Problem solving 101 (E-22)

The first step in problem solving is to accept that a problem exists, but then one must decide what to do about it. And more often than most of us would care to admit, there may be a need to reconsider and perhaps modify our own thinking and/or behavior.

Consider the
12 step program of Alcoholics Anonymous, which begins with admission of alcohol addiction and the need for help from a higher power but soon gets to making “a searching and fearless moral inventory of ourselves” and taking action based thereon.

Scientific thinking begins with a puzzling observation. The observer develops a hypothesis to explain what occurred, conducts experiments to test the hypothesis, and evaluates the results, which may lead to new hypotheses or predictions. The scientific method,, accessed

Then there is the grieving process, which begins with denial and anger, moves on to bargaining, and hopefully ends in acceptance. The 5 stages of grief & loss, Julie Axelrod,, accessed

The need for self-examination may be relevant for two issues that were recently reviewed in this space, (1) a bruising battle over confirmation of the newest US Supreme Court justice; and (2) a request for review of the QFCP (Bloom Energy) tariff. Discussion follows.

A. Kavanaugh confirmation – Everyone seemed to be talking about the battle over the nomination of Judge Brett Kavanaugh to the Supreme Court, so SAFE chimed in with its “two cents.” As it happened, the nominee was confirmed and sworn in shortly before our analysis went to press. Kavanaugh is confirmed, but rancor lives on, 10/8/18.

Both sides are still fuming about each other’s actions during the confirmation process, and there have been dire predictions that the partisan divide in DC will keep growing deeper.

One pundit complains of gloating on the Republican side, notably by the president, which suggests that they didn’t learn the right lessons from the battle that had just taken place. Kavanaugh confirmation was ugly and things will only get uglier, Jonah Goldberg,

The president, who deserves conservative praise for picking Kavanaugh off the Federalist Society's menu and for sticking by him, is claiming and getting undue credit for the win. The fact is, the president was largely a hindrance in the fight. And he's now doing further disservice to the new justice and to the Supreme Court by holding up Kavanaugh like a partisan trophy, as he did Monday at a White House swearing-in ceremony that verged on becoming a pep rally.

Senate Democrats automatically opposed the nominee based on political considerations, and many of them engaged in or tolerated personal attacks and tactics that were intended to obstruct the confirmation process without regard to the merits. Mob rules comes to America, Shari Goodman,,

Senator Jeff Flake's confrontation in an elevator by two George Soros-funded hysterical women with cameras set up to film their shameful assault achieved exactly the impact the perpetrators desired. Anna Marie Archilla of the Soros-funded Center for Popular Democracy held the elevator door open while twenty-five-year-old Marie Gallagher hysterically screamed at the senator. Shortly thereafter, Flake returned to the Senate floor and called for the postponement of a vote on Judge Kavanaugh's confirmation on an allegation that had no merit. Triumphant Democratic Senate Judiciary members could be seen gleefully congratulating each other and exchanging high fives.

We registered concerns about the rocky start of the Senate Judiciary Committee hearings in a letter to the members of Congress from Delaware,
9/4/18. In their responses (posted at the end of our letter), Senators Tom Carper and Chris Coons outlined their reasons for voting against the nomination, but they didn’t address our concern about unseemly behavior on the part of members of their party.

Senate Republicans acted more responsibly in this matter than their political opponents, in our opinion, and Justice Kavanaugh’s confirmation seems appropriate (although this is obviously a judgment call). But the process did spiral out of control at times, and one would hope that future confirmation reviews will be conducted in a more businesslike manner. Kavanaugh is confirmed,
op. cit.

Senator Coons has expressed somewhat similar sentiments re the path forward. Coons disappointed after Kavanaugh confirmation, Adam Duvernay & Josephine Peterson, News Journal,

Sen. Coons laments the razor-thin margin by which Kavanaugh was confirmed, saying “we need to return to a time when the Senate confirmed justices by overwhelming bipartisan majorities.” And this would be accomplished, he continues, by reversing the changes to the Senate’s filibuster rule and having a president who doesn’t choose nominees from a “narrow and very ideological list.”

