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.