The Definition of Juvenile

What do college freshmen who sit outside the cafeteria line and hold up rating cards for young women as they exit the line with their trays and Not Larry Sabato have in common?

They define juvenile, i.e., "displaying or suggesting a lack of maturity."

At the risk of being accused of lacking a sense of humor, I have to say that the NLS contest to rate the "hottest" woman candidate or wife of a candidate is demeaning.

The contest equates the women leaders who run for office with the supporting cast of spouses who help men run and reduces both to unwilling beauty queens. The contest diminishes the victories of successful candidates like Anne Crockett-Starke. And, the contest illustrates the double-binds that women who seek to lead confront. Can one be both feminine and competent? See, Women and Leadership: Beyond the Double Binds by Kathleen Hall Jamieson for more on this subject.

Virginia is in the bottom ten of all states in the percentage of women in our legislature. In part, this is because of the double standard women confront when they seek to serve us as part-time citizen legislators. If they are single, they must put up with rumors about their sexuality. If they are attractive, they must put up with rumors about who they are sleeping with. If they have small children, they are attacked for putting themselves first and worst.

Men, e.g., Mark Earley and Bob Marshall, have large families with small children that they left to serve in the legislature without criticism. Yet, Eileen Filler-Corn met a barrage of negative sniping when she sought election to the House of Delegates because she had two school age children at home.

Men don't have to put up with stuff like the NLS contest, or the ongoing running commentary women face regarding their looks, clothing choices, hairstyles, etc., as a price of public service.

No wonder more men than women indicate an interest in running for office. See, Fox, Gender, Political Ambition and the Decision Not to Run for Office at page 5.

Bottom line here for me ...

Grow up, NLS.

Picture This

Delegate Cole has introduced a bill that would make it legal for a law enforcement officer carrying a concealed weapon to drink alcohol in a restaurant or club but only if he is actually on duty.

Here's what the amended "guns in bars" law would say if Cole's bill is passed:

J3. No person who carries a concealed handgun onto the premises of any restaurant or club as defined in § 4.1-100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Board under Title 4.1 of the Code of Virginia may consume an alcoholic beverage while on the premises; however, nothing herein regarding the consumption of alcohol shall apply to a federal, state, or local law-enforcement officer while actually engaged in the performance of his official duties.

I suppose this is somehow meant to make it legal for undercover police officers to drink while working a case without disarming or violating the law. But, it seems weird that we're passing a law to make it legal for police officers to drink on the job while carrying a concealed gun.

"Time and the Art of Living" 3

The new year approaches. Limitless possibilities; things left undone. A beginning; an ending.

Grudin on past and future:

III.20 The past is like the body of time, the future is like its soul. Our sense of the past is voluminous, corporeal, complex; but our sense of the future should hold innocently and simply, like stellar spectrum, the full quality of our spirit and will.

May the new year replenish your spirit and reenergize your will.

"Time and the Art of Living" 2

The holiday season... time with family ... thoughts about past time ... hope for time yet to come.

Not much time for blogging. So, over the next week or so, I've decided to share more from Robert Grudin's book, "Time and the Art of Living."

As we think about the year past, what we did and might have done, it's important to remember that balance is an important aspect of success in life and in managing time.

Grudin on Achievement and Time:

IX.29 The mind which can totally and inanely forget its work and obligations is often also the mind which can, at the proper time, give them the fullest attention. People of this bent know not only the value of concentration but also the secret resource of fallowness. They protect their fragile hours of productivity with down pillows of oblivion.

I hope that you find some "down pillows of oblivion" on which to rest in the week ahead and beyond.

Questions for the New Attorney General

Richmond's new ezine for women published a revised version of my blog post on questions for the Virginia Attorney General in the December 2005 edition now available online.

Bacon's Rebellion: Blog the Budget! Executive Offices

Over on Bacon's Rebellion, Jim's asking folks to "blog the budget." Shaun Kenney suggests that we all play "adopt-a-budget" and see if we can find the fat.

I don't know if you'd call it fat or not, but, as noted in my comment on the Executive Office budget, the request for an additional position and more money for the Division of Debt Collection in the Office of the Attorney General deserves a very careful look by the money committees and the new Attorney General.

Congresswoman Davis Rewrites Dictionary; Makes Include and Exclude Synonyms

It seems to me that Virginia Congresswoman Jo Ann Davis and others on the anti-holiday bandwagon have merged the meanings of "include" and "exclude" in their efforts to put the "Christ" back in Christmas.

Those of us who use Happy Holidays as a greeting do so to "include," that is, to "accommodate, add, admit, allow for, append, bear, build, build in, carry, combine, comprehend, comprise, consist of, constitute, contain, count, cover, embody, embrace, encircle, enclose, encompass, entail, enter, have, hold, implicate, incorporate, inject, insert, interject, interpolate, introduce, number, number among, receive, subsume, take in, teem with, or work in" everyone who is celebrating this time of year regardless of what they are celebrating.

We are not trying to "exclude" or "ban, bar, bate, blackball, blacklist, block, bounce, boycott, close out, count out, debar, disallow, drive out, eject, eliminate, embargo, estop, evict, except, expel, force out, ignore, interdict, keep out, leave out, lock out, obviate, occlude, omit, ostracize, oust, pass over, preclude, prevent, prohibit, proscribe, put out, refuse, refuse admittance, reject, remove, repudiate, rule out, set aside, shut out, sideline, suspend, throw out, veto, or ward off" Christians who are celebrating Christmas.

No matter what the good Congresswoman says, I'm going to continue to see include and exclude as antonyms, and I'm going to include everyone in my holiday greetings.

And, what's this thing these folks have about the Christmas tree anyway...the history of Christmas trees as a Christian symbol is relatively recent, promoted actively in the US only since the late 1800's and not "universal" as a tradition until the 1920's. A bit of history:

The Egyptians were part of a long line of cultures that treasured and worshipped evergreens. When the winter solstice arrive, they brought green date palm leaves into their homes to symbolize life's triumph over death.

The Romans celebrated the winter solstice with a fest called Saturnalia in honor of Saturnus, the god of agriculture. They decorated their houses with greens and lights and exchanged gifts. They gave coins for prosperity, pastries for happiness, and lamps to light one's journey through life.

Centuries ago in Great Britain, woods priests called Druids used evergreens during mysterious winter solstice rituals. The Druids used holly and mistletoe as symbols of eternal life, and place evergreen branches over doors to keep away evil spirits.

Late in the Middle Ages, Germans and Scandinavians placed evergreen trees inside their homes or just outside their doors to show their hope in the forthcoming spring. Our modern Christmas tree evolved from these early traditions.

Legend has it that Martin Luther began the tradition of decorating trees to celebrate Christmas. One crisp Christmas Eve, about the year 1500, he was walking through snow-covered woods and was struck by the beauty of a group of small evergreens. Their branches, dusted with snow, shimmered in the moonlight. When he got home, he set up a little fir tree indoors so he could share this story with his children. He decorated it with candles, which he lighted in honor of Christ's birth.

The Christmas tree tradition most likely came to the United States with Hessian troops during the American Revolution, or with German immigrants to Pennsylvania and Ohio, adds Robson.

But the custom spread slowly. The Puritans banned Christmas in New England. Even as late as 1851, a Cleveland minister nearly lost his job because he allowed a tree in his church. Schools in Boston stayed open on Christmas Day through 1870, and sometimes expelled students who stayed home.

The Christmas tree market was born in 1851 when Catskill farmer Mark Carr hauled two ox sleds of evergreens into New York City and sold them all. By 1900, one in five American families had a Christmas tree, and 20 years later, the custom was nearly universal.

What's the big deal about including everyone in the magic of the season by calling the tree a holiday tree?

Sometimes me thinks that the gentlelady doth protest too much.

Ten Keys Revisited

The Sunday before the election, I wrote my analysis of how I thought Sabato's "Ten Keys to the Governor's Mansion" were playing out in the 2005 election cycle.

We haven't yet had the benefit of Sabato's thinking, but I thought I should keep myself honest by looking back at what I said and seeing whether it makes sense viewed in hindsight.

Here's what I see:

On turnout, I was wrong that lower turnout would deliver the election to Kilgore. Kaine won despite the fact that turnout was lower than 2001's 46%. The conventional wisdom (R's do better when turnout is low)was wrong in Kaine's election. The turnout among black voters turns out to have been close to the 15% that Warner did, so the makeup of the lower turnout looks like it was unchanged or tending D compared to 2001.

The "prevailing conditions" (Warner/Virginia heading in the right direction) factor looks to have had a stronger influence on the election that I thought it did. I said it favored Kaine, clearly it was very favorable.

As to the rest of the 10 keys:

1) Economy (Then, neutral; Now, neutral to advantage D)
Dissatisfaction with the economy in some rural parts of the state (like Henry County) helped Kaine, not Kilgore. Overall, though, I still think it was a Neutral factor overall in the election. I do think voters thought that Kaine could do a better job delivering on the issue since more jobs and the economy voters voted for him.

2)Party Unity (then, advantage D; now advantage D)
Turned out to be the advantage for Kaine that I thought it would be.

3) Scandal (then, advantage D; now advantage D)
Turned out to undercut Kilgore as I projected.

