Sneaking Suspicions
Archives-- August 29-September 3, 2004

This page includes posts from August 29-September 3, 2004 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

September 2, 2004
My fellow Democrat

As I watched Zell Miller’s keynote speech last night, my first reaction centered on the tone of his address to a wildly appreciative Republican convention audience.

Then I began to pay far more careful attention to what he said.

Among my fellow Democrats (a famously disorganized bunch), I’m far closer to Miller than Al Sharpton or Senator Kerry. Therefore, it won’t surprise any long-time readers of this site that I found the Georgia senator’s speech to be both startling and refreshing.

Finally, someone in public life had expressed what I thought was most important about this election, in the same blunt terms I would use.

I read several posts and editorials about Miller’s speech today, and Roger Simon and Michael Barone are two writers whose commentaries I recommend.

Here’s Simon’s reaction:

I'd like to log in on Zell Miller. That was one down home stemwinder out of the 1930s he gave and I agreed with pretty much everything he said. I think a lot of the negative reaction comes from the general lack of (or fear of) honesty in polite society. You're not supposed to say what you think. You're supposed to mask it. Personally I prefer [plain] speakers, even when I disagree with him. That's why Al Sharpton, much of whose views and even more of whose background I despise, is my favorite speaker on the Democratic side.

Barone put Miller’s speech into appropriate historical context:

In the late 1960s and 1970s Democrats who had complacently gone along with Lyndon Johnson’s escalation of the war in Vietnam decided that Richard Nixon’s de-escalation was insufficiently rapid and amounted to—in John Kerry’s words in 1971—a deliberate and systematic engagement in war crimes by American military forces at all levels. In 2003 and 2004 Democratic politicians, infected by their and their staffers’ recollection of their versions of what happened in Vietnam, engaged in systematic denigration of our military efforts in Vietnam. The Democratic convention in Boston seated in President Carter’s box Michael Moore, who called those attacking American forces in Iraq freedom fighters who should and would win. The charge that leading Democrats wish that American forces fail in the hopes that it will help their political chances is well founded.

That is something Andrew Jackson would never stomach. Nor will Zell Miller.

Nor, by the way, will some of us other Democrats.

September 1, 2004
In for a peso, in for a dolor

The attitude currently displayed by the government of Argentina toward the international creditors holding nearly $100 billion in defaulted bond debt issued by the South American country reminds me of Flounder’s fraternity brothers in Animal House.

Flounder discovers that the Deltas converted his brother’s car into the Deathmobile, and is highly upset. His frat brother Otter tries to calm him down with this simple phrase: 

You f***ed up - you trusted us!

Somehow this didn’t make Flounder feel any better.

As reported at today, Argentina is still trying to force its already burned investors to accept no more than 25 cents on the dollar and eliminate the outstanding debt. On the other hand, the U.S. Treasury Department is applying some return pressure: 

Argentina needs to reach agreement with holders of about $100 billion of defaulted debt as soon as possible and not wait for an International Monetary Fund review of its economy, said John Taylor, the U.S. Treasury's undersecretary for international affairs.

Yesterday, the U.S. Second Circuit Court of Appeals issued an opinion that should increase a sense of urgency in the Argentinians.

EM, Ltd. held a significant stake in the South American country’s bonds, with a face value of over 595 million Argentine pesos.

Given Argentina’s prior default history, however, these bonds included special security arrangements if the country screwed up once again. The debt would not only accelerate to immediate payment requirements, but also gave the creditors the right to elect the currency to be used for payment:

The documents are explicit that when payment in dollars is elected, “payment will be made in U.S. dollars at the ratio of one U.S. dollar to one Argentine peso regardless of the changes in foreign exchange rates.”

Argentina’s attorneys argued that this clause didn’t mean what it said, but in a bluntly-worded per curiam opinion the appellate panel disagreed:

As we noted in oral argument, defaulting parties are not free to pay the principal due upon declaration in whatever currency they choose. ***

We … reject the strained reading of the bond documents put forth by Argentina…. Accordingly, we hold that EM is entitled to collect the amount due on the defaulted bonds in dollars and affirm the grant of summary judgment to EM.

Considering that the current exchange rate for Argentine pesos is about 3 to the dollar, this decision sends a pretty harsh message to the government of Argentina--about 595 million dollars worth of message, in fact.

On the other hand, sometimes governments need to rediscover the potential consequences of failing to meet their obligations.

Note: the pun in the title is deliberate.

August 31, 2004
A reminder of the limits of affirmative action

Last Friday the U.S. Seventh Circuit Court of Appeals issued another opinion in the long-running dispute over affirmative action in civil service testing for promotions in the Chicago Fire Department. 

The opinion gave both sides something to chew on, and I think deliberately so. The panel upheld the finding of liability won by the white firefighters who brought the lawsuit, but it also found that the relief granted in the District Court proceedings went too far.

This mess began when the CFD tweaked the way that it originally planned to use the results of the 1986 lieutenants' examination. It had already spent a fair amount of taxpayers’ cash to develop the test as a valid examination of the knowledge, skills, and abilities needed for those seeking that rank.

