Ward Connerly Deserves to be Paid More Because he's Black

According to this New York Times article, Ward Connerly is in financing trouble and is being accused of financial mismanagement.  His chief accuser is Jennifer Gratz, the lead plaintiff in the University of Michigan anti-affirmative action case.  One of the alleged financial irregularities is Mr. Connerly's pay, which by one calculation is about six times more than some others in similar positions.   Roger Clegg appears to justify the discrepancy in pay on the grounds that Mr. Connerly, as the black face and leader of an anti-affirmative action movement is singularly invaluable.  This is the key excerpt from the piece on this score:

One reason Mr. Connerly has been a particularly effective advocate is that he is black. Mr. Clegg said there were “few people who can do or would do what he does,” adding that it is hard to set a salary on a job that requires enduring racially charged name-calling from fellow blacks.

I'm confused.  I thought these folks were supposed to be colorblind? 

Mitt Romney and Path Dependent Processes

Mitt Romney often justifies his moderate record as governor of Massachusetts (and subsequent leap to the right) as a deviation since he was the governor of a democratic state with a legislature that was, at the time, 85% democratic.  In the primaries, he has been criticized extensively for “flipflopping, or changing positions on issues such as abortion and health care and not being “a true conservative.”  But I wonder the extent to which the other candidates for the Republican nomination and the press are discounting the effect of path dependence on Romney’s alleged “shift” to the right in reviewing his record as governor. 

The fact that Romney became governor of a state that is historically democratic in almost every respect except the governorship limits his ability to govern to the right.  This is reflective of a state that has been a Democratic stronghold for years, but has voters who are willing to vote for moderate Republicans for at least some state offices.  Path dependence is relevant here because the investment in the rules, process and norms by Romney’s predecessors and prior legislatures into Massachusetts government over the past 250+ years make deviations by modern day officials very costly.  Even if we just consider the past century, Democrats have invested more into this governing framework than Republicans just by virtue of the fact that Democrats have won more elections.  While the governorship oscillates between Democrats and Republicans, the Democrats have (and have had) a supermajority in both Houses, meaning that legislation can be passed over the governor’s veto if the governor is a Republican.  Because of path dependent effects (and an overwhelmingly Democratic culture), there is a strong status quo bias that makes it difficult, if not impossible, for Republicans like Romney to shift the Massachusetts government to the right.  At best, all Romney could have done (if he wanted to get anything done) is govern in the middle.

Now you may argue that this has little to do with Romney being for abortion, on one hand, and then against it, on another.  Or passing universal health care in Massachusetts and then threatening to defund a similar program on the federal level.  Maybe it does not, but I think that it is worth recognizing that, in assessing Mitt’s policy positions, he was a red governor in a blue state and this fact did affect his ability to govern to the right.  At the end of the day, you may still conclude that he is a "flipflopper," but standing up for “core conservative principles” does not mean much if nothing gets done.  Governance requires compromise.

What’s so hard about televising oral arguments?

The question whether the cameras should be allowed in the Supreme Court is heating up. Most recently, CSPAN asked the justices to allow it to televise the oral argument over the health care law. It is unlikely that the justices will grant the request. In a recent sidebar, Adam Liptak argues that these refusals are based on “paternalism and self-interest.” Tony Mauro similarly argues that the Court's refusal to allow cameras in its courtroom "is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court's view of itself as a unique institution that can and should resist the demands of the information age."

Nancy Marder disagrees and argues instead that the justices have struck the right balance between the openness that the justices have chosen for themselves and their work and the obscurity in which their work must take place.

Liptak and Mauro take this one, and it’s not even close.

The Republicans turn to their favorite punching bag once again: the courts

It appears, if the editorial page of the New York Times is to be believed, that Newt Gingrich is at it again. I figured as much. His apparent conversion to moderate politics – I have in mind here his recent position on illegal immigration – was too good to be true. In his defense, running for the Republican nomination is not easy. Lots of crazies out there. Ask Romney. 

Here is the latest. According to Gingrich, Congress and the President must begin to push back on the Court, Cooper v. Aaron and judicial supremacy be damned. Among the tools at the politico’s disposal are the power to strip jurisdiction; impeachment; and the right to abolish specific judicial seats. The affected institutions could also ignore rulings they don’t like. 

The Times’ editors find this approach distasteful. As a general matter, they argue that Gingrich’s attack on the courts takes “the normal attack on the justice system to a new low.” They equate his criticism to “McCarthyist tactics” designed to “smear judges.” Gingrich’s view that the political branches must stand up to the court is described as “twisted.” They close with the following: “His ideas would replace the rule of law with a reign of ideology. If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches.” 

I have three reactions, and a better response to Mr. Gingrich. 

The Republican party on Illegal Immigration: where has its heart gone?

The Republican obsession with illegal immigration continues.  The latest salvo came last night, as GOP presidential candidates debated national security.  It came from Newt Gingrich, an unlikely source who, according to recent polls, has recently taken the lead in the GOP race.  Here is what he said:

"If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."

