Wednesday, December 30, 2009

Affirmative Action for [almost] All

In case you needed any proof, a recent report by the Associated Press concluded that athletes applying to college "enjoy strikingly better odds of having admission requirements bent on their behalf." While this is not terribly surprising in and of itself, what is surprising is how widespread the practice is. According to the report, colleges in every major conference bend their admission standards on behalf of applicants with athletic aspirations.


Thus, to be clear about one thing: the debate over affirmative action and higher education is about the meaning of merit, often defined narrowly by test scores and gpa. By my rough count, many exceptions exist: residency, geography, and legacy, among others. To this list we may add "athletic proficiency." The reasons for admitting athletes as "special admissions," according to Gerald Gurney, incoming president of the National Association of Academic Advisers for Athletics and senior associate athletic director for academics and student life at the University of Oklahoma, is because the practice "does add value to a university."

How is this for value: at the University of Texas, the average SAT score for freshman football players between 2003 and 2005 was a full 320 points lower all other typical admits to the university. They also happen to sit atop the Forbes list of college football's most valuable teams, at $119 million.

Go 'Horns!

Tell it to the state of Alabama, of course, as they get ready to battle Texas for football supremacy. There is no better value than cold, hard cash, I suppose, and Alabama comes in fifth on the Forbes list, at $92 million.

Try to make sense of this tangled web. A university can consider anything under the sun and nobody cares or objects. In some places, they even demand it. But once a university decides to diversify its student class, lawsuits ensue and propositions spring up in state after state.

Where are Ward Connerly and Barbara Grutter when you need them? Isn't merit the name of the game, and unfairness to none?



Don't hold your breath.

The Courts to the Rescue?

Anybody else find it amusing (ironic?) how conservatives are quick to castigate courts for their activist ways, yet just as quick to enlist these very courts when it suits their purposes? In case any further proof was needed, here is yet another example, and a surprising one at that: the health care bill.

According to the Florida's attorney general, William McCollum, the personal mandate to buy health insurance in the bill is “an affront to our country’s principles.” As for the fine for those who refuse to buy insurance, he deems it illegal, because it is not connected to any commercial act.

The a Republican who is running for governor in 2010, said that the so-called mandate was He added that the fine might be illegal because, in his view, it is disconnected from a commercial act. In his view, it is “a tax on people or a penalty on those who don’t do anything.”

The Heritage Foundation similarly wishes the courts to save us from ourselves. According to a recent memorandum, the mandate is "unprecedented and unconstitutional," beyond the powers of Congress under the Commerce Clause as well as an unconstitutional tax under Article I, section 8.

It would be easy to engage this debate on the merits, and many already have. But the larger point is far more important. The debate over judicial activism and restraint is often portrayed as a debate between liberals and conservatives over the soul of American democracy. Reality is far from that. We are all activists now, and the only question for the future is whose policy views will the courts accept.

That these debates are carried on in major media outlets and the hypocrisy of the conservative position is not highlighted by anybody is, in and of itself, a triumph of the conservative movement.

Tuesday, December 29, 2009

African Americans Still Support Obama but Less Enthusiastically

Apropos this post, CNN has a new poll showing that 9 out of 10 Blacks support the President.  But they are less enthusiastic supporters than they were a year ago.

Monday, December 21, 2009

Will Black and Brown Voters Turnout in Large Numbers 2010 and 2012?

The President is hearing from increasingly vocal black and brown political elites.  Black leaders, especially Congressional Black Caucus leaders, are unhappy with that economic public policy initiatives have not contained special provisions for the black community.  Latino leaders are unhappy with the President for his lack of initiative on immigration reform.  The President provides a response of sorts here as reported Politico.    His basic response, which incidentally is the correct political response, is that he is President of the United States and not president of black or brown America.  The real question is whether the grumbling of black and brown elites will make its way down to the black electorate.

Sunday, December 20, 2009

Can Anybody Make a Movie for Women of Color?

One hears often the criticism that people of color make too much of a deal about race. Sometimes that criticism has merit and sometimes it does not. I was attracted to this NY Times Magazine article by Daphne Merkin featuring Nancy Meyers, the writer-director-producer. Ms. Meyers directs, among other duties, the forthcoming movie "It's Complicated." The article is about Ms. Meyers' successful career in making movies for women and featuring women in lead roles. Notwithstanding the tile of the story--Can Anybody Make a Movie for Women--I was not surprised that Ms. Meyers makes movies really about and for white women. And I was not bothered by that fact in anyway.  In fact that's what interested me in the story; I wanted to know how she did it. But I was surprised and slightly annoyed by how Ms. Merkin deals with this issue--that Ms. Meyers is capable of telling the stories of and relating to only white women in the moviemaking.

Thursday, December 10, 2009

Obama's poll numbers: one reason to worry about 2012

There is no question that President Obama's poll numbers have taken a slide, and the latest confirmation of this downward trend comes from this Politico article referencing the latest poll from Public Policy Polling, which pegged the president's job approval at 47%. Are there reasons to worry about 2012? I'm worried.
My general feeling is that the President will be fine in 2012 and maybe more than fine if the economy rebounds. If the unemployment rate goes down significantly over the next couple of years, easy reelection. This would be consistent with past historical practice and fits the standard theory.
But the question is whether the standard theory fits in this case. The President's poll numbers have fallen quite steeply and one might argue too steeply to be a reflection of his job performance. An increasingly large proportion of the electorate seems to be issuing an early and final verdict on Obama. That is, they are already starting to write him off. When you look at the polls you see that conservatives abandoned the President very early in his presidency and they are not coming back. In fact, they are completely energized by the Obama presidency. To some extent this was to be expected (it is reminiscent of the way liberals felt about GWB--they never liked him from day one, that never changed, and Bush became fuel for liberals.) But then moderates and independents have started wavering. And of course the news of late has been the criticism that the President has received from liberals. All of this and the President is less than a year into office.
The question is whether the movement of the independents away from Obama is caused by external political events (healthcare reform, TARP, two wars: Iraqistan, a 10% unemployment rate, etc.) or is caused by a general distrust of Obama himself. A distrust that did not manifest itself during the election simply because it looks like the country was falling over a precipice but is mushrooming as things appear to be stabilizing. If the latter, i'm worried because even if the economy improves, iraqistan stabilizes, and healthcare reform gets passed Obama will not get the deserved credit.

Tuesday, December 8, 2009

Roll Tide!!

How is this for academic priorities? The University of Alabama announced that it would cancel three days of classes, from January 6 to the 8th, so that students and faculty wishing to attend the Rose Bowl could do so. Not to worry, of course, as "[s]tudents should expect additional assignments to make up for the lost class time."

This is from the same university that pays its football coach, Nick Saban, 4 million dollars a year, which is seven times what its president makes.

And to think that some people still refer to the football players as "student-athletes." "Commodities" might be a much more appropriate moniker.

At least the University of Alabama does not pretend to be anything it is not.

Pasadena better be ready as the Tide rolls!!!

Monday, December 7, 2009

More on White Athletes and Race

From the NY Times comes this article about a white high school player who wants a future in basketball. And from Espn comes this report on the dearth of white american players in the NBA. Both articles implicitly present a tension that is not made fully explicit: can you be both white and a skilled basketball player. Luis or I should have more to say about these issues, later. But for now, just the links.

Friday, December 4, 2009

Did Charlie Weis get fired because he's white?

My good friend Jim Chen and I had a running argument as to whether it would better for racial equality if whites were treated like people of color (Jim's position) or people of color were treated like white people (my position). In the case of Notre Dame's firing of Charlie Weis, it appears that Jim's view of racial equality prevailed.

I'm sure Weis was fired for a number of reasons, but it would be surprising if one of Notre Dame's justifications for firing Weis is that it did not feel that it could keep Weis after it fired Willingham under similar circumstances.  Afterall, Willingham had a better winning percentage than Weis, the man who replaced him. Though I believe that Willingham got a raw deal from Notre Dame, I still wished that Notre Dame had not fired Charlie Weis.
Prior to the firing of Willingham, Notre Dame had a reputation as an institution that ran its athletic program differently, with integrity and with long-term considerations in ming. When Notre Dame fired Willingham without allowing him to complete his initial contract, the school was roundly criticized for ditching its principles in favor of short-term gain. With the firing of Weis, who unlike Willingham, was given a five years to prove what he could accomplish, Notre Dame confirms that it is not much different than other athletic institutions.

When Jim and I were arguing about the best way to accomplish racial equality, my worry was that defining equality downward (treating whites the way blacks and other people of color are treated) will make our society overall worse off. Jim's point of course was the sensible one that once whites experienced "colored" equality, they'll change their ways.