As with most civil service tests of large numbers of folks seeking relatively few chances for advancement, the normal process called for rank-ordering the test-takers by their overall scores, and promoting in that order. However, 29% of those taking the 1986 test were black or Hispanic, but were only 12% of the 300 top-scoring candidates. Under EEOC guidelines, this is recognized as a disparate impact on minority candidates.

Title VII analysis doesn’t usually stop there, however. When faced with these kinds of results, employers should first make sure their tests are valid, both with respect to how the test matches up with job requirements, and also with respect to how test scores are used. Minority candidates and their advocates could still try to show that a different approach to testing and scoring would produce similarly valid results, but without the adverse impact.

The CFD discovered that rank-ordering made sense, but only within certain limits. For example, anyone within a range of 3.5 points on the 100-point scale was equivalent to all others in the same range, but strict point-by-point ranking wasn’t defensible.

The Department adopted yet another approach to using the test results. They split the test group into two parts (white and minority), and used the two lists until 1991. The Department promoted new minority lieutenants at a rate that matched the candidate pool of 29%, while retaining the strict rank-order promotion process for both lists in making 209 promotions.

Under this scheme, white candidates lost out on some promotions, and other white firefighters saw their eventual promotion dates delayed.

Naturally, this situation created a new set of plaintiffs, who quickly sued the city.

The CFD lost on the liability issue, both in trial below and on appeal: 

[T]he premise of the City’s argument is that [the EEOC] regulations supply a compelling governmental interest in making decisions based on race. How can that be? Then Congress or any federal agency could direct employers to adopt racial quotas, and the direction would be self-justifying: the need to comply with the law (or regulation) would be the compelling interest. Such a circular process would drain the equal protection clause of meaning. Decisions such as Adarand Constructors [515 U.S. 200 (1995)] show that compliance with federal laws cannot automatically be a compelling interest; Adarand Constructors held a federal statute unconstitutional precisely because it required public officials to make use of race, and the statute was not itself supported by a compelling governmental interest. Chicago does not contend that 29 C.F.R. §1607.4 carries out any compelling governmental interest, and given the holding of Washington v. Davis, 426 U.S. 229 (1976), that disparate impact in hiring or promotion by a public employer does not violate the equal protection clause, it is hard to see how such an argument could be constructed. If avoiding disparate impact were a compelling governmental interest, then racial quotas in public employment would be the norm, and as a practical matter Washington v. Davis would be undone. Congress did not attempt this; to the contrary, it provided in 42 U.S.C. §2000e-2(j) that an employer’s desire to mitigate or avoid disparate impact does not justify preferential treatment for any group.

The Civil Rights Act of 1991 explicitly forbids the dual list response to disparate impact. 42 U.S.C. §2000e-2(l).… Public employers have other options. One will suffice here. Instead of making rank-order promotions, Chicago could have created bands reflecting the standard error of measurement. For example, the Department could have treated all scores in the range 96-100 as functionally identical and made promotions by lot from that band; when all test-takers with those scores had been promoted, the Department could have pooled scores in the range 91-95 and promoted randomly from that group, and so on. That procedure would have respected the limits of the exam’s accuracy while avoiding any resort to race or ethnicity. Given options of this kind, the City’s two-list procedure cannot be thought compelled. Indeed, it is hard to credit the Department’s assertion that it viewed rank-order promotions as unsupportable when that is how it actually used the exam. After creating racially segregated lists, the Department promoted in rank-order sequence from each list!

As for the relief granted, however, the proofs simply didn’t go as far as the plaintiffs suggested or the trial judge ordered. One short passage related to sequential damages shows why:

Even in a world of grade inflation, where teachers living far from Lake Wobegon think nothing of rating all students as “above average,” it is hard to swallow a conclusion that all candidates held back from promotion to lieutenant in 1986 were sure to become captains.

In addition, the panel found fault with the scale of the compensatory damages awards, the front pay award, and other relief.

The Circuit Court also gave a none-too-subtle suggestion to the parties about its preferences for the next stage:

Perhaps what we have said will lead the litigants to resolve these remaining issues (and the remaining firefighters’ claims) amicably rather than slug it out again in the courtroom. We hope so; this dispute is approaching its third decade.

Both sides should take the hint. Most trial judges in this position certainly will—and a U.S. District Judge can be remarkably creative when he or she wants the parties to settle, especially on remand.

August 30, 2004
Thank you, Steven

I first started reading blogs during the summer of 2001, thanks to the links provided in James Taranto’s Best of the Web feature at

I soon began enjoying the multiple short bursts of link-filled commentary provided by a law professor from UT-Knoxville. At around the same time, I started reading the lengthy but habitually intriguing essays by a nominally retired engineer in San Diego.

It didn’t really occur to me to create my own blog.

After all, I do a fair amount of writing in my regular line of work. I was also busy having fun writing a weekly golf column.

