Sunday, August 30, 2009

Brooks and Collins -- On Ted Kennedy

Steve Martin

A 27-yar-old Michigan man, who complained that a rear-end auto collision had turned him into a homosexual, has been awarded $200,000 by a jury. --"Ann Landers," July 30, 1998.

Recent discoveries in the legal profession have left scientists, many of whom still linger romantically in the Newtonian world, scrambling to catch up in the field of New Causality. In a case last month, a judge in Sacramento ruled in favor of changing the value of pi, thus acquitting a tire manufacturer of making tires that were not fully round. An appeal by scientists was thrown out for lack of evidence when the small courtroom could not physically accommodate a fully expressed representation of pi. The oblong tires in question were produced at the retrial, the judge said they looked round to him, the defense played the race card, and the value of pi was changed to 2.9.

Cause and effect have traditionally been expressed by the example of one billiard ball hitting another billiard ball, the striking billiard ball being the "cause" and the struck billiard ball being the "effect". However, in the new legal parlance the cause of the second billiard ball's motion is unclear, depending on whether you're prosecuting or defending the first billiard ball. If you are suing the first billiard ball, it is entirely conceivable that striking the second billiard ball harmed your chances of becoming Miss Paraguay. If you're defending the first billiard ball, the motion of the second billiard ball could be an unrelated coincidence.

It's easy to understand how one physical thing can influence another physical thing: my car hit your car because I was blinded by your shiny hair barrette. But what about emotional causality? Can my harsh words affect your mood, costing you millions of dollars that you would have earned behind the counter at Burger King? Apparently so. Several months ago, a male office worker was awarded sixty-seven thousand dollars because a female co-worker asked him if he would like her to drop his "package" off at the post office; he was further awarded fifty thousand dollars after arguing that she was also in constant possession of a vagina, the knowledge of which rendered him unable to concentrate.

A more difficult causality to prove, however, is physical to emotional. Can being struck from behind in a car accident cause someone to become a homosexual? Obviously the answer is yes, evidenced by the large award in the lawsuit cited able. Even more interesting is a little-known case in which a man was awarded thirty-six thousand dollars after a driver failed to collide with his car, causing him to become a latent homosexual.

The New Causality guidelines have redefined many of the basic concepts with which the scientific world has struggled for centuries. They are:

The "NINETY-SEVEN STEPS" Rule: It used to be accepted that one event caused another one event to happen. No longer so. It is now acceptable to have up to ninety-seven causality links: Your dog ate my philodendron which depressed my mother who in a stupor voted for Marion Barry causing an upswing in crack sales that allowed Peru to maintain an embassy and accumulate parking tickets, encouraging me to stay a meter maid rather than become an Imagineer. And so on.

SEMANTIC CAUSALITY: Semantic causality occurs when a word or phrase in the cause is the same as a word or phrase in the effect. "You failed to install my client's sink properly, causing her to sink into a depression." In the case cited earlier, the plaintiff's lawyer might say that the "party" driving the Camaro collided with his client's car, and isn't a "party" where homosexuals gather and socialize with one another?

AFTER-THE-FACT CAUSALITY: This simple law states that having sex with an intern can cause a financial misdealing to occur twenty years prior.

UNIVERSAL CAUSALITY: This is the law that has the legal world most excited. It rest on the proposition that "anything can cause anything," or, more simply put, the "Bill Gates gave my dog asthma" principle. If the law of Universal Causality bears out, the economy will receive an invigorating boost when everyone sues everyone else for everything. Everything actionable that ever happened to you will be the fault of your next-door neighbor, who, in turn, will sue Bill Gates, who, in turn, will sue himself.

These advancements in the legal world mean for science that a large stellar object is no longer the cause of the bending of light rays that pass nearby but its blame. Scientists everywhere are scurrying to make sense of the New Causality, with Newtonians turning into Einsteinians, and Einsteinians turning into Cochranians. Meanwhile, astronomers have discovered new distant objects in the farthest reaches of the universe. Are they protogalaxies forming near the beginning of time? The courts will decide.
© Copyright 1999The New Yorker

Tobin Harshaw, Teddy and Bork

(c) F. Bruce Abel

Who is Tobn Harshaw???

Whatever, the following, especially the comments, are very, very interesting. Once I figured out that Tobin is an arch conservative I went back and re-read what he was saying in this confusing piece.

August 28, 2009, 7:23 pm
Weekend Opinionator: Kennedy, Bork and the Politics of Judicial Destruction
By Tobin Harshaw
The death of a public figure, especially a polarizing one, always makes things a bit dicey in opinionland. Do the detractors speak ill of the dead? Do the defenders pre-empt such criticisms, or does that just inspire the critics? In the case of Ted Kennedy, whose many accomplishments got due recognition everywhere, most chose to duck the fight on anything more problematic. There was comparatively little talk about a Harvard scandal, a very sad end to a first marriage or a controversial rape trial. Even among the pundits and partisans, the name Mary Jo Kopechne was for the most part mentioned only in passing; those on the right who tried to make much of it seemed more petulant than aggrieved — perhaps even shrill — while those on the left who tried to make the best of it sounded patently absurd.

Can today’s political acrimony be traced back to a 1987 speech before the Senate Judiciary Committee?
No, when it came to Ted Kennedy’s less-than-admirable qualities, most accounts ran along the lines of this, from the obituary in the Times: “He was a celebrity, sometimes a self-parody, a hearty friend, an implacable foe, a man of large faith and large flaws, a melancholy character who persevered, drank deeply and sang loudly.” What “large flaws”? Well, you know …

But if this isn’t the occasion to dwell on the senator’s personal shortcomings, it should be one to examine his words. And in terms of both dramatic and lasting effect, nothing in his 46-year tenure in the Senate comes close to this:

In case you missed any nuance, here is the transcript including a bit more of the speech:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy… President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

First, a fact-check, courtesy of my Times colleague Ethan Bronner, who covered the hearings for The Boston Globe.

Kennedy’s was an altogether startling statement. He had shamelessly twisted Bork’s world view — “rogue police could break down citizens’ doors in midnight raids” was an Orwellian reference to Bork’s criticism of the exclusionary rule, through which judges exclude illegally obtained evidence, and Bork had never suggested he opposed the teaching of evolution…

Not good, but surely not the first time a senator stood before his colleagues and decided that the ends justified the means.

