To Ryan Lochte

An Open Letter to U.S. Olympic Swimmer Ryan Lochte: Lesson(s) Learned?

By Ken K. Gourdin

Dear Mr. Lochte:

As a threshold matter, let’s discuss what you were trying to cover up before being detained for lying to the police while celebrating your Olympic success in Rio. Enough alcohol + almost anyone = stupid. But if you hadn’t lied and had offered to pay for the damage you and/or your inebriated teammates caused, you would have emerged relatively unscathed. Rarely is the crime worse than the attempted cover-up.

I know, it was Rio, and everyone parties (read “drinks, and/or gets drunk”) in Rio. I guess what the U.S. swim team needs is at least one devout, Word-of-Wisdom-observing (and hence alcohol-eschewing) Mormon who can keep everyone out of trouble. (Mormon swimmers, this is a call to action! Your country needs you!)

Now, with that out of the way, on to my real reason for writing. Often, when we travel, we take our assumptions about the criminal justice system – such as being innocent until proven guilty, having a right to legal counsel, having a right to a jury trial in order to curb potential excesses by a judge or by a prosecutor, and so on – with us, and we tend to superimpose them onto whatever system prevails wherever we go.

Bad idea. The nanosecond we touch down on foreign soil, enter the territorial waters of a foreign country, or, arguably, enter a foreign country’s airspace, the rules change, and criminal justice rules or processes we used to take for granted no longer apply. You’ve heard the old saying, “When in Rome, do as the Romans do”? Well, it applies with special force in criminal justice matters.

Permit me a trivial example. I love Mexico and most things Mexican. (Yes, certain parts of the country are dirty and polluted; some are ridden with crime and corruption; but I learned to look deeper.) My love affair started (chastely) in grade school, when, as part of a pilot program, I was pulled out of regular classes for a period of time each day and exposed to Spanish language and Mexico’s culture, Mexican customs, and the country’s way of life.

I remember being fascinated even by mundane things such as vehiculos de la policia (police vehicles – my father spent 43 years in law enforcement) when, on my first visit to Southern California as a young boy, my family and I drove across the border to Tijuana and I saw firsthand many of the things I had been reading and hearing about.

Later on, the love affair deepened, as I received additional exposure to many of the things I had been fascinated by in grade school when I returned to the San Diego area for two years to do volunteer work then minored in Spanish in college after returning, finishing one class short of a double-major.

Yet even after all of this, I’ll never be caught dead driving in Mexico. Why not? Well, it’s true that I’ve had, perhaps, more than my share of fender-benders (and worse) over the years, several of which, I admit, were my fault (though not all of them were). But is being (perhaps) “crash-prone” all there is to it? No.

In Mexico, traffic accidents aren’t necessarily the relatively minor civil matter they’re usually considered in the United States. They’re also considered criminal matters, and if you’re in one, you’d better be prepared to fork over large amounts of cash (and/or had better have more than a casual acquaintance with someone who has connections) in order to avoid the complications of being ensnared in a criminal matter on foreign soil.

Here, you might get away with a simple slap on the wrist and an admonishment to not do it again, even for so serious a matter as lying to the police. Everywhere else, however, it’s their country, their rules, their criminal justice system and their possible complications (including extortion, bribery and corruption, perhaps), which makes it a whole new ballgame.

In any event, even without casting aspersions on any other justice system, you’d better be familiar with the rudiments (at the very least) of how that system operates, and had better know what to expect if you’re made to deal with it. And while this is no guarantee you won’t be innocently ensnared, it’s best to avoid doing things that cause you to become involved with such a system in the first place.”

And, as a parting matter, while it’s best to avoid behaving like the proverbial “ugly American” wherever we go and whatever our reason for going there, this is doubly so if one is representing one’s country, as you and your teammates were. You beat out plenty of swimmers for your spot on the team, at least some of whom would not even dream of misbehaving as you did and who would have been glad to have your spot.

Here’s (hopefully) to lessons learned.

Sincerely yours,

Ken K. Gourdin

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Protection From Being Arrested for DUI

West Jordan, Utah City Councilman Claims “Protection” from Officers Who Arrest Him for DUI

By Ken K. Gourdin

A West Jordan, Utah, city councilman recently was charged with DUI after he returned to the bar where he had become inebriated to retrieve his vehicle after being given a ride home by a West Jordan police officer. As South Jordan, Utah officers who were called to the scene to deal with the conflict of interest attempted to take him into custody, he stated he had “protection” as a member of the city council.

For coverage of the incident, see here, last accessed August 25, 2016: http://www.deseretnews.com/article/865661036/West-Jordan-councilman-pleads-not-guilty-to-leaving-scene-of-accident.html.

Had I been one of the officers who responded to the scene, I would have told him, “Not to worry, Sir. If it’s protection you’re interested in, the place where you’re going is very well protected.”

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Trapped on Government Benefits

Trapped: Unemployed Long-Term, On Government Benefits, With No End in Sight 

By Ken K. Gourdin

Author’s Note: My fiscal and employment situation has improved somewhat when I wrote this circa 2014. In 2015, I secured (alas, short-lived!) employment as a telephone receptionist with Myler Disability in American Fork, Utah. Frankly, my supervisor graduated summa cum laude in nanomicromanagement, with a minor in micromanagement, and I left that job for a customer service position with the Results Companies in Provo, Utah providing services under contract for Lexus. But in a sense, it means I’ve come full-circle.