4) Campaign Operations (then advantage R; now neutral to advantage D)
Kaine's folks ran a great and technically advanced campaign. The vaunted R machine wasn't. I called this an advantage for R's. Looks like this should have been neutral at best, perhaps even advantage D's.

5) Campaign Money (then advantage R; now advantage R)
Kilgore had the advantage. It didn't end up helping him.

6) Candidate Personality (then neutral; now advantage D)
I called this neutral, probably because I know both guys and think both are genuinely likeable people. However, the Kilgore his campaign presented was not likeable, and the Kaine his campaign ultimately presented was authentic and likeable.
This should have been advantage Kaine.

7) Prior Office Experience (then advantage R; now neutral)
Kilgore did little with his experience, and he wasn't able to get traction on the negatives associated with Kaine's tenure as mayor. I gave the advantage to Kilgore, turned out to be neutral at best.

8) Retrospective Judgment of Previous Governor (then advantage D; now advantage D)
Warner's high positives made this a very strong advantage for Kaine. I got this one right.

9) Presidential popularity (then, advantage D; now advantage D)
I called this one right, too. Bush was a drag on Kilgore's candidacy.

10) Special issues and dominant circumstances (then advantage R; now neutral to advantage D)
Immigration turned out not to have the intensity Kilgore clearly hoped it would. Transportation, which Kilgore should have been able to work to advantage, didn't help him. Kaine's decision to focus on growth and transportation late in the campaign clearly boosted turnout and his vote totals in the exurbs. I called this advantage R. I might have been right in the abstract, but Kaine's team clearly turned this negative into a positive.

Warner Steps Up on Workplace Discrimination

On Friday, Virginia Governor Mark Warner stepped up to the issue of workplace discrimination against gays and lesbians and did the right thing. As the chief personnel officer of the Commonwealth, he included a provision in the state budget he proposed that makes clear that Virginia's equal opportunity policy covers sexual orientation. Then, he reissued his own executive order No. 1 to declare that Virginia's "firm and unwavering policy ... to assure equal opportunity in all facets of state government" forbids discrimination based on sexual orientation.

According to the HRC, Virginia joins 25 other states and 420 of the Fortune 500 companies that have nondiscrimination policies.

In a competitive employment environment, Warner's policy decision makes good sense for Virginia and Virginia taxpayers who want the best and the brightest working in state government and at our public colleges and universities.

The Richmond Times Dispatch reports today that a fight (led by who else? Bob Marshall) is already brewing on this small step forward for fairness.

But, really, how controversial can this be when, as the TD reports, Speaker of the House Bill Howell is "among 84 Republican and Democratic legislators who signed a pledge with Equality Virginia, a gay-rights lobbying organization that pressed Warner for the ban, to prohibit discrimination in their offices."

Tim Kaine's spokeswoman has said that Kaine's Executive Order 1 will continue to prohibit discrimination in state government based on sexual orientation.

People of right reason should get ready to respond, though, when Marhall and others try to strip the langugage from the budget bill and pass legislation to prohibit the Governor from extending this protection to workers by Executive Order.

The Data Confirms Common Sense Analysis of the Election Results

Jeff Schapiro's column today revealing some of the Kaine post-election poll results confirms what those not playing Republican bubble boy know by intuition, talking with folks, listening to what non-wonks have to say ...

independents and moderates made the difference in the governor's race.

And, they really didn't like the negative ads used by Kilgore (especially the death penalty ads).

Can we revisit whether negative campaigning "works"?

Gratitude

Interesting word gratitude.

If you look it up in Roget's Thesaurus, you find synomyms that carry both a sense of blessing and an implied quid pro quo.

Benediction, grace, tribute, appreciation and, perhaps, recognition ... things given without expectation.

Acknowledgement, thanks, response, obligation, requital ... offered in return for a thing received or expected.

As I count my blessings tomorrow and think about what it means to be grateful ... to give thanks ... to express gratitude ... I'll be thinking about when and why I've been thankful without expectation or without receiving something ...

when gratitude has been a benediction or grace...

offered freely ...

without gain expected or received.

And, if I can find an image/memory/feeling of that time, I hope that I can hold on to it and find ways to connect with it again and again ... living in gratitude for its own sake without obligation or requital.

Happy Thanksgiving

So you want to run for office

This month RichmondWOMAN magazine goes from print to ezine. The new edition just hit the electronic news stand. My Government Matters column this month is titled, "So You Want to Run for Office: 5 Questions Every Woman Must Ask Herself Before She Runs for Office." Find out about the rule of 75, the torque factor, and the "buy me, buy me" test ... all important considerations for any woman thinking about elective office.

And, do think seriously about running. Virginia has stayed too long in the bottom ten of all states in the number of women in our state legislature. You can be a part of moving us from follower to leader. Women who run can and do win!

McDonnell's Transition Team

Following up on my post about Kilgore's failure to lead with inclusion during his 4 years as Attorney General, the announcement of McDonnell's transition team doesn't inspire confidence that he will do better.

Here's the list:

Steve Rosenthal (AG in the year following Terry's resignation to run for Governor)

Richard Cullen (AG in the year following Gilmore's resignation to run for Governor; former Assistant US Attorney)

Frank Atkinson (Counsel to Governor Allen)

Randy Beales (AG in the year following Earley's resignation to run for Governor)

Paul Harris (former member House of Delegates)

Ken Stolle (current Senator from Virginia Beach; chair of Senate Courts)

Dave Albo (current member House of Delegates from Springfield; likely new chair of House Courts)

Eileen Addison (York County Commonwealth's Attorney)

One African American, one woman. This even though nearly half of all law students (from whence future office recruits will come) are women.

One hopes that the leadership and senior staff who McDonnell chooses to run the AG's office, if he is confirmed as the winning candidate following a recount, will be more diverse and look more like Virginia and the make up of the available lawyers and public administrators from which he could choose.

Disclosure: As reflected in my profile, I have been a consultant to the Deeds campaign and I am serving on his recount team. I was also Steve Rosenthal's chief deputy AG.

"Time and the Art of Living"

"Time and the Art of Living" by Robert Grudin is a book that I turn to periodically for inspiration/meditation/humility. Called a "modern classic" by Richard Selzer, the book is about time in many dimensions, including the politics of time and growth and age. Whether I'm moved to pick up the book by sadness (as in the death of my mother or life threatening illness of a friend) or by frustration with events or the challenges of daily life, I always find something to think about ... an insight to savor ... a challenge to live "better."

Today I awoke thinking about the "lessons" in this election, and the book opened to this entry:

XII.16 In the heat of action, the mere ability to remember our principles, our goals and the specific reasoning behind the course we have taken is an element of courage. Memory is fear's first victim.

"Memory" took some serious hits in this campaign cycle. One hopes that those we have elected will have "courage" as they move from campaigning to governing.

Is it too early for New Year's Resolutions?

Certainly not if Christmas decorations are up before Halloween, and definitely not if you're asked by INC. magazine if you have any you'd like to submit for possible publication in their January issue.

So, I was asked, and here's what I said my resolutions are for this year:

"To get the hundreds of business cards sitting in a box in my office scanned into my contact manager."

"To synchronize my passions and my pocketbook."

"To teach my 5 nieces about the time value of money."

"To live the reality that time, like money, must be budgeted."

"To blog daily."

"To truly live each day as if it were my last."

At least as to one of these, you'll be able to judge how I do.

Reading the Cross Tabs; Survey USA Updated Tonight Prior to Bush Visit

There's an interesting picture that emerges from the cross tabs of the surveys conducted by SurveyUSA since August. Each of the polls reflects different projections about the makeup of the electorate, reports data based on widely varying numbers of likely voters (568 to 804), and estimates the margin of error differently (from a high of 4.2% down to 3.5%). The increase in the number of "likely" voters in the sample reflects the fact that as the election gets closer more registered voters called by the firm identify themselves as "likely" voters.

In August, the SurveyUSA poll projected that African American voters would make up 17% of the electorate -- a wildly optimistic assumption given the fact that only Doug Wilder has generated that kind of turnout among African American voters (he got 17% to Warner's 15%). By this past weekend's poll, the portion of the turnout projected to be made up of African Americans had fallen to 13%.

The good news for Kaine is that, from the poll conducted August 6-8 to the poll conducted November 04-06, his winning margin went up even as the projected proportion of black voters fell -- from 5 points behind in the first week in August to 9 points ahead in the calls made November 04-06. Kilgore's support among African American voters, consistent with that garnered by Gilmore and Allen -- in the range of 16-18%, remained static while Kaine's rose from a low of 70% to a high of 79%.

