, shedding assets, jobs, and the future of the U.S. auto industry).

Tink did not identify the "greedy lawyers" by name, but presumably she meant the lawyers representing the Indiana State Police Pension Trust, the Indiana State Teachers Retirement Fund, and the Indiana Major Moves Construction Fund, who requested the stay in the first place.

Let's take a closer look at the greedy lawyers and their clients.

The police and teacher pension funds manage retirement assets for approximately 100,000 Indiana civil servants, including police officers, school teachers, and their families.

The construction fund finances infrastructure construction projects. (Aren't these supposed to be the saviors of our economy under The One's stimulus package?)

Chrysler owes the pension funds alone $100 million, secured by a first lien on all of Chrysler's assets. This is part of a total "first lien" debt of $6.9 billion.

So, police officers and school teachers have been putting away money into a retirement fund, which in turn lent $100 million to Chrysler, in exchange for what amounts to a first mortgage on Chrysler property. So, what did that first lien, that mortgage, get the Indiana retirees? How does "virtually nothing" sound?

The Indiana funds will get about 28 cents on the dollar, while all of Chrysler's unsecured trade obligations will be paid, all warranty and dealer obligations will be paid, and $10 billion in unsecured claims against Chrysler's VEBA (the Voluntary Employee Benefit Association, a UAW-run health care trust) will be paid by giving the UAW a $4.6 billion promissory note and a 68 percent share of the reorganized Chrysler. Based on testimony at the bankruptcy court hearing, the UAW stock is worth about $24 billion. Wealth distribution, anyone?

The lawyers for the Indiana funds were looking out for their clients, police and teacher retirees. In doing so, they argued for the law and against the massive distortion of the bankruptcy code orchestrated by the federal government and financed by our tax dollars. The Chrysler bankruptcy has turned the law on its head and will have substantial repercussions for all manufacturing entities in the future, because the current administration treats contracts and the law as irrelevant obstructions to be overcome on the way to its apparent goal of eliminating private enterprise and the right to make a buck.

Not to mention the Indiana retirees, who have seen 72 million dollars go up in smoke, in a fire lit and stoked by the U.S. Treasury.

Perhaps Governor Tinkerbell, who has always fed at the public trough and has never had to worry about running a business (as demonstrated time and again by her wretched handling of our state government), considers lawyers trying to protect 72 million pension dollars to be "greedy," but in doing so she has turned on police, teachers, union members, and lawyers, all of whom have supported her in varying degrees over the years. See what happens when you don't have a script in front of you?

And where is the outrage from teachers, police, and lawyers? Do they just chalk it up to rhetoric, knowing that at crunch time Tink will carry the water? That she won't touch teacher health care in Michigan, that she won't fool with defined benefit pensions, that she will appoint judges of dubious quality in thinly veiled payoffs to the trial lawyers?

By using the phrase, "greedy lawyers," Tink pandered to the lowest elements of our society, among which, apparently, her heart lies. These are the groups that substitute slogans for political thought, and consider bumper stickers to be a form of literature.

If advocating zealously on behalf of my clients and arguing for the rule of law makes me a "greedy lawyer," then I am proud to be one. What does destroying Michigan's economy, causing tens of thousands of families to go on public assistance, and driving tens of thousands of people out of our state make you, Governor?

Since David Souter announced his retirement from the U.S. Supreme Court, much speculation centered on whether The One would nominate Gov. Tinkerbell to fill the open spot. Of course, the fact that she has no judicial experience, has never accomplished anything beyond getting elected (a quality she shares with The One), and has driven Michigan's economy straight off a cliff did not disqualify her from consideration. And there is the arguable point that, far from excluding her, Tink's tax problems (hat tip to Nick for some excellent reporting) gave her instant entree to the short list.

Nevertheless, despite her evident lack of qualifications, Tink was passed over for Sonia Sotomayor of the almighty Second Circuit Court of Appeals. The Second Circuit is based in New York, and it is common knowledge that, for liberals, the source of all wisdom and coolness is New York. Moreover, how could The One ignore a judge who uttered these beauties:

During a panel discussion at Duke in 2005: "All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made."

At UC Berkeley in 2001: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

So, courts make policy and Latina females make better decisions precisely because they are Latina females, which gives them a richer experience than others. Imagine that latter quote reversed -- "I would hope that a wise white male with the richness of his experience would more often than not reach a better conclusion than a Latina woman who hasn't lived that life." What a firestorm that would cause!

Still, one might say that this is all quibbling on the margins -- what about Sotomayor's actual performance on the bench? Uh, well, not good. She has had eight of her decisions reach the U.S. Supreme Court, and six of them were reversed. One was upheld, and one is still pending. This is a record of reversals on a par with the notoriously awful Ninth Circuit from California. For the sake of fairness, though, let's look at the latter two.

In Knight v Commissioner, the issue was whether certain fees incurred by a trust were fully deductible or deductible only to the extent they exceeded 2% of the trust's adjusted gross income. Writing for the Second Circuit, Judge Sotomayor affirmed a Tax Court ruling and held that the expenses were subject to the 2% floor, reasoning that the expenses could be incurrd if the property was held individually as well as in trust. Although the Supreme Court affirmed the result in Knight, it strongly criticized Sotomayor's reasoning, finding that it "flies in the face of the statutory language," a fact which "strongly supports rejecting the Court of Appeals' reading [of the law]."

Even though the Supreme Court affirmed Sotomayor in the Knight case, the result is still troubling because it shows she will jump to conclusions without regard to - and even in spite of - statutory language to the contrary. The fact that she accidentally careened into the correct conclusion in Knight is of little comfort.

The case of Ricci v DeStefano is currently pending in the Supreme Court, and a decision is expected in June. In this case, the city of New Haven, CT, sought to fill vacancies in its fire department. Hiring and promotions were required to be based solely on merit as determined bya competitive examination, so New Haven hired an outside testing firm to develop the exam. Despite their best efforts, however, the results of the exam were racially disparate such that all of the promotions would have gone to white firefighters, with one or possibly two going to a Hispanic firefighter. No African Americans would have been promoted.

Faced with this potential result, the city refused to certify the results of the exam, such that no firefighters were promoted. The city justified its refusal by claiming that, if it certified the results and promoted the white firefighters, it would face a discrimination lawsuit on the grounds that the test, though facially neutral, had a disproportionately negative impact on minorities (also known as a "disparate impact" claim). The firefighters who would have been promoted then sued, arguing "reverse" discrimination.

The Second Circuit affirmed dismissal of the firefighters' lawsuit. Judge Sotomayor's opinion merely adopted the District Court's ruling, without adding anything substantive. The dismissal was based on the conclusion that the city had a good faith reason for not certifying the test -- it was afraid that the minority employees who were not promoted would sue the city, claiming the test was discriminatory. Therefore, the city was justified in discarding the test results solely because of the race of those who passed.

If left standing, therefore, Ricci supports the proposition that a city may discriminate intentionally if it believes that not doing so will leave it open to a claim that it discriminated unintentionally. This, despite the complete absence of evidence that there was anything invalid about the exam.

And, oh, remember how The One wanted a judge with "empathy"? He said: ""We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." Try this on for size, about the lead plaintiff in the Ricci case, who was passed over for promotion, a decision affirmed by the empathetic Sotomayor (as related by Emily Bazelon):

"Frank Ricci is a 34-year-old "truckie"--he throws ladders, breaks windows, and cuts holes for New Haven's Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a Web site he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won."

Eight decisions -- 6 reversals, 1 affirmance with her reasoning roundly criticized, and 1 decision on life support at the Supreme Court. Oh brother.