I left a job answering phones for UPS in 1998 after I decided I didn’t want to do that for the rest of my life; finally bit the bullet after several years of delay and went to law school starting in 2000; graduated from law school literally almost against all odds and after several fits, starts, and missteps (including taking a leave of absence and accepting a job, doing what? Why, answering phones, of course), in 2005; then being denied admission to my would-be chosen profession based largely (if not entirely) on a complicated behavioral health history; and, while I have been exceptionally well treated by my current employer, I now make $0.95 per hour more than I did when I left UPS. It’s not a bad job, and I reiterate that I have been exceptionally well-treated, but it’s not what I envisioned doing after shedding untold blood, sweat, tears, and pounds of flesh (at least figuratively, if not literally) in law school.

______________________________

I hate Paul Krugman.1 Simply seeing his picture or byline on an Op-Ed usually is enough to deter me. At most, I might read the headline. Beyond that, I know what he’s usually going to say: “Conservatism, Conservatives, or [Insert-Conservative’s-Name-Here] is (or are) what’s wrong with America. If we could simply get rid of Conservatives and/or Conservatism, the United States of America automatically would transform overnight into a Nirvana/Utopia.” So the fact that I’m about to quote him here should tell you something.

While I disagree with Krugman that inexorably increasing government spending is the magical panacea that will alleviate our economic woes, his description of the plight faced by the long-term un- and underemployed is spot-on. He says:

It goes without saying that the explosion of long-term unemployment is a tragedy for the unemployed themselves. But it may also be a broader economic disaster.

The key question is whether workers who have been unemployed for a long time eventually come to be seen as unemployable, tainted goods that nobody will buy. This could happen because their work skills atrophy, but a more likely reason is that potential employers assume that something must be wrong with people who can’t find a job, even if the real reason is simply the terrible economy. And there is, unfortunately, growing evidence that the tainting of the long-term unemployed is happening as we speak.2

Krugman goes on to cite a study conducted by two Northeastern University researchers who tested the hypothesis that employers are less likely to hire the long-term unemployed even when their qualifications are better.  The researchers sent out 4,800 fictitious resumes, and found that those who reported being out of work for six months or more got fewer calls back than those who were employed, even when those in the latter group were better qualified than those in the former.3

As I’ve written elsewhere on the blog, an old Chinese proverb says, “Give a man a fish, feed him for a day; teach a man to fish, feed him for a lifetime.”4 Where I believe Krugman and his like-minded fellows (including President Obama) err is in thinking that the best way to solve the problem is to keep giving away fish.  As I will explain in greater detail below, while I am not against the government giving monetary assistance to the poor, if one’s proposed solution to the problem stops there, eventually the government will run out of fish.  It would be much better to help the poor get their own fish.

There are other dimensions to this problem.  I have received Social Security Disability Income (SSDI) off and on since approximately the year 2000.  [I returned to work full time in 2015, but I am still underemployed, and my income does not match my qualifications.]  In that time, I have received an advanced degree (in 2005) and have become certified as a paralegal by the National Association of Legal Assistants (in 2010).  I would gladly return to the workforce if I were presented with an opportunity for which I am well suited and that matches my education, skills, and interests.

While I once set my sights on becoming a member of the criminal justice system and was hesitant to consider opportunities outside that small qualification and opportunity window, I would be willing to do something I never dreamed of doing during my education, from civil litigation to transactional work, as long as such a position took notice (however slight) of the efforts I have made to make myself marketable in the legal field.  In fact, forget legal support work; I would even perform manual labor if I thought I could last for any length of time in such a position.

In a recent column, syndicated columnist Rich Lowry tells the story of Kentucky disability lawyer Eric C. Conn, who has made more than $3 million a year helping claimants apply for Social Security Disability Income.  Conn’s practice, Lowry says, “specializes in extracting (often dubious) disability benefits for his clients from the United States government, and enriching himself and people around him in the process.”5

I thought that this possible Conn-job was worth a closer look. (To be fair, although I’m tempted to point out that Mr. Conn is aptly named, since I’ve never heard his surname aloud, I don’t know whether the “o” is pronounced like the “o” in “on,” or like the “o” in “cone.”) At any rate, leaving aside the issues of surname pronunciation and of whether someone is aptly named, I decided to investigate Lowry’s assertions further. So I looked up and read a 2011 Wall Street Journal report about Conn and his confederates in the Huntington, W. Va. Office of Disability Adjudication and Review (“ODAR”) by WSJ reporter Damian Paletta6, as well as the staff report from the Senate Committee on Homeland Security and Government Affairs, “How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case Study of the Conn Law Firm.”7

The latter report was issued pursuant to a hearing that was held on October 7, 2013.  To be fair, although Paletta cites the high approval rate of disability appeals among a small number of administrative law judges (ALJs) who hear them7, these sources present little (if any) other evidence that the problems they discuss are widespread or systemic (as the subtitle of the latter report indicates). Even if these problems occurred in only one office, however, that’s bad enough: this “isolated” problem resulted in billions of dollars in benefits being awarded to people who failed adequately to show that they deserve them, but the government, because of due process issues, likely will have a difficult time revisiting (and revising) the decisions to award those benefits.