More troubling to Bronner, and to many other Americans any time a seat opens on the Supreme Court bench, was the precedent being set.

The speech was a landmark for judicial nominations. Kennedy was saying that no longer should the Senate content itself with examining a nominee’s personal integrity and legal qualifications…. From now on the Senate and the nation should examine a nominee’s vision for society … the upper house should take politics and ideology fully into account.

Kennedy did distort Bork’s record, but his statement was not the act of a desperate man. This was a confident and seasoned politician, who knew how to combine passion and pragmatism in the Senate. Unlike the vast majority of those who were to oppose Bork, Kennedy believed from the beginning that the nomination would be defeated and that the loss would prove decisive in judicial politics.

The New Yorker’s Jeffrey Toobin, for one, thinks it was a precedent well worth setting. “It was crude and exaggerated, but it galvanized the opposition as nothing else, and no one else, could,” he writes. “Four months later, Bork was defeated by a vote of fifty-eight to forty-two, and Reagan nominated Anthony M. Kennedy in his place. Justice Kennedy has been no liberal, to be sure, but he has been the single vote that kept Roe v. Wade on the books, was the first Justice to recognize the rights of gay people, and imposed a restraining hand on President Bush’s excesses when it came to the treatment of detainees. For that, and for his presence on the Court, the nation can look to Ted Kennedy.”

And A. Serwer at The American Prospect seems to think that some claims become truer over time:

In hindsight though, Kennedy’s statement wasn’t so much wrong as it was expressed in the kind of intemperate manner that ruffles feathers in Washington. The fact is, Bork believed only “political” speech was protected by the First Amendment; he, like many other conservatives, didn’t believe that women have the right to make choices about whether to carry pregnancies to term; he was critical of the idea that illegally obtained evidence shouldn’t be used in court; and while nominally agreeing that the 14th Amendment prohibited racial discrimination — as opposed to discrimination based on gender, which he thought it didn’t — in practice, he opposed every single piece of legislation ever passed in order to guarantee the civil rights of African Americans. Searching through old news reports, I can’t speak to Kennedy’s allegations on Bork’s views on evolution in schools, but it’s fairly clear that Bork’s personal beliefs are anti-evolution.

Tristero at Hullaballoo knows that it can be proved that Kennedy relied totally on the facts, if only somebody else would actually go and find them.

By speaking this forcefully, and - equally important - reacting so quickly to Reagan’s awful appointment, Kennedy helped prevent Bork’s for elevation to the highest court in the land, for which this country owes the Senator its gratitude.

I have no doubt that Kennedy was 100% right about Bork. However, without backup, Kennedy seems over the top, beyond the pale, shrill, unstatesmanlike, etc. While [Serwer's post] tried, its links barely support Kennedy’s assertions. And as of this writing, no one in the Democratic party and no progressive organization has thought to compile easily accessible and truly comprehensive support for Kennedy’s charges.

No wonder we lose so often. No wonder we can’t make use of our victories.

One who has no use for Tristero’s victories is Doctor Zero at Hot Air. “Politicians have been spreading scurrilous lies about their opponents since the early days of the republic, but Kennedy used scurrilous lies to destroy a man who wasn’t a politician: Judge Robert Bork,” writes the Doctor,

Thus began the modern era of below-the-belt, win-at-any-cost politics, played for the highest of stakes…. Kennedy was a prince in the Aristocracy of Intent, absolved of every crime by the soaring nobility of his intentions. His constituents were delighted to watch him emerge from a warm bath of incredible wealth, to rail against men who were crass and selfish enough to accumulate their fortunes by creating jobs and meeting consumer needs… Kennedy is praised for his “passion” by the same people who recoil in horror from the passion of town-hall protesters and pro-life advocates. Awarding political power, and respect, on the basis of “passion” is another road to totalitarianism.

I’m not sure that Scott Johnson of Powerline thinks despotism is around the corner, but he agrees that, in some ways, the Bork debate has never really ended.

The tone set by Senator Kennedy in connection with the Bork nomination lives on in the Senate. It also lives on in the mainstream media — see, for example, John Hinderaker’s “A conspiracy so lunatic” — and on the left-wing side of the Internet. Indeed, we have seen it on display this month in the White House/Reid/Pelosi attack on the opponents of Obamacare.

We live in Edward Kennedy’s America not only in the consequential legislation that he sponsored and saw through the Senate, but also in the afterlife of the vulgar political sham on which Senator Kennedy relied to defeat the nomination of Judge Bork.

For Pejman Yousefzadeh of the New Ledger, Kennedy’s speech “was not only nonsense, it was nonsense-on-stilts.”

To be sure, there was a tactical advantage to the inflammatory rhetoric; it shocked the Reagan Administration and helped rally liberals to work against the Bork nomination with a sense of mission, urgency, and organization not often found on the liberal side. But Kennedy’s statements were patently untrue, and what’s more, the Senator had to know that they were untrue. It is nice and good that Kennedy was able to restore a sense of decorum and gentlemanly behavior when it came to a whole host of other legislative battles, but when it came to the Bork nomination, his sense of propriety, decorum, and fair play were sorely lacking. Those who wonder how American political debate became so coarse, so unrefined, and so demagogic, ought to look at Kennedy’s speech on Bork as a catalyst for the national descent into a prolonged political shouting match.

And in the eyes of the editors at National Review, the most infamous aspect of the Bork speech is less the personal attack than how it encapsulated a shift the senator had made on another issue entirely:

Senator Kennedy was famed for the power of his oratory. Another way of saying that is to note that he was a gifted artist whose medium was slander, and he found his canvases in Supreme Court nominees Robert Bork and Clarence Thomas. Powerful a speaker as he was, it is not clear that Senator Kennedy’s rhetoric was powerful enough to sway the hardest hearts, including his own. Consider this: “Wanted or unwanted, I believe that human life, even at its earliest stages, has certain right which must be recognized the right to be born, the right to love, the right to grow old.” A beautiful sentiment, beautifully expressed and callously ignored when the political winds changed and he felt himself compelled to denounce the “back-alley abortions” that would be necessitated in “Robert Bork’s America.” Like many of the most powerful Democrats — Jesse Jackson and Al Gore come to mind — Senator Kennedy left behind his pro-life convictions when they became a political burden. This is an especially painful failing in Kennedy, whose family has traded on its Catholicism so profitably.

