Tuesday, February 19, 2013

Canning v NLRB - a short review

Canning v. NLRB _____ F.3d _____ (D.C. Cir. 2013) (Jan 25, 2013) a Short Review

I.  The Canning Decision

http://www.jdsupra.com/legalnews/dc-circuit-court-decision-creates-nlrb-55556/ Canning v. NLRB, ___ F.3d ___ (2013) (Jan 25, 2013) (DC Cir) has some problems.  

 The facts in the case are undisputed.  The President of the United States made appointments to the National Labor Relations Board while the Senate of the United States was in recess and in adjournment.  In order to prevent the President from making "recess" appointments, the House, which was controlled by a political party different from that which controlled the party controlling the Senate, exercised its right under the Constitution to withhold its consent to allow the Senate to adjourn for more than three days (See Article I of the US Constitution).  As a consequence, during the holiday break which extended for several weeks in December to January of 2011-12, even though the U.S. Senate had adjourned for several weeks and was in recess, technically, the Senate was in session, even though there was but one Senator or two Senators at a time present on the floor, and only every third day at that, and there was no quorum to do business, such as considering the appointment, advise and consent and confirmation of, vacant seats and appointments.

 At the time, there were hundreds of unconfirmed appointments to the Judiciary and various executive posts, and both the Senate and House were either refusing to confirm, or abdicating their constitutional duties to confirm, by this circuitous process of adjourning without adjourning, when the adjournment was a de factor adjournment.  

 A.  Lack of Justiciability

 The plaintiff-appellee below never raised the issue of constitutionality of its claims before the NLRB.  The matter was an employment law matter which was decided adversely before the NLRB, and adversely on appeal.  The constitutional claims were raised for the first time on appellate review.  

First, the constitutional issues were not raised before the NLRB, were not preserved for appeal and were not administratively exhausted.  Thus they were neither justiciable nor were they properly preserved for appellate review.  In short, they were not ripe for appellate decisions.  

 B.  Stare Decisis

Second, the 11th Circuit has already decided this issue, and squarely to the opposite, in an en banc panel, Evans v. Stephens, 407 F. 3d 1272 (2005), cert denied, ___ U.S.___ (2005).  There are many other problems with the logic, reasoning and legal precedent for this decision, too complex to take up here, but suffice it to say that whereas Evans is binding precedent and already decided that recess appointments are perfectly legal and constitutional, the DC Circuit took up the issue as if it were an issue of first impression.  

 C.  Recess is a Lesser Included Term of Adjournment

One final note;  Black's Law Dictionaries from the 1920s, makes no distinction between the meaning of the words "recess" and "adjournment" as does the DC Court of Appeals; moreover, an adjournment "sine die", according to Black's, means an adjournment without any day ever being scheduled again, meaning in effect, a dismissal of the action.  Obviously the Senate never adjourns "sine die", because they always re-convene, consequently a recess must be a lesser version of an adjournment rather than a greater form of an adjournment.  This makes sense, because kids go out for recess for twenty minutes, while school adjourns for the holidays.  According to the Canning decision, "recess" is some kind of permanent decision never to come back again for weeks at a time, while it's "adjournment" that is the temporary break.  

This not only makes no sense at all, but if you are a practicing attorney, and you have older editions of Black's Law which actually have a great deal of Latin in them, and these were the kinds of law books that the lawyers who actually wrote the Constitution had (and they were fluent in Latin and Greek, unlike most of today's Bench and Bar), they understand that an adjournment is a longer break than a recess.  A recess is when a court breaks for lunch; an adjournment is when a court breaks and plans to re-convene in two months.  Same with legislatures.  All of the Canning reasoning to the contrary, their linguistic analysis makes no sense, especially to anyone who's had more than one semester of analytic philosophy and understands that words must correspond to exact symbolic meanings on a one for one basis.  

Given all this, the Court has seriously misunderstood and misconstrued, and indeed, confused, these term of legal art in arriving at its conclusions.  

 D.  Evans is the Correct Decision

This entire line of argument was given very short shrift in Evans v. Stephens, supra, and indeed, the entire Canning decision hardly discusses Evans v. Stephens, except in passing, which is peculiar, because Evans v. Stephens is directly on all fours with this case.  In Evans, President George Bush nominated Judge Pryor to the Eleventh Circuit during a recess of the US Senate to fill a vacancy on the Eleventh Circuit Court of Appeals.  The conditions of the appointment were precisely the same as the conditions of the NLRB and Condray appintments in the instant case.  In the Evans case, the appointment of Justice Pryor was not only upheld, but the case was re-heard en banc by all twelve judges of the Eleventh Circuit, who voted overwhelmingly 10-2 to uphold the appointment, and the decision was denied review (certiorari) by the United States Supreme Court, which means that not even four Justices of the Supreme Court voted to review it.  That means at least six though the decision was fine as it was. 