Still, no advocate, however persuasive, could succeed in winning benefits for his client if no judge were receptive to his arguments that such benefits should be awarded.  (I’ll use the term “claimant representative,” since one need not be an attorney to represent clients [claimants] in proceedings conducted before ALJs in the Social Security Administration.)

And Conn found a particularly receptive listener who was highly sympathetic to his arguments (such as they were) in the person of one particular ALJ at the Huntington ODAR, Judge David B. Daugherty. Judge Daugherty apparently feels that many of the ALJs who hear appeals of disability claims which are denied at lower levels of the SSA are, unlike himself, too tight fisted and should have been more generous, as, according to Paletta, he once reportedly groused to a colleague, “They act like it’s their own damn money we’re giving away.”8

Daugherty is (in his case, was) far from the only ALJ at the SSA who has been generous with the government’s (read, the taxpayers’) money, however.  The WSJ report also notes, “In the first half of fiscal 2011, 27 judges awarded benefits 95% of the time, not counting those who heard just a handful of cases. More than 100 awarded benefits to 90% or more of applicants, according to agency statistics.”9

In recent years, there has been a sharp increase in the number of people applying for benefits without a corresponding increase in staff to handle the increased workload. This has led to a backlog of applications for, and increased wait times for decisions regarding, disability benefits. The Committee Staff Report notes:

Once the Senate confirmed [incoming Social Security Administration] Commissioner Michael Astrue, SSA began developing a plan of action, which it made public in September 2007. In short, the plan involved asking employees to do more[, and to do it] faster. The goal was to ensure more cases were heard each year by spending less time on each case.10

The report also notes, however, that the concern of SSA decisionmakers for speed was not matched by a corresponding focus on quality:

At the same time [as SSA implemented the plan for clearing the backlog], however, questions were being raised whether the backlog plan was as successful as it appeared. The plan put enormous pressure on SSA’s components to post big numbers, which they did. In at least some instances investigated by the Committee, though, agency employees appear to have done so by cutting corners and reducing the attention given to each case and issuing questionable decisions.11

Judge Daugherty, especially, essentially was a rubber stamp. The Committee Staff Report notes:

During 2010, the last full fiscal year in which he decided cases, Judge Daugherty was the third most productive ALJ [in the Social Security Administration’s appeals system], deciding 1,375 cases and awarding benefits in 1,371 of them – an approval rate of 99.7 percent. [Footnote omitted.] In 2011, he decided 1,003 cases, awarding benefits 1,001 times. [Footnote omitted. The average approval rate for ALJs agency-wide is approximately 62 percent.]12

Indeed, the concern of would-be-whistleblower employees over questionable methods and decisions was proven well founded by Daugherty himself, who freely admitted cutting corners (not to mention encouraging others to do so).  The Committee’s report noted his response to a fellow ALJ’s concerns over his methods, noting that when this ALJ attempted to raise those concerns with Daugherty, Daugherty told him, “You’re just going to have to learn which corners to cut.”13

One of the corners Daugherty cut was to severely shorten the length of his hearings. Hearings often are scheduled at the ALJ level to provide claimants the opportunity to present evidence that they meet the requirements to receive benefits under federal disability programs. Although such hearings normally last 45 minutes to an hour, Daugherty scheduled so-called “rocket dockets” in which he held up 20 hearings in a day, fifteen minutes per hearing.14

Interestingly, according to the WSJ report, one of the reasons Daugherty proffered for holding “rocket dockets” is because he has dyslexia. For that reason, he said, he preferred to follow a timetable in which he holds many hearings over a few days each month rather than holding a few hearings each day. “Holding hearings within just a few days ‘allows me sufficient time to review and prepare for [them], resulting in full and complete knowledge of the documents in the case prior to hearing,’ he added.”15 Seemingly, it would make more sense that most people, even (and perhaps especially) those who are dyslexic, would suffer from the opposite problem, especially if the facts of many of the cases are similar (as disability claims likely would be). Attempting to review too many cases in too short a time might cause most people to confuse the facts of one case with those of another.

Another of the corners Daugherty cut was that, for the vast majority of claims he considered (and I use that term loosely), he never bothered to hold a hearing at all.  The Committee Staff Report says this about cases without a hearing:

Part of encouraging judges to decide a higher number of cases included allowing ALJs to review cases to determine if they could be decided “on-the-record” (“OTR”) based upon medical evidence in the case file without an ALJ hearing. . . .

[I]t appears this policy was abused in order to decide a higher-than-average volume of cases with a minimal level of effort and scrutiny.16

One of the witnesses who testified before the Homeland Security and Governmental Affairs Committee as to the potential for abuse in the on-the-record process is Judge Debra Bice, who at the time of her testimony was the SSA’s Chief ALJ.  Bice noted two problems with the process.  One is that an ALJ may miss an opportunity to hear crucial evidence if he foregoes the opportunity to hear from a claimant firsthand; and the other is that if an ALJ screens cases and “cherry-picks” (my term) those that are easiest to decide by simply doing so on the record, claimants with more complex cases (who are, many times, most in need of an expeditious decision) are left waiting.17

Another of the corners Daugherty cut was inordinately relying on disability evidence which had been supplied by claimant representatives (especially by Conn).  One form used by ALJs to decide eligibility for disability benefits is called a Residual Functional Capacity (RFC) evaluation.  When a person claiming a physical or mental impairment applies for disability benefits, an evaluator (in the case of a claimed physical disability, a physician; and in the case of a claimed psychological disability, a psychologist or other mental health professional) is supposed to examine the claimant to determine the nature and extent of his disability, and should complete the form accordingly.