So, you’ve watched the senator at work and read his words: Was it slander or did it achieve a higher sort of truthiness? Did it spare the nation a grave mistake on the bench or was it responsible for two decades of partisan rancor?

Few, it seems, are willing to split the difference on such questions. Somewhat surprisingly, the person who made the strongest effort at it was David Frum, the Bush speechwriter of “axis-of-evil” fame who now runs the site New Majority.

I know exactly the hour when my opinion of Sen. Ted Kennedy permanently changed. I had remained very angry at the Massachusetts liberal for many years since his 1987 speech so unjustly vilifying the great conservative jurist Robert Bork …

For 15 years thereafter I could hardly bear to hear his name spoken. Nor was my temper much improved by his rough handling of another great conservative legalist, Theodore Olson, at Olson’s confirmation hearings as solicitor general. I was always ready to laugh at the harsh jokes conservatives told about the senator’s legendarily self-indulgent personal laugh. It seemed a fair judgment on an unfair man.

Then came 9/11. Among the murdered was the brave and brilliant Barbara Olson. Ted asked some friends to help with the deluge of messages of condolence, and my wife Danielle volunteered for the job. Among the letters: a lengthy handwritten note by the senator so elegant and decent, so eloquent and (fascinatingly) written in so beautiful a hand as to revolutionize one’s opinion of the man who wrote it. It did not dishonor by ignoring or denying the political differences between the two families. It fully acknowledged them - and through them expressed a deeper human awareness of shared mortality, pain, and grief. Not all chapters of his life revealed it equally, but the senator was a big soul, and in his last years, he lived his bigness fully … Rest in peace, leader of the liberals.

And that, I think, is a pretty good place to end.
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From 1 to 25 of 136 Comments
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1. August 28, 2009
8:48 pm

Pre-Bork: Debate
Post-Bork: Demonize

Thanks Teddy. R.I.P.

— CB

2. August 28, 2009
9:05 pm

The reason Judge Bork needed to be defeated was because he is the best legal mind of his, and maybe this, generation. He would have been able to persuade other Justices to his positions, and write opinions that would have impressed the press and public with the strength of his logic. ‘ couldn’t have that !
Who would have thought someone could be “over-qualified” to be a Supreme Court Justice?

— Sam

3. August 28, 2009
9:29 pm

Robert Bork would have been, and Clarence Thomas is, a catastrophe on the Supreme Court. Bork because he is a “strict constructionist” to the point that he judges the world by the standards of 1787. Thomas because he is simply Scalia’s creature, sent to nod and say nothing.

Sen. Kennedy saw, and appropriately drew, the battle lines. Should he have been genteel and and gracious? Not to the likes of them. They are the headmasters of the school for boys - forever figuring out how to torment the nation with irrefutable faith in …what? The literal words of a dried up old document in a vault? Compassion and understanding cannot come from these attitudes and Sen. Kennedy rightly said so.

— hal

4. August 28, 2009
9:55 pm

It is naive and ahistorical to think that Robert Bork was the first person to be denied a seat on the Supreme Court based on his political stances rather than his ”personal integrity and legal qualifications” (the words of Ethan Bronner above).

Presidents in the 1800s made nominations based on political considerations and personal connections more often than legal qualifications. And in fact, some nominees had little or no personal integrity except their subservience to the powers that be.

Mr. Bronner needs to do some more research.

— marik7

5. August 28, 2009
10:01 pm

I might add that junking the exclusionary rule could open the door to all sorts of chicanery and dishonesty on the part of the police. Kennedy was merely stating the truth. Bork would not have minded if the police obtained evidence illegally.

— marik7

6. August 28, 2009
10:10 pm

“Not good, but surely not the first time a senator stood before his colleagues and decided that the ends justified the means.”

Without an exclusionary rule, rogue police *could* break down citizens’ door without a warrant and trust any evidence they obtained could be used at trial. Your implication that Kennedy twisted the truth to bar Bork from SCOTUS seem to rest on a misunderstanding of how the exclusionary rule works. The misunderstanding is yours, not Kennedy’s.

— Terry

7. August 28, 2009
11:54 pm

Those who cannot “let go” of the lost Bork nomination are the same folks who can’t “let go” of Rabid Ronnie Raygun (although he’s dead, and his policies — to the extent they were truly his or were just his “lines” — have brought little but grief to the majority of Americans) or cannot grasp that they LOST the 2008 Presidential election (to a black man yet!) and a whole lot of Congressional and Senatorial seats. Too bad. And from everything I’ve read on/by Bork, Teddy was right, as he was about many things over his 46-47 year career.

— Bob Walters

8. August 29, 2009
1:05 am

The guy slandered a man, ruined a previously collegial process, and single-handedly politicized the courts by a factor of 100.

It was shameful in every way, and liberals who celebrate the ruining of Bork and nomination of Kennedy should remember that the sauce that is good for the goose is good for the gander. What goes around, comes around.

Pick your cliche, but when the court turns hard right, as it is bound to eventually do over the course of history, they will have no moral or intellectual foundation on which to justly complain.

But they will, nevertheless.

— Publius

9. August 29, 2009
1:08 am

some day the late senator kennedy will be remember for creating a new verb for viciously and falsely ruining someone’s reputation: “to bork” to go along with the
witticism for making a mistake: “i’ll drive off that bridge when i come to it.”
pretty impressive.

— kit ramsey

10. August 29, 2009
1:21 am

Oh hogwash, piffle and nonsense.

The content of that speech (and I jsut listened to every word again in the entire 3+ minutes) is NOT even CLOSE to the invective level of the Republicans all through the 1930s and even through WWII.

If you want to find real vicious and untrue polarizing invective go back the the Republican Senator who in the summer of 1941 announced that FDR was conviving to see every 4th or 5th American boy buried in a foreign grave.

Politics has always been vicious. It is only that the overblown sensitivies and the touch-feely nonsense of the past 15 -20 years that has changed.

Bork’s statements on legal principles and theories was a proper area of inquiry.