It's hard to detect much self-examination in these comments, however, as the only tangible changes in the confirmation process that are mentioned would represent concessions by Republicans (which currently hold a narrow majority in Senate and will probably continue to do so after the elections). Thus, (A) the Senate filibuster rule for appointments would be restored, thereby giving the minority party an effective veto power over appointments, and (B) the president would be constrained to select nominees from a list of candidates from, say, the American Bar Association versus the Federalist Society.

By the way, the ABA reviewed and endorsed the nomination of Judge Kavanaugh after it was made, albeit subsequently announcing that they were reconsidering the matter. Democrats sing, the ABA dances, Wall Street Journal,

Paul Moxley, head of the ABA’s Standing Committee on the Federal Judiciary, wrote to Senate Judiciary Chairman Chuck Grassley in an Oct. 5 letter that the ABA committee is “reopening” its “evaluation” of Justice Kavanaugh. This is the same ABA committee that on August 30 gave the judge its highest rating in a report replete with praise. Now Mr. Moxley writes that this could change, given “new information of a material nature regarding temperament during the September 27th hearing” in which Judge Kavanaugh defended himself against claims by Christine Blasey Ford.

As for restoring the filibuster rule for appointments, we would be more inclined to abolish this rule entirely on grounds that it has become an impediment to the legislative process. Also, lest it be forgotten, (1) Senate Democrats abolished the filibuster rule for appointments (with the exception of Supreme Court justices), and (2) Senate Republicans finished the job in order to break a filibuster of the nomination of Neil Gorsuch to the Supreme Court. Perhaps Senate Democrats should have listened to SAFE in 2017. The institutional decline of Congress,
3/27/17 (section G).

Strategically speaking, Democrats would be well advised to permit a vote on Gorsuch – which would result in his confirmation – and retain the filibuster option until another Supreme Court vacancy occurs. Gorsuch’s confirmation would basically preserve the ideological balance of the Supreme Court, not decisively shift it, and the next nominee may be more vulnerable to attack.

Other Democratic leaders have taken a harder line than Senator Coons, effectively ruling out any efforts to seek accommodation with the GOP. Among them are several would-be presidential candidates in 2020 (e.g., Senators Cory Booker & Kamala Harris), and also the Democratic standard bearer in 2016. Hillary Clinton: You “cannot be civil” with Republicans, William Cummings,,

When you're dealing with an ideological party that is driven by the lust for power, that is funded by corporate interests who want a government that does its bidding, you can be civil but you can't overcome what they intend to do unless you win elections.

So when will it be time to resume being civil? The indicated answer: “civility can start again” when Democrats are back in power.

For his part, the president has taken to likening the left wing of the Democratic Party to “an angry mob” at his political rallies. And while many Democrats may genuinely hope for the return of civility, such a development doesn’t seem to be in the cards right now. “You cannot be civil,” Daniel Henninger, Wall Street Journal,

In conversations I’ve had recently with Democrats, once past the Kavanaugh arguments, most express a desire for more political civility. This is wishful thinking. The party has a problem: The San Francisco Democrats are back.

There is also no shortage of angry rhetoric on the right. See, e.g., How to fight the Left effectively, Selwyn Duke,,

. . . if you're disturbed by the left's behavior these last years and want to know how to handle these people whose "mask has been dropping," understand this: behind that mask is the Devil.

Enough! We don’t like the extremist rhetoric on either side and restoring civility is important. But that doesn’t mean the majority must always compromise in order to maintain harmony, nor that the minority may do “whatever it takes” to get its way.