I didn’t feel the need to write even more.

Until September 11.

In the early evening, I wrote an e-mail to Glenn Reynolds about what happened, and he posted it.

The next day was my deadline for my weekly column, but I was in no mood to write anything about golf. Fortunately, I thought of a way to revise and adapt the e-mail I sent Reynolds. 

During the next few weeks, I felt an increasing need to write about what was going on--not just the nascent war on terror, but also other topics. It struck me that this was a time of significant upheaval, and I wanted to help create a record. From there it was a relatively short step to registering an appropriate domain name and create the new blog.

I contacted DenBeste. Of the two basic types of blogs (writers and editors), I quickly decided I preferred his approach for practical reasons. I could write an essay a day, but a couple dozen short pieces spread throughout a 16-hour day was just not an option.

DenBeste was exceedingly gracious with his time, and gave me several pointers about blogging software and other technical details. Not long after this site was up and running, he continued his generosity by providing one of the earliest blogroll links. I’m pleased to be counted as a member of the DenBeste alumni.

Recently DenBeste wrote about his frustrations with some aspects of blogging, and announced he was taking a break, if not quitting entirely:

Several times in the last three weeks I thought of something which would make a good post, and then I stopped, and said to myself, "Better not."

I've learned something interesting: if you give away ice cream, eventually a lot of people will complain about the flavors, and others will complain that you aren't also giving away syrup and whipped cream and nuts. ***

I've been receiving email from people worried about whether something was wrong. So I felt I owed it to my long-time readers to explain….

Yes, there's something wrong. I'm tired. Does this mean I'll never post again? Damned if I know. But it won't be soon.

The blogroll on this site’s home page includes several folks who I list as “on hiatus.” Some are writing again, sometimes in different form. Others seem to be highly unlikely candidates to renew blogging. I’ll be adding "on hiatus" to DenBeste’s link, hoping that someday he decides to return.

In the meantime, thank you, Steven, for your blogging support and your writings. I enjoyed reading your essays, and learned a lot.

August 30, 2004

Chuck Fulmer, the owner of Pontoon Express, gave me several pointers about the potential hazards to be encountered in Rehoboth Bay, when I bought our pontoon boat from him this spring.

Included among other helpful hints was what he referred to as a fact of life, and which I can paraphrase as follows: “At some point you will become grounded on a sand bar out there. I don’t know anybody who hasn’t done it at least once.”

Mission accomplished, last evening while taking one of my younger brothers and his family for an otherwise very pleasant ride.

Fortunately, a rising tide and favorable winds helped free us and escape further difficulties in only ten minutes or so. On the other hand, the bottom tip of the engine below the propeller is nearly paint-free, a badge of honor commonly seen on outboard engines in every marina and dock around the Bay.

I also don't believe I'll be taking the boat just south of the red No. 10 channel marker again anytime soon.

August 29, 2004

Mark Steyn wrote an interesting piece about the presidential election in the London Telegraph today, something he does well on a routine basis.

Steyn goes over some familiar territory, such as the clues to be gained from remembering that Bush impressed many of his fellow Harvard Business School students with his talents at poker.

Personally, I tend to favor the use of B’rer Rabbit when thinking of the President’s political skills. Misdirection and playing off his opponent’s hubris seem to be among his strong suits (As in, “Please, Senator Kerry—please don’t throw me in that Vietnam brier patch”).

Nonetheless, I think Steyn is really onto something new when he describes one aspect of the Swift Boat controversy and the current race:

The fact is, even if Kerry was a Republican, these Swift boat guys would be hounding him. In a culture where "ABB" is now media shorthand for "Anyone But Bush", you would think the press would recognise these fellows for what they are: the ABK constituency.

And that’s where I think some of the problem is. Surveys show that the folks in the editorial and newsroom sections of today’s newspapers are overwhelmingly of a single political mindset, predominantly “liberal” in today’s parlance. Through constant reinforcement of their own ideas, and too little direct exposure to another way of looking at policy issues, they have trouble understanding how anyone could take a principled stand on these issues that is opposite their own.

What’s left is denigration of the other side—a too easy dismissal of “conservatives” as mentally deficient, hidebound to old ways of thinking.

I think the problem Steyn identifies goes beyond the ABK issue. Too many of these folks just can’t fathom anyone taking a ABD approach, when clearly ABR is how it is and how it must be forevermore.

I guess it’s hard to hear anything outside when you’re in the middle of a hive.

Hat tip for the Steyn piece:

August 29, 2004
A note to certain Google searchers

Several of you came to this site recently as a result of certain posts I’ve written about the U.S. Women’s Olympic soccer team, now the proud owners of gold medals for their fine performance in several grueling contests.

I appreciate your visits, but I also have to say I’m glad you came away from this site a little disappointed.

No, I didn’t write anything about the gender preferences of certain players.

Y’see, I was focused on the way these women were playing soccer, not some other kind of footsie.



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Fritz Schranck
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Nassau, DE  19969


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© Frederick H. Schranck 2002-2004