PS: The NYT’s pretentious commentators overlook the fact that fully 1/2 of the speech was a review of Bork’s employment record — to wit, being the high executioner in the firing of Archibald Cox as the Special Prosecutor on Watergate in order to drag out and delay the proceedings and done by Bork at the order of his master, Richard M. Nixon. (And the US Supreme Court later declared Bork’s action unlawful.)

Bork’s employment history was most certainly a proper subject of consideration!

— AnnS

11. August 29, 2009
1:21 am

Mr. Toobin….

For that, and for his presence on a bridge in Chappaquidick, did a family in Pennsylvania lose their only child and that family can look to Ted Kennedy.

— CC

12. August 29, 2009
1:53 am

Great article, thanks. I believe that by politicizing the role of the Supreme Court so, and in effect making judicial activism the Democratic litmus test for judges, Senator Kennedy has cheapened not only the integrity of the Supreme Court but also that of the Congress. What Bork and his ilk say is that the rights so many people want to find in the constitution don’t exist and if the people want to create them, then that is up to Congress. Is that really so bad? How about we hold guys like Kennedy accountable for pushing through constitutional amendments when required versus strong-arming judges into legislating from the bench? Regardless, the nomination process of Supreme Court Judges was surely debased from this moment forward, and that is certainly a legitimate part of his legacy, aside from killing a young woman in an act of criminal and callous negligence. Sorry, I can’t not mention it. In my book, he crossed a line in 1969 that he can’t ever come back from and this one act eliminates him for consideration for public service. I mean really, what would he have had to do to be considered too personally flawed to run for the Senate if not drunkenly driving off a bridge and leaving his passenger to die?

— Glenn

13. August 29, 2009
2:00 am

Ted Kennedy was a fallen angel. And the point that his above detractors are trying to make is what? Their arguments leave behind a taste as sour as the grapes that their whine is made from.

The intemperance and falsifications, of the current age, cannot be laid at Kennedy’s grave; each generation and each person is responsible for their own transgressions, no matter the provocation. Conservatives may lament that such a great conservative jurist, like Bork, was not elevated to the Supreme Court, but it chills my bones. When one notes that when people like John Yoo and David Addington were put in positions of power (below that of the Supreme Court and of limited tenure), the result was justifications for torture.

So explain to me again, just how Kennedy’s speech was unjustified. bc

— Bruce Crossan

14. August 29, 2009
2:02 am

What a crock. Bork was -and is- a man who viewed the Supreme Court as a tool for reinstating a 19th century world view, including that the Supreme Court would not protect racial, religious and cultural minorities from local tyranny.

what that means, is what matters is not what Bork personally thought of abortion, or race relations, or evolution. That is irrelevant under Bork’s world view. What it means is that a Bork court would stand idly by and let hypocritical majorities in state legislatures eviscerate the rights of women, eliminate the separation of church and state, and undermine all laws against discrimination.

Tobin Harshaw is either too ignorant to understand how the law works to ensure equal protection and fundamental rights, and Bork’s central opposition to the Supreme Court’s role in protecting those rights, or he is deliberately ignoring Bork’’s clear writings on these issues and creating an entirely falsified picture, deliberately.

In either event, he is telling a direct lie, and smearing a great American in the same week as his death. Shame on the NYT for validating such a liar with a NYT byline.

— Ed Cummings

15. August 29, 2009
2:18 am

You don’t just get to make a claim without a warrant over and over again and it be true. What, exactly, makes Kennedy’s statements about Bork untrue? Or, at least, unfair? I think it’s a fair point that, without the exclusionary rule, police would cheat the system and illegally obtain evidence. Therefore, in Bork’s America, rogue police would, in fact, break down your door more often, at least, than they do in real America. Bork doesn’t advocate rogue police action, mostly, I guess, but his policies could fairly be said to lead to that outcome–or, at least, saying his policies could lead to that outcome is fair political discourse when discussing a lifetime appointment to the Supreme Court.

Bork really spoke out against desegregation–in 1963, against federal rules that required businesses to serve black patrons, and in 1971 against a 1948 requirement that neighborhoods not be allowed to sign restrictive neighborhood covenants barring home sales to African-Americans.

Kennedy went on to do stuff, or whatever, while Bork has made a career about whining about not be a Supreme Court nominee–notably, in a book that must, but Bork’s standard of scurrility, be equal: Slouching Towards Gomorrah: Modern Liberalism and the American Decline.

Look, I’m not going to tell you Kennedy was all great or all bad. I don’t care. That’s the people of Massachusett’s business–not mine. But Kennedy was actually a politician, and apparently, sometimes that means having to get your hands dirty. For the past two decades, Robert Bork has only been a pundit, and his hands are still dirty, and now history has greased the lens so much for New York Times writers like Toobin and fact-checkers-turned-arbiters-of-rhetoric like Bronner to defend him. Because the verdict in this column is about whether or not America is better off that Kennedy opposed Bork, and may have contributed to him failing to win the federal judicial appointment. I think it is.

— Pierce Randall

16. August 29, 2009
2:23 am

Well, the part about back-alley abortions is true. Conservatives HATE it when anyone points this out, but in countries in which women lack abortion rights, they are, in fact, forced into back alley abortions.

— JR

17. August 29, 2009
2:35 am

I’m used to feeling informed, even enlightened, by your well researched arguments. Mostly because you take pains to present at least two sides of a position. Nevertheless, I’m overwhelmed with the sense that you’re carrying water for a man who’s widely considered by serious legal scholars to be one of the worst nominees since the 19th century. Bork was no mere conservative. He was a revanchist, a reactionary, a man of almost no vision and a limited understanding of process. Not even a 19th century mind, a 17th century mind, caught in narrow legalistic formulas, a torts expert with the insight of a calculator.
And you have the gall to blame the Senator for instigating the culture wars, as if you never heard Strom Thurmond filibuster! Give us a break, or at least you could have mourned poor Mary Joe just one more time.

— Gabriel ben A.

18. August 29, 2009
2:37 am

Thanks to David Frum for transcending the partisan blinders that have distorted so much of the reaction to Kennedy’s passing.