I think Notre Dame would have been better off to have said: hey we screwed up with Willingham and we're sorry for that. But the best way to make-up for it is to return to our principles. What makes the least amount of sense to me is to treat Weis badly because Willingham was treated badly. So, appropos Luis' recent post on Toby Gerhart, was Charlie Weis fired because he is white?

Thursday, December 3, 2009

Race, College Football, and the Curious Case of Toby Gerhart

Guy wants to know "[w]hy are the faces at the bottom of the well always the same ones?" For an answer, look to the race for the Heisman Trophy this year, and in particular the candidacy of Stanford running back Toby Gerhart. In case you don't know, this would be Stanford's white running back. According to Phil Taylor of Sports Illustrated, his chances of winning aren't very good, apparently because of the fact that he is white, not in spite of it.

This is a remarkable story not only about the world of college football but, far more importantly, for what it tells us about the world of hiring and debates about the need for diversity.

Put simply, white players are not supposed to be running backs, the same way that black players were not supposed to be quarterbacks not that long ago. In 2003, for example, a white running back for the Chicago bears played one game in place of the injured black starter. The white running back, Brock Forsey, had a spectacular game. By the next game, however, the starter was back from the injury list, and Forsey never saw the field again. He carried the ball three more times during his brief and undistinguished NFL career. To this day, he cannot explain what happened. "No one ever said anything about race. But there may be some preconceived notions out there. A white guy from Idaho isn't what you have in mind when you envision an NFL running back."

This story in mind, think about the history of the Heisman Trophy, awarded every year to "the outstanding college football player whose performance best exhibits the pursuit of excellence with integrity." What exactly the standard to win the award is, and who deserves to win any given year, is anybody's guess. But we know this: from the inception of the award in 1935, twenty-seven black players have won it, the first one coming in 1961. From these twenty-seven, twenty have been running backs. Yet prior to 1961, of the twenty-six players who won the award, eighteen were white halfbacks (i.e., running backs). We know exactly what happened post-1961: college football coaches opened their doors to black student athletes. Racism made all the difference in the world. This was a revolution in the truest sense of the term. Black players only needed a chance to show what they can do.

So the question is, can Toby Gerhart, white running back from Stanford University, win the award this year? If historical trends hold, the answer appears to be no. In this vein, here is a question from a nationally syndicated radio personality: "But lets be honest here, Toby. White tailback. How many . . . coaches are looking at you saying, 'I don't think you can play that position for me, but I think you're a football player.'"

Now take that question and apply it to the world of universities, and law schools in particular. The numbers are still pretty skewed, and some law schools are yet to hire their first professor of color in years, if not ever. Dirty-dozen lists abound. I cannot help but wonder: how often do we go through the hiring process and say to ourselves exactly what people are telling Toby Gerhart, or what Brock Forsey thinks happened to him? In other words, how often do we look at a candidate of color and envision a law professor? And for those who get hired, how often is the road to tenure filled with barriers not faced by everybody else? How often do we say the same thing in reference to law clerkships, law review editorships or, as we saw during the confirmation hearings of Justice Sotomayor, for appointment to the Supreme Court?

I don't think racism alone explains why Toby Gerhart is unlikely to win the Heisman trophy, nor does it explain the dearth of professors of color at our law schools, or "why the faces at the bottom of the well [are] always the same ones." But surely, to suggest that we live in a post-racial America, an America where we are ultimately judged by the content of our character, is nothing more than a canard, and a cruel and dangerous one at that.

Tuesday, December 1, 2009

Race, class, and the recession

Apropos this post from Luis on our alma matter, the Michigan Law School, comes stories here from MSNBC and here from the NY Times about how the economic downturn is affecting black employment. Both articles are worrisome because they tell the same stories for different classes of black people

The MSNBC story focuses on the black lower to middle class and narrates how the recession is having a disproportionately negative impact on those classes. The NY Times story focuses mainly on the black middle to upper class. These are highly educated black people, specifically black men, and they can't find jobs. The MSNBC story seems to be more about the intersection of both race and class. The NY Times story is more about race. Why are the faces at the bottom of the well always the same ones?

Wednesday, November 25, 2009

Race and Michigan Law

A week or so ago, I received the most recent copy of the Michigan Law Quadrangle, the one with a picture of Chief Justice Roberts on the cover. The picture alone intrigued me enough to open it up and page through it, rather than recycle it off-hand as I usually do. And what I found inside almost shocked me. Almost.

I started from the back of the magazine, in the great tradition of Harry Burns. This is the portion entitled "Faculty news." I paged through it quickly, and my eye caught something that almost surprised me: of the 26 pictures included, 6 were women, and only one was a professor of color. This is exactly the way I remember the place: a lot of white guys walking around the halls up in the faculty wing, a few women, barely any professors of color.

I kept looking, and next they showed me pictures of the new faculty; and out of 9 new hires, three were women and not one was a person of color.

This really made me curious, and I almost went to the website and looked around a bit. I was also inclined to page through the entire magazine and see how many faces of color were included. But alas, I have real things to do with my time.

Honestly, though: how do they do it? Students at the time I was there would talk about it and laugh amongst ourselves about how few women and professors of color there were. We still do. From where I sit today, I hear the same talk coming from other academics about Michigan law and their hiring practices. I don't claim to be a statistics super hero, but surely, doesn't a blind man hit a free throw every now and then? How does Michigan law, the birthplace of the Michigan cases (if that irony doesn't tickle your funny bone, you are way more hardened than I) manage to have as few faculty of color as they do?

This debate often boils down to the issue of merit. The argument is disarmingly simple: those who call Michigan law home got there on the strength of great academic credentials, of "merit" as defined by the institution itself and the legal profession as a whole.

It amazes me that anybody who has ever sat on an appointments committee would be moved by that argument. But that might be a topic for another time. For now, I can only say that the more things change . . .

But really: HOW do they do it?

Thursday, November 19, 2009

Terrorists detainees in civilian courts

Attorney General Eric Holder has received a lot of criticism from the right for his decision to try some terrorist suspects in civil courts. He has also received criticism from the left for his decision not to try all of the detainees in article III civilian courts. On doctrinal grounds, I am deeply sympathetic to the argument that the Constitution requires trials in civil courts for those who commit crimes against the United States. (See for example the posts by Professors Fred Schauer and Steve Calabresi in Politico). My question however is whether in a context in which the President and the Attorney General have virtually guaranteed a conviction, civilian courts can withstand the political pressure to provide the process that is due to the defendants.
This is an empirical question for which I don't have the answer. But I think it is worth raising especially by those who believe that a rule of law analysis requires trial by Article III courts. Can you imagine what it would be like to be the juror who votes to acquit KSM or any of the detainees? Is it possible that there is only one outcome to these cases in the civil courts? If so, would a military tribunal be more hospitable to circumstances that dicate acquittal. Again, I am not saying that civilians courts cannot do the job here. My point is simply that I'd like to see more analysis of that question.

Monday, November 16, 2009

All Four Finalists for Seattle's Deanship are Black

Seattle University School of Law has posted the finalists for its Deanship and all four finalists are black. They are an exceptional and tremendously talented group: Karen Brown of GWU, Michele Goodwin my fabulous former colleague at Minnesota, Barbara Holden-Smith at Cornell, and Mark Niles at American.
Too often scholars of color are token finalists for deanship. This is clearly not the case at Seattle. Kudos to Seattle. This is a huge statement.

Wednesday, November 11, 2009

Gender and Race in Legal Academy: Retrenchment?

I was intrigued by this post from Ann Bartow over at feministlawprofessors on the absence women academic as presenters at NYU Law's colloquia series (ht: and this post from Rebecca Tushnet on the underrepresentation of women as writers of law review notes (ht:

My unscientific sense is that we're going backwards in terms of both gender and race representation in law schools. I've seen conferences will all white and mostly male presenters. Law school faculties do not seem to care today as much as they once did about gender and race underrepresentation. I don't know whether this is true or not, but that is my sense.

Tuesday, November 10, 2009

David Brooks' Therapy

I like David Brooks very much and find that he is one of the more thoughtful commentators, left or right, on the commentariat. I think he actually tries to get things right and to struggle with difficult issues. As much I like Brooks, I found his latest commentary on Maj. Nidal Malik Hasan, the Fort Hood shooter, quite wanting and much too facile.

Brooks' basic argument is that Hasan suffered from a particular brand of Muslim extremism and evil but the media, in its attempt to be sensitive to Muslims and to limit the public backlash against Muslims, played down. Instead of ascribing the actions of Hasan to evil, specifically of the radical Muslim variety, we made excuses for him, "there was a national rush to therapy."