The bad news for Kaine in the updated SurveyUSA numbers published tonight is that the momentum seems to be moving in Kilgore's direction. Averaging calls made Saturday, Sunday and Monday, SurveyUSA now projects Kaine as having a lead of only 5%. Here's what SurveyUSA reported tonight about the polling trends over the weekend:

Interviews in the Virginia governor's race conducted by SurveyUSA tonight Monday 11/7 (but before President Bush appeared in Richmond) show a swing back towards Republican candidate Jerry Kilgore, causing SurveyUSA to now update its final projection in the Virginia Governor's Contest. This morning, based on interviews conducted Friday, Saturday and Sunday (11/4/05 through 11/6/05), SurveyUSA released data that showed Democrat Tim Kaine 9 points ahead of Kilgore. However, because of intra-day volatility in that data, SurveyUSA continued to poll throughout the afternoon and evening today Monday 11/7. When interviews from the most recent 3 days -- Saturday, Sunday and today Monday -- are averaged, Kaine's lead shrinks now to 5 points. When interviews from just the past two days -- Sunday and today Monday -- are averaged, the contest is closer yet. When interviews from Monday only are considered, the contest is tied, but the Margin of Sampling error from just the one day of interviewing is high enough, and the results aberrant enough, that SurveyUSA is uncomfortable reporting just Monday-only data. For the record, SurveyUSA goes into the clubhouse with its final projection (based on Saturday, Sunday and Monday polling): Kaine 50%, Kilgore 45%. A closer outcome still is possible.

Turnout clearly remains key, and the SurveyUSA data reveal three key issues that, in addition to the pro-Kilgore momentum, could render Kaine's projected margin illusory.

First, there appears to be a general lack of enthusiasm in the African American community for Kaine's candidacy. African American voters could make up as little as 10% of the electorate.

Second, to ensure victory, Kaine needs to get closer to the 90% of the African American vote that Warner received.

Third, much of Kaine's projected lead is reflected in the rising gender gap. In August, Kaine held a lead among women of only 3%. In the most recent poll, his lead among women had risen to 16%. But, turnout rates for women voters in Virginia are notoriously low -- 33rd out of the 50 states. It's not clear that Kaine's candidacy has the emotional torque necessary to get women to the polls tomorrow, particularly in NOVA, where multi-tasking women need a compelling reason to get them to the polls.

With Republicans using dirty tricks to depress turnout, particularly among Democratic women (e.g., calls using Kaine's voice and negative literature made to look like it came from Potts), Kaine will need the best GOTV program ever mounted by a Democratic candidate in Virginia to win tomorrow.

Evaluating The Governor's Race Using Sabato's Ten Keys to the Mansion

Writing for the Cooper Center in February 2002 about Governor Warner’s election, Professor Larry Sabato wrote, “Since 1969, the party with the advantage on the 'Ten Keys to the Governor’s Mansion' has invariably captured the governorship.”

I don’t know how Professor Sabato is calling the race this year, but here’s my take on his “Ten Keys” applied to this year’s Governor’s race:

1) Economy: Advantage N
While gas prices are high and folks are concerned about how they’ll heat their homes this winter, taxes in Virginia remain lower than in other states; per capita income is still up and unemployment is still down (except in rural parts of the state where dissatisfaction may help Kilgore).

2) Party Unity: Advantage (D)
This is the first time in years Republican candidates have run from the party “brand” failing to include it in advertisements. Why? The Party has been injured by scandal (the eavesdropping case), and the primary season was bitter.

Democrats are united behind Kaine, albeit with less enthusiasm than he would want.

3) Scandal: Advantage (D)
The eavesdropping case…the resignation of a Congressman…the link between Bolling and a failed insurance company… none of this helps the R’s.

4) Campaign Operations and Technology: Advantage (R)
It will take the D’s in Virginia years to make up for the Party’s failure to enter the technology age sooner.

5) Campaign Money: Advantage (R)
Kilgore has shown, once again, that unless a Democratic candidate is a millionaire, Republicans will out raise Democrats (especially when they get to hide the names of their contributors)

6) Candidate Personality and Appeal: Advantage N
Kilgore seems brittle; Kaine seems elastic. Kaine’s natural charm isn’t translating in the media.

7) Prior Office Experience: Advantage (R)
Kilgore’s experience as Attorney General and Secretary of Public Safety has given him a solid record to run on. Kaine’s tenure in the “weak mayor” job and on City Council, left him fighting the negative perceptions of the City without marginal success.

8) Retrospective judgment of previous governor: Advantage (D)
Governor Warner’s popularity is a huge asset but difficult to leverage. Kilgore can hardly tout Gilmore.

9) Presidential popularity: Advantage (D)
Bush is down, but not out in Virginia, but he won’t help Kilgore with independent voters who are the key to this election.

10) Special issues and dominant circumstances: Advantage (R)
Like it or not (and I don’t), the immigration issue provides Kilgore’s campaign with some momentum going into election day.

Net Advantage: 4(D), 4 (R), 2 (N)

Guess we know why the race is a “dead heat,” with the deciding factor out of the candidates control…it’s what Sabato calls the “prevailing conditions.” This year the voters have a very positive view of the direction in which Virginia is headed and a pretty negative view of Bush and the federal government. Clearly, this factor favors Kaine.

But, there’s one thing that Sabato’s “Keys” don’t address, which is voter intensity about the candidates and about the election itself. Although articles in the MSM today quote insiders as saying that voter interest is picking up, it is still likely that “I don’t give a darn” may be the spoiler candidate this year rather than the independent candidate Potts.

If turnout meets Sabato’s projected 2 million voters (slightly higher than in 2001), I think Kaine will win. If turnout is below 2001’s 46.2%, and especially if turnout among African American voters is less than 15% of the total, I think that Kilgore wins.

We’ll all know Tuesday (or maybe later if the election is as close as many predict). Who knows? If it’s a close as some think it will be, we may not know who won until after all provisional ballots are counted and the final count is certified by the State Board of Elections. And, even then, we might be headed for a recount.

At least we won't have butterfly ballots.

Traditionalist Arguments for Gay Marriage

The Volokh Conspiracy guest blogger Professor Dale Carpenter is devoting this week to the traditionalist arguments for gay marriage. Carpenter isn't spending time on the rights arguments. He's focusing instead on the reasons why those who believe in marriage should believe in gay marriage. It's an interesting series that has provoked an interesting and (mostly) informed debate, including a really great post by Eugene Volokh himself on preserving the quality and civility of the exchange. Here's the permalink to the first post.

After A Promising Start, Kilgore Fails to Lead With Inclusion

Four years ago, Jerry Kilgore began his tenure as Attorney General by appointing women to serve both as his chief deputy and his chief of staff. This was a refreshing change from the administrations of the previous two Attorneys General, (see, Kilgore Making A Place At the Table for Women, Virginian Pilot, December 12,2001), and his choices held the promise of inclusive leadership.

This November Jerry Kilgore is asking us to hire him as Virginia’s chief executive and chief state personnel officer. Accordingly, it is appropriate to review his record as Attorney General to see if, in fact, his leadership lived up to the promise of inclusion suggested by first two appointments.

Sadly, the record shows that it did not.

When Kilgore took office in January 2002, the Office of the Attorney General ("the Office") was one in which the positions carrying higher ranks and higher salaries were dominated by white men. After four years of Kilgore’s leadership (and that of his handpicked successor), the profile of the Office remains largely unchanged, with some indicators actually moving backward.

According to that EEO-4 reports filed by the Office in 2001, 2003 and 2005:

 The percentage of women working in the Office fell from 61% in 2001 to 57% in 2003 and 53% in 2005.

 Despite being a majority of the employees in the Office in all three reporting periods, women were only 23% of the full time employees making more than $70,000 in 2001, 23% in 2003 and 28% in 2005.

 The percentage of African Americans working in the Office fell from 17% of the full time employees in 2001, to 15% in 2003 and 13% in 2005.

 Like the women employees, in 2001 African American employees were concentrated in the lower salary ranks making up only 2.53% of the employees making $70,000 or more (2 men). In 2003, the percentage of $70,000 plus earners fell to .02% (1 man). In 2005 it rose to 4.5% (2 women, 2 men).

 There was one Hispanic employee in the Office in 2001 and 2003, a woman in a para-professional job making between $33,000 and $42,900; and three Hispanic employees in the Office in 2005 (5%), making between $55,000 and $70,000.

 There were 3 Asian and Pacific Islanders in the Office in 2001 -- two were men making over $70,000 in administrative or professional positions and one was a woman making between $33,000 and $42,900 as a technician. By 2003 the number had fallen to one woman in the same salary grade. In 2005, the number rose to four, three women and one man, none making over $70,000.

The reason for the lack of progress in increasing the diversity of the Office, in general, and, particularly, at the higher ranks, can be explained by the disproportionate impact on women and minorities of layoffs made by Kilgore in October 2002, and Kilgore’s failure to make diversity a priority when making new hires.

According to the complaint filed in Huang v. Kilgore, a case challenging the 2002 layoffs (on which I was co-counsel), among the fifty one (51) employees terminated by Kilgore in October 2002, 80% (41) were women, 88% (45) were over 40 years old, at least three (5%) of the terminated employees had physical or medical disabilities that were being accommodated by the Office and at least eight of those terminated (16%) were people of color.

The Office’s EEO-4 report covering 21 new hires during fiscal year 2003 shows that Kilgore hired no African American men, no Hispanics, no Asian and Pacific Islanders and only two African American women during this period. The new hire report filed in 2005 shows that among 39 new hires between July 1, 2004 and June 30, 2005, none were African American men, three were African American women, one was a Hispanic woman and one was a male Asian or Pacific Islander.

Some might ask why we should care that Kilgore failed to lead with inclusion as Attorney General. This is not a concern framed by ideology or party.