— Ted Meckstroth

19. August 29, 2009
2:51 am

One wonders whether Joe McCarthy ever wrote warm personal letters. But if he did, should that make a bit of difference in our judgment of him? To Ted Kennedy, savaging decent men may have been “only business,” but that hardly makes him more admirable. And as the essay points out, the victims were not only the men he savaged but the political process itself. Kennedy may have been the lion of the Senate, but he had blood on his claws.

— Rob

20. August 29, 2009
2:56 am

I think Nixon was responsible for what the current rancor has become. Even in 1960 when he was unfairly judged in the debate and then in the election fixed by Daily in Chicago. At that point he had some real damages he needed to avenge. And then he avenged, with the way he conducted his campaign in ‘72, which in turn caused his impeachment in ‘74; however, it was probably the impeachment that created the intractability of the right and their retribution for the next 35 years.

And the left, as evidenced by Kennedy’s borking (which I confess to loving), were no shrinking violets in this game. And that’s what it should be treated as, a game.

At this point I’d be happy to see a lot more mentally happy adults in Congress.

— Pam Niedermayer

21. August 29, 2009
3:22 am

Anyone who uses “great” in the same sentence as Robert Bork deserves to be completely disregarded. The man was as is a total disgrace, and no amount of conservative whining about how he was supposedly “misunderstood” can change that.

The fact is, Kennedy had the balls to actually describe the kind of insane world that Bork’s ridiculous philosophy might well have led to. That it’s not a pretty world is not a reason to disparage Kennedy. Conservatives have long held these ridiculous illusions about how grand the 18th century world of the Founding Fathers was, and have tried to indoctrinate generations into their fallacious rewriting of history.

The Supreme Court leans well to the right and has done so for 20+ years. Had Bork been elected, Scalia and Thomas would have looked like left-wing progressives by contrast.

— a

22. August 29, 2009
3:25 am

Bork was not a man of integrity. He proved that in the Saturday Night Massacre.
Every statement in Kennedy’s speech was supportable. Speeches don’t require footnotes when delivered. Bork was the kind of right-wing reactionary pseudo intellect and apologist for the power structure who could justify anaything as long as it benefitted the rich and powerful or some right wing political constituencies.

A life time appointement for robotic tool of the right wing was unthinkable. I thank Ted Kennedy for standing up for the Constitution against Bork.


23. August 29, 2009
3:28 am

Frum refers to Bork as a great conservative jurist. The America that Ted Kennedy warned of wasn’t some Orwellian future but a recognition of the past that American conservatism embraces. Bork stood for turning back the clock on decades of progress in the rights of women and minorities. Back alley abortions were the reality before Roe. The teaching of evolution was banned in many states before the courts intervened. The KKK was the defacto government of the southern states. The police arrested and interrogated suspects without informing them of their rights before Miranda. So when a jurist and his supporters choose the label of conservative to describe his ideology what is any educated person to believe they stand for but to return America to the “bad old days”? The days when gays were forced into the closet. The days when a religious minority dictated a woman’s reproductive options. The days when separate but equal was the law of the land. The days when law enforcement operated without regard for an individuals civil rights. Ted Kennedy gave voice to the fears of the majority of Americans and in doing so shed light on the real goals of Americas conservatives. The moment that some want to define as the beginning of partisanship in our politics was really the moment that our representatives were put on notice that this back door attempt by an ideologically driven minority to stop social justice in this country wouldn’t be tolerated. Conservatism demands that we tolerate its intolerance of equality in our institutions. It vilifies those who have the courage to call them what they are as ideologues when they are the ones driven by a purist ideology. We owe a debt of gratitude to Ted Kennedy for having the conviction to oppose Bork. We can only imagine what a dark place this country would be if Bork and his ideas were the law of the land.

— Scott in Oregon

24. August 29, 2009
3:30 am

“Can today’s political acrimony be traced back to a 1987 speech?”

No, it can’t, and it may not the ideal time to make such a patently ridiculous assertion either. There’s nothing wrong with cutting through the myth-making with some less charitable observations, but the political failures of a generation do not stem from the fact that occasionally someone made an honestly political speech which hurt the feelings of some of our more gentle-minded leaders of perpetually wounded dignity.

— Miles Jacob

25. August 29, 2009
3:45 am

Ted Kennedy was right about Bork. I am blad he “borked” Bork. I think Bork would have been a very, very poor choice for the Supreme Court.

— Debra Garson

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August 28
Weekend Opinionator: Kennedy, Bork and the Politics of Judicial DestructionCan today's political acrimony be traced back to a 1987 speech before the Senate Judiciary Committee?
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How Kennedy MatteredReactions to the death of Senator Kennedy.
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Did Cheney Blink?Based on Dick Cheney's brief statement, are the former vice president's claims regarding the effectiveness of detainee interrogations supported or undermined by the C.I.A. report?
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Holder Names Prosecutor: Progress or Whitewash?Reaction to the C.I.A.'s detainees report and to the attorney general's appointment of a federal prosecutor to look into prisoner abuse.
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Your Comments on my Sunday Health Column
Our existing health care system is dysfunctional, erodes family values and costs 18,000 lives a year.