The Eleventh Circuit is a southern, conservative circuit that does not get overturned much.  If ten justices on that court and six or more on the Supreme Court have already been down this road and fine nothing wrong with recess appointments, than the only reason to revisit this issue would be to tear down the entire principle of stare decisis, which is a fixed lodestar of our constitional principles, more fixed perhaps than the Constitution itself.  Stare decisis dictates that where there is an established precedent, you follow it, you do not make new law.  The Canning decision is flawed because it does not follow the bedrock principles of stare decisis and does not follow established precedent set by the appellate courts and the Supreme Court.  Instead, the Canning Court seeks to make new law, where no new laws are needed.  As such, it is a Court that seeks to legislate rather than to interpret the law.  It is not the job of the Courts to legislate; it is the jobs of the Courts to interpret the law.  When the Courts legislate rather than interpret, they exceed their Article III powers and step into the shoes of the powers of Congress' Article I powers.  This we all recognize as fundamentally contrary to the intent of the Founders as expressed in the Federalist Papers.

 E.  The Senate Was in Recess "De Facto" and It is Irrelevant When the Vacancy Arose

Another problem in this decision is that the entire section on whether a vacancy arises during the recess or exists prior to the recess, in order to be filled, is pure dicta.  Again, not raised in the NLRB, not preserved for appeal, not argued below, not exhausted, not properly preserved, not justiciable, and more pertinently, not necessary to arrive at the result in the case.  If you are going to come to a constitutional result, you need, by the rules of parsimony, the simplest possible constitutional rationale--not the most complex set of ABC fallback positions.  This argument is set forth almost as if "well, if you don't buy argument one, here's another one you might sustain upon review."  

 Moreover, it is self-evident, as the Court found in Evans, supra, that the Senate, when it adjourns for weeks at a time but technically stays open for business with one or two members appearing on the floor every third day, but lacking any quorum to do business, is in fact in recess, has adjourned, and is not present to confirm appointments.  Under such conditions, the President has the Constitutional power to make recess appointments as granted him under Article II.  

One might add here that this argument about the appointment must arise DURING the recess, was considered so specious by the Eleventh Circuit in Evans v Stephens, supra, as to not have been given serious consideration at all.  

 F.  The Canning Opinion is Itself "Canned" From Law Review Articles and Presentations by Professor Michael Rappaport of USCD Law and the Federalist Society and Borders on Plagiarism

Finally, the opinion is not itself highly original--rather, it seems to be borrowed (I hesitate to say plagiarized, but it does seem to be plagiarized) almost entirely from the works of Prof. Michael Rappaport, who teaches constitutional law at UCSD Law.  http://www.fed-soc.org/publications/author/michael-b-rappaport.  A list of his publications from the Federalist Society.  Rappaport has some theories, one of which is originalism--that you view the constitution and its words as they were written at the time they were written, and then he has a very strained view of the power over recess appointments.  He elaborated that theory back in 2003, prior to the Evans decision, so it's been floating around for many years in Federalist Society circles.  Rappaport's language and theories are repeated nearly verbatim in the Canning v. NLRB decision, which seems odd, given Justice Sentelle's reputation for erudition and originality.  

It's not a fatal flaw that the opinion is so heavily borrowed from Prof. Rappaport's work--after all, his ideas and words have been out there for going on ten years now--but it is surprising that the very words and phrases in the opinion correspond so closely to Prof. Rappaport's own words and phrases in so many places, and that the arguments are so similar and so remarkably the same.  In short, had Prof. Rappaport simply written this opinion himself, it would not have been substantially different, objectively speaking.

To this extent, the Canning opinion suffers a fatal flaw of not being intellectually honest because it is, at base, not an origional work of juridical thinking--rather, it is borrowed from a well-publicized body of work from a scholar whose work is well known to members of the Federalist Society and those who read Prof. Rappaport's formidable body of work.  Rarely if ever have we had occasion to read an opinion that so liberally borrowed from one particular academician as this Canning opinion does.  

Far from being some sort of judical masterwork, if it were an undergraduate paper, it would require a resubmission because frankly, it appears to fail the substantive tests of plagarism, academic honesty and failure to attribute source materials fundamental to all law schools, universities and honor codes, not to mention the Judicial Cannon of Ethics.  