Rather than having the evaluator complete the form, Conn did so.  Congressional committee staff discovered that Conn supplied doctors evaluating his clients who claimed physical disabilities with one of fifteen pre-filled, “boilerplate” (my term) versions of the physical RFC form, and he supplied psychologists evaluating his clients who claimed psychological disabilities with one of five-prefilled, boilerplate versions of the physical RFC form. While “because each individual has different abilities and ailments, and the forms require a complex set of data, finding two RFCs exactly alike should have statistically been an extremely rare occurrence,” this happened frequently with Conn’s clients.18

In a letter to the Senate Permanent Subcommittee on Investigations, Conn attorney Pamela Marple attempted to defend Conn’s use of supplemental medical opinions: “In certain cases,” she wrote, “the Conn Law Firm procures a supplemental medical opinion [bold italics in original] in order to advocate for its client and explain why the SSA record supports a favorable decision.”19 But, as we have seen, it was Conn (rather than any of the medical or psychology experts he consulted) who provided the opinion; the expert merely signed the boilerplate form provided by Conn, and it was prepared without regard to any other information (information which may well have conflicted with it) in the SSA record.

Nor were RFC evaluations the only evidence Conn provided to Judge Daugherty.  While preparing the forms included at least the perfunctory involvement of a third party, in many cases, Conn manufactured medical evidence from whole cloth without anyone else’s involvement at all (at least when it came to interpreting the evidence). Conn was a high-volume user of a particular medical imaging clinic.  In an effort to bolster their disability claims, he routinely sent claimants to this establishment for x-rays.  However, rather than allowing the professional staff at the clinic to interpret the x-rays, in the orders he provided to the clinic, Conn emphasized, “WE DO NOT WANT THE FILMS READ BY ANYONE!!!! [Emphasis in original, footnote omitted.]”20 Claimants then would return to Conn’s office with the x-rays, where he used information gleaned from the Internet to write descriptions supposedly interpreting them.

Another way Daugherty cut corners was by inappropriately colluding with claimant representatives, particularly with Conn.  One way the judge colluded with Conn is by telling him what information he needed in order to approve claims.  Each month, Daugherty provided Conn with a list of claimants whose applications he intended to approve, known by personnel in Conn’s office by Daugherty’s first two initials as “DB Lists.”  The “DB Lists” included notations as to what type of evaluation he needed in order to approve the application for benefits.  For example, the list might contain the notation “Physical,” “Mental,” “Either,” “None,” or “Both” by a particular claimant’s name.  Or, the notation next to some names simply said, “Whatever Eric [Conn] wants.”21 Whereupon Conn obligingly provided one of the boilerplate RFC forms previously mentioned.  Daugherty also infringed on the independence of his judicial colleagues by revisiting cases in which they had already denied disability claims.

Nor were RFC evaluations the only documents Conn prepared for others to sign.  Another way Daugherty colluded with Conn is by allowing Conn to draft, in whole or in part, the decisions Daugherty signed.  As one measure used in an effort to clear its backlog of pending claims, the SSA instituted what it calls “Findings Integrated Template” (or “FIT”) decisions, which already included the elements necessary to find that a claimant is disabled and, thus, qualifies for benefits.  The Committee Staff Report indicated that FIT decisions often involved collaboration between judges and claimant representatives, after which the representatives would draft decisions for ALJs using the language the ALJ suggested.22 While it is not uncommon in the legal profession for attorneys to draft documents for judges to sign, and while hearings before ALJs to hear Social Security claims are not adversarial in the traditional sense, any ex parte (only one side heard from) collusion between an attorney and a judge before a judge had heard a matter in court (or, in the case of Social Security claims, at a hearing) would be highly improper. And while other documents, such as warrants and orders, may be drafted by attorneys for judges to sign, it is all but unheard of for an attorney who is not one of the judge’s clerks to draft an opinion for the judge to sign.

In summary, Judge Daugherty cut numerous corners in an effort to appear productive and to “help” the SSA clear its backlog of disability claims in at least the following four ways: Instituting “rocket docket,” perfunctory hearings; deciding thousands of cases on the record without holding hearings at all; inordinately relying on evidence (evidence in which there often was little variation, except for changed names and Social Security numbers—if the evidence wasn’t manufactured outright by Conn, such as the x-ray interpretations) provided by claimant representatives; and inappropriately colluding with claimant representatives in drafting opinions.

