The Obama Presidency as an Extension of the Clinton Presidency?

One of the main arguments in favor of Barack Obama and against Hillary Clinton when both were competing for the Democratic nomination was that a Hillary Clinton presidency would be an extension of the Bill Clinton era, which Obama argued of course, as a negative.  Indeed, some might recall the brouhaha caused by Obama when he suggested that Ronald Reagan was a greater president than Bill Clinton because Reagan transformed the country and Bill Clinton did not.  In addition, though the Obama folks were quite skillful about this, they also suggested that the Clinton presidency was too centrist, that a Hillary Clinton presidency would be similarly centrist and not transformative in a progressive direction, which an Obama presidency would surely be.

As it turns out, the Obama presidency is developing into a centrist affair (I offer this not as judgment but description).  As it also turns out, some are starting to see the Obama presidency as continuous with the Clinton presidency--at least on foreign affairs.  Further, it seems that Bill Clinton himself has been playing an important role in defining the Obama presidency (see here).  And of course, there's the central role that Bill Clinton has played in l'affaire Sestak.  (See here and here.)  Would it not be ironic (deliciously so one suspects for Hillary Clinton supporters), if the Obama presidency becomes truly defined by Bill Clinton and the Clinton presidency?

Affirmative Action in Northern Ireland

I've recently read Affirmative Action without Quotas in Northern Ireland, by Christopher McCrudden and his colleagues.  McCrudden is a human rights professor at Oxford and at the University of Michigan Law School.  The paper is published in The Equal Rights Review, Vol. Four (2009).

The paper evaluates positively Northern Ireland's affirmative action program (I didn't know Northern Ireland had an affirmative action program did you?), which is an attempt to reduce discrimination against both Catholics and Protestants in both public sector and private sector employment.  I highly recommend this very short paper (7 pages).

The key highlights of Northern Ireland's successful approach involve "detailed monitoring for firms' composition, plus agreed action plans, where necessary, to ensure for both groups 'fair participation' in employment, avoiding the setting of quotas."  Employers must conduct periodic audits of their workforce composition to determine whether there is fair participation and they must take remedial steps where necessary.  The process was monitored/facilitated by a government agency, which entered into both voluntary agreements and legally-biding agreements with employers.

Some key findings from the study: (a) the affirmative action program was successful; (b) voluntary agreements were more effective than legally-enforceable agreements; (c) the affirmative action program also increased the share of managerial workers in the targeted group; (d) there was a "spill-over" effect on non-regulated employers whose employment practices were more fair as a consequence of the practices of the regulated employers.


This study raised two questions for me.  First, can we in the US learn anything from the Northern Ireland experience?  Second, given that affirmative action is practiced in many countries around the world to redress discrimination of various kinds and in many cases quite effectively, should it not have greater moral authority as an important tool for addressing the effects of discrimination in the United States?

Race Plays Role in Officer-on-Officer Friendly Fire Incidents

Statistical accounts of irregular or regular occurrences, disaggregated by race or other features, can prove quite disturbing.

The New York Times reports that the "last killing of a white off-duty officer by an on-duty colleague in a mistaken-identity case in the United

States happened in 1982." A task force formed by Governor David Patterson and led by former U.S. Attorney Zachary Carter has reviewed the tragic cases of friendly fire (including officers who were killed both on duty and off duty). The report can be found at the task force website here.

The report by the task force found that 26 police officers were killed in the United States over the past 30 years by colleagues who mistook them for criminals. It also found that it was increasingly “officers of color” who died in this manner, including 10 of the 14 killed since 1995.

More specifically, in cases involving a victim who was an off-duty officer, the task force reported that 9 of the 10 officers killed in friendly fire encounters in the United States since 1982 were black or Latino, including Omar J. Edwards, a New York City officer who was fatally shot in Harlem last May by an on-duty colleague, and Officer Christopher Ridley, an off-duty Mount Vernon officer shot and killed by at least three uniformed Westchester County officers in White Plains in January 2008.

The last killing of a white off-duty officer by an on-duty colleague in a mistaken-identity case in the United States happened in 1982.

“In short, there are many issues besides race present in these shootings, and the role that race plays is not simple or straightforward,” according to the report, which was delivered to Mr. Paterson this week.

But in searching for trends, the report said the conclusion of the task force was clear: “Inherent or unconscious racial bias plays a role in ‘shoot/don’t-shoot,’ decisions made by officers of all races and ethnicities.”

Making Sense of SCOTUS, the Latest Firefighters Case, and Race

On Monday, the U.S. Supreme Court decided Lewis v. Chicago, an employment discrimination case.  The facts were oddly familiar.  In January 1996, the City of Chicago offered a written exam to applicants for its firefighter positions.  Anyone scoring between 89 and 100 on the test were placed on the “well qualified” list, and the city would fill its open positions by selecting candidates randomly from this list.  Anyone between 65 and 89 were deemed “qualified” yet unlikely to get a call from the city.  Anyone under 65 failed the test.

Long story short: As the city began to select from the “well qualified” list, African American applicants from the “qualified” list argued that the selection process had a disparate impact in violation of Title VII.  The district court agreed and ruled in favor of the plaintiffs.  The Seventh Circuit reversed, on the ground that the plaintiffs were required to file a charge with the EEOC within 300 days from the time the discriminatory act took place yet failed to do so. According to the panel, the discriminatory act was the sorting of all applicants into the three pools on the basis of their test scores.  In the words of Judge Posner, writing for the three-judge panel, “[t]hat discrimination was complete when the tests were scored and, especially in light of the mayor’s public comment about them, was discovered when the applicants learned the results.”