And while it is true the Founders did not have a very good sense of plagiarism or what it was--they borrowed liberally from the Ancients and from each other--it is well to remember on this Presidents' Day that George Washington, when he cut down the cherry tree, admitted as much to his father, for he said to him, "Father, I cannot tell a lie."  

Academic dishonesty is a lie, and a lie of the worst kind.  This is also a problem with the Canning opinion.  

 G.  Problems with Historical Originalism as a Legal Philosophy

Beyond this, there are fundamental problems with the Rappaport framework which can be attacked on appeal.  Rappaport has a cramped view of appellate view--historical originalism--which neither Justic Posner, HLA Hart nor the late Ronald Dworkin accept--meaning 95% of the legal philosophy world.  Posner believes in pragmatist, Hart is a legal realist, and Dworkin has been a moral rights advocate.  Very, very few legal philosphers and scholars are of the view that historical originalism should govern our view of how to interpret the Constitution.  

Only one line of decisions has ever been interpreted this way, and that is the right to jury trial in civil cases under the Seventh Amendment.

Next, Rappaport's analysis of recess v. adjournment, as laid out in his speeches and articles, is also flawed, mainly for the reasons set forth in the Evans decision of the Eleventh Circuit, which Prof. Rappaport fails to take full account of.  Indeed, it is difficult to accept his argument that a recess is a longer break than an adjournment, or his argument that "the recess" means that a recess is longer than an adjournment.  None of this makes any sense, especially when you look at conventional Blacks Law Dictionaries, Blackstone's Commentaries, and the like.  Everyone who every practiced law knows recesses are for lunch or short breaks, while adjournments are to the next day, next week or to a another court sessions, and similarly with legislatures.  

In short, this argument of the good Professors lacks all common sense, in 1776, 1787, and now.  

 H.  Historial Originalism Proves Too Much Since the Founding of the Country Was Technically in Utter Violation of the Articles of Confederation, Including the Election of Washington in 1789 and all of the Acts of the First Two Congresses from 1789-1793.

One final problem with historical originalism, and that is their utter failure to appreciate the arguments of the anti-federalist papers.  

There was hardly a consensus on adopting the Constitution in 1787.  North Carolina rejected the Constitution before adopting it, and several states refused to select Electors for the first Presidential Election in 1789, and refused to send either Senators or Congressmen, because they had not ratified the Constitution as of yet.  

In short, if we're going to start unraveling NLRB decisions for lack of a quorum, why don't we start with the first George Washington Administration?   

The Articles of Confederation required that ALL of the states had to agree to amend the Articles for any such amendment to be effective.  The ratification clause of the US Constitution notwithstanding, the Amendment clause of the Articles surely governs.  

Consequently, the Government of the United States did not become fully legal until some time between 1790 and 1791, when the 13th and final colony adopted the Constitution and sent Congressmen and Senators.  http://en.wikipedia.org/wiki/First_United_States_Congress.

By that time, Washington had already been elected, sworn in as President, and the Congress and Senate were already making laws, including the Judiciary Act of 1789, which technically would be void and illegal for lack of a quorum, using Prof. Rappaport's historical originalism.  But Washington's election was hardly legal.

 The following laws were enacted by the first session of the Congress of 1789, which sat without Congressmen and Senators from all the States, and before North Carolina, Virginia, Rhode Island, New York and New Jersey had finished ratifying the Constitution and/or finished seating their full delegations of Congressmen and Senators:

Session 1

Held March 4, 1789 through September 29, 1789 at Federal Hall in New York City

As you can see, technically, the Department of State, the Secretary of State, the Supreme Court, the District Courts, the Circuit Courts, and all of the US Attorneys, indeed, anything under the Judiciary Act of 1789 which is the enacting legislation of Article III of the US Constitution, would technically, under the logic of the Canning decision, be unconstitutional, because there was not a full quorum to do business under the new Government.    Moreover, these acts were illegal under the Articles of Confederation as not all the states had yet ratified the amendments to the Articles in the form of the Constitution, the ratification clause of the new Constitution notwithstanding, and would not be legal until Rhode Island ratified in 1790.  Nor was Washington's election legal until he was elected in 1792 and sworn in in 1793, for the same reasons.  
Firs Speaker of the First House Frederick Augustus Conrad Muhlenberg of  PA.  Mulenberg College is named in honor of his father, Henry Melchior Muhlenberg, the first Patriarch of the Lutheran Church in America.  

Session 2

Held January 4, 1790 through August 12, 1790 at Federal Hall in New York City

[edit]


These laws also would be illegal and unconstitutional for the same reasons  

Constitutional amendments

[edit]States admitted and territories organized


Well, the Bill of Rights, technically, would be invalid, because a lawful Congress and a lawful President did not sign and approve it.  