But I think Brooks is wrong, profoundly so. In the immediate aftermath of the shooting few facts were available. We knew that a lone gunman who was both a therapist and a Muslim murdered about a dozen individuals and wounded at least two dozens. We did not have any information that he was associated with Al Qaeda or any religious extremist group. Had we reached for the familiar stereotype of radical evil Muslims who are jealous of our way of life and thus seek to destroy America from within, we would be encouraging the "great mass of unwashed yahoos in Middle America" to "go off on a racist rampage." For once, the media did the right thing.

Leaving all of that aside, the explanation that Brooks offers is what got us into two wars in the first place. I don't understand how Hasan is any different from Timothy McVeigh or John Allan Muhamad. Blaming Hasan's actions on the evil of radical Islam is facile, too facile. Brooks is usually better than that.

Wednesday, November 4, 2009

The Meaning of the 09 Election

The big task after election day is always to try to figure out what it means. Many commentators have wisely advised not to read too much into this election and that is smart advice. But this election did provide us new data that I think tells us some things.

First, it tells us that the Republican Party is not dead as many thought following the 08 elections and President Obama's historic win. Had the Republican Party lost in Virginia, New Jersey and NY House 23, legitimate questions would have and could have been raised about the near-term viability of the Party as a national force in American democracy. The fact that Republicans won two governorships so convincingly in two different types of states, shows that the Party is alive and well.

Second, medium voter theorem works. The Republican candidates who did well were the ones who ran as moderates and downplayed divisive social issues. This is an important lesson for Republicans from NY 23 and also what explains (in part) NY and VA. So, if Republicans believe that they can turn their Party over to extreme candidates on the right, they should be prepared to get used to results like NY 23.

Third, this is also a lesson for Democrats. While the Republican Party is waging a very public fight between its very conservative and moderate parts, Democrats are threatening to do the the equivalent between their moderate and progressive wing. If this becomes the lesson that Democrats learn from 09, and it looks like it is, then I think Democrats are in for a real struggle in 2010 and 2012. President Obama won in 08 because he ran as a centrist. It is true that his base and progressives were energized, but not because promised a left-wing agenda. Obama capitalized on the anger against Bush, the economic collapse, and the historicity of his presidency. While I might prefer more progressive policies, I have a stronger preference for winning elections than winning ideological battles. Call me a pragmatist.

Fourth, let us not blame the President for these high-profile losses. If the economy turns around, all of this handwringing by Democrats will be just that. If the economy does not turn around, you can pass all of the progressive legislation you want, Democrats will be in trouble in 2010 and 2012.

Monday, November 2, 2009

Why Are Black Americans So Satisfied with the Direction of the Country?

Gallup is reporting that black Americans, particularly blacks who identify as Democrats are the most satisfied demographic group with the direction of the country. 51% of black Democrats reported being satisfied with the direction of the country. By contrast, only 38% of white Democrats reported being satisfied with the direction of the country. The question is why are black Democrats so optimistic, in contrast with whites and Republicans?

Princeton political scientist Melissa Harris-Lacewell points out that there has long been a racial divide in the public opinion of blacks and whites. This divide track a racial divide in partisan identification. For example, the Gallup poll found that more than 8 out of 10 blacks identified with the Democratic Party. But as Lydia Saad from Gallup reported, the differing perception of the direction of the country is not colored only partisan lens but also by race. So what accounts for this?

There is very little doubt that black Americans have been hit the hardest by the recession (see for example this article). I suppose the optimism of African Americans reflect both their support of President Obama and the hope that his policies will have a disproportionately positive impact on the lives of black americans.

Wednesday, October 28, 2009

What is the world coming to?

See this story about the gang rape of a young girl and the handful of people who apparently stood around and watched. What is the world coming to?

Atlanta may elect its first White Mayor in more than 30 years

The Wall Street Journal reports that Atlanta is poised to elect its first white mayor in 30 years.

The news here is not that blacks are voting for a white person. That's been going on for ever. The news is that notwithstanding the fact that blacks are a majority in Atlanta, the white candidate has more support among the black community that the black candidates.
This raises for me a couple of questions that the article did not answer: (a)are white atlantans voting as a bloc in favor the white candidate or any one of the black candidates? (b) what happens if this race goes to a run-off between the leading white candidate and a black candidate, does it become racialized?

Tuesday, October 27, 2009

What's Wrong with CNN?

CNN is the least-watched network in primetime (see this NY Times report here). CNN is even getting beaten by HLN. HLN? I am saddened by CNN's apparent demise, though I think it is well-justified.

I'm saddened because CNN was the only place (other than PBS) that one could go to for hardcore news. I once considered myself a CNN devotee. Though CNN thinks its slide is due to the fact that it does hard news, it is sadly mistaken.

First, CNN does less hard news in primetime than either MSNBC or FOX. In fact, when I'm desperate for political news or analysis, I'm more likely to go to FOX or MSNBC as painful as those choices are for me. I could not believe the amount of airtime CNN devoted to Michael Jackson or balloon boy and other soft news stories. I think the sad truth is, whatever one may think of FOX and MSNBC they often address hardcore news issues in primetime. So, the truth of the matter is that viewers are willing to

Second, CNN's format is not very informative. They tend to have an anchor surrounded by either partisan analysts/pundits or politicos. They often mix-in with those reporters such as Candy Crowley or Joe Johns. The result is just blather. The partisans (whether pundits or politicos) just end up yelling predictable talking points at each other and whatever insights one could get from their very thoughtful reporters are just lost. Quite frankly, I find the format unwatchable.

Third, CNN has come to rely too much on gimmicks: ireporters, twitter, graphics that convey little information etc. The important exceptions here are Fareed Zakaria's GPS, the best show of television, Christiane Amanpour's Amanpour, John King's, State of the Union and to some extent, interestingly enough, Lou Dobbs (though his show is too sensationalist). The format on those shows are generally different and you actually learn something.

CNN needs to return to hard news. My prediction is that if CNN does not reverse course it will stop being the place to go for important national news such as elections.

Friday, October 23, 2009

Bad Obama: why the administration is wrong to go after Fox News

The Obama administration has come under attack quite a bit from its perennial foes. Some of those attacks have been fair and others unfair. Unlike the administration's constant critics, I think the administration should be praised when they do something praiseworthy. And unlike its blind cheerleaders, the administration should be criticized when there is something to criticize. As a strong supporter of the Obama administration, I am more apt to praise than blame. But where blame is called for, well . . . blame I shall. In that spirit, I will always praise and blame. First, the blame.

I don't often agree with Charles Krauthammer. In fact, I can't recall the last time I agreed with much of what he had to say. But I agree almost completely with this column in the Washington Post criticizing the administration for unfairly targeting Fox News. The administration has explicitly tried to freeze out Fox News because of a lot of the drivel that goes on in the rest of the network. The administration's position, which in my view is not tenable, is that Fox News is not a legitimate news network. It reached this conclusion, on the basis of its own reasoning, because of the likes of Glenn Beck and Sean Hannity. On the basis of that justification, the administration might as well freeze out NBC News. Does anyone really believe that Keith Olberman and Rachel Maddow are serious news people? They're certainly smart and serious commentators, but newspeople, they're not. Is Keith Olberman's worst person in the world segment anything but partisan hackery? Yes, is true that Beck is not a serious analyst and it is also true that Fox as a whole (I would argue including the news division) pitches everything from the right. But if we're going to judge a news organization by its opinion section and we're going to freeze out all news entities with a bias, the rest of mainstream media is on notice that the White House is coming after them.

Of course the White House is not coming after them and Krauthammer's column makes clear why. The White House is clearly peeved that Fox has been a persistent (and effective) critic. The White House does not want Fox to set the baseline and have everyone follow. This is a very smart and devious. But it is also wrong.

The state should not try to punish private news organizations because the state does not like what they are saying. One might establish exceptions to this principle at the margins but the case would have to be extremely compelling. In this case, the White House is trying to punish Fox News because it does not like the fact that it is being covered negatively by the network as a whole. In my view, this is not something that can be defended and I'm surprised that liberals like Glenn Greenwald, with whom I almost always agree, are bending over backwards to defend the White House here. As an aside, suppose that the President signed an executive order keeping Fox News out of all White House briefings and press conferences, would we be so ready to defend the White House?

Greenwald argues that Bush's actions with respect to the media were much worse and the right's complaint about Obama is hypocrisy. But that's beside the point. It does not matter whether Bush was worse and I hope that does not become our baseline. The point is whether the Obama administration is right to try to punish (and delegitimize) a news organization because the administration does not like the way it is being covered by the network. I think what the Obama administration is trying to do with Fox is wrong and liberals, who often believe that they stand for principle, should say so.

Thursday, October 22, 2009

Pat Buchanan's White Delusion

Pat Buchanan has veritably lost his mind and it's not clear to me why anyone takes him seriously. In this column, Mr. Buchanan writes that traditional white Americans believe that they are losing their country and they are right to be scared. In a response in the Atlantic Monthly, Andrew Sullivan call's the column stupid. It may be that but it is also extremely perverse.