In return for Mr. Conn making his job so much easier, Judge Daugherty likewise extended preferential treatment to Mr. Conn, as well, in violation of numerous SSA policies. For example, to prevent allegations of favoritism, the SSA has a strict judicial rotation policy; in order to ensure fairness to applicants, it has a policy that oldest claims are to be heard first; and in order to ensure that applicants are not unduly inconvenienced, it has a policy that claims are to be handled by the office in closest geographical proximity to them. However, all of these policies were violated for Conn.23

In a recent Op-Ed submitted to (but declined for publication by) The Tooele Transcript-Bulletin in Utah, my [then] local semi-weekly newspaper, I recently had this to say about being a recipient of government benefits while also being among the long-term unemployed:

I receive Social Security Disability Income. I recently filled out a form to have my eligibility reviewed, I used a space that was meant to allow me to elaborate on previous answers to request further assistance, instead.

Provided I could secure employment that makes appropriate allowance for my disability,” I wrote, “I would love to work.  But I need assistance reentering the workforce.”

Because it wasn’t responsive to any of the questions on the form, that “answer” was ignored.  Some bureaucrat reviewed my form, saw that I gave all of the “right” answers to the actual questions, and approved me to continue receiving checks.

I completed my professional education in good faith, fully intending to find a job – preferably in my field, but outside it if necessary.  But the authority responsible for licensing the members of that profession denied me the license necessary to practice it.

And even if I settle for something outside of my desired profession, human resources conventional wisdom allegedly is that anyone who has been unemployed for longer than six months need not apply.  (I don’t know what that now-sizeable proportion of the population, which includes me, is supposed to do instead.)

An explanation about the bio that follows this column is in order.  Yes, I am certified as a paralegal by Tulsa, Okla.’s National Association of Legal Assistants.  Unfortunately, I have had difficulty finding work in that field (not to mention in any other).

Probably because no one in Washington is currently running for office, there is little conversation right now about what government might do to facilitate job creation.  (That hasn’t happened since before the 2012 election.)  Apparently, Obama and his team have settled on job creation as a sales pitch.

Whatever we want to do, they apparently have said, we’ll just say that it creates jobs.  For example, giving people public benefits creates jobs; extending the unemployment benefit period creates jobs; and healthcare reform creates jobs.

On the other hand, public benefits (such as food stamps, disability, Medicare, and Medicaid) have exploded under Obama, while the labor force participation rate (the number of people who have, or are seeking, jobs) has plummeted.  If the latter statistic were as high now as it was in 2009, the unemployment rate would be over 11 percent.

If you think such criticism of Obama is unfair, you might be right: the only jobs government can create are government jobs. (Obama has created plenty of those.)  On the other hand, government can do a lot to interfere with private sector job creation, such as enacting difficult new laws and regulations.  (Obama has done plenty of that, as well.)

An old proverb says, “Give a man a fish, feed him for a day; teach a man to fish, feed him for a lifetime.”  The social welfare approach favored by Obama involves giving that man fish every time he runs out; an insurmountable difficulty is the lack of an inexhaustible source.

I’ll take a job over a check any day.  As much as I appreciate the “help,” President Obama, I’d rather not need it.

Ken K. Gourdin, Tooele, is a certified paralegal.24

And of course, although I did not address this problem in the Op-Ed, there is the issue of my being deemed overqualified.  I’m in a damned-if-I-do, damned-if-I-don’t position: if I do list my law degree on my resume for a position which does not require it, hiring authorities will say I’m overqualified and will throw out my application. (I wish—and I’ve even told people this in a couple of job interviews after it became apparent I wouldn’t get the position—that hiring authorities would let me decide whether I’m “overqualified.”) Conversely, if I don’t list my law degree on my resume for such a position, that leaves a several-year “gap” in my history (which will probably cause hiring authorities to pass me over anyway).

Mr. President, as I said in the foregoing Op-Ed, I very much appreciate your desire to give me all of the government’s fish you can.  But, while I have been through no small degree of trauma—both physical and psychological—in my life, there is nothing as soul-deadening as being among the long-term un- and under-employed while sucking on the government teat with no prospects for change in that state of affairs in sight.

As I also said in the foregoing Op-Ed, however, I’d much rather be working (unlike many of Mr. Conn’s clients, apparently).  Indeed, I’m not sure which fact to be more upset about: the fact that so many people have gotten benefits to which they likely were not entitled, or the fact that I have few (if any) prospects for getting off of those benefits anytime soon, even though I am eligible for them.