That also takes out the 27th Amendment as well.  

The cession of territory by North Carolina would be voided as well.  

Also, since Washington's election was void, eveything that the Second Congress did would be void as well.  

To show how coercive the ratifications by North Carolina and Rhode Island were, the initial Congress and Senate did not have seats for either state.  Only after they ratified did the First Congress allot two Senate Seats to each state, and five House Seats to North Carolina and one House Seat to Rhode Island.  North Caroline had originally voted down the Constitution, which under the Articles of Confederation, would have killed the Amendment altogether, since unanimity would have been required to alter the Articles, even by replacing them with a Constitution.  What effectively occurred, was that the States that did ratify, went ahead, formed an Government of questionable legality, and then effectively coerced the remaining states to ratify, since if they did not, they would be isolated by not joining the Union.  This procedure, needless to say, does not render it legal from a historical constitutionalism view point.

However, from the standpoint of legal realism or any number of modern constitutional viewpoints, this is all ok.

The only viewpoint that would have to re-review all of this is the one found in the Canning decision and the thoughs of Prof. Rappoport, who wants to go back to 1787 and revisit everything ab initio.

 Also, we'd have to throw out Thanksgiving, since that was proclaimed by Pres. Washington pursuant to an illegitimate election in 1789.  The first proper election of a US President was 1792.  Anything Washington did before that would have been illegal for lack of a quorum, using Rappaport's logic and the logic of Canning.  http://en.wikipedia.org/wiki/United_States_presidential_election,_1788%E2%80%931789

Obviously, we can all see where this is going.  The entire first Washington Administration was, in fact, a gigantic RECESS APPOINTMENT--they went ahead and set up the government and the Presidential Election while they were waiting on the last several colonies, including New York, to ratify the Constitution.
The Map of the Election of 1789.  Note that New York, Rhode Island and North Carolina did not participate.  If this looks like a "unanimous" election of George Washington, then we have some hurricane damaged land in Long Island to sell you.  As of 1789, Rhode Island and North Carolina had not yet ratified the Constitution, and were still operating under the Articles of Confederation.  North Caroline had rejected the Constitution.  New York had only narrowly approved the Constitution, but was so bitterly divided it could not agree on electors for the election.  Was this illegal?


The entire point of the Federalist Papers was to get New York State to ratify the Constitution, which they ultimately did, but not by very much.  New York did not vote electors, did not vote for Washington in 1789, and did not send Congressmen or Senators to the new Government until sometime in 1790.  

The problem with "historicism" is sometimes, it exposes too much.  Washington's supposed "unanimous election" of 1789?  It never happened--at least four or five states never voted for him, because they had not adopted the Constitution and/or they could not agree on selecting Electors.  And there was no unanimity for the adoption of the Constitution until Washington and the Federalists had already set up the Government--only then did the remaining states come around.  That could be argued as coercive and contrary to the intent of the Articles of Confederation.  

Should we have a DC Court of Appeals unravel that on historical grounds?  

The will of the people being what it was, the Federalist Party was booted out of power for good in 1800, ad was never brought back again--ever.  

The essential feeling of the people of the United States toward Federal Power and especially US Government Power was best summed up by that wag who said, "That Government Governs Best, that Governs Least", a phrase that President Reagan was fond of quoting.  

I'm going to take my adjournment now.  I already took a recess for a few minutes to get a soda.  See you next time.  

Art K, Philly
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Location: Washington, DC, USA

Tuesday, February 12, 2013

The Sixers Dreadful Andrew Bynum Trade

The Sixers Dreadful Andrew Bynum Trade

The Philadelphia 76ers made the playoffs last year, beat the Chicago Bulls in the first round, and took the Celtics deep before losing to a very fine Celtics team.  In doing so, the Sixers made all of Philadelphia, and indeed, all of the NBA, feel that the Sixers were really back as a team.
DOUG COLLINS IS THE SIXERS COACH


This year, the Sixers have been successful on occasion, but they are a few games out of the hunt for the eighth and final playoff spot in the East.  They have had several positive development--Jrue Holiday has developed into a terrific point guard and an excellent scorer, and Even Turner has become one of the best defenders and rebounders.