Kilgore’s failure to include all Virginians equitably among the employees and, particularly, the leadership in the Office of the Attorney General, meant that, when important legal and policy questions were being decided, women and minorities had no more than token representation in the discussions and in most cases no representation at all.

No one doubts that diversity improves decision-making. According to the authors of Understanding the Dynamics of Diversity in Decision-Making Teams, diversity has moved from a social issue to “a strategic business imperative” in the workplace. The same authors cite senior managers at one Fortune 500 company who say that “managing diversity effectively leads to such consequences as a solid reputation as one of the best places to work, an empowered workforce, greater innovation, increased productivity and a competitive advantage in global competition.”

As taxpayers, wouldn't we want to gain the benefit of these kinds of “consequences” in our state workplaces?

As voters, shouldn't we demand that the person who wants the job as chief executive and chief personnel officer of Virginia demonstrate a basic understanding of and commitment to the benefits of diversity?

As citizens, can’t we agree that Virginia’s women and minorities deserve some assurance that they will be “at the table” when important issues like transportation, public safety, education or health care are discussed?

The full record of Kilgore’s tenure as head of the Office of the Attorney General gives no such assurance.

For me, that’s a sad conclusion to an administration that started with such promise.

Choosing Your Lawyer: What You Should Ask the Candidates for AG

On November 8th, Virginia voters will choose the man who will be their lawyer for the next four years. The Virginia Attorney General is, in fact, the people’s lawyer serving as our advocate on consumer matters, defending our decisions as jurors in criminal appeals, protecting our investments in charitable organizations and institutions, initiating and overseeing prosecution of government fraud and conflicts of interest, and advising the state officials and agencies who serve us.

Just as you choose carefully the lawyer who advises your business and your family, each Virginian should look carefully at the qualifications and stated priorities of the two candidates who seek election this year as Attorney General, and vote in November for the person you think would best serve you.

Senator Creigh Deeds (D Bath County) currently represents the people of the 25th district, stretching from Bath County to Charlottesville. He was the elected prosecutor of Bath County for four years before his election to the Virginia House of Delegates. He moved to the Senate in 2001, winning a special election for the seat left vacant by the death of Senator Emily Couric. Creigh Deeds says that as attorney general, "I will use my experience working across the aisle to make the office less political and improve the overall efficiency and responsiveness of our government. I will focus on the rights of those victimized by crime and respond to the surge of gang violence, illegal drug use, and domestic violence." For more information visit his website, www.creighdeeds.com.

Delegate Robert F. McDonnell (R VA Beach) has represented the people of the 85th House district in Virginia Beach since 1992. Prior to being elected to the House of Delegates, he served as a prosecutor in the Virginia Beach Commonwealth’s Attorney’s office. He is a retired Lt. Colonel who served in the Army for 21 years (active duty and reserves). Bob McDonnell says that as attorney general he will protect children from violent sexual predators, fight the scourge of drugs and protect Virginians from terroristic threats. For more information visit his website, www.bobmcdonell.com.

Certainly, this information is helpful to those paying attention to this so-called "down ballot race." Nonetheless, there is more that you need to know about these candidates beyond their carefully scripted, politically marketable platforms and platitudes to make an informed choice in November.

Here are some questions that you should be asking both candidates for Attorney General so that you can decide which man to "hire" as your lawyer when you enter the polling booth to vote on November 8th:

How will the candidates represent your interests as "consumer counsel?"

Under the Code of Virginia, the Attorney General is required to represent the "interests of the people as consumers." What does this mean to the candidates for Attorney General? Will either of them take an active role in investigating and enforcing Virginia’s Consumer Protection Act? When she was Attorney General, Mary Sue Terry helped reduce the costs to businesses and consumers of liability and workers’ compensation insurance at a time when premiums were rising and insurance was increasingly unavailable. She did this through legislation she advocated and through aggressive representation of consumers in insurance rate cases pending before the State Corporation Commission.

How will each of these candidates use his authority as Attorney General to represent Virginia consumers? Will he take action to address the malpractice insurance crisis, protect consumers from price gouging during the current gas crisis or prosecute those who deceive consumers by making false claims about their products or services; for example, those businesses who sell international drivers licenses falsely claiming that it is legal to drive in Virginia using such a document?

How will each candidate decide how money from settlements negotiated in consumer class action cases will be distributed?

With the exception of the tobacco settlement funds, the distribution of settlement proceeds from consumer lawsuits is completely within the discretion of the Attorney General pursuant to whatever agreement ending the lawsuit was approved by a court. Some past Attorneys General have distributed money from lawsuits in a manner designed principally to serve their political objectives. One Attorney General distributed money from the settlement of a price fixing lawsuit involving a woman’s shoemaker to so-called crisis pregnancy centers rather than in a manner more likely to benefit directly the consumers who had paid more for shoes because of the company’s anti-trust activities. Another made grants from settlement funds to health care institutions and organizations in jurisdictions that could be of strategic importance in a future campaign.

How will each candidate decide when to challenge or defend a law passed by the legislature, appeal a case or sign an amicus ("friend of the court") brief in a case pending in another jurisdiction?

In past administrations, Virginia Attorneys General, acting on behalf of the people of the Commonwealth of Virginia (their ultimate client), have: 1) refused to defend the legislature’s decision to increase office allowances for members of the House and Senate (the legislature won); 2) defended at trial and on appeal a plainly unconstitutional statute passed by the legislature that sought to ban a particular abortion procedure (the so-called partial birth abortion bill); 3) filed lawsuits attacking the application of certain EPA rules and the federal Motor Voter Law to Virginia; and 4) authored or signed briefs that advocated severe limitations on the right of individuals to sue the state for discrimination under the Americans with Disabilities Act, the Age Discrimination Act and Title IX of the Education Amendments of 1972.

What policy will this year’s candidates follow in making these kinds of decisions? Will their actions reflect their personal beliefs, those of their respective political parties or some other standard? Will they consult with the Governor before committing the people of the Commonwealth to a side in a legal dispute?

How will the candidates interpret the law in official opinions they write as Attorney General? Will the candidates be "activists" or "strict constructionists?

One of the important roles played by the Attorney General is quasi-judicial. The Attorney General is obligated by law to issue a formal opinion regarding how the law should be interpreted when asked by certain public officials. The questions asked each year cover far reaching issues from the legality of "pull tabs" in fraternal lodges to the right of localities to regulate shooting ranges to the Lieutenant Governor authority to vote as "a member of the Senate." An official opinion of the Attorney General is not the same as a court decision, but it is entitled to great deference by the courts. Once an Attorney General issues an opinion, the failure of the legislature to take action to override it by changing or clarifying the law is read by the courts as an indication that the legislature agrees with the Attorney General’s reading of the law.

Just as it is important to know how a judge will apply the law and what regard he or she will have for past decisions, it is important to know how a candidate for the office of Attorney General will approach this quasi-judicial opinion writing function.

One example illustrates well the power the Attorney General can wield through the opinion function. In 1962-63, in 1966-67 and in 1991, three Attorneys General had opined that it was unconstitutional under the Virginia Constitution for public school divisions to provide free bus service to students attending private religious schools. Each of these Attorneys General interpreted the Virginia Constitution as setting a stricter standard for the separation of church and state than is set by the First Amendment. This longstanding interpretation was never addressed by the Virginia legislature nor overturned by the Virginia courts. In 1995, stating simply that "I am of the opinion that these prior opinions do not accurately state the current law," then Attorney General James Gilmore issued an opinion overruling the prior opinions and interpreting the law as permitting local school divisions to provide bus transportation to students attending private religious schools. Ironically, the 1995 busing opinion was requested by and issued to one of the candidates for Attorney General this year, Delegate Bob McDonnell.

Will the candidate be a good steward of your tax dollars?

The Attorney General of Virginia is the managing partner of a public law firm with almost 300 employees and a budget of more than $25 million -- not including almost 60 additional lawyers paid for by various state agencies but supervised by the Attorney General, and the millions of dollars spent annually on outside counsel (private lawyers and law firms) who handle matters ranging from issuance of bonds to mundane collection work. What steps will each candidate take to be sure that dollars spent on the state’s legal work are well invested and that the quality of representation provided to taxpayers is high? What will the candidates do to improve the state’s collection of debts owed and fines and penalties unpaid? How will each candidate account for the $9,000 a year that he will receive as Attorney General for expenses "not otherwise reimbursed?"

Will the candidate’s management practices as Attorney General reflect a commitment to full equality of opportunity at all levels?

Every employee of the Office of the Attorney General is an at will employee who serves at the pleasure of the lawyer elected by the people to serve as Attorney General. Will the candidate seek and hire employees based on merit? Will the candidate commit not to discriminate in employment based on race, national origin, gender, religion, disability, Veterans’ status, sexual orientation or gender identity? Will the candidate commit to ensure that the Office’s hiring and personnel practices reflect a commitment to merit over political affiliation and full equality of opportunity and compensation at all levels of employment? How will each candidate assure that the contracting and procurement practices of the Office of the Attorney General under his leadership assure that small, women and minority owned businesses get their fair share of the state dollars that the Office spends?