END NOTES

1. Please don’t get the wrong idea: I don’t hate him the way I hate cauliflower, or annoying pop-up ads which derail my reason for visiting a particular Web site (particularly if I don’t have the option of clicking somewhere to get rid of them), or (as an ardent Utah Jazz fan) the Los Angeles Lakers, or . . . sin. If Mr. Krugman and I were to avoid politics and economics as topics of discussion, we might even hit it off as dinner or drinking companions (although I’d have ginger ale, thanks). While generally actively avoiding Krugman, I read other people even if I know it’s likely I’ll disagree with them because they might surprise me: at the very least, they’ll make me think. I find Krugman, on the other hand, overwhelmingly predictable, so the fact that I read his work on this occasion should tell you something.
2. Paul Krugman (April 21, 2013), “The Jobless Trap,” The New York Times, accessed on line athttp://www.nytimes.com/2013/04/22/opinion/krugman-the-jobless-trap.html?_r=0 on October 26, 2013.
3. See Id.
4. Ken K. Gourdin (January 5, 2013) “No Matter How Many of His Detractors Were Convinced Otherwise, Governor Romney Sincerely Wanted to Help the Middle Class” (Blog post) last accessed on line at the following address, http://www.greatgourdini.wordpress.com/2013/01/05/romney-wanted-to-help-the-middle-class/, on March 18, 2014.
5. Rich Lowry (October 15, 2013), “Profiting from the welfare state,” Jewish World Review, accessed on line at http://www.jewishworldreview.com/1013/lowry101513.php3#.Umw1Jk3nYqQ on October 26, 2013.
6. Damian Paletta (May 19, 2011) “Disability Claim Judge Has Trouble Saying ‘No’,” The Wall Street Journal, accessed on line at the following address on March 11, 2014: http://www.online.wsj.com/news/articles/SB10001424052748704681904576319163605918524.
7. Committee Staff Report (Hearing held October 7, 2013) “How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case Study of the Conn Law Firm,” Washington, DC: Committee on Homeland Security and Governmental Affairs, United States Senate, accessed on line at the Committee’s Web site at the following address on March 14, 2014: http://www.hsgac.senate.gov, copy also in possession of the author of this post as of that date; hereinafter, “Committee Staff Report.”
8. Paletta, Id.  Parenthetically, I might add two observations to Judge Daugherty regarding this comment: (1) Perhaps if you had acted more as though it were your money, you would have made more responsible decisions and distributed the government’s benefits (aka the taxpayers’ money) more wisely; and (2) You weren’t simply “giving [it] away”—or at least, you shouldn’t have been.
9. Paletta, Id.
10. Committee Staff Report at 11.
11. Id. at 12.
12. Id. at 18.
13. Id.
14. Paletta, Id.; See also Committee Staff Report at 108.
15. Paletta, Id.
16. Committee Staff Report at 16.
17. Committee Staff Report at 17.
18. See Committee Staff Report at 5, 61.
19. Committee Staff Report at 78.
20. Committee Staff Report at 55-56.
21. Committee Staff Report at 36.
22. See Committee Staff Report at 55-56.
23. See Id. at 27-29, 31-33.
24. Ken K. Gourdin (January 13, 2014), “I’ll take a job over a government check any day, but Obama’s not helping,” submitted to (but declined for publication by) The Tooele Transcript-Bulletin (Tooele, Utah), copy in author’s possession as of March 8, 2014.
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Obama Gender Student Facilities Rule

Texas Federal Judge Enjoins Enforcement of Obama Gender Student Facilities Rule

By Ken K. Gourdin

A federal judge in Texas has enjoined enforcement of President Barack Obama’s order mandating that schoolchildren be allowed to use bathrooms and other facilities that are consistent with their gender identity (read, “Today, I feel like a [boy/girl/other]. Tomorrow, I may feel differently, and I should be allowed to use the bathroom I ‘feel’ like using”) rather than with their biological sex.

For coverage of the judge’s order in Salt Lake City’s Deseret News, see here (last accessed August 23, 2016:

http://www.deseretnews.com/article/865660757/Utahns-praise-criticize-ruling-in-Texas-blocking-transgender-bathroom-directive.html

Personally, I cannot imagine how it is that someone who has gender issues – someone who is a boy biologically but “feels like” a girl, or who is a girl biologically but “feels like” a boy – would feel comfortable using facilities that do not correspond to his or her biology. I can’t fathom why someone who is in that position wouldn’t find a single-occupant-at-a-time restroom to be a more acceptable solution.

And I say what I do in the foregoing paragraph as someone who, as a person with a disability and depending on the layout of the building I’m in at the time, has, from time to time, availed himself of the opportunity to use single-occupant, accessible restrooms and has been grateful for that opportunity.

Yes, gender is a complex issue, and yes, people should be treated with respect and dignity regardless of sex, gender, or orientation, but I can’t help feeling that, too often, the way that many propose that we treat those who deal with gender ambiguity and other, similar issues is less about protecting them than it is about using such treatment as a weapon to “stick it” to society at large.

Troy Williams, an official for the gay rights group Equality Utah, is quoted in Salt Lake City’s Deseret News as saying,

The bottom line is that all schoolchildren — straight, gay and transgender — deserve to use the bathroom without fear and harassment. . . . Ultimately, we know that circuit courts and possibly the Supreme Court will bring common sense and human decency back to the issue.”

Let’s be honest: Neither Mr. Williams nor his group cares a whit about the plight of straight, non-gender-conflicted children who might be uncomfortable using a restroom in the presence of someone whose biology doesn’t correspond with their own. If they’re uncomfortable, that’s just too bad: they’re simply going to have to suck it up and get used to it in the name of political correctness.

Let’s hope that no courts adopt Mr. Williams’s approaches to “common sense and human decency” any time soon.

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LDS and Human Suffering

Does The Church of Jesus Christ of Latter-day Saints Do Enough to Alleviate Human Suffering?

By Ken K. Gourdin

In response to the 2,400,200,100,000th thread at Mormon Dialogue and Discussion wondering whether the Church of Jesus Christ of Latter-day Saints does enough to alleviate human suffering, I wrote:

I’m all for alleviating the physical suffering of our fellow beings as much as possible. We should, indeed, reach out to succor one another according to our needs. But Christ also said, “The poor ye have with you always, but me, ye have not always.” The Church of Jesus Christ of Latter-day Saints can, should, and does partner with people of good will wherever it can to alleviate such physical suffering. But the Church stands alone in its mission to offer authorized, saving ordinances to the world, and it cannot abdicate that mission.