Tech Tip -- Not Exactly

Published: August 28, 2009
IF you watch enough television, you’d think that treating erectile dysfunction was as effortless as popping a pill and then whirling your partner around the living room in a romantic dance. Correcting erectile dysfunction, alas, is not so simple — and it can be rather costly. One Viagra pill, for example, the most common way to treat erection problems, costs about $15.
Dr. Andrew McCullough is an associate professor of urology and director of Male Sexual Health and Fertility at the Langone Medical Center at New York University.
Share your thoughts on this column at the Well blog. Go to Well »
Health Guide: Impotence
More Articles in This Series
Insurers can be chary of reimbursements. And despite the fact that E.D., as the dysfunction is known, becomes increasingly common after men reach 65, Medicare Part D does not cover drugs for it.
An estimated 30 million men in this country experience erectile dysfunction. Nearly a third of men in their 50s experience E.D., whereas more than half of those in their 60s have the problem.
If you’re hoping to have Viagra-aided sex twice a week, your bill for the entire year could run around $1,500. If you’re fortunate enough to have insurance that covers the medications, your co-pay will be on the high side, around $40 for a one-month supply of six to eight pills — bringing your annual bill to a more manageable $500 or so. There are no generic versions of E.D. meds yet.
Even among the name-brand drugs, which also include Cialis and Levitra, the medications do not work for about half of the men with E.D., says Dr. Ajay Nehra, professor of urology at the Mayo Clinic in Rochester, Minn. He is also president of the Sexual Medicine Society, an association of health care professionals.
And yet, as it turns out there are other treatments for E.D. And some of them are more cost-effective than the brand-name pills advertised on television.
“There is not a man out there that cannot be helped in some way with his E.D. — even if money is an issue,” says Dr. Andrew McCullough, an associate professor of urology and director of Male Sexual Health and Fertility at the Langone Medical Center at New York University.
The first step is to see a doctor who specializes in E.D. (usually a urologist) and have your overall health checked out. If your primary care physician can’t make a recommendation, contact the Sexual Medicine Society and ask for a referral.
In many of cases, E.D. is the sign of an underlying disorder like diabetes or hypertension. In fact, in younger men, erection problems are often the first symptom of cardiovascular disease.
“Erectile problems may show up about three years before a cardiovascular event such as a heart attack or stroke,” says Dr. Ira Sharlip, clinical professor of urology at the University of California, San Francisco.
That’s because plaque will start to clog the small arteries in the penis before the wider coronary arteries. Your doctor will also try to determine whether your E.D. is the result of a psychological issue, in which case he will refer you to a therapist. Depending on your policy, your insurer may cover a set number of visits. (One way for you to check on your own whether your issue may be psychological or physical is try the postage stamp test, also known as nocturnal penile tumescence test.)
By adopting healthier habits, you may be able to improve your overall well-being and restore your erectile function.
“There is increasing evidence that we can reverse erectile dysfunction with lifestyle changes,” says Dr. Drogo K. Montague, director of the Center for Genitourinary Reconstruction in the Glickman Urological and Kidney Institute at Cleveland Clinic.
In a recent study of men with E.D., or at risk for developing it, researchers in Italy found that the men could improve their erections by losing weight, improving their diet and exercising more frequently. After two years of significant lifestyle changes, 58 percent of the men had normal erectile function, according to the study, which was published in The Journal of Sexual Medicine in January.
But lifestyle changes, while basically free, can be difficult to make and may take months to take effect. In the meantime, your doctor will probably prescribe a phosphodiesterase type 5 inhibitor, also called a PDE-5 inhibitor, like Viagra, Cialis or Levitra. These drugs enhance the effects of nitric oxide, a chemical that helps to increase blood flow in the penis. The three drugs work in the same way, but differ in how quickly they take effect and how long they last. If the PDE-5 drugs don’t work for you, don’t give up quickly, says Dr. McCullough, who theorizes that “in over 40 percent of drug failures the problem is with the user, not the drug.” Dr. McCullough adds, “it’s important to take these medications as directed, like on a totally empty stomach, rather than a full one, and not less than 60 minutes before sex.”
If the pills don’t work for you, you might want to try self-administered injections of alprostadil, a drug that helps blood vessels expand and facilitates erections. Granted, this may sound onerous, but the shot, which is sold under the brand names Edex and Caverject, is done with a fine needle, feels no worse than a pinprick and produces an erection that can last up to four hours, according to doctors who recommend it.
The shots cost about $35 per injection and are covered by most insurers, but not by Medicare.
But ask your doctor about an injection that’s a cocktail of generic forms of alprostadil, papaverine and phentolamine.
Although this generic combination is not F.D.A.-approved as an E.D. treatment, doctors are legally free to administer it — and both Dr. Sharlip and Dr. McCullough recommend it.
“The generic injections clearly work the best,” Dr. Sharlip said, “and are usually less expensive.”
Another cost-effective option is a vacuum erection device or penis pump. It works like this: you place a tube on the penis and then pump the air out of the tube, which pulls blood into the penis. When the penis is erect, you then put a snug ring around the base to maintain the erection, which lasts long enough to have sex.
The cost for the device, which requires a prescription, can run from $300 to $600, but most insurers and Medicare will cover part of the cost and the device should last for years. Even if you spend $300 out of pocket and use the device once a week, you’ll be spending much less per year than on pills or injections. You can also buy a nonprescription pump online (even Amazon carries some) for as little as $30, Dr. McCullough said.
Finally, if all other treatments fail, you could consider getting penile implants, an effective and permanent solution for chronic E.D. The most common type of implant works through inflation: two cylinders are placed inside the penis and a fluid-filled reservoir is implanted under the abdominal wall or groin muscles; a pump and a deflation valve are placed inside the scrotum. To create an erection, you pump fluid from the reservoir into the cylinders. To deflate the penis, you press the release valve.
Most insurers and Medicare cover the surgery, so your out-of-pocket costs will be minimal. This might be the most cost-effective strategy of all since, according to Dr. Nehra, 80 percent of implants last 10 years.
Sign in to RecommendMore Articles in Health » A version of this article appeared in print on August 29, 2009, on page B1 of the New York edition.
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Friday, August 28, 2009

Aggregation of Electricity

I have researched Dominion Retail, Inc. and the subject of electric aggregation and these are my thoughts right now.

The biggest negative is that when we go off our local utility, Duke Energy, we are involved with derivatives promised by an unknown counterparty. Dominion Retail, Inc. itself is a trading company with no generation of its own. My understanding is that they will simply buy futures to cover the new clients they sign up away from Duke Energy. Dominion's parent company does have a substantial power generation business in the northeast.

So by going with Dominion you are replacing "the generation component" of your local utility with a trading company's promise. In our case, with the offer Dominion sent this week, good until December billing in 2010.

There are blogs out there badmouthing Dominion Retail Inc.'s offer in Massachusetts in late 2008. The offer turned out to be good only for about two weeks (when the year ended). And the local utility was due to have a rate reduction on January 1, 2009, which Dominion did not inform the ratepayers. So Dominion Retail, Inc. is not above "playing games."