How the candidates for Attorney General answer these questions will reveal much about what kind of leader each will be in the role he is now seeking and more about what kind of leader he might be as Governor when he (inevitably, it seems) decides to move up in four years.

What's the definition of "works"?

Mike Shear writes in the Post today about the tenor of the campaigning in the Virginia governor's race. Citing interviews with "more than two dozen teachers, business owners, college students and homemakers across the state last week," the Post said that " Virginians said they felt inundated by the barrage of ads and unmoved by their messages."

Quoting four women, the Post story went on:

Karen Hudson, 48, of Tazewell called it "mudslinging" and said she is disappointed. Suffolk banker Linda Bradshaw, 32, said she hates the "bashing." Kingstown resident Kathleen Snyder, 39, called it all "a colossal waste of time." And Audrey Davidson, an administrator for the Halifax County public school system, said the race has devolved over the past six months.

"Initially, we had two saints running for office," Davidson said over lunch at Ernie's Restaurant in South Boston. "Now, we find out that we have two men with the Devil as an opponent."

But, the Post says despite the voter reaction, "national experts in political advertising say the attack strategy works, so it continues."

Now, I'd like to know the definition of "works" used by the "national experts" .... particularly in Virginia which ranks 36th out of 50 states in the number of women registered to vote and 33rd in the percentage of women who turn out.

The story quotes experts on the emotional influence of the ads, but doesn't give any indication about just what effect the ads have on voter behavior... are they influenced to vote? Or, are candidates satisfied if they just depress turnout among the other candidate's voters?

I've written on this blog before that I think that testosterone driven political fights turn women voters off and depress turnout. I said it after Kerry held his midnight press conference to attack Bush's nomination acceptance speech, and I say it again now .... acting like two rams butting heads or, worse yet, two kids throwing sand in a sand box ... won't get women to the polls.

Do I have studies? No, but I've got lots of women friends and relatives who provide strong "focus group" feedback.

Last August, I wrote in a Daily Press oped about what I thought Democrats should do to increase turnout among women:

Democrats should stop wringing their hands about whether their party and their candidates appeal to NASCAR dads and tax-phobic men over 55 and worry more about connecting with, registering and turning out women (and minority) voters
in Virginia.

Women are listening. All we need to create the emotional spark -- the "torque," as I call it -- that helps drive women voters to the polls, is for our candidates to speak loudly, and with authenticity and concern, about the everyday issues of concern to women ... : equal pay, preventing violence against women, caregiver issues, work/life balance, women's health. Issues that appeal to the sandwich generation and Gen-X alike.

Issues that appeal to real women with real lives.

Sadly, this is not the "strategy" that we see reflected in this year's statewide races.

So, what does this mean about the definition of "works"?

Perhaps, in the refined world of the national experts, it means, that negative campaigning "works" because it depresses turnout generally but energizes the minority of voters who are "true believers" and who increasingly drive national policy into polarized conflicts and politicians to extremes of their parties.

Perhaps it means that negative campaigning "works" because fewer women vote, but that's okay because it means the men stay in charge even though they are a minority of the US population.

Or, perhaps it means that negative campaigning "works" because none of the "national experts" knows how to run a truly inspirational campaign that galvanizes voters across a wide spectrum, so they resort to what "works" ... mean spirited, ennervating campaigns that wear most people out before election day and leave the decision about who will lead us to the few among us who are motivated to vote by passion driven by enmity or "true" belief.

Wouldn't it be refreshing if someone really tried to run a campaign that inspired?

A Gray Day in Richmond

When I awoke this morning, I didn't know why the day opened gray and misty. Then I read the Times Dispatch and learned that one of the kinder, gentler souls to walk this City had been killed late Monday crossing West Broad Street.

Jimmy Walthall always had a smile on his face and, though it seems trite to say so, you could "feel the love" emanating from him.

It was gray today because the City has lost the light of his smile, his positive spirit, his boundless energy.

It was misting this morning because even the sky over Richmond grieves the loss of someone truly dear and sweet beyond measure.

Roanoke Times Calling All SW Bloggers

Saw this posted up on the Roanoke Times webpage today:

If you live in Southwest Virginia and are a regular blogger, we'd like to consider posting a link to your blog on this page. E-mail us and tell us about the dispatches from your world. We will list and profile some of these bloggers with biographies they've submitted.

We want this to be the place where a community of regional bloggers and their many interests can be found. And we think you'll enjoy the interactivity of trading points of view with them.

The MSM using bloggers as content and to enhance interactivity of their webpages.

Resourceful, right?

What's Wrong with This Picture?

Don't know if this is a random thought or an irregular musing ....

Picked up the Sept/Oct issue of a new mag, Worthwhile: Work with Purpose, Passion and Profit, and found these interesting stats in the mag's Measuring Stick feature:

The top three professions most considered "overworked" by Americans are: nurses (55%), teachers (45%) and housewives (44%). (Source: Princess Cruises Escape Completely survey)

See a pattern there?

Now try to fit this stat into the picture:

The percent of working fathers who "would prefer being stay-at-home dads to being the breadwinner" is 47%. (Source: CareerBuilder.com)

Do you suppose these working fathers know that "housewives" are overworked?

Or do you think that they might be operating on an idealized definition of "stay-at-home" dad that includes taking the kids to the ball game and other "quality time" parenting activities, but doesn't include washing, drying, folding and stowing the family's clothes, cleaning the house, grocery buying, food prep, driving carpool, etc, etc, etc?

Hmmmmm

Bloggers Get Googled

Hold on to your keyboards .... you're about to get Googled. Google announced yesterday that it has launched a new Google search engine for blogs. According to CNN, the first word of the announcement was "disseminated by a blog." Here's what Google's new blog guru said:

"There really has been a need for a world-class search product to expose this dynamic content to a worldwide audience," said Jason Goldman, who came to Google in the Blogger deal and is now the company's product manager for blogging search.

I guess we're about to become mainstream.

New "National Conversation" Launched

For those of you who want to get engaged in a national conversation about 9/11 and Katrina, you've got a new outlet.

From the press release issued today by Phil Noble at Politics Online:

CivisOnline, a new division of sector-leading Internet tools and strategies provider PoliticsOnline, today announced the beta launch of its latest web project, The National Conversation ( www.NationalConversation.net), with a unique conversation on Sept 11: 4 Years Later and Hurricane Katrina.

“Think of it as a national water cooler,” says PoliticsOnline president Phil Noble, “a place where regular people can ‘share and compare’ their thoughts and feelings about the biggest stories of the day in any format they choose – in words, in pictures, on video, or simply by rating the comments and content they find on the site. Once they share their ideas and opinions, users can then compare their responses to others in real time by region of the country, age, or sex. This ‘share and compare’ is a powerful idea, and one that our media partners have been interested in pursuing with us for some time now.”

Any media company, blog, or other public affairs site can become a Partner in the National Conversation simply by cutting and pasting an icon and a few lines of code available at http://www.NationalConversation.netat no cost or obligation. “The National Conversation is a unique new concept, and our free and open distribution and partner system is a part of this spirit of innovation and experimentation,” said Noble. “We’re anxious to see what happens.”

So am I!

Bloggers Summit "Live" on Podcast

Sean Tubb's from the Charlottesville Podcasting Network has his podcast report on the bloggers' summit up on his website. Hear Barnie Day, Frosty Landon, Kenton Ngo, Jay Hughes, Sean O'Brien, and SBE official Chris Piper and me (!) talk about blogging, the summit, regulations, etc.

In Discussing Regulation: Bloggers Naïve About the Law?

One of the more interesting "threads" at the bloggers’ summit on Saturday was the discussion about whether bloggers or blogging should be regulated. Interesting, perhaps, because some (many?) in the audience appear not to know that the activities of some Virginia bloggers already are subject to some regulation and that blogging comes with some exposure to legal liability, i.e., lawsuits seeking damages for things said in the blogosphere.

To paraphrase, where bloggers stand on regulation (even self-regulation) depends on where they sit. It is clear that some bloggers see themselves as publishers of political commentary, their own and others; some see themselves as pamphleteers; some see themselves as journalists (gathering and reporting "news"); some see themselves as entertainers; some admitted being paid political flaks, electioneering for pay on behalf of a candidate or cause; and some see themselves simply as citizen activists on their soap boxes in an electronic town square.

Bloggers who see themselves as publishers, particularly those seeking to make a business out of blogging, were most likely to support the development of a voluntary code of conduct, statement of blogging ethics or other disclosure policy designed to enhance their "credibility with readers" and, one would guess, paid sponsors.

Among the more strident voices decrying any regulation (external or internal) were those who spoke of themselves simply as "citizens speaking freely" or "engaged citizens simply communicating through a new medium."

This latter group of self-described libertarians and freedom fighters appeared to be operating under the false belief that, unless something happened to change the status quo, blogging is currently free from legal constraint, protected, in their view, by an absolute guarantee offered under the First Amendment to the US Constitution. This is simply not true.

The First Amendment is not absolute. It does not protect anyone’s speech from an adverse private action, and, despite its terms ("the government shall make no law"); it only protects public speech from government regulation that cannot be justified as serving a significant government interest.