A good Roman Catholic brother wrote:

I would only substitute “the Holy Catholic Church” for “the Church of Jesus Christ of Latter-day Saints”. Some people are so earthly minded that they can do no heavenly good. We have differences Kenngo [my screen name]. Not insignificant. But God help us to be together in the day of Jesus Christ. Well said.

To that, I replied, “If you’re not in Heaven, Rory, then I certainly don’t want to go! I daresay that what unites us is far, far more significant than what divides us. I wish you well.

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Does Eroding Religious Freedom Erode Culture?

The U.S. Supreme Court’s Decisions in Recent Decades With Respect to Religious Exercise and Establishment May Lead to the “Culture Baby” Being Thrown Out With the “Religious Bathwater”

By Ken K. Gourdin

I don’t think the U.S. Supreme Court, in its recent jurisprudence (that is, in decisions extending back at least a couple decades) has drawn an effective line between what constitutes an impermissible government establishment of religion, on the one hand, and what constitutes an impermissible abridgment of free religious exercise, on the other hand.

Indeed, all the majority in Obergefell v. Hodges, the recent decision legalizing gay marriage nationwide, had to say to avoid needlessly muddying the exercise-versus-establishment waters further, is, “Nothing in today’s decision disturbs our previous precedents with respect to free exercise,” but it didn’t do that. Rather, it magnanimously granted the religiously devout the more narrow privileges of continuing to “believe” and to “teach” as they wish with respect to traditional marriage.

At best, further confusion regarding religious rights seems to be in the offing. At worst, further erosion of the rights of those who champion traditional marriage seems to be on the horizon. And those who favor a strict, clean, bright-line division between religion and public life seriously underestimate religion’s historical impact on nearly every facet of American culture—from art, to history, to music, to ethics, to literature and beyond.

I recently made that point in a thread at Mormon Dialogue and Discussion. Commenting on the inclusion of the Provo-Tabernacle-cum-Provo-City-Center-Temple on patches worn by the city’s uniformed police and fire personnel, I wrote:

I think those who favor completely extinguishing any hint of religious expression from public life will, if their vision is realized, eventually also come to the realization (many to their dismay, if not to their horror, their antipathy and/or apathy toward religion notwithstanding) that the “cultural baby” has been thrown out with the “religious bathwater.” Even those for whom the tabernacle-cum-temple has no religious significance should be broadminded enough to recognize that, if nothing else, it has enormous cultural significance. Failing at least to meet the religiously devout at that point may well lead to society becoming not only religiously impoverished, but culturally impoverished, as well.

By analogy, I’m not a Muslim. The religio-cultural artifacts being destroyed by ISIS [the so-called Islamic “State” in Israel and Syria] in much of the Muslim world hold no particular religious significance for me. But, inevitably, their destruction will lead to cultural impoverishment, as well, and that is of grave concern to me, my status as an “infidel”/outsider notwithstanding.

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On Trials and on How We Respond

A Brief Comment on the Plight of Gays in the Church of Jesus Christ of Latter-day Saints, But Mostly on Trials and on How We Respond to Them More Generally

By Ken K. Gourdin

I recently contributed the following to a thread at Mormon Dialogue & Discussion about a gay Latter-day Saint young man with job troubles who committed suicide. I wrote:

I empathize with this young man’s plight.  That said, about 10 percent of life is about what happens to us, while 90 percent of it is about how we respond to what happens to us.  I get the urge to say, “Forget it!  Chuck it all!  I’m done!  I haven’t had very good luck (good fortune, many blessings, frame it however you want) in this life; maybe that’ll change in the next!”  I really do.  I’m not necessarily judging this young man.  His plight and his fate are between him and his Savior.  I’ll let them work it out.

That said, I can either (1)(a) bemoan, eternally, the fact that I seem to have attracted the collective indifference of the fairer gender in its entirety (“Tsk-tsk-tsk!  Not the same thing, Ken!  You’re not gay!” OK.  Except functionally, with the chances I have of getting married in this life at this point, it pretty much is); or (1)(b) Say, “Sole possession of the remote control; the ability (subject to other constraints) to come, to go, and to do as I please; to eat what I want, when I want; to do or to watch what I want, when I want, without having to worry about what she will think of me for eating it, watching it, or doing it,” and so on.  Is the latter a poor substitute for finding The One?  Yeah, maybe, but I’m a pragmatist: I’ll take what I can get: if I can’t find anyone who truly can see what she’s looking at, not my problem.

I can either (2)(a) bemoan the fact that my most expensive degree isn’t likely to turn into a career and is, instead, likely to remain a very expensive hobby, along with bemoaning the fact that I’m now making $0.95 an hour more than I was making nearly 20 years ago when I left a similar job and then finally decided to pursue that degree … and now am back doing essentially the same thing; or, I can (2)(b) say, “Yeah, it sucks.  No, it’s not what I envisioned doing with my life.  Yeah, I hope to God I don’t have to do it much longer (will someone, somewhere please hire me to do something else?!!“).  But at least I have a job; if nothing else, it does pay the bills!  And hey!  $0.95 an hour more is $0.95 an hour more!  At this rate, in 20 years, I’ll be making a whole … $12.95 an hour!”