Green Township Aggregation 6.7 cents per kwh

Dominion Presentation in New England

Aggregation -- Springfield Township

How will I know if I can save money in this Program?
The Price to Compare (PTC) is shown on Duke’s bill, and is an indicator of the rate for electric generation supply that the average customer is paying Duke Energy. The average customer would avoid paying Duke that amount if they switch electric generation suppliers, and thus if the competitive supplier’s price is less, the customer saves the difference. However, customers who use more than 1,000 kWh per month in the winter months (Oct-May) will tend to have a lower-than average Price to Compare, while customers using more than 1000 kWh per month in the summer months (June-September) will tend to have a higher than average PTC. In addition to this seasonal consideration, other components of Duke’s PTC change quarterly. Thus Duke’s PTC is unknown beyond the current quarter, while Dominion Retail’s price is fi xed. The amount you will save over the term of the contract is unknown because Duke’s price is unknown, but we believe that with the program price of 6.88 cents/kWh you stand a very good chance of saving over the life of the program, in addition to the peace of mind of knowing that your rate will not go up.

Duke Energy RS Tariff Ohio

Thursday, August 27, 2009

The Bush Fiscal Legacy

Baseline Scenario

Very, very good today, with some points we should never forget:

The Baseline Scenario

Firefighter Arson And Our Macroeconomic Policymakers

Posted: 27 Aug 2009 04:49 AM PDT

Firefighter arson is a serious problem. The U.S. Fire Administration, part of Homeland Security, concluded in 2003, “A very small percentage of otherwise trustworthy firefighters cause the very flames they are dispatched to put out” (p.1). Illustrative and shocking anecdotes are on pp. 9-15 of that report, as well as here and here.

Macroeconomic policy making now has a similar issue to confront.

As the economy begins to stabilize and the financial system shows signs of recovery, accolades start to shower down on various officials, including most recently Ben Bernanke, who was rewarded this week with renomination – and almost certain confirmation – to a second term as chairman of the Federal Reserve Board of Governors.

Bernanke is widely seen as our financial firefighter in chief (BusinessWeek; USA Today) Similar terms are used to describe Treasury Secretary Tim Geithner and the entire gigantic financial rescue effort. Larry Summers, head of the White House National Economic Council and administration economic guru-at-large, is applauded as an “experienced crisis manager”, which amounts to the same thing in this context.

If any of this sounds familiar, you’re probably remembering the famous cover of Time magazine from November 1999, which depicted Alan Greenspan, Robert Rubin, and Summers as “The Committee To Save The World.” The idea then was that crises in Asia, Latin America, and Russia had spilled over to US financial markets, most notably in the near failure of Long Term Capital Management, but disaster had been averted by – essentially – the financial firefighting abilities of this troika.

But what if the financial crises in recent decades – you can add the dotcom bubble, the S&Ls fiasco, and various emerging market debt crises to our recent housing and banking disaster – is not a sequence of random unfortunate events, but rather the product of a dangerous financial system? Given that today’s firefighters also previously held responsibility for overseeing this system, both recently and as long ago as the early 1990s, this question is relevant – particularly as the very same team, in various combinations, repeatedly pronounced on the system’s fundamental soundness.

Some of today’s firefighters pushed hard for deregulation of derivatives markets in the 1990s, and this now proves to have been an important cause of the crisis (Summers and others). Others had responsibility for the solvency of Wall Street over the past half decade, yet disguised all potential warnings in layers of impenetrable opaqueness (e.g., Geithner; see p.91 in David Wessel’s bestselling In Fed We Trust, Crown Business, 2009). Still others pronounced that there was no housing bubble exactly as things spiraled out of control and the potential costs to taxpayers rose (Bernanke and his colleagues at the Fed; again, pick up Wessel’s book, p.93 is among the most damaging).

No one is suggesting that our illustrious financial firefighters deliberately triggered a crisis. But, for over two decades, they and their close mentors oversaw the operation and development of a banking and securities system with profound instability hard wired into its DNA. Don’t take my word for it; review this speech by Summers in April 2009, or – in the light of what we know now – look at his talk on crises to the American Economic Association in 2000.

Perhaps that was all a legitimate mistake on their parts and they have now learned the right lessons. But how then do you explain their amazing reluctance to reform the financial system today?

President Obama said on Tuesday that Ben Bernanke helped avert a second Great Depression. That is a considerable achievement, but why then are this administration and the Federal Reserve proposing only minor adjustments in oversight and governance for the financial system that ran amok – producing “financial innovation” that harms consumers and destabilizes everything?

It makes no sense at all. Unless, of course, they are not afraid of future financial fires – despite the enormous fiscal cost (likely 40% of GDP from this round alone), the unemployment (heading to and lingering at 10%, by the administration’s own revised estimates), and the millions of people hammered hard by lender abuse, house price collapse, and job losses.

You may not like the implications, but keep in mind this advice: “To ignore the problem or suggest that it does not exist will only increase the damage caused by the arson firefighters involved, as well as destroy the morale of the other firefighters in their departments” (Minnesota Fire Chief, March/April 1995 issue, quoted on p.1 of above cited report).

By Simon Johnson

A slightly edited version of this post originally appeared on’s Economix, and from that version you can link directly to the referenced pages in David Wessel’s book.

This post is reproduced here with permission. If you would like to use the entire post, please contact the New York Times. The usual fair use rules apply to short quotations.

Aggregation of Electricity -- Dominion Retail, Inc.

Cars, Law and Politics from Boston.
« Times Change Main Red Light Cameras in Boston »
NStar Versus Dominion Retail - Should I Switch Electric Providers?
I received an offer in the mail, today, to switch my electric provider to Dominion Retail, an outfit that claims it will charge me less for power than NStar does now (9.15 per kWh versus, they say, 11.442 per kWh), while doing it over the same lines. As a bonus, NStar will be responsible for billing, as well as service and power delivery. It reminds me of the telco deregulation, when all of a sudden New England Telephone (remember them?) was responsible for sending the bill, but AT&T was my long-distance provider.
So I have a few questions. Should I switch electric providers? What's the catch? Is this just utility industry competition?
Taking Dominion Retail at their word, there's no reason not to switch. Wouldn't everyone?
Thoughts welcome in comments.
October 03, 2006 in Commentary