Every person who writes or speaks publicly (and the Internet is certainly public) is subject to reasonable time, place and manner restrictions on his or her speech. You can stand up on a soap box and say what you will but you can’t do it on private property without permission and, on public property, the government can ask you to get a permit, tell you where you can put the soap box, prescribe how long you can stand on it, and regulate whether you can use a bull horn.

Freedom of speech also does not authorize public speech that defames a person or a corporation. A statement is defamatory if it is false and causes the person harm. Whether blogger or MSM reporter (or public park soapbox orator), you expose yourself to legal liability if, while speaking or writing publicly, you defame (slander or libel) someone.

Moreover, if you repeat someone else’s defamatory comments in your speech, pamphlet or blog, or you allow someone to write libel in a guest column in your publication or post a libelous comment on your blog, you are legally responsible for republishing the libel and might be held accountable, e.g., forced to pay for actual damages to business or reputation caused by the libel.

Republication is an area in which there is special federal protection for Internet publications. Congress enacted Section 230 of the Communications Decency Act which protects internet intermediaries from being held accountable for the acts of others. But, at least one court has held that this law does not apply to state defamation claims.

In any case, there are three key things to remember about defamation: truth is always a defense to a defamation claim, it may be a defense that the statement is an opinion rather than a statement of fact, and the standard of liability for defaming (libeling or slandering) a public official is higher than it would be if the object of the libel is a private person.

You can’t be held accountable for defaming a public figure unless you acted with actual malice, i.e., you knew in advance that what you published was actually false or you published it in reckless disregard of the truth.

Who’s a public figure? Any elected official, any person who is well-known in a particular area or who is in the media frequently, and possibly a private person who seeks media attention for a specific purpose in order to influence the public.

So, bloggers take note. On defamation, a bit of self-regulation may be necessary to self-preservation.

Best to watch one’s own p’s and q’s. And, when you see that nasty little rumor that some anonymous poster has added to the comment section of your blog, keep in mind that the comment could put you in the bullseye of a lawsuit (particularly where the identity of the actual defamer is unknown) even if the rumor involves a public official. If you know that the rumor is false or could easily determine that it’s false and you leave the comment up there anyway, you’re a sitting duck. And, if the comment is simply a false statement about a fellow blogger or a commenter rather than a public figure … then you could be held responsible for any damages that can be linked to the fact that you published it. Even if you win the suit, because the federal law does apply, the cost of defending it could be devastating.

More tomorrow …. Electioneering as a regulated form of free speech.

Disclaimer:
This blog entry is not intended to be nor should it be read as legal advice. It is provided for education only. Any person with a question about the law of defamation should consult with an attorney licensed to practice in the jurisdiction in which he or she lives or does business.

Baskerville Ahead of the Curve?

Last fall, Delegate and primary candidate for Lt. Governor, Viola Baskerville wrote to the Governor's Commission on Military Base Closings to invite the Commission to support several initiatives that she thought could enhance Virginia's ability to compete effectively with Florida, Texas and North Carolina in this round of the BRAC exercise. Among the bills which she proposed and later introduced was a bill to establish a Defense Infrastructure Fund. Infrastructure projects eligible for funding under her proposed legislation would have included those relating to encroachment (the issue re: Oceana), transportation and access, utilities, communications, housing, environment, and security. Although the Commission staff advised the Commission that everything that Delegate Baskerville recommended would be helpful to Virginia's BRAC case, the Commission failed to endorse any of the legislative actions she proposed.

One has to wonder if greater legislative support for military families and passage of her bill proposing a Defense Infrastructure Grant Fund would have enhanced Virginia's chances of success in the BRAC effort or made it less likely that the BRAC Commission would overrule the military on Oceana and other key recommendations.

The Virginia Amendment to Ban Unmarried Relationships II

Commenting on my earlier post on this subject, Richmond lawyer Marc Purintun has written a thoughtful analysis of the real impact of the proposed Virginia "marriage" amendment that should make every thinking Virginian pause and compel reasoned Virginia lawmakers, at a minimum, to make significant changes in the language of the proposed amendment before action is taken to put a proposed amendment on the ballot for consideration by the voters:

While the whole idea of writing marriage inequality into the Virginia Constitution is unacceptable to most gay and lesbian voters, what many of us find most objectionable and frightening is the overbroad language of the proposed constitutional amendment. The General Assembly has already codified its position that marriage is between a man and a woman three times. The proposed constitutional amendment is much more far reaching, however, preventing same-sex couples and unmarried heterosexual couples from appealing to any level of government for recognition at any time. For example, if a same-sex couple were to seek to jointly adopt a child, or for the non-biological parent to adopt the child of the couple, under the proposed constitutional amendment a social service agency could not recognize that the two unrelated persons were a couple, the judge couple not recognize that the non-biological parent was in a coupled relationship with the biological parent. This proposed constitutional amendment goes well beyond the definition of marriage and casts in stone the ways in which all levels of government in the Commonwealth will respond to same-sex couples, and unmarried heterosexual couples in perpetuity.

Additional possible consequences of this amendment include preventing public schools from recognizing both actual parents of a child of a same-sex or unmarried heterosexual couple, disallowing city and county law makers from recognizing same-sex couples and unmarried heterosexual couples who are joint property owners or business owners. It would prevent state universities and other government employers from recognizing the status of their employee's relationships for purposes as substantial as health care benefits and as meaningful as bereavement leave. State medical and mental hospitals would not be allowed to recognize same-sex couples and unmarried heterosexual couples for purposes of visitation or decision making.

Finally, this amendment would make Virginia an unsafe zone for persons, heterosexual or homosexual, who have in other states (or countries) entered into same-sex marriages, domestic partnerships or civil union arrangements. Such persons may have not entered into the same forms of expensive and not totally effective legal contracts with their partners as same-sex couples do in Virginia because they are relying on the law of their locality to meet these needs. When planning business ventures, business trips or even vacations, such persons must consider the risk of having a Virginia hospital, state agency or court disregard their relationship. Many will see the proposed constitutional amendment as hostile to those relationships, the risks too high and will choose other venues.

Here are my questions for thinking Virginians to consider based on Marc's analysis:

Can Virginia market itself effectively to tourists (especially for the upcoming 2007 celebration) with this proposal standing in our way?

Can Virginia continue to say it is "open for business" if the effect of this proposal may be to set limits on private business decisions that will make Virginia based companies less competitive in a global marketplace?

Can Virginia continue to recruit the highest quality faculty to teach at our universities if we cannot offer competitive benefits or a welcoming environment for their families?

Can we really talk about opposing discrimination in employment and housing based on sexual orientation (and, don't get me wrong, I applaud Jerry Falwell for doing so) while we advocate a constitutional amendment that will deny all unmarried couples and their families basic protections that assure financial and personal security?

I don't think so; do you?

This is Leadership?

Kilgore said in a press release issued today, titled "Herndon's Decision to Fund Day Labor Centers":

"As Governor, I would support legislation that clarifies Virginia law to say that those who are illegally present are not eligible for public benefits, including the expenditure of taxpayer money for services such as the day labor centers in Fairfax County."

Of course, Kilgore misses a number of facts in his release, in addition to accusing people of flaunting the law rather than flouting it.

The first fact his statement seems to be missing is that there already are federal and state laws that bar persons illegally present in the US from receiving public benefits.

The federal law (on the books since 1996) even bans some legal immigrants, including permanent residents, from getting federally funded benefits like TANF, food stamps, etc. causing "devolution" of the responsibility to meet the needs of these legal residents to local governments with no funding.

The new state law (effective 01/01/06), which is largely redundant of the federal law, also requires persons to show that they are legally present in the US to get Medicaid, welfare (TANF) and other kinds of cash relief.

The second error in the release is that it says that Herndon voted to fund the day labor center. Actually, the town council only voted on a land use matter, allowing the center to be located in the Town.

The taxpayer money being spent here is being spent by Fairfax County (in which the independent town of Herndon is located). And the money being spent is for a contract with a nonprofit that won't actually be providing services to prospective workers (legal and illegal) other than a safe place to stand.

The real services being provided here are to:
1)Herndon residents and business owners whose lives/businesses have been disrupted by nuisances caused by the unorganized, free market driven efforts of contractors and home owners to find needed temporary workers and those who wish to meet this need; and
2) the contractors/home owners looking for workers.

As with all economic/market issues, the way to affect supply is to depress demand.

If Kilgore really wanted to stop those who "reward and encourage illegal behavior," and not just beat up on immigrants because doing so polls well, he would:

1) say he would support state legislation to criminalize the homeowners and businesses who hire the workers/independent contractors at these sites or elsewhere (85% of VA farmers say that they'll go out of business without these workers, see also home building, toursim/hotels/restaurants, etc). A JLARC Report documents this.

2) go to our Congressmen/women and Senators and his President, and demand immigration reform that would decriminalize behavior (hiring and working) that has been the engine of Virginia's economy since the 90's, see below:

A recent analysis of the labor market statistics in the 2000 Census data that was prepared for the National Business Roundtable in Washington, DC, estimated that 44% of male workers entering Virginia’s workforce in the 1990s were immigrants and that the "[t]he national jobs boom of the 1990s clearly would not have been ossible in the absence of these new record waves of immigrant workers, especially men. The Great American Job Machine was largely fueled by new immigrant labor, a finding that has received insufficient attention from most economic and labor market analysts." The Business Roundtable analysis also showed that "[I]mmigrant workers, especially new immigrants, are over-represented in blue-collar ccupations, service occupations, and farm/forestry/fishing jobs." The full Business Roundtable eport may be downloaded at http://www.brtable.org/pdf/781.pdf.