If Democrats are truly concerned about preserving the integrity of the Supreme Court, they should reject the notion of further investigations of Justice Kavanaugh aimed at removing him from the court. Turley: “Dreadful idea” for Democrats to investigate Kavanaugh if they take the House:,

Professor Jonathan Turley on "Fox & Friends" Saturday: "The framers created this process to have some finality. The Democrats may not like the outcome of the vote but over 50 senators are expected to be satisfied with his record and confirm this nominee." If there are going to be "do-overs" every time the congressional majorities change, there will never be a stable Supreme Court.

A more fruitful endeavor might be to reflect on tactics used in combatting the Kavanaugh nomination that didn’t enhance the civility of the process and may not help Democratic candidates in the upcoming elections. For example, who were those protestors who kept showing up at critical stages of the process, was anyone paying them or directing their efforts, and how did they keep gaining admission to cause trouble? “You cannot be civil,” Daniel Henninger,
op. cit.

It’s hard to pick out exactly when in the past month the Democrats shifted the national focus away from Mr. Trump and onto their own behavior. I’d say it was the Senate’s final vote Saturday on Brett Kavanaugh’s confirmation. Democrats had thrown everything at Judge Kavanaugh, and it was over. But not in the Senate gallery. On cue, literally, spectators started shrieking at the senators on the floor. Guards moved toward the chamber’s doors, and the vote stopped while the screamers were removed.

B. QFCP tariff – Civic activist John Nichols recently requested the Delaware Public Service Commission to undertake a review of the Qualified Fuel Cell Provider (Bloom Energy) tariff that is reflected in the monthly electric bills (see page 2) of Delmarva Power ratepayers. Shoot higher, try harder, 10/1/18 (section B).

9/20/18 petition was posted on SAFE’s website with an upbeat summary: “This petition asks the PSC to review how the QFCP tariff came to be approved in 2011, what effects for Delmarva Power ratepayers it has had to date, and what the future penalty will be through the 21-year term of this contract. It would be unconscionable to conclude that no options for mitigating the burden on ratepayers are available without undertaking such a review.”

Sad to say, a motion to dismiss the petition – jointly filed by the PSC staff and the public advocate – was granted on October 9. Here’s a recap of the press coverage plus some supplementary points. Regulators reject request to review Bloom Energy tariff, Randall Chase (AP), Washington Times,

It was generally agreed by participants at the hearing that the arrangement to generate 30 MW of electric power with Bloom Energy fuel cells has saddled Delmarva Power ratepayers with an unjustifiable cost burden, which will continue until 2033. As Public Advocate Drew Slater put it, “this was a horrible deal for Delaware ratepayers.”

It was also agreed, however, that the PSC had no power to change the terms of the QFCP tariff. See also par. 41 of PSC order 8079 (12/1/11) which was issued to flesh out its order 8062 (10/18/11) approving the QFCP tariff.

[The] Application -- once approved -- makes the tariffs (and the obligations of Delmarva’s ratepayers thereunder) unalterable, except upon joint application of Delmarva and Bloom Energy.

The motion to dismiss was granted on grounds of the PSC’s lack of capacity to order changes, not on the merits. In effect, a problem had been recognized, but no progress had been made in finding an answer to it.

Is this the end of the story? Time will tell, but some self-examination seems in order by Team Nichols. For example:

•Over 300 people signed an on-line petition for a review of the QFCP tariff, but very few of them attended the hearing on October 9th. Does that mean they really don’t care or that they lack faith that their interests will be taken seriously?

•Was it realistic to think Delmarva Power and Bloom Energy might voluntarily participate in forecasting the future cost to Delmarva Power ratepayers of the fuel cell power generation project (which is set to continue until 2033), currently running some $3 million per month, and discussing the availability of options for mitigating this burden?

•Was it right to see the PSC as the ideal group to review this matter based on its charter to represent the legitimate interests of ratepayers, its expertise, and its very capable staff? And if so, what further steps might be feasible to confirm the PSC’s authority to proceed?

•Or having “fought the good fight,” is it time to abandon this cause?
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