But the top Sixers this year in terms of Win Shares ("WS") are Thaddeus Young, Jrue Holiday, Dorrell Wright and Spencer Hawes, and but for Young at 4.6 WS, all of them are around 2+ WS.  Nick Young and Evan Turner are close to 2 WS.  Jason Richardson had 1.5 WS in 33G, but he's gone with injury for the season.  He'd be around 2 WS if he'd been playing.  So what you have is one leader, Thad Young, and then seven players who are at or were on pace to get around 2.5-3 WS for the season.  A lot of depth but no stars.  

 The Awful Andrew Bynum Trade

 The Andrew Bynum Trade has been a disaster.  The Sixers traded Maurice Harkless, Nik Vukevic, Andre Iguodala for Andrew Bynum and Jason Richardson.  
NIK VUKEVIC HAS BECOME A STAR FOR ORLANDO SINCE BEING CARELESSLY TRADED AWAY BY THE SIXERS IN THE ANDREW BYNUM DEAL.  RIGHT NOW HE IS BETTER THAN BYNUM OR DWIGHT HOWARD.
So far, Jason Richardson has contributed 1.5 WS in 33 G.  He got hurt and won't play anymore this season.  Bynum has not played at all due to injury.  Worse, he appears not to really want to play.  He goes bowling and seems to be able to do just about anything except play hoops.  He has a bad attitude.

 On the other side of the ledger, Iguodala has not had the season he had last year, but so far this year has accumulated 3.2 WS in 51 G, and .081 WS/48 minutes.  So the new AI is on pace for @ 3.5-4 WS.  That would probably lead the Sixers.  

 Maurice Harkless has accumulated 1.3 WS in 44 G, .076 WS/48M, so he seems a lot like the seven Sixers on pace to get near 1.5-2 WS.  He'd of been a useful big body, and since he's just a rookie, his upside is high, and his cost is low.

 Finally, Nik Vukevic.  He was shipped off to the Orlando Magic.  Vukevic has accumulated 4.3 WS in 50 G, and .126 WS/48M, and become one of the best rebounders in the game.  Right now, he's a much better player than Dwight Howard or Andrew Bynum, and he's only a second year player with total upside and low cost.  Vuke is on pace for a 5.0 WS season.  

 So the total cost of the Bynum trade was huge--4 WS from AI, 5 WS from Vuke, and 2 WS from Harkless---10-11 wins lost from the Sixers total--versus 1.5 WS from Jason Richardson, who's done for the year, and none from Andrew Bynum, who looks like he's never going to play a single game for the Sixers.  

 Right now, this nets out to minus 9.5 WS for the Sixers, just on this trade for this year, not counting the future lost WS from Vuke and Harkless, who will be good for years to come.  It still means the Sixers are down 9.5 wins just on this trade alone.

 Now Bynum could still salvage some of this.  Bynum in 2007-08, in just 35 games, accumulated nearly 5 WS for the Lakers at a pace of .230 WS/48M, although his career numbers suggest a more likely scenario of @ 3 WS in 30 G and @ .175 WS/48M.  That would somewhat mitigate the Sixers' losses on the trade, but it would still net out to minus 6.5 WS on the season.

 The Future

 If you are the Sixers' Management, there is no way you sign Andrew Bynum to a long term deal.  He is a free agent at the end of this year.  Let Bynum walk.  He's frequently injured, and unlike guys like Elton Brand, who played hurt a lot the past few years, Bynum seems to have the attitude that if he's got a hangnail, he's not playing.  Guys like him, no team needs.  The salary cap room would be better spent on warriors with less talent and more willingness to give of themselves for the team.  

 Other Off Season Mistakes

 The Sixers WS leaders last year were Andre Iguodala, Thad Young, Elton Brand, Lou Williams and Jrue Holiday.  AI we already discussed.  Thad Young and Jrue Holiday are still here.  However, Elton Brand was let go as a free agent as was Lou Williams.  Were these wise decisions?

 Elton Brand is with Dallas.  While not playing the way he did last year, Elton Brand has accumulated 2.1 WS in 46G at a clip of .101 WS/48M.  He's on pace to get 2.5 WS for the year, and that's playing pretty much part time.  His WS rate per 48M is very good.  He could definitely have helped the Sixers this year, both on defense and rebounding, and also scoring in the low post.  

 Lou Williams signed as a free agent with the Atlanta Hawks for @ the same $5 million a year he was getting with the Sixers.  Lou Williams was a 2 guard who scored a ton of points last year coming off the bench as well as starting.  For Atlanta, in just 39 G before getting hurt, tearing his ACL and being done for the year, Lou accumulated 2.5 WS at a clip of .109 WS/48M.  Had he not been hurt, he was on pace to get 5 or more WS this year. Lou had 6.1 WS for last years' Sixers team, and it's not obvious that anyone on the Sixers has stepped up as a #2 guard with anywhere near the talent of Lou Williams, nor can anyone safely say that anyone as talented as Lou Williams would have cost but $5 million a year.  