Responses to Buchanan have focused on educating Buchanan on the contributions to America by non-whites (see for example here) and have argued that non-whites as much claim to the country as Buchanan and other whites do (see here).

I don't think Buchanan is stupid, nor do I think he is unaware of the contributions of people of color or their claim to this country. Buchanan is a perverse and dangerous panderer. If some whites feel that America is no longer their America, that is a serious issue that must be addressed seriously. But is not a justification to promote "Oath Keepers," armed civilians willing to take up arms against their countrywomen and countrymen. That is the type of dangerous perverse pandering that can lead to armed civilians attacking public officials and other citizens. Buchanan is a demagogue and it is unfortunate that he continues to have such a prominent public platform.

Saturday, October 10, 2009

Obama's Nobel Peace Prize

The big question on the surprise announcement that President Obama won the Nobel Peace Prize is whether he did anything to earn the prize. I think commentators that argue that President Obama earned the prize because of his accomplishments as president are disingenuous. One cannot name a single international problem that the President has solved. This is not a knock on the President, it is simply a recognition that he is a new arrival on the world stage and has not yet had the time to make his mark such that he would be a candidate for the Nobel Peace Prize. This is not to say that the Norwegian Committee was wrong to award the prize to the President.

By awarding the prize to the President, the Committee has put him on the spot on the international stage. For example, his decision on further troop buildup in Afghanistan is not just a domestic decision with international implications, it also becomes an international decision. The Committee has given the world a voice for retrospective evaluations of a plethora of Mr. Obama's decisions. These include not only Afghanistan, Iraq, and the Middle East, but obviously climate change, nuclear nonproliferation, international monetary policy and the like.
The Committee's decision is a very nifty political move. It is political not because the left-wingers on the nominating committee was rewarding one that they viewed as their own and making a statement on the Bush years. That may have been part of the politics. But the important part of the politics is putting the President in a position that makes his actions more accountable that it was previously to the international community. The President clearly recognizes this problem/opportunity. If he can live up to those expectations this will be good for him and even for us.

Thursday, October 8, 2009

Charlie Rangel Should Resign his Chairmanship and the Black Caucus Should Butt Out

Charlie Rangel, the legendary congressman from Harlem and founder of the Congressional Black Caucus is facing an ethics investigation by a house ethics panel. Mr. Rangel, who chairs the Ways and Means Committee is being investigated among other charges for failure to pay taxes on a vacation home and illegally maintained multiple rent-controlled apartments in NY City. The Republicans are putting pressure on Speaker Nancy Pelosi to strip Mr. Rangel of his chairmanship. The Congressional Black Caucus is putting pressure on the Speaker to at the very least provide Mr. Rangel with a fair hearing. Mr. Rangel should resign his chairmanship and the CBC should stay out of this fight.

The bottom line is that the Mr. Rangel, who as chairman of the powerful Ways & Means Committee is chiefly responsible for establishing the tax policies originating out of the House but stands accused of failing to pay taxes on all of his income. We know that he has underreported his income and has had to go back and file amended disclosures. The principle here is very simple: the least that we should expect of our lawmakers is that they obey the laws of the land. Mr. Rangel did not; therefore, at the very least, he should not counted among the Congressional leaders. Whether he should resign his seat is a slightly different question. But he should not chair a congressional committee if he cannot abide by the laws that he helped put in place that govern others.

The Speaker should also ignore the CBC on this one. The CBC has the dubious distinction of defending former Representative William Jefferson who was recently convicted of bribery among other crimes. The CBC defended Mr. Jefferson even when it became clear that his actions were indefensible. The principle of the CBC on these issues seem to extend only to defending their own without considerations for rule of law issues. This is not the principle to which the Speaker should defer.

I'm sympathetic to Mr. Rangel. He has been a champion of civil rights; he is one of the lions of the House; he has worked hard to create power for legislators of color. But he has also crossed the line, apparently many times. As sympathetic as one can be, we cannot defend his actions.

Tuesday, October 6, 2009

Why Eugene Robinson is Wrong on General McChrystal

Eugene Robinson has written this op-ed for the Post in which he criticizes General McChrystal, the Commander of the US and NATO forces in Afghanistan for publicly making the case for more troops in Afghanistan. Mr. Robinson is completely wrong on this one.

Robinson's argues that the decision of whether to send more troops to Afghanistan or not is a political choice that military officers should not be making. The decision is the President's and Congress' as elected officials. But it is precisely because this is a political choice that we the public need to hear as much of the facts and arguments as can be aired in public.

First, in order to hold our political leaders accountable for the political choices that they make, we have to know, as best as we can, as much about the facts and choices that they face. Relatedly, it is best to hear the facts and to have a public debate ex-ante as opposed to ex-post after the troops are already committed and we come to learn that they were no weapons of mass destruction. Second, we cannot trust our political leaders to be honest with us about the choices they face. We cannot trust them to be forthright about the facts and to give us the pros and cons of various options. Further, they have an incentive to read the facts in a way that will best further their political careers or limit the political consequences. Thus, they have an incentive in limiting our ability to hold them accountable. Consequently, we ought to encourage practices that promote information and the public airing of political choices as opposed to a culture that promotes secrecy.

There is a world of difference between a scenario in which military leaders refuse to obey the lawful commands of the civilian leadership and a scenario in which military leaders make the case in favor or against military action. They ought to have their say so that we can make informed choices and they ought to respect the decision of the civilian leadership.

There are reasons for secrecy. But Mr. Robinson has not made the case. Indeed, the principle upon which he relies counsels in the very opposite direction of his conclusion. So, General McCrystal, continue to speak-up, inquiring minds want to know.

Thursday, September 10, 2009

The President gave an excellent speech last night and did some things right that he should have done months ago. Until further evidence, I'm still of the view that the future of healthcare reform is not dependent on the detail of the President's plan but on the big issues that he finally addressed tonight.
He linked healthcare reform to the role of government. Moderate voters are worried about what they perceive to be the rapidly expanding role of government. The President addressed that issue head-on tonight. Moreover, he explained why providing healthcare for all Americans is not only consistent with fundamental American values, but it is who we are as Americans. Both of those moves were necessary to re-shaping the debate and should have been the way he framed the debate from the beginning. These moves also infused the President's case with the necessary emotion and passion that was lacking in his last major healthcare address.

The President also attempted to more effectively portray his approach as the more moderate approach of those out there. He repeatedly noted how his plan borrows ideas from both conservatives and liberals. He offered a limited public option and opened the door to medical malpractice reform. He also noted that his plan rejected extreme positions from both Republicans and Democrats. But make no mistake, the President has picked his side and he is going with his party. The Republicans are on notice that he is willing to go at it without them.

Finally, the President started to articulate the case why Americans should trust him to solve this problem. Median voters will be moved to the President's side not because of the detail of his presentation, but because the President has given them reason to believe that he understands their concerns and they can trust him to handle this issue.

The question is whether this is too little too late. The shine on the Obama presidency has nearly worn off. Republicans are no longer afraid to oppose him and conservative Democrats are trying to figure out where they stand. The calendar does not favor reform. But I'm not ready to bet against Obama, yet.

Thursday, August 6, 2009

The Sotomayor Confirmation

I tried -- I really, really tried -- to watch the Senate "deliberations" over the Sotomayor nomination.

I really did.

But I could not take it anymore.

First off, who are these people, and who are they talking to? If I hear that Supreme Court justices are appointed for life one more time, and how important their rulings are, I will scream. They could not possibly be talking to one another. Is it C-SPAN viewers? All three of them?

Worse yet, does anybody follow what they are saying, and believe any of it? To some, Sotomayor is a terrific judge, like no other, well qualified, well-rounded experience. To others, she is a judicial activist, an affirmative action baby (this is implied, of course), not fit to serve on our highest court (after some of our more recent nominations, you'd think this argument was no longer availing). Surely they are not talking to the dreaded "independents" of election lore, the types who wait until the last moment, and the last argument, to make up their minds. So what is it? Have these people nothing better to do?

So I finally gave up. Closed my browser and tended to more fruitful things, like cleaning my office.

Call me naive, but this "debate" makes me shudder about the future of our politics.

Gotta love "deliberative" democracy.

Friday, July 24, 2009

The Birthers Come to Court . . . then what?

Was President Obama born in Hawaii, or wasn't he? And if he was, why can't he produce an original birth certificate?

I do not know where President Obama was born. Nor do I care.

But that is not the real question posed by those who challenge President Obama's birth status.