UCLA's North American Integration and Development Center reported in 2001 that undocumented workers contribute more than $300 billion to the economy annually. These workers make substantial contributions in the agriculture, building and construction and hospitality industries -- all of which are important sectors of Virginia’s economy.

But to attack demand would require taking on Virginia's business community.

And to attack members of Congress and the President for inaction on immigration would be to attack fellow Republicans.

And, both of those would require leadership and courage ....

And, attacking the voiceless does not.

Solid South? Kaine as the Status Quo Ante

This item of interest on Facing South from the Institute of Southern Studies.....

According to SurveyUSA, Bush's approval rating in the 13 southern states that he won in 2004 is below 50% in 8 states where a majority disapprove including Virginia. He's below 50% in two states, Louisiana and No. Carolina, where approve/disapprove is tied at 48% and 47% respectively; below 50% in Mississippi where approve/disapprove is 49%/47%; and above 50% in only Alabama and Texas.

In Virginia, only 42% approve of Bush while 52% disapprove.

Comparing the so-called solid south to the nation, Facing South says:

How does this compare to the rest of the country? Interestingly, out of the 10 states nationally with the highest approval ratings for Bush, only three are in the South. All the rest are from the West and Great Plains (in order of pro-Bush approval): Idaho, Wyoming, Utah, Nebraska, North Dakota, Montana, and Oklahoma. It's just one poll from one polling company. But maybe the GOP's lock on the South isn't so "solid" after all.

Now, it's unclear what the question was that elicited this response, but this could be good news for Kaine if he can tighten his connection to Warner in the voter's minds.

2/3rds of Virginia voters think the state is headed the right direction. Now more than half think that the national leadership is flawed.

So, Kaine's message is "why change from someone linked to an administration of which you heartily approve to someone linked to an administration of which you disapprove?"

Well, we all know how much Virginians hate change.

Sexual Orientation is Not a Choice II

The Boston Globe published a comprehensive article this week on the subject whether sexual orientation is in born or not. In "What Makes People Gay?" the Family Foundation and "many gay rights advocates" appeared to agree on one thing: that proving that sexual orientation is in born might change the nature of the public debate. At the same time, the article notes that religion is a choice that Americans have long agreed should be protected.

Here's an excerpt from the 11 page article:

"Proving people are born gay would give them wider social acceptance and better protection against discrimination, many gay rights advocates argue. In the last decade, as this "biological" argument has gained momentum, polls find Americans - especially young adults - increasingly tolerant of gays and lesbians. And that's exactly what has groups opposed to homosexuality so concerned. The Family Research Council, a conservative Christian think tank in Washington, D.C., argues in its book Getting It Straight that finding people are born gay "would advance the idea that sexual orientation is an innate characteristic, like race; that homosexuals, like African-Americans,should be legally protected against 'discrimination;' and that disapproval of homosexuality should be as socially stigmatized as racism. However, it is not true."

"Some advocates of gay marriage argue that proving sexual orientation is inborn would make it easier to frame the debate as simply a matter of civil rights. That could be true, but then again, freedom of religion enjoyed federal protection long before inborn traits like race and sex."

So, what did the article conclude about why people are gay?

IN THE COURSE OF REPORTING THIS STORY, I EXPERIENCED A good deal of whiplash. Just when I would become swayed by the evidence supporting one discreet theory, I would stumble onto new evidence casting some doubt on it. Ultimately, I accepted this as unavoidable terrain in the hunt for the basis of sexual orientation. This is, after all, a research field built on underfunded, idiosyncratic studies that are met with full-barreled responses from opposing and well-funded advocacy groups determined to make the results from the lab hew to the scripts they've honed for the talk-show circuit. You can't really blame the advocacy groups. The stakes are high. In the end, homosexuality remains such a divisive issue that only thoroughly tested research will get society to accept what science has to say about its origin. Critics of funding for sexual orientation research say that it isn't curing cancer, and they're right. But we devote a lot more dollars to studying other issues that aren't curing cancer and have less resonance in society.

Still, no matter how imperfect these studies are, when you put them all together and examine them closely, the message is clear: While post-birth development may well play a supporting role, the roots of homosexuality, at least in men, appear to be in place by the time a child is born. After spending years sifting through all the available data, British researchers Glenn Wilson and Qazi Rahman come to an even bolder conclusion in their forthcoming book Born Gay: The Psychobiology of Sex Orientation, in which they write: "Sexual orientation is something we are born with and not `acquired' from our social environment."

'Nuff said.

Black Turnout -- Sabato and Smyth

I learned something today. That's always a good thing.

The difference between the black vote counts and turnout numbers cited by Matt Smyth in the Augusta Free Press and by Larry Sabato in the papers cited in my earlier post today is that Smyth is, according to Sabato, citing results from "the traditional sample black precincts that date to Ralph Eisenberg in 1960s which show a lower percentage for GOP candidates; they are highly concentrated and more organizable for Democrats." The higher numbers cited by Sabato come from " exit polls, that supposedly include blacks from suburbs (higher income, slightly more Republican)."

As Larry says, " Both have flaws. Take your pick!"

And, just to confuse things... here's an exit poll from 1997 that puts the black vote for Gilmore at 14% (a number higher than Smyth's 11% and lower than Sabato's 18%).

hmmmm

What's that old saying about lies and statistics?

SurveyUSA Poll Numbers Show Kilgore Ahead; It's not the lead but where it comes from that counts

A survey conducted by SurveyUSA for WSLS-TV in Roanoke and released on Tuesday shows Kilgore leading Kaine by 5% (margin of error 4.2%) (48%-43%) with only 4% undecided. It's not the fact of the lead that matters; it's pretty close to the margin of error. It's the inside numbers that are interesting.

The poll indicates that 30% (vs. 61% for Kaine) of pro-choice voters among 568 likely voters surveyed intend to vote for Jerry Kilgore. At the same time, 71% of pro-life voters (vs. 20% for Kaine) intend to vote for Kilgore. (Potts is irrelevant in this poll that has him at 3% overall.) But the main two guys split evenly the voters who say that they are "not sure" whether they are pro-choice or pro-life.

What does this say? Here's how I see it.

Pro-life voters are rarely unsure and almost always single issue voters. For them the abortion issue is what I call a "torque issue," meaning an issue with an emotional driver that gets people to the polls. The pro-life voter's belief is visceral, usually tied to strong religious beliefs, and emotional.

Pro-choice voters are unlikely to be single issue voters and often see the abortion issue as a complex, multi-faceted issue on which they have conflicting views depending on the circumstance (e.g., late term abortion, abortion as "birth control", etc). This makes them "unsure" how others would define them or how to categorize themselves. Typically, the pro-choice voter's belief is intellectual, not tied to religious beliefs, and dispassionate. Choice alone does not carry sufficient torque to drive them to the polls, unless there is a real threat to Roe v. Wade, as there was perceived to be during the Wilder campaign following the opinion in the Webster case.

And, what does this mean? If abortion continues to be a key issue in this campaign, and the President does not nominate a "nut job" to the Supreme Court, the issue creates an advantage for Kilgore because it drives turnout for him but not Kaine.

There is another set of numbers in this poll that I find surprising -- the numbers on race. The poll reports that 54% of White voters, 60% of Hispanic voters, and 55% of "other" voters support Kilgore.

The only racial group in which Kaine leads is among African Americans where the split is 72% to 17% with 7% undecided. That sounds like good news. But, maybe not???

According to political pundit and distinguished professor Larry Sabato, a Democrat needs 40% of the white vote and a solid black turnout (high turnout, high percentage) to win the Governor's mansion.

The apex of black turnout in percentages was Wilder's election in 1989 (17%). In 1993, black turnout was 14%/Allen got 18-19%; in 1997 it was 12.5%/Gilmore got 18-19%; and in 2001 it was 15%/Earley got 10% (vs. 20% when he ran for AG). Gilmore got 62% of the white vote in 1997. Earley only got 50% to Warner's 44%. Warner won with 44% of the white vote and outstanding black turnout (15%/90%).

If Sabato's numbers are right (and one other political analyst has been quoted as saying that Allen and Gilmore got 11% of the black vote), Kaine has two issues to confront ... he needs to move up from less than 40% of the white vote, and, at the same time, he needs to drive turnout among black voters (to Warner levels, 15%) and reduce the percentage of black voters who intend to vote for Kilgore (from 17% in this poll to 10% or below).

An interesting challenge to say the least.

Now, it may not matter (because Hispanics are still such a small fraction of likely voters; 3% in this poll)... or the sample size may be too small (total sample was less than 600; how many were actually Hispanic) ... but how the heck does one account for the fact that the poll shows Kilgore with 60% of the Hispanic vote?

Could it be that most of the likely voters are Puerto Rican, who as US citizens, may not care much about immigration issues or they are Cubans who mostly vote Republican or Catholic voters tuned into the election because of the emphasis on social issues... but whatever accounts for the disparity (and the poll shows NO undecided Hispanics), it will be interesting to see if Kilgore's support fades at all after this week's all out assault on immigrants.