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Sounds good to me. I wish I had reasoning to offer, but I don't. But I would suggest calling N-Star and asking them why not. They either come up with a good reason, or you switch.
Posted by: jwardell October 04, 2006 at 02:55 PM, NStar, and Dominion Retail all offer dirty “system power” products: Most of the electricity they buy is generated by fossil power plants, which release emissions that degrade air and water quality and could forever alter the climate and character of this region. One of Dominion Retail’s sister companies owns the Brayton Point Station, which is located upwind of the Cape and Vineyard and is the dirtiest plant in New England. Consumers that switch to Dominion will save money by patronizing a corporation that profits while polluting local environments.
Posted by: ewachter October 06, 2006 at 10:27 AM
As far as I can see, this super-duper offer is good for only two months, that's it.
And for the dubious benefits of letting one company rather than another take my heating nickel, I have to say that this business of offering deals ... like the cable and cellphone people do ... with great deals for thirty days or two months and then, watch out! .. anyone who USES that trick is, to me, suspect. It's like getting paid twenty bucks to switch, yay! Then what?
Posted by: L McKinney October 09, 2006 at 02:59 PM
I switched with this offer, I'll have to see how long the difference stays in my favor. I can always switch back. Be aware though that this is only on a portion of the bill. The majority still goes to NStar. In my case it works out to a 10% difference in my bill.
Posted by: Bob October 10, 2006 at 10:45 AM
The jerks have the nerve to bury that 2-month offer in the fine print on the back. Thanks for being here with this discussion.
Posted by: ST October 11, 2006 at 01:01 AM
NSTAR is just delivery service for the electricity, the current supplier is ConEdison, rates are subject to change every 6 mos., my question is does anyone know how Dominion's rates fluctate every 6 mos.
Posted by: R. Govoni October 11, 2006 at 03:24 PM
After a close read of the offer, I threw it in the trash.Something that seems too good to be true, usually is. There was no guarantee that rates would be better after the end of the year, and there is some reason to suspect that Dominion Retail is an irresponsible energy producer.
I could be wrong in my assessment about any of that, but that was my opinion.
Posted by: carpundit October 12, 2006 at 07:25 AM
Wow, I just found that two-month limit.
VERY sneaky with how they word the terms - not the standard language I'm used to.
The dirty plant thing I can selfishly put aside, but their misleading promo is just insulting. Not a good way to introduce yourself.
You guys are awesome for chatting about this online. Thanks! :)
Posted by: Alex October 16, 2006 at 11:04 AM
For your reference, here's an article in the Boston Globe on this matter:
Posted by: S. Lin October 17, 2006 at 12:29 PM
From the article, ``We're pretty confident we'll be able to beat the utility price next year," he said. No promises, but it seems to be their only way to get customers to move, so I'd wager a small sum on it (like my electric bill).
Posted by: Jonathan October 24, 2006 at 09:24 PM
Read the article
You might end up paying more than you think. These companies care about only their benefits.
Posted by: November 08, 2006 at 01:03 PM
I don't know, looks good to me. My offer says the price is good til Dec 2007, though there is a $50 early termination fee. If I save 10% on my electric bill, though, I'm saving $30/monthly so what am I missing? Why shouldn't I do this?
Posted by: Mark February 05, 2007 at 07:47 PM
If lightning strikes the transformer on the corner, does shifting providers affect the restoration of service?
Posted by: Dave September 20, 2007 at 10:47 AM
The Pleasing text and design! we%20beg%20pardon%20offeday November 05, 2007 at 09:23 AM
I too was snaffued by the "hidden" 2 month limit on the good rates. Do we, as a group have the right to complain to the equivalent of the PUC? Before signing up wioth Dominion, I called them up and asked how they could have so much lower prices than NSTAR. I was told about their efficiency and low cost fuel; nothing about the offer being good for only 2 months. Rip off's like this need to be prohibited.
Posted by: December 24, 2007 at 01:06 PM
I rec'd price offer from Dominion that says it is good through your scheduled December 2011 meter read date. Has anyone switched to this electricity provider? If so, any problems?
Posted by: MA November 06, 2008 at 02:26 PM
Looks like National Grid is going to be dropping their rates by 13% as of January 1st, 2009. This is a dirty trick on the part of Dominion if you ask me. They're comparing the current rates, knowing that National Grid is lowering their rates after you lock into their "slightly lower as of this very second" rate. Then Dominion locks you into a rate which is going to be higher than that of National Grid.
If you read the offer, you need to accept by December 31, 2009. This seems like a total scam to me. Sure, you make out for the next 2 weeks, but you get screwed for the next 2 years. There's also a $50 termination fee with Dominion.
I rather doubt that there are problems with the actual switch. All that's really happening is that on the back end, National Grid is required to purchase the power for your home from Dominion. The energy industry is screwy like that. This is going in the trash though.
Posted by: Mike December 10, 2008 at 11:02 AM
I keep getting called by a Dominion guy. I don't like the cheesy approach. He keeps asking for my power company account number so that he can "lower my rate", as if it's just a simple rate lowering. I asked, "if you're going to lower my rate then go ahead and do it". Then I pressed him, asking if by agreeing I was going to be switching companies and contracting with his company next, and it was like pulling teeth to get the truth. The whole thing smells.
Posted by: John February 23, 2009 at 09:16 AM
Thanks all. I also go the offer in the mail and was considering switching but was ambivalent. Based on the discussion here, if it looks too good to be truse, it probably is.
Posted by: John March 01, 2009 at 05:30 PM
what does 10% of my bill really amount to? I know "money is money" but i agree - it doesn't sound right.
Posted by: sam bowie March 02, 2009 at 05:16 PM
After reading all the above comments I don't think I will switch. Apparently they offer this every year with a "deadline" for signing up!I, too, am of the opinion that anything that sounds too good to be true probably is! The more I read their fine print, the less sure I become about exactly what I am being offered. The fact that they have dirty plants producing the energy is enough for me, anyway. Although I am not wealthy, I feel I have to go with the "greenest" I can at this point in time. Go, Cape Wind!!!Barbara
Posted by: Barbara Peckham March 05, 2009 at 03:19 PM
My June 11, 2009 FIRST bill from NSTAR included an Electric Supplier Bill Detail. Dominion Retail address phone etc. The Current month (new with Dominion.'s Delivery Charge was MORE than last month When with NSTAR:8.9 cents (perkWh) as opposed to NSTAR 8.7cents (per kWh).
I left a call to ask if the bill is hap and circumstance. I'd drop them in a shot for this surprise unless NSTAR cut prices last month to play a trump card.
Posted by: Jack June 17, 2009 at 07:03 PM
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