And so on.

Again, I’m not unsympathetic, but if someone is looking (through the wrong end of the binoculars) for reasons to chuck it all, guess what one is likely to find?  And if one is looking for reasons to stick around (or at least, is willing to question whether the images he sees while looking through the wrong end of the binoculars accurately reflect reality), guess what one is likely to find?  To borrow and to slightly alter something attributed to the infamous, inimitable Major Frank Burns of M*A*S*H, “I believe in the sanctity of human life, no matter how ugly or disgusting it gets!”  (He was talking about marriage.)

One of my fellow posters, a gentleman whom, although we’ve never met in real life, I respect enormously (and not simply because he’s a lawyer and, by all accounts, a dang fine one, although that might have something to do with it) responded, “And thus we see the heroic in the ignored mundane.” I appreciated the compliment, though I replied that it probably vastly overstates the case. Another poster, whom I also respect enormously, wrote, “Kudos to our dear Ken.”

I’ve written elsewhere on the blog regarding Hawkeye Pierce of M*A*S*H fame, who, in a conversation with the infamous Major Frank Burns when the camp is sieged by a sniper, says, “You wanna know what a hero is, Frank? Ninety-nine times out of a hundred, a hero is someone who is tired enough, and cold enough, and hungry enough not to give a damn. I don’t give a damn.” Personally, I would trade any perceived “heroism” for changes in at least one, in some, or in all of the aforementioned circumstances—though again, I do appreciate the sentiments.

The thread’s originator wrote—and then later deleted—“Odd that you made this about you.” I responded to that thus:

Yes! That’s me! I’m exceedingly odd. I’m the center of my own (infinitesimally small) universe. I subscribe to dozens of periodicals and scour them daily, solely for any mention of my name. Simultaneously, my eyes are glued to a bank of televisions, each of which is tuned to a respective 24-hour news outlet for the same purpose! Self-centered, solely self-interested, completely self-absorbed! Careful, though. if I were you, I wouldn’t get too close: I’m a veritable black hole, and if you get sucked in, you will cease to exist!

Unlike the rest of you, who apparently are capable of considering infinite permutations of infinite situations from infinite points of view (and, hence, can readily put yourselves precisely into the shoes of the young man whose situation we are discussing so as to understand exactly what he felt), I, alas, lack that ability: I, by contrast, can only speak to my own experience, which is what I was doing in the foregoing post. I failed to realize how completely irrelevant it is.

Silly me. I thought this was a discussion board. I didn’t know that I had wandered into a heretofore unknown (to me, at least) sub-forum called [Screen Name Redacted]’s Echo Chamber. Now that I’ve been apprised of the existence of [Screen Name Redacted]’s Echo Chamber, I will be much more circumspect about my participation henceforth.

My apologies.

Another poster, who is gay and who has determined that compliance with the requirements to remain in full fellowship with the Church of Jesus Christ of Latter-day Saints is not compatible with what he feels he must do to remain true to himself (he is, from what I understand, in a relationship), responded to the above. (I don’t agree with his lifestyle or with his choices as a result, but I understand the paradigm through which he views the issues involved, and I cannot say that, in a multiverse of infinite possible scenarios, I would not make the same choices he has or wouldn’t feel the way he does if I were under the same circumstances.) He once flamed me mercilessly for my defense of the position of the Church of Jesus Christ on traditional marriage, but, since, has mellowed considerably. He wrote:

Your struggles are just as real and just as deep as the young man in the [opening post]. They are very real issues that you struggle with. I wish I could do something to help you find peace. Sometimes life feel overwhelming for all of us, despite the brave face we may put on for the world. Don’t loose faith. You deserve a wonderful life just like everyone else. We all have pain. Some are just better at hiding it.

I responded:

Thank you for the kind sentiments.  I appreciate them.  One thing I’ve learned, though, is that true peace seldom is the absence of trial or struggle (how would it be?! )  Peace can be found even in the midst of trial and struggle, ambiguity and as-yet unanswered questions. Were it not so, no true peace could be had, for trial, struggle, ambiguity, and unanswered questions are the very stuff of mortal life.  

In addition to replying, posters can signal that they find a certain observation particularly sage, apt, humorous, and so on, by awarding reputation points. A later contribution of mine to the thread received 8 points. I wrote:

I have a theory. If we were all to gather in a giant room, in the center of which stood a giant table, for a “trials exchange,” and each of us were to bring his respective trials to pile upon the table, many of us would opt to leave the room with the same trials we had when we came in. (While this is not a judgment against those who have taken drastic measures in an effort to alleviate their tremendous pain, I believe that’s even true of some gay members of the Church of Jesus Christ.)]

I’m reminded of when my family and I went to Spain in 2013. Unbeknownst to my poor parents before they booked the tour, the company that hosted our tour has options with varying levels, from “leisurely” to “active” with other options in between. Our tour was an “active” one. I probably did more walking in those eight days than I’ve done in the entire three years since. ;) Not a few members of our group asked me, in essence, “How do you do it?” My response was always the same: “The same way you do: I simply keep putting one foot in front of the other.”

I don’t think that’s a bad metaphor for life.  

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