 So was letting Elton Brand and Lou Williams go a mistake?  Between them, 5.0 WS for the year, and even with Lou Williams getting hurt, Lou would have given the Sixers a lot of scoring in the first 39 G as well as 2.5 WS.  Those are wins as well as scoring.  

 The Bigger Picture

 Last years Sixers scored 103.9 ppg, 20th of 30 in the NBA, but only allowed 99.2 ppg, 3d best in the NBA.  They were one of the very best defensive teams in the NBA.  They played shutdown defense, largely due to players like AI, Elton Brand, et al.  Even Vuke had a WS last year, and Lou Williams had 2.2 defensive WS of his 6.1 total, so Sweet Lou could play D.  

 This year, the Sixers are scoring 92.3 ppg, 29th of 30th in the NBA.  Defensively, they are allowing 95.5 ppg, 7th of 30 in the NBA.  So defensively, they are worse than last year, and offensively, they have totally cratered.  Only the awful Washington Wizards score fewer points at 91.4 ppg than the Sixers.  

 Last season, the Sixers had the fifth best SRS in the NBA, and had an expected record of 43-23, even though their actual record was 35-31, so they performed 8 games below what their stats would have predicted.  

 This season, the Sixers have an SRS which is 24th of 30th in the NBA, near the bottom of the league, and their expected won loss record is 19-31, which is actually worse than their actual record of 22-28, so their stats suggest that the Sixers are WORSE than their actual record.  

 Doug Collins is a terrific coach, but even he can't overcome the horrible mistakes of management this past offseason in the Andrew Bynum trade, and in letting Elton Brand and Lou Williams walk as free agents.  Total, these moves cost the Sixers at least 15 WS, or @ 15 total wins on the season, and they have recouped next to nothing for them.  

 Some Past Bad Moves by the Sixers

 The Sixers have in the past let some young players go that would have been helpful to them now.  These include John Salmons, a 6'7" guard who can also play forward, who has put up huge offensive numbers as well as playing fine defense, from 2006-present, and put up a lot of WSs per season.  Kyle Korver, a very tall shooting guard/forward and 3 point shooting specialist, who since 2007-08 has plyed his trade with other teams, peaking at 5.1, 5.3 and 4.3 WS the past three seasons, marked by pinpoint three point accuracy, stellar defense, and excellent hoops skils, not to mention his Ashton Kutcher lookalike face.  Andre Miller, who the Sixers obtained in trade for Iverson, was allowed to leave as a free agent after 2008, and all Miller did was register consecutive 7.0 WS seasons while playing 82 games for the Portland Trailblazers, and then returning to Denver, where even in a diminished role, he's put up 2.9 WS seasons in 82 and 59 G.  Andre Miller is one of the best point guards in the game, and he never misses games.  Why was he let go?  This is a mystery to anyone.  Finally, Sammy D'Alembert, who played 82 G in a seasons for four consecutive years for the Sixers, was traded for Spencer Hawes a couple of years back--but D'Alembert is still putting up pretty good defensive numbers and WS numbers, and can still play all the games.  Hawes is good, but he has injury issues and one can question this move as well.  

 CONCLUSION

 Obviously the Sixers could not carry all of these players on their roster at once, nor could they pay them all, given the salary cap.  Nonetheless, Kyle Korver and his three point skills and defense could have been used the past few years.  John Salmons' defense, scoring and rebounding is not much different than Evan Turner, except Salmons is better at scoring.  Andre Miller, even at age 37, is still among the best point guards around.  It was premature to cut him loose.  Elton Brand and Lou Williams still had plenty of hoops left in them.  Andre Iguodala was far from done.  If all of these players had been kept--the Sixers would be a far better team, defensively and offensively, than they are now.  

 Finally, the trading away of young talent like Harkless and Vukevic--tall big men who were YOUNG for an old big man like Bynum, who has a history of injury and questionable desire to win or play hard--well, this has to be questioned.  If the Sixers are rebuilding, they should go young.  If they are going with veterans, why are they releasing and trading away established stars like Brand, AI and Lou Williams?  When you look at the totality of it all, the strategy makes no sense and could have been predicted to fail.

 At the end of the day, you can't win in this league with small guards.  The Iverson experiment proved this.  Guys like Korver and Salmons, with their size, can guard as well as score.  They can also swing to forward and help create mismatches.  Evan Turner is the closest the Sixers have to such players, and yet the rumors flying out of the Sixers is that they now want to trade Turner, even though he is the Sixer with the greatest upside.   