 This is a perfectly reasonable, sensible -- dare one say it, humane -- response.  But we know that such an approach has already derailed the candidacy of Governor Perry, who led the field at one point yet now sits at 6% according to Quinnipiac's latest poll.  

The question everybody is asking this morning is whether this stance will cost Gingrich in the race.  History suggests that it will.  I have a slightly different question.   What must happen within a political culture for a person who has lived in a place for 25 years, with three children and two grandchildren, who pays taxes and obeys the law, goes to church to be removed from his family, uprooted, and forcefully kicked out?  How is such a consideration even on the table?

Rick Perry got it right the first time: such a culture has "no heart."  The question we must ask ourselves is how such a thing happened in the first place.

The health care litigation comes to the Court . . . whether the Court wants it or not . . .

Last week, the Supreme Court announced its decision to grant certiorari on the various challenges to the health care law. Since then, the coverage has been relentless, and promises to continue (these include calls for recusal and televising of the oral argument, as well as the usual substantive legal commentary on the law itself and what the justices must do -- according to Randy Barnett, for example, “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law.”)

The basic legal argument is as follows, courtesy of Jamal Greene:

The administration has made a Necessary and Proper Clause argument in the Obamacare litigation, but commentators have been too fixated on vegetables to focus on it. The goal of the health insurance mandate is to prevent insurance companies from discriminating against people because of pre-existing health conditions. 

No one in these cases disputes that Congress has the power, again based on its authority over interstate commerce, to forbid this kind of discrimination. But doing no more than making it illegal for insurers to discriminate would not be effective, because making insurers cover high-risk individuals would require them to raise premiums so much that no one could afford to buy insurance. 

Congress could have responded to this challenge by raising everyone’s taxes and using the revenue to provide single-payer government health insurance. Instead, it chose to require that Americans purchase health insurance but gave them the freedom to choose their own private plans. Doing so expands the pool of insured people enough to enable insurance companies to cover high-risk individuals without breaking the bank. 

Anyone can argue that the individual mandate is a bad idea, but no one can argue that it isn’t rationally related, indeed intimately related, to Congress’s legitimate objectives.

Persuasive as this argument appears to be, I just don't think the case hinges on whether the justices will find it similarly persuasive.  This is not really a case about law, the limit-setting function of the justices and the rote application of precedent. This is not a case, in other words, about the power of Congress to force people to eat broccoli.  

Does anybody really believe that the justices will decide this case in accordance to their best reading of the commerce clause power? Or else, that established precedent offers clear answers to the questions presented?

In other words, does anybody truly believe that the Court is about to just call "balls and strikes" and do little else?

Legal Education hits the big time, Again . . . and its connection to the affirmative action debate

I am starting to wonder about the New York Times' fascination with legal education.  Today's edition, right smack in the center of the first page, finds an article about "law schools that teach little about legal practice."  The punch line?  Law schools teach little about legal practice.

This is a great debate, even a debate worth having.  But to me, the most interesting aspect of the Times' fascination is in how it reflects on the larger debate over affirmative action.  Here is why.  The argument, stated simply, is that justice demands that colleges, including law schools, must only look at grades and test scores when making admissions decisions, and only those students with the highest scores deserve admission to elite institutions.  When pushed, critics concede that institutions may consider other factors.  But the one factor that schools may not consider is race.  As soon as you find one student of color who got in with lesser metrics than a white student, a constitutional violation is born.  The argument is really that basic, and cares little for what happens next, or for what the purposes of higher education may be, or even what the particular profession at issue demands.

This is not only short-sighted, but if pressed, one might even choose to call it racist.

Start with the law in question.  The colorblind argument should strike anyone familiar with the history of the 14th Amendment as odd and misplaced.    It is particularly embarrassing for originalist justices to take a colorblind view of equal protection.  One need not be a historian to know that the Reconstruction Congress intended no such thing.  Consistency is indeed a virtue.

The beginning argument -- on the original meaning of the 14th Amendment -- is dead wrong, and the conservatives don't even try to pretend otherwise.  They simply ignore it.  And so all that remains is a debate over the wisdom of the use of race in public life.  To be sure, this is a debate worth having, but we should not for one moment pretend that this is a debate about law.  It is not.  It is a debate about Justice Kennedy's vision of a good society, and the best way to get there.  

Here is where the Times' story comes in.  It is one thing to argue that law schools may not consider race because the law demands it.  Once this argument goes away, all we have left is an argument that law schools may not consider race because it is bad for the legal profession, that is, because in so doing law graduates will not be properly prepared to handle the rigors of the profession.

But then, note what the real problem is, according to the Times: 

“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”

Here is what a recent graduate of the George Washington University School of Law, had to say: “What they taught us at law school is how to graduate from law school.”

Put all the pieces together and tell me what you see.  Law schools may not use race in admissions not because the law demands it, or because it produces better lawyers, but because . . . why exactly?

I would like to think that racism has nothing to do with it.  But sometimes, I can't help but wonder . . .