Assume for the purposes of this post that the "Birthers" are right and President Obama was not born in Hawaii as he claims. This would mean that he is not a "natural born citizen," and thus ineligible for his current office as required under Article II ("No person except a natural born citizen . . . shall be eligible to the office of President").

Would a federal court accept such a challenge to the president's status? No, really: would the U.S. Supreme Court remove a sitting President on the basis of a challenge to his citizenship?

Let me ask a different question: what if a recently elected President and Vice-President were from the same state? Under the Twelfth Amendment, they cannot both be elected. Assuming two candidates were in fact elected, would a court remove a newly elected Vice-President from office due to his residency status?

I seriously doubt it.

At the end of the day, you have to love the political question doctrine.

Tuesday, July 21, 2009

What Does Obama's Sagging Poll Numbers Mean

The current slippage in the polls is turbulence or more likely a shot across the bow. Bush I and Carter had higher poll numbers at this stage than Obama and we know how they ended up. It is clearly not time to panic but seatbelts should be securely fastened.

The polls are more immediately significant because they are providing the Republicans with both the moxie and more importantly a message for taking on the President. If you're a Democrat would you rather have the Republicans talking about the deficit and the President's "experiment" with our healthcare system or would you rather that they drone on and on about Sotomayor's "wise Latina" comment. Would you rather the media focus on Palin's next step or about the public's growing lack of confidence in the Administration's plans for the economy? Where's Rush Limbaugh?

Further, moderate Democrats are now more emboldened to take on the Democratic leadership as well as the administration. If you're a House Democrat in a conservative district you can't count on the President to save you when the polls show that independents are at best split on his policies and even conservative Democrats are starting to abandon him.

The slipping polls are a tax on the President and his administration. He may have to bargain more with the conservatives in his own party. He has to use the bully pulpit more and use up more of his personal capital. He is being forced in a very public way to take ownership of his policies.He may have to trim the ambition of his agenda.

I continue to believe that the President will ultimately be judged on the success or failure of his economic policies. Given that he has been in office for less than six months, he should be given a better chance to prove himself. But this a negative data point and a warning that should be given at least some attention.

Thoughts on BIYHWB (Being In Your Home While Black)

The year is 1963, in St. Augustine, Florida, days after the September 15th church bombing in Birmingham, Alabama that killed four innocent girls. Intending to challenge the Klan's views, four black men attend a Klan rally. They don't get very far. While in the parking lot, deciding what to do, a car comes behind them. A man steps out, shotgun in hand, and apprehends them. The man proceeds to march them off to the rally, where they are beaten with fists, chains and various assortments of clubs. The wounds send the men to the hospital.

Ask me how this story relates to the recent arrest of Distinguished Harvard Professor Henry Louis Gates while inside his home.

I'll tell you.

Go back to the Klan rally. Sheriff's deputies finally arrived at the scene, yet rather than see a beating, they saw a "fight between Negroes and Klansmen." The four black men were prosecuted by local authorities, as were four Klansmen. The charges against the Klansmen were dropped in due time. The jury convicted the leader of the four black men, Robert Hayling, of criminal assault. Yet, in the absence of injuries to the Klansmen, and the many wounds on Mr. Hayling, the judge limited his punishment to a mere $100 fine.

Now, try to make sense of the Gates arrest.

A neighbor calls 911 and reports a break-in by two black males with backpacks in the Gates home. Once the police arrive at the scene, Gates is already inside his home. According to the police account, the officer at the scene asks Professor Gates to step outside, yet he refuses. Professor Gates produces identification to show that he in fact lives in the home and is the person he claims to be. According to the arresting officer, Professor Gates turned belligerent and began yelling. He was subsequently arrested.

Professor Gates disputes this account, of course.

Whichever side you believe, this story is a chilling reminder of the challenges posed by race in this country.

And I must wonder: can you even begin to wrap your mind around the fact that a distinguished Harvard professor who happens to be black was arrested in his own home for talking back to the police?

Are you kidding me?

This would be unbelievable if it weren't such a commonplace aspect of the lived experiences of persons of color. Or as Randall Kennedy said after the incident came to light, "[t]his is really, truly remarkable. But it would be wrong to say that this is sort of completely out of left field. The facts are so striking here. It is part of a pattern that is well-known. It will resonate with lots of black people, especially black men, who have experienced something similar."

This is what our post-racial America is supposed to look like?

I wonder if our Oracles of Delphi are paying attention, and if so, what their reactions would be.

Empathy, Racism and Our Highest Court

The Sotomayor nomination has taught me two things. The first is that the American public might in fact be dumb and dumber. The second is that Chief Justice Roberts might well be a racist.

The first insight came to me soon after the nomination became public, and the "wise latina" comment gained currency. Her comment was this: she "hope[d] that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." If I understand her correctly, these words must mean that judicial experiences affect the way one understands legal issues and arrives at legal conclusions.

If I am right about that, then I wonder: is that it? To say that the depth of one's experiences enrich one's approach to judging should not be controversial. This is true for any judge, whether Thurgood Marshall or Clarence Thomas, Sandra Day O'Connor or Earl Warren.

Does anybody seriously dispute that?

Yet a who's who of conservative punditry assailed her as a racist.

Is anybody out there stupid enough to believe that she is?

The second insight flows directly from the first. Recall here President Obama's stated intentions to appoint judges with "empathy" for the downtrodden. To the aforementioned critics, this is code for appointing activist judges.

To this charge, you can either laugh or cry.

This is actually an easy one. Consider poor, downtrodden Frank Ricci, the firefighter who studied for hours on end, spent a good chunk of money, aced his test, yet was denied a promotion after the city of New Haven threw out the test because of its racial impact.

The Supreme Court sided with Mr. Ricci, in a 5-4 decision delivered by Justice Kennedy and signed by the four remaining conservative justices.

To understand Ricci, it might help to read President Obama's words. Here is what he said:
You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

On this argument, it appears that we also need somebody who's got the empathy to recognize what it is like to be a white firefighter in a world where the rules are stacked against you. Or something like that.

In fact, to read the Court's race jurisprudence post-City of Richmond v. Croson is to see a Court empathetic to the travails of white people, innocent victims trampled at the hands of a racist elite. It is hard to read it any other way.

I get it: it is empathy when applied to rulings we disagree with, but strict constructionism and "fidelity to law" when we agree.

Is anyone stupid enough to believe that?

This brings me to the Chief Justice and his record while on the Court. "In every major case since he became the nation’s seventeenth Chief Justice," wrote Jeffrey Toobin, "Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
To this list, we can add that Roberts has also demonstrated deep antipathy towards the interest of persons of color, on issues as far ranging as voluntary racial integration plans, voting rights, or hiring and promotion.

Which leads me to no other conclusion: if Judge Sotomayor is a racist for believing in the value of judicial diversity, what does his track record make Chief Justice Roberts?

Monday, July 20, 2009

Maloney Uses N-word, So What!

Politico's Glenn Thrush is reporting that House Representative Carolyn Maloney used the N-word in relating a complaint voiced to her about Kirsten Gillibrand, the Democratic Senator also from NY. Maloney, apparently against the advice of the national democratic leadership, is challenging Gillibrand in the Democratic primary. In relating her story, Maloney quoted the complainant who used the word "nigger" instead of saying "the N-word." I say so what?

This is certainly a political mistake on her part both to use the word and not to appear to give deference and respect by using n-word as a substitute. And Representative Maloney has predictably apologized.

But, if I were a potential constituent and voting in the Democratic primary, I would not allow what can be legitimately characterized as a lapse in judgment to affect my vote. Two reasons immediately come to mind. First, there is clearly a difference between someone calling a person a "nigger" and someone using the n-word in a way that is not meant to denigrate African Americans. We black people are sufficiently intellectually sophisticated to protest the former and let pass the latter. Second, of the many ills that plague communities of color, we should spend as little time as possible on this issue.

Friday, July 17, 2009

Obama NAACP Speech

The President gave a speech to the NAACP yesterday in honor of that organization's 100th Anniversary. I continue to wonder whether the NAACP is relevant in today's world but I'll leave that for a later post. I want to briefly consider the President's speech.

Overall, the President gave a pretty masterful speech. He covered the past history of the NAACP. He obligatorily traced his rise to the work of that organization. He talked about structural racism and what his government is doing to minimize it's impact. He reinterpreted the NAACP's mission to include all Americans of all races, creeds, and sexual orientations. He spent quite a bit of time on personal responsibility. And he provided a basis for hope for a better future. He was a man at home in his element.
The question in my mind is whether speeches from politicians on how people of color need to do better are effective motivators. When the president states that a child's destiny is in her hands, I'm skeptical. It depends on who that child is. If that child is Sasha and Malia, sure. But if that child is born to a crack-addicted mother and an absentee father, i'm less sure. Of course, that does not mean that individuals cannot overcome their circumstances, we do so all of the time. But the probability that we can overcome our circumstances is directly related to the severity of those circumstances. But more to the point, I don't think a speech by a politician will do much help. Programs by a politician, more likely, a speech, I'm doubtful.