 The Sixers need to stop thinking about superstars, and start thinking in terms of win shares and winning as a team.  It's enough to have a good team and make the playoffs.  Stars can develop within a team concept, and it's getting awfully tiring to watch ex-Sixers like Salmons, Vukevic, Korver, Miller et al. blossom into stardom with other teams while the Sixers continue to struggle.  Doug Collins is a terrific coach, but Sixers ownership and management needs to start thinking in terms of the statistics of winning and not in terms of star power or who draws fans.  

 Art Kyriazis, Philly

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Monday, February 4, 2013

Ravens Win the Super Bowl: Win Today and We Will Walk Together Forever

Ravens Win the Super Bowl:  Win Today and We Will Walk Together Forever

Normally, this is where you would "crow" about predicting that the Ravens would win the Super Bowl--something we did the day after the AFC and NFC championship games.  Two weeks ago.  On this blog.  We predicted, prognosticated and told you they would win.  

Except maybe "rave" or "raven" about it would be a better word.  

CROW v RAVEN.  We can "Crow" about our "Ravens" pick now.


Giving us a 9-2 record overall, and a weighted record that was unbelievable throughout the playoffs, as we predicted both the NFC and AFC championship games as well as the the Super Bowl, correctly.  We only made two mistakes along the way.  

The Ravens were huge underdogs and no one would pick them.  Nearly everyone picked the Niners, and the line in Vegas was hugely to the Niners' favor.  

The actual game was pretty interesting.  Baltimore got off to a big lead.  Then for some reason the power went out in the SuperDome.  

This reminded us of the time the power went out on the Ford-Carter Presidential Debate in 1976 in Philadelphia, although to be honest, that debate was so boring, many people were relieved the power had gone out.

Engineer JACK LEMMON warned them this could happen--the CHINA SYNDROME could result in a  COMPLETE LOSS OF POWER DURING THE SUPER BOWL not to mention a nuclear catastrophe.  


The power outage was definitely a help to the 49ers, who up until that point had been exhausted by the physicality, intimidation and brutality of the Ravens' defense.  Colin Kaepernick, who appears to be a lineal descendant of Copernicus (their names seem to be the same) (ok, he's adopted, but it's working for us) had, up until the break, performed exactly as we predicted a neophyte QB might perform in a Super Bowl--wretchedly and miserably.  

COLIN KAEPERNICK.  Unlike his namesame Kopernikus, Kaepernick likely believes the Solar System, and indeed, the entire Universe, revolves around the Super Bowl.  Gravity is held in force by a number of Super Balls with a coefficient of elasticity of .92 which bounce around between planets holding them close to the Super Bowl.  The theory is explained in detail in his tattoos but can be summarized as Super Bowl = Super Ball x mc (squared).


The power outage and interruption of the game for thirty minutes--a longer break than the halftime--and wasn't Beyonce really good--along with Destiny's Child?  really gave the 49ers a chance to catch their breath, their wind and their second wind.

BEYONCE DELIVERED AN AMAZING HALFTIME SHOW.  SHE DOES NOT APPEAR TO EVER SUFFER FROM AN ENERGY SHORTAGE.  SHE ALSO REUNIFIED WITH DESTINY'S CHILD.  NOT ONLY BOOTYLICIOUS, BUT SINGLE LADIES, PUT A RING ON IT.  BE A MAN ABOUT IT.  PUT A RING ON HER IF YOU'RE SERIOUS.  And seriously, never, ever, bring back the Black Eyed Peas ever again.  Please.


The result was a furious comeback by a now rested 49ers team that very nearly stole Ray Lewis and Joe Flacco their glorious moment of triumph.  The Niners stormed to several scores, and would have taken over the game but for several key stops by the Ravens' stellar defense, including stopping the Niners for a FG on one drive and stopping them at the last in a goal line stand with the game on the line, four downs and out with first and goal at the five yard line, a goal line stand that will live in Super Bowl (and Ray Lewis) glory.  

NIKOLAUS KOPERNIKUS, FAMED ASTRONOMER.  He theorized the solar system revolved around the sun and therefore reaffirmed the heliocentric theories of Aristarachos of Samos of antiquity, which had been rejected by Ptolemy in favor of a system in which everything revolved around the Earth.  Ptolemy was Church-approved doctrine.


At 34-31, it was a glorious and magnificent game, and very similar to the glorious Pittsburgh-Dallas Super Bowl XIII played at the Orange Bowl in Miami in 1979, where Terry Bradshaw and the Steelers edged Dallas and Roger Staubach in the game, 35-31.  