A more critical issue for Kaine is that the "gender gap" in this poll is only 3% in his favor among women (within the margin of error; it could be as low as -1.2% or as high as 7.2%) and 14% the wrong way among men. This is a problem for Kaine who needs to replicate Warner's performance; women were 52% of the electorate and he ran 14% ahead of Earley. And, the problem is magnified by the much larger disparity in support among men, Kilgore leads by 14%; in 2001 Warner only trailed Earley among men by 5%.

What can Kaine do about this? Again, he faces a conflict. He needs to talk more about issues women care about (like the pre-school initiative he's advocating this week), and continue to try to find ways to appeal to men (although the pugilistic style he's adopted may help with men, it may turn women off).

Another conundrum.

But, the good news is that it's August and the election's still close. That wasn't the case in 1993 or 1997 where the deal was sealed before Labor Day.

There are still political waves out there on the horizon. Some may turn to soup before they reach the gubernatorial surfers (like that tax thing they both tried to surf). Or, one may build to the perfect glassy perfection of a wave that one of these political surfers will catch and ride to shore, scoring all the points needed to win.

I, for one, will be standing on the shore watching and hoping that the guy who catches the great wave, works it well and bursts out of the tube on election day with a big smile on his face is Kaine.

Resource: You can find Sabato's numbers in two issues of The Virginia News Letter published by the Cooper Center at UVA. A Democratic Revival, Vol. 78 No. 2, Feb. 2002 and A Century in the Making, Vol. 74 No. 1, Feb. 1998. Find them online at www.coopercenter.org.

Virginia Set to Ban All Unmarried Relationships

If the proponents of the current marriage amendment proposal have their way, by 2006 Virginia will amend its constitution to ban any legal recognition of any unmarried relationship (gay or straight) that purports to "approximate" the "effects," "significance," design" or "benefits of marriage."

What you say? "I support a ban on "same sex" marriage, but what's all this other stuff?"

The proponents of the so-called "marriage amendment" now wending its way through the legislature to a vote by the people keep talking about it as if it doesn't do anything more than define marriage as between a man and a woman.

Nothing could be further from the truth.

I respect the right of individuals to believe that civil and religious marriage should be reserved to couples made up of one man and one woman (though I personally believe strongly that civil marriage should be available without discrimination).

I also accept that some individuals believe that we should amend the state and/or federal constitution to accomplish this objective (though I believe that this is dangerous, unnecessary, immoral and discriminatory).

But, I respectfully suggest that many who currently are lending their support to the proposal now before the Virginia legislature have not read it.

Here's what it says:

ARTICLE I
BILL OF RIGHTS
Section 15-A. Marriage.
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

As now proposed, the amendment goes well beyond reserving civil marriage to one man and one woman.

It prohibits the state and its localities from providing any legal recognition to any relationship between "unmarried individuals" that "approximates the design, qualities, significance or effects of marriage."

No "unions", no "partnerships," no "other legal status."

If adopted, this amendment would likely be interpreted to render unconstitutional:

1) the bill just passed this past Session that allows small businesses and insurers to agree on health insurance plans that cover members of households other than spouses, kids, including domestic partners (in fact, I believe that at least one of the conference committee members who rewrote the legislation after it passed the House and Senate was intent on forcing this outcome);

2) enforcement of the domestic violence laws where violence is between two unmarried people (gay or straight) who are living in the same household (perhaps with children common to both or belonging to one)(this is already being argued in Ohio which has language similar to the first two sentences of the current Virginia proposal);

3) loans/mortgages to two unmarried people wishing to buy a house together; and/or

4) access to the courts by parties to an unmarried relationship who wish to enforce a guardianship agreement, will, or other legal agreement purporting to approximate the "effect of marriage" through a contractual agreement.

Because we would be amending the constitution, we would be divesting the legislature (elected by the people) of the ultimate authority to define what it means to "approximate the effects of marriage" and giving the job to the courts.

So, the right question for candidates running this year is NOT "do you support a marriage amendment that defines marriage as between a man and a woman?"

That's not the issue now before Virginians or the 2006 General Assembly.

The proper question is "do you support the current proposal to amend Virginia's constitution to outlaw any legal recognition of relationships between unmarried couples whether gay or straight?"

If the answer is yes, these follow up questions are appropriate:

"why do you support amending the Virginia constitution to define marriage when there has been no legal challenge to the Virginia law prohibiting same sex marriage since it was first adopted in 1975, thirty years ago?"

"why do you think that the state should ban all recognition of unmarried relationships?

If the answer is no, the proper follow up question is:

"will you vote against this proposed amendment in the 2006 General Assembly session?" If the same exact language isn't passed again this year, the proposal cannot be put to the voters before 2008.

Isn't it "conservative" to require proponents of an amendment to the Virginia constitution to provide credible evidence that there is a compelling need to change the status quo, particularly, where, as here, the current proposal has potential unforeseen and, almost certainly, unwelcome consequences?

Wasn't that what opponents of the Virginia Equal Rights Amendment kept arguing when they wailed about forced co-ed micturating?

If the so-called "marriage" amendment passes as now written, you can forget trying to forge any kind of legal relationship with your "significant other." Heck, if you're trying to approximate the benefit or effect of marriage by leasing an apartment together, you may not even be able to enforce the lease against your partner if he or she moves out.

Is this what Virginians want? I don't think even a majority of those who want to ban same sex marriage want to go this far.

At a minimum, it's time to rethink the language of the proposed amendment.

More on John Roberts

There's an interesting story on the wires today about John Roberts' role in helping to "moot court" or coach the lawyers who argued the Romer case out of Colorado in which the US Supreme Court ruled unconstitutional a Colorado constitutional amendment designed, among other things" to keep the state or any locality from adopting a statute or regulation banning discrimination based on a person's "homosexual, lesbian or bisexual orientation."

Hailed as a major victory for the gay rights movement, the decision in the Romer case was 6-3 with Roberts' mentor Rehnquist joining Thomas and Scalia in dissent. The dissent written by Scalia described the constitutional amendment as "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."

The majority determined that the challenged amendment "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws."

According to the news story, "the lawyer who asked for Roberts' help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said Roberts didn't hesitate. "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."

Having spent time with Walter Smith in my years at Hogan & Hartson (although I didn't overlap with Roberts), I can say that he's definitely no conservative. And, his description of Roberts as open and fair-minded mirrors the assessment of another well known liberal at the firm, Jack Keeney, who just finished his term as president of the DC Bar. Jack was on TV recently saying that folks criticizing Roberts were criticizing a "caricature" of the man he knew. Jack endorsed Roberts with enthusiasm.

So, it goes back to how do you know who a person is? From personal contact and conversation over time or from what you read in their briefs, memos or, worse yet, from what their wife says or does?

I, for one, intend to put my faith in the assessments of people I respect who know John Roberts far better than I ever will.

"Vanity" Plate?

Seen on a Sons of Confederate Veterans license plate today:

CNFDUP

Confederate Dupe?

Reliving Past Lives

One of the great things that I got to do before I was a "recovering lawyer" was argue a case in the United States Supreme Court. It was just over 15 years ago, and, frankly, it had receded to a warm but distinctly hazy memory.

And, then today I discover that my argument is now available in a Podcast for all to download.

Of course, the reality is that few of those who download the Podcast are likely to hear me while they're fast forwarding to get to the argument by the lawyer everyone wants to know more about today, John Roberts.

Roberts and I happened to be arguing the same side of a case dealing with a very interesting (to lawyers) and intellectually challenging, albeit arcane, question of statutory interpretation back then. The outcome we wanted was for the Supremes to agree that Virginia hospitals could not sue the state in federal court demanding higher Medicaid reimbursement rates. We lost 5-4.

Here's what one commentator says in an analysis of "Roberts problematic record on disability rights" about the ominous implications of Roberts' brief and argument that day:

"In Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), Roberts filed a brief in the Supreme Court on behalf of the United States, as deputy Solicitor General, arguing that Medicaid rights were not privately enforceable. Fortunately, the Supreme Court rejected this argument, and the Wilder decision has been the basis for most cases in which courts have permitted Medicaid recipients to enforce their rights. This victory has been severely eroded by the Supreme Court’s subsequent ruling in Gonzaga, in which Roberts argued to limit private enforcement of statutes."

Since I was lead counsel and he was just counsel for a friend of the court, I guess that must mean I have a "problematic record on disability rights," too, even though the case had nothing to do directly with the rights of the disabled.

This seems a bit at odds with my self-perception, however. I have a brother who is an autistic savant, and I've been advocating for disability rights since I was a teenager. My mother was a leader in Virginia's right to education movement back in the late 60's and early 70's. I know that she'd be surprised to learn that I have a "problematic record on disability rights."

But, I guess you have to accept that, as a lawyer, the briefs you write and the cases you argue on behalf of clients should be read by the public to define who you are and what you believe. Even where the implications of those cases beyond their specific facts are ill-defined at the time or completely unpredictable.

After all, you could always have chosen different clients or a different career path as a public servant or simply refused to argue the case assigned.

Couldn't you?