Tuesday, July 14, 2009

Balkin on the Politics of Racial Resentment

Jack Balkin over at Balkinization has a very thoughtful post on the Sotomayor and what he calls the declining utility of the politics of racial resentment.

Balkin argues that the racialized attacks on Sotomayor's nomination by the Republicans on the judiciary committee are not likely to be effective because the base that the Republicans are appealing to have shrunk considerably. Although I've advanced a similar argument over at Politico's Arena, I'm a bit less sure than Jack. The Republicans on the judiciary committee are presenting a united racialized attack. I am assuming that they are rational actors and believe that they have enough straw to make hay. I think they've miscalculated but I'm not so sure.

Moreover, it may be the case that all the Republicans need to do is to frame Sotomayor and more importantly Obama as angry racial opportunists who do not have the best interest of the country (white America) in mind. (Note that so far, these hearings have been almost as much about the President as they have been about the putative nominee) 

I know what you're thinking: isn't this what they did during the election and did it not fail miserably? Yes, on both counts. This is why Jack is not worried. 

But suppose that the economy does not get better and indeed gets worse. Suppose that the unemployment rate continues to go up. Suppose that more people lose their homes. At the same time, the black President is busy appointing Latinas to the Supreme Court, blacks as surgeon generals, women as secretaries of states, etc. 

What struck me watching the hearings is that the Republican attack is an attack on the competency of people of color. Their competency to lead, to make judgments, to determine when their perspectives are rightly called upon and best left behind. 

Might the politics of racial resentment not make a comeback. I'm betting against it, but I am not betting the farm.

Monday, July 13, 2009

Confederate Flag Comforter

For those of you looking for your confederate flag comforter:

you can find the one below on Amazon here. I have to admit, that I was quite surprised when my wife and I were looking for comforters to find this one displayed on Amazon. Perhaps I'm naive. I wonder what other symbols of white supremacy are sold on Amazon as sleeping comforts.

Sonia Sotomayor hearings

I've spent most of my morning watching the opening statements of the Sotomoyor nomination on C-Span. Here are a few thoughts:

  • Lindsey Graham, the Republican Senator from South Carolina was endearing. He seemed to go out of his way to point out that Republican votes against Judge Sotomayor's confirmation should not be construed as a vote against a Latina but as a vote against a nominee whose ability to be impartial remains in doubt. His comment that she will be confirmed unless she has a total meltdown will surely get a lot of press attention, but I think his open struggle over how he should vote on the first Latina nominee to the Court was pretty interesting to watch. His statement that elections have consequences is obviously important. He is undoubtedly struggling between two poles: ideology/partisanship v. pragmatism. His ideology dictates that he votes against her because, as he kept saying many times, he knows that she would rule differently than he would want her to in the important cases that count. Moreover, the base demands ideological purity. His pragmatism would have him vote in her favor because: (a) by his own admission, she is well-qualified; (b) a partisan vote against her would further erode support among Latinos for the Republican Party; (c) she is going to be confirmed anyway; (d) he believes that partisanship and ideology should not be the decisive criterion in confirmation battles, he is still mad at Obama for voting against Roberts and Alito on ideological/partisan grounds, and he wants to show everyone that unlike the President, the Republicans can rise above ideology.
  • The contrast between Lindsey Graham and Jeff Sessions, Republican from Alabama, is instructive for the future of the Republican party. Whereas Graham seemed to be leaning on the side of pragmatism (why vote against a nominee who is going to be confirmed anyway and tick-off a growing and critical constituency when you can score bi-partisanship points that you can use later), Sessions seemed much more driven by ideology. Whereas Graham seemed restraint and contemplative, Sessions seemed sure and driven. I think pragmatism, restraint, and thoughtful contemplation is better for the Republicans in the long-run than a hardcore pursuit of ideology and partisanship uber alles. But who knows.
  • Amy Klobuchar of Minnesota is impressive and a star.
  • The opening statements from the Republicans were as much about President Obama as they were about Judge Sotomayor.
  • Judge Sotomayor's opening statement was impressive. It was impossible to miss the theme of her statement that linked her nomination to the Supreme Court to that of Mr. Obama's nomination to the presidency: her improbable rise from "modest circumstances in a Bronx housing project" to the Supreme Court is "uniquely American." While this was a scripted and short statement, the judge was poised and charming. I'm not sure what political points the Republicans hope to score by opposing this nomination. I see no upsides and big downsides.

Monday, June 29, 2009


The United States Supreme Court decided against the City of New Haven today in Ricci v. DeStefano. In a 5-4 decision, the five conservatives arrayed against the four liberals, the Court held that City violated Title VII when the City scrapped a promotion test after the results revealed that firefighters of color did much worse on the test than the white firefighters.I previously blogged about Ricci here.   Justice Kennedy wrote the opinion for the majority and given that this outcome was expected, Kennedy's decision was not as bad as it could have been. For example, the majority avoided the constitutional question, though Scalia warned that that day of reckoning will come. But the most interesting opinion was in fact that of Justice Ginsburg in dissent. 

Ginsburg asks the relevant question in Ricci: why were the test scores of the firefighters of color so much lower than that of white firefighters. This is the question that should be our obsession. If the modern-day version of what passes for civil rights organizations were worth their salt, they would provide us with concrete answers to those questions as well as solutions.

Thursday, June 25, 2009

Further Thoughts on the Court and the Future of the Voting Rights Act

The only question before the Court in NAMUDNO was whether the conservative justices would have the gumption to strike down one of the "crown jewels" of the civil rights movement. For reasons that remain obscure and the subject of much conjecturing, they didn't. End of story.

This pretty much sums up the history of the constitutionality of the Voting Rights Act. From the moment the Court first took up the question, the constitutionality of the Act has hinged on the Court's willingness to strike down the statute.

Nobody understood this better than the Warren Court, and particularly the "wily" Justice Brennan.

The question then, as it is now, can be stated simply: "Has Congress exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States?" The Court's initial response, in the first draft of Chief Justice Warren's opinion in South Carolina v. Katzenbach, is illuminating. Citing Ex parte Virginia, the Chief Justice explained that "Congress has even broader remedial powers than the courts to effectuate the constitutional prohibition against racial discrimination in voting." (italics mine)

Justice Fortas reacted to this argument with concern: "I wonder if this adds enough to the argument to offset the possibility that it may be used in unforeseeable ways to support arguments to narrow court orders." In response, the language changed as follows: "Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting."

The Court wished to grant Congress much leeway to solve this difficult problem, but it worried that doing so would lead a future Congress to take on the Court. Recognition of this dilemma led Justice Brennan to Footnote 10, and what became known as the Morgan power.

Justice Brennan could see a bigger problem in Katzenbach. He worried that basing much of the Court's holding on the findings in the record would lead the Court down a path it would likely regret. Take a look at his notes from his draft:

Focus on the language on the bottom left of the page: “It seems to me one thing to summarize the facts put before the legislature, and another to do what the Chief seems to be up to in this [section]—accepting the Congressional findings because they correspond to our own.”

He continued his questioning on the next page:

To Justice Brennan, Warren's draft focused on the wrong issue: “Do we judge statutes by no. of witnesses[,] length of hearings[,] unanimity of vote? The Chief is judging the legislative product as if it were a judicial one.”

Justice Brennan returned to this criticism once more:

His language is nothing short of prescient: “In several places, like this one, the Chief comes close to writing this as if it were an advisory opinion. I think this might be avoided. Are we reviewing the sections, any more than we are the adequacy of the hearings?”

These questions underscore the political savvy of Justice Brennan. He could see Katzenbach v. Morgan just down the road, a case devoid of the rich evidentiary record found in the South Carolina case. In this light, compare Brennan's opinion in Morgan with Warren's opinion in South Carolina. Their different approaches to the record was stark, as Justice Harlan pointed out in dissent. Brennan wished to avoid the debate all together.

The implications for our debate today are also quite clear. First, the debate over findings that dominated the scholarship post-Boerne is almost as old as the Act itself. Second, Justice Brennan wished to avoid precisely the kind of review advocated by Justice Thomas in his dissent in NAMUDNO. This was an area for Congress to legislate, and the Court would only subject the statute to low level rationality review. Questions of degree were for Congress to assess and determine, not the Court.

Tell it to the conservatives.

Tuesday, June 23, 2009

The Liberals in NAMUDNO (cont.)