SUPER BOWL XIII 1979 THE STEELERS BEAT THE COWBOYS 35-31 IN A GAME REMARKABLY SIMILAR TO THE ONE JUST PLAYED BETWEEN BALTIMORE AND SAN FRANCISCO.  THE STEEL CURTAIN OF PITTSBURGH AND THE AMAZING DEFENSE OF BALTIMORE AND RAY LEWIS HAVE WON SIX SUPER BOWLS BETWEEN THEM.  THEY ALSO SAID TERRY BRADSHAW COULDN'T PLAY QB.  LIKE JOE FLACCO, ALL HE DID WAS WIN, BABY.


The HOFers who played or coached in that Super Bowl?  How about SEVENTEEN!    Start with coaches Tom Landry for the 'Boyz and Chuck Noll for the Steel Curtain.  For the Cowboys, Roger Staubach QB, Tony Dorsett RB, Jackie Smith TE, Randy White Defense, Rayfield Wright.  On the Pittsburgh side of the ledger, Terry Bradshaw, Mean Joe Greene, Franco Harris, Jack Ham, Jack Lambert, John Stallworth, Lynn Swann, Mike Webster and Mel Blount.  

It may well be that one day both Jim and John Harbaugh will be in the HOF, and we already know Ray Lewis has a chair waiting for him in Canton, OH.  Frank Gore, yes.  Several other Niners have shots.  Andre Reed and Ray Rice may get their turn, and several others in the Baltimore Defense.  

A special shout out to Michael Oher, whose life story inspired "The Blind Side".  He was on the Ravens, and now from Ole Miss to the Super Bowl.  Could a sequel be in the works?  Please make a sequel.

MICHAEL OHER, the actual player who inspired THE BLIND SIDE, plays for the  Baltimore Ravens and has won a Super Bowl championship.  If you're going to have a movie mom from Ole Miss, it surely should be Sandra Bullock.


Joe Flacco, you are the pride of Little Audubon NJ, and the pride of the University of Delaware Blue Hens, whose football coach Tubby Raymond was one of the greatest.  You made us all proud. In the great tradition of Rich Gannon, you showed America that QBs from small schools can compete on the NFL's biggest stage with the QBs from big schools and big conferences, and that heart is as important as money and talent.  He's just average Joe, from Delaware and Jersey, like our own VP, Joe Biden, of Delaware and Scranton.  You have to like them.

UNIVERSITY OF DELAWARE FIGHTING BLUE HENS


Bernard Pierce of Temple, of the Ravens, who was a key element of the Ravens' success as a rookie.  We saw him rush for like 250 yards in a Temple game a couple of years back, and he was the entire Temple offense.  Temple was going 8-3, 7-4 and making bowl games with Pierce.  That's how good he was--he dragged a very average program into the stratosphere.  They beat Buffalo in the game we saw at the Linc something like 45-0 and Pierce just ran wild all the day long.  We're not suprised to see Bernard Pierce succeed in the NFL.  He's like Brian Westbrook, only better.  Kudoes to Bernard Pierce.  

BERNARD PIERCE OF TEMPLE RUSHES FOR AMAZING AMOUNTS OF YARDS WHILE PLAYING FOR TEMPLE FOOTBALL.  HE PLAYED A KEY ROLE FOR THE BALTIMORE RAVENS AND NOW HAS A RING.


Finally, here's to the Harbaugh brothers.  Jim and John, you honored us all.  Someone had to lose, but in victory and in defeat, both of you were honorable and exemplary, and most of all, you brought honor to your family of a kind that was unbelievable.

FRED SHERO, LEGENDARY PHILADELPHIA FLYERS COACH.  "IF YOU HAVE BACON AND EGGS FOR BREAKFAST, THE CHICKEN IS MAKING A CONTRIBUTION, BUT THE PIG IS MAKING A COMMITMENT"  VOTED THE GREATEST COACH IN PHILADELPHIA SPORTS HISTORY BY THE PHILLY DAILY NEWS 1999.
  


Ray Lewis, we give you the words the late Fred Shero, aka Freddie "the Fog" Shero, legendary coach of the Stanley Cup Champion Philadelphia Flyers, wrote on the chalkboard before the Flyers went out and beat the Boston Bruins as huge underdogs in Game Six of the Stanley Cup Finals in 1974.

WIN TODAY AND WE WILL WALK TOGETHER FOREVER.

Ray Lewis and the Ravens--CHAMPIONS.

Art Kyriazis, Philly.
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