The post-mortem on the constitutionality of the Voting Rights Act is in full-swing. As it is often the case, commentators are all over the map trying to make sense of what the Court said and did not say in NAMUDNO. One reading of the opinion is particularly intriguing, as encapsulated by Guy's thoughts on the case. Namely, it is turning into a truism that the Chief Justice carried the day and the liberals on the Court gave away the store. Commentators question whether the liberals ceded too much ground in trying to preserve the constitutional showdown for another day.

I really don't see it.

Lets take up the arguments (or "dark signs") one at a time:

(1) First, on the facts --
  • the conditions that justified section 5 in the past "have changed"
  • "blatant discriminatory evasions of federal decrees are rare,"
  • "past success alone . . . is not adequate justification to retain the preclearance requirements," and
  • "the Act imposes current burdens and must be justified by current needs."
I fail to see how these statements amount to much of anything. Of course the conditions have changed, and you would have to be blind not to see it. If you need any help on this point, go read David Garrow or Taylor Branch. This is not what the case was about now, not today and not thirty years ago in City of Rome. The Act as enacted addressed present conditions, and from that time forward the argument has been whether improved conditions warrant further extensions. To suggest that things have improved is only to state the obvious point that the Act is not an irrational scheme aimed at nothing in particular.

(2) Second, on the states and the rationality of the coverage formula --
  • the Act is "a departure from the fundamental principle of equal state sovereignty [which] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets."
  • The "evidence in the record did not address 'systematic differences between the covered and noncovered'" jurisdictions.
Again, go read the committee debates in 1965 and you will find these arguments sprinkled throughout. This is not new. And then go re-read City of Rome and you will find similar arguments as well. The question for the Court from the beginning has been about how it chooses to weigh the evidence put together by Congress. And from the beginning, critics have offered the Court the argument that distinctions between covered and non-covered jurisdictions are spurious and unsupportable.

For example, critics and supporters alike complained during the hearings about the exclusion of Texas from coverage. Texas, of course, is the setting for the white primary cases and White v. Regester. Could a formula that fails to include Texas be non-arbitrary? Yes, according to 8 justices in Katzenbach. What's new?

(3) Third, the federalism point --
  • The Act imposes "substantial federalism costs"
  • These special provisions of the Act "raise serious constitutional questions under either test."
I don't even know what to say to this. Duh? Of course these are serious federalism costs. Could anybody seriously suggest otherwise? And of course these are serious constitutional questions. Anybody who suggests otherwise must be living on a different planet. But to say that these are difficult questions is not to say that the questions are insupperable. I don't know what else they tell us.

In essence, nothing has changed. In 1980, the Burger and Blackmun (and Stevens, I suppose) held the fate of the Act in their hands. In 1999, the distinction passed to Justice O'Connor. It is now up to Justice Kennedy. And nothing that the liberal justices agreed to, and nothing the Chief Justice wrote or didn't write, is likely to have any bearing on that future vote.

I still cannot help but wonder: if Kennedy was ready to strike the special provisions of the Act, why not get it over with?

Monday, June 22, 2009

What happened to the Liberals in NAMUDNO?

The Supreme Court today upheld the constitutionality of section 5 of the VRA with only Justice Thomas dissenting. Because most of us believed that the Court would find the Act unconstitutional, the majority of the commentary has focused on the conservatives on the Court. Did Justice Kennedy refuse to go along as Luis suggests? Did the Court punt, as Heather Gerken explains? Is the Chief channeling Bruce Ackerman as he intimates? Did the Chief Justice blink, as Rick Hasen provocatively proposes? Is the Chief now a master facilitator as Jamal Greene notes? For me the question is not what happened to the conservatives, but what happened to the liberals.

Let's look carefully at the text of the opinion that Justices Stevens, Ginsburg, Souter, and Breyer agreed to without a single word in dissent.
1) The past is not prologue: the conditions that justified section 5 in the past "have changed;" "blatant discriminatory evasions of federal decrees are rare," "past success alone . . . is not adequate justification to retain the preclearance requirements," and "the Act imposes current burdens and must be justified by current needs."
2)The Act departs from the "historic tradition" of equal state sovereignty: the Act is "a departure from the fundamental principle of equal state sovereignty [which] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." The "evidence in the record did not address 'systematic differences between the covered and noncovered'" jurisdictions. (Incidentally, I think this equal state sovereignty point makes it hard to accept Ackerman's explanation of the majority opinion in NAMUDNO
3) The Act imposes "substantial federalism costs". (And here is the kicker.) These costs are "serious" whether one applies the more forgiving "rational" relations test as opposed to the harder "congruence and proportionality test."

Do the liberals believe this? Was their silence part of an implicit bargain? The Chief did everything but rule section 5 unconstitutional and the liberals went along with it. Perhaps the price paid, preserving the constitutionality of section 5 (in name only?), was worth it. Maybe the Chief was blinking or maybe he was winking.

Thoughts on NAMUDNO

The Supreme Court handed down its decision in NAMUDNO v. Holder this morning.

And rather than confront the big issue head on, the Court essentially punted, setting the big question aside for another day. The special provisions of the Voting Rights Act remain in the books, ready for the next challenge.

The case raised two questions: First, can the utility district, which is neither a county nor a parish and does not register voters (and thus not a "political subdivision" under the explicit statutory definition) bailout from coverage of Section 4 of the Act? And second, if the utility district cannot bailout, then they argued that the preclearance requirements are unconstitutional.

The Court only reached the first question and concluded -- in a surprising 8-1 opinion authored by the Chief Justice -- that the utility district can attempt to bailout under section 4. While invoking the "constitutional avoidance" doctrine, in other words, the Court disposed of this challenge on statutory grounds. I have two initial thoughts about NAMUDNO and the Court's approach.

(1) Why would the Court avoid the constitutional question? Anybody who read the transcript of the oral argument could appreciate that the constitutionality of the Act rested on uncertain ground. Those who count votes could see at least 4 votes against the Act, and Justice Kennedy seemed a likely fifth vote. How did we get from that state of affairs to the decision we got today? One answer may very well be that the conservatives could not get Kennedy to go along. This is a big step, after all, and Kennedy might not be ready to take it quite yet. If this is true, then this outcome is the best that the conservatives could get, and the "liberals" were happy to go along, as this was a much better outcome than they had a right to expect.

If I am right about this, then the Act remains on solid constitutional ground for the foreseeable future. Justice Kennedy could always change his mind, of course, but until then, constitutional challenges to the Act are likely to go the way they always have. This is now the sixth challenge to the Act since its initial enactment in 1965 (Katzenbach; Morgan; Georgia; City of Rome; Lopez; NAMUDNO), and each and every time, the Court has deferred to the wishes of Congress. So the real question for the future is, why would the Court change its mind? What would have to happen for the Court to strike down this law? These questions lead me to my second thought . . .

(2) The Puzzle that is Justice Thomas. Eight justices were willing to set down the constitutional question and decide the case on statutory ground. Justice Thomas was not. He not only wanted to reach the constitutional question, but he also would strike down the special provisions of the Act as beyond the powers of Congress to enact.

This is remarkable. Remember that Justice Thomas is one of those rarified "classical jurists" who, as opposed to the "liberals," does not make law from the bench. Yet here he is in NAMUDNO, wishing to strike down portions of the Act because Congress did not put in the record enough evidence to satisfy him about the need for the statute any longer. Make no mistake: Congress had plenty of evidence in the record, thousands of pages worth. But the evidence Congress did have was not the evidence Justice Thomas wanted.

To Justice Thomas, Congress must have evidence of intentional racial discrimination in order to justify the extension of the Act any longer. In fairness, this makes some sense: the argument dates back to City of Rome, when the Court decided on the same day that the Fifteenth Amendment embodied a standard of intentional racial discrimination. Note: Could Congress prohibit state voting practices devoid of purposeful discrimination but only with a discriminatory effect? According to Justice Thomas, the answer is no. The full Court, in City of Rome, disagreed. Shouldn't Justice Thomas at the very least recognize this disagreement? And wouldn't a "classical jusrist," uninterested in writing law but only in interpreting it, side with all the prior rulings upholding the constitutionality of the Act?

To state the obvious: we are about to embark on a historic debate on the nomination of Judge Sotomayor to the Court. I am sure we will hear a lot about the conservative justices and their penchant for interpreting law, not making it, for calling balls and strikes, not for writing the rules of the game. When you hear these comments, think about Justice Thomas in NAMUDNO. Think also about the upcoming Ricci case. Talk to me then about judicial activism and "classical judicial jurists."

Friday, June 19, 2009

Things that make you scream--The Osborne Case

Yesterday the United States Supreme Court decided District Attorney's Office v. Osborne. William Osborne was convicted of a violent crime in Alaska. Following his conviction he wanted to use a new type of DNA test on the evidence, testing that he claimed was not available at the time of his trial. He is willing to pay for the testing. The test is relatively simple. The test will conclusively prove his guilt or innocence. All the State has to do is turn over the evidence. But the State of Alaska refused to turn over the evidence. Why you ask?

Who knows. Because they can? There is no rationally legitimate reason for refusing to turn over the evidence for DNA testing. Mr. Osborne went to the state courts, where he was unsuccessful. He then went to the federal courts asking them to order the state to give him the evidence so that he can test it. He argued that he has a federal constitutional right to have the evidence so that he can clear his name. He prevailed in the federal district court and in the Court of Appeals for the Ninth Circuit.

In a Kafkaesque opinion by Chief Justice Roberts, joined by the other conservatives, the good Chief concluded that Mr. Osborne was not entitled to the evidence because the "Federal Government and the States have . . . developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established into criminal procedure--usually but not always through legislation." Indeed, noted the Chief, "forty-six States have already enacted statutes dealing specifically with access to DNA evidence." The Chief calls this a "prompt and considered response" by the states. The Chief then told us that the "task" of "harness[ing] DNA's power to prove innocence . . . belongs to the legislature." In plain English: the federal courts do not have to worry about Mr. Osborne because his state will take care of him.

So, pray tell Good Chief, what prompt and considered statute has Alaska passed to address Mr. Osborne's request to test the evidence used against him to convict him? Well . . hm . . . Alaska is not one of the forty-six states, but the "State of Alaska . . . is considering joining them." Say what? But don't worry, "Alaska courts are addressing how to apply existing laws for discovery and postconviction relief to this novel technology." Excuse me?

Let's recap. Osborne cannot get the federal courts to order Alaska to give him the evidence that it used to convict him because providing this right is not the job of the courts but of the legislature. But wait, the state of Alaska has not provided a "prompt and considered response" to addressing requests for post-conviction DNA. Inconvenient fact. However, the State's courts have provided a prompt and considered response. Whew. (By the way, if the state courts can do this, why can't the federal courts?)

Okay, so what is the prompt and considered response of the Alaska state courts? The Alaska Court of Appeals rejected Mr. Osborne's request for the evidence on the ground that his attorney had made a strategic decision in not requesting this type of DNA testing. Yes, but the type of DNA testing that Mr. Osborne is now seeking was not available at the time of his trial. Whoops, another inconvenient fact.

So, what's the Chief's response? In a footnote, he acknowledged that "it is not clear whether the Alaska Court of Appeals was correct that Osborne sought only forms of DNA testing that had been available at trial . . . but it resolved the case on that basis." "It is not clear"? I thought that the Courts of Alaska were capable of providing a considered response . . . . Let's move on.

The Alaska Court of Appeals also concluded that Mr. Osborne was not entitled to the evidence that he sought because "the evidence of [Mr. Osborne's] guilt was too strong and [the DNA test] was not likely to be conclusive." But, I thought that the DNA test Mr. Osborne sought was conclusive as to his guilt or innocence. Yes, it is. Another inconvenient fact.

So, the Alaska Court of Appeals denied Mr. Osborne's request on the basis of two grounds that were clearly erroneous. But the Chief concluded "We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general, and nothing inadequate about how those procedures apply to those who seek access to DNA evidence." Therefore, Mr. Osborne is not entitled to relief under the federal constitution.

Things that make you want to scream.

Wednesday, June 17, 2009

Open Letter to Justice Kennedy (and all other "Classical Judicial Jurists")

Dear Sir(s) --

I noticed that the NAMUDNO opinion is not out yet. I assume this means that it is taking up a lot of your time. This appears to be a hard case. But it is not really all that hard. Let me help you.

These are your words, from the recent Bartlett case (decided in March of this year): "Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions." I agree. And so did Congress in 2006, by overwhelmingly extending the special provisions of the Voting Rights Act for another 25 years.

As you prepare to decide NAMUDNO, and whether these special provisions are legitimate exercises of congressional power under the Reconstruction Amendments, don't let it be said that you are not a classical judicial jurist, a judge for whom precedent matters. This is why you must uphold the VRA once again. You and Congress agree that a problem still exists, and Congress extended the VRA in an attempt to continue the fight against this very problem. The only way you could strike down this statute would be by disagreeing with Congress on the means deployed to combat this problem. But surely, to do so would be to disagree with precedents dating back to the founding, and as recent as a decade ago. So long as the ends pursued by the legislation are legitimate, the means need only be appropriate and "plainly adapted to that end." The only way you could strike down the statute, in other words, would be by disagreeing about the means deployed by Congress. In doing so, you would also disagree with rulings issued by all three preceding Courts. Don't let it be said that you are an activist judge.

I recognize that the various extensions to this law are now beginning to turn these provisions into a seemingly permanent statute. But this argument is nothing short of a distraction. As Attorney General Katzenbach told Congress in 1965, this statute is "strong medicine." Nobody takes medicine forever, of course. But it should be for Congress to determine when the need for the medicine ends, not the Court. And Congress just determined that the need still exists, for another 25 years. In Bartlett, you agreed that the ills that motivated Congress to act are still among us. And so to strike down these special provisions would be to impose your personal views and decide that these means, these provisions, are not necessary, or too strong, or who knows what. But that would not be an act of a court. That would be an act of a legislature.

As we prepare for the historic confirmation hearings on the nomination of Judge Sotomayor, we will hear and debate many views about what the proper temperament and disposition of a Supreme Court Justice should be. In this vein, this case should give us a window into the Roberts Court and the future of voting rights law. It should also help us put these upcoming debates in perspective.

Remember: this is not a hard case. Assuming, of course, that you are a "classical judicial jurist." Tell your friends.



Friday, June 12, 2009

On Judging and "Classical Judicial Jurists"

A few nights ago, watching the Stanley Cup finals reminded me of the confirmation hearings for my colleague Dawn Johnsen to head the Office of Legal Counsel. During her exchange with Senator Sessions, the Senator expressed the following view:
I think Justice Alito and Roberts have firm, classical judicial philosophies that would really trouble me if somebody thought they were unfit for the bench -- (inaudible) -- said about to radically remake the Constitution, it's the activists that are remaking the Constitution, not the classical judicial jurists.
It would be too easy to criticize this statement as sheer lunacy (note to self: send Senator Sessions a copy of The Attitudinalist Model Revisited and The Choices Justices Make). But that would be to give this view far too much credit. The better story here is how such a view is accepted in places that matter, like the U.S. Senate. And that, standing alone, is a triumph of the conservative movement.

Consider also Chief Justice Roberts' confirmation hearing, where he assured the Judiciary committee that
Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
Unsurprisingly, this vision of his role died soon after his confirmation to the Court. He is not the limited judge he professed to be. It appears he never was.

Move this story ahead, to the upcoming racial "discrimination" case, Ricci v. DeStefano, or the Namudno case, which will consider the constitutionality of the special provisions of the Voting Rights Act. The same Chief Justice who professes to only apply the rules as they exist, and who abhors judicial activism, will decide these cases not on the law as it is written, but on the law as he wishes it to be.

This brings me to the Stanley Cup finals. After game 2, a star player received an "instigator" penalty for fighting during the last minute of the game. And the Rule seems pretty clear on this:
47.12 Instigator in Final Five Minutes of Regulation Time (or Anytime in Overtime) - A player or goalkeeper who is deemed to be the instigator of an altercation in the final five (5) minutes of regulation time or at any time in overtime shall be assessed an instigator minor penalty, a major penalty for fighting, and a game misconduct penalty (see 47.22).

The problem was, this was a star player, and to suspend him would place his team at a serious disadvantage. But rules are rules, right? Here's what his coach said after the game: "If he got an instigator in the last five minutes, I think there are rules that are clear. I don't know." However, here's what the league office said, in a statement issued an hour after game 2 ended:

None of the criteria in this rule applied in this situation. Suspensions are applied under this rule when a team attempts to send a message in the last five minutes by having a player instigate a fight. A suspension could also be applied when a player seeks retribution for a prior incident. Neither was the case here and therefore the one game suspension is rescinded.

Of course. Tell it to Chief Justice Roberts, or Senator Sessions.

So when you read Ricci and Namudno, think about stare decisis; and about the text of the Equal Protection Clause and Section 2 of the Fifteenth Amendment; and about the intentions of the Reconstruction Congress who drafted these Amendments into the Constitution. All of these "classical" sources of law will point you in the same direction. And yet none of these sources will matter to the "classical" jurists on the Court. They will vote to overturn the Second Circuit in Ricci, and they will likely vote to strike down the special provisions of the VRA in Namudno. And Senator Sessions will not call them "activists," because, well, they reached the right result (that is, a result with which he agrees).

I wonder if Chief Justice Roberts is a hockey fan. The NHL did him proud the other day. He could not have done it any better.