This is right out of Groundhog Day.

Anyone familiar with the recent Ricci v. Stefano or Ledbetter v. Goodyear Tire & Rubber could take an educated guess about the outcome in Lewis.  You would only need to know two things.  First, the justices are strategic political actors who seek, whenever possible, to further their own policy objectives.  And second, the conservative wing of the Court is neither receptive to broad and expansive readings of employment discrimination law, nor is it welcoming to claims brought by plaintiffs of color.  These two facts are clearly on display in Ricci and Ledbetter.  This would mean that in Lewis, the Supreme Court, in a 5-4 decision, would uphold the lower court decision and rule the claims by the black plaintiffs as untimely.

And yet, the Court did exactly the opposite, ruling unanimously for the black plaintiffs.  How to explain it?  How to explain such an opinion authored by Justice Scalia and joined by Justices Thomas, Kennedy, Alito and the Chief Justice (and the rest of the justices, of course)?

I don’t have a definitive answer.  But I have some ideas.

Rand Paul, Private Property, and Public Accommodations

In today's article in the NY Times on the Rand Paul, civil rights controversy, the reporters said this:

Mr. Paul said in an interview with Rachel Maddow on MSNBC on Wednesday night that he supported the sections of the Civil Rights Act that applied to public accommodations but had concerns when it came to its applicability to private business; he raised similar concerns earlier in the day about the Americans with Disabilities Act in an interview on National Public Radio.

It's hard to know whether the ignorance evinced by the distinction drawn in the paragraph is Paul's alone or whether the NY Times reporters also think there is some difference between "the sections of the Civil Rights Act that applied to public accommodations" and the sections that apply to "private business." I hope it's the former, but even if it is, they should have used the opportunity to explain what is probably not obvious to most people: the public accommodations provisions of the law are the very same as the sections aimed at privately owned businesses. This is because -- in Title II of the Civil Rights Act -- the question whether an accommodation is public has nothing to do with who owns it. Rather, it has to do with whether it is the sort of facility that opens its doors to all comers who are willing to (1) behave themselves and (2) pay the price charged for the services rendered.

Here is how the law defines "public accommodation":

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

Virtually all of these establishments are privately owned under most circumstances, although some of them (e.g., stadiums and concert halls) are frequently publicly owned. So anyone who is familiar with this statute -- and, in fact, with the history of the debate over Title II -- knows that if you eliminate its applicability to privately owned businesses, you eliminate the bulk of Title II.

The logic behind applying Title II to privately owned places of public accommodation is that a business owner who opens his private property to operate this sort of business has a very limited interest in picking and choosing among the people he will serve. The relationship that is established by serving a customer under these circumstances is highly attenuated and, as a consequence, being forced to serve all comers (a doctrine with deep roots in the common law of property in its treatment of so-called "common carriers") is barely an infringement of the liberty interests of owners. If you don't want to interact with black people even in the shallow context of casual commercial interactions, don't open a restaurant or soda fountain. Instead, open a private club, which the law exempts from its reach.

On the other hand, the infringement on the liberty of those excluded is substantial. What makes libertarians like Paul and his defenders seem so obtuse -- and the reason you will not find many black libertarians -- is that they categorically elevate even the very attenuated liberty interest a property owner has in being able to pick and choose customers on the basis of race such that it trumps everything else, including, the dignity of black citizens in being able to engage in commercial activity without the risk of humiliation or violence.

If you look in the comments of the thread of my dotCommonweal post, you'll see this logic at work in the arguments raised by one libertarian commenter, who said that the harm suffered by a black person excluded from a soda fountain is of a different nature from the harm imposed when the state coerces, presumably (for example) by mandating non-discrimination in privately owned places of public accommodation. Set aside the fact that the enforcement of owners' "rights" to exclude on the basis of race is built on a foundation of coercion (just look at the video I linked to in the last post, which showed peaceful sit-in protesters being beaten by private citizens before being arrested for criminal trespass). Set aside the networks of private coercion that prevented non-racist business owners in the pre-civil-rights South from opening their doors to black customers for fear of reprisals or lost business. It is only a categorical decision at the outset to privilege rights that bear the label of "property" above other types of interests that allows a person to conclude that denial of interests in access is less significant than the rights of business owners to discriminate among their customers on the basis of race. My guess is that such a prioritization of abstract rights of private ownership over rights of nondiscriminatory access is greatly facilitated by never having experienced the sting of racial exclusion.

Rand Paul and Civil Rights

[Cross-posted at dotCommonweal]

Rand Paul has been making waves for his criticism of the Civil Rights Act of 1964's prohibition of discrimination in places of public accommodation. Title II of the CRA makes it unlawful to discriminate on the basis of race (and a number of other grounds) at establishments like restaurants, movie theaters, etc. Paul's timing is interesting, since this year is the 50th anniversary of the lunch-counter sit-ins, which really put the public accommodation question on the civil rights agenda in early 1960. Although fairly controversial at the time, the idea that private owners cannot exclude from places of public accommodation (i.e., businesses that they have opened to, for the most part, all comers) has become part of the legal furniture of our lives. I would guess that only a tiny number of Americans at this point think that private business owners have the right to hang a sign in their window saying "whites only," but apparently Rand Paul does. If he were elected, I'd wager he'd be the only member of the United States Senate who has openly expressed opposition to Title II in the past 30 years.

Of course, it's almost certainly true that very few business owners these days would put out a "whites only" sign, at least if they wanted to remain in business for long, but that is almost certainly a testament to the success of Title II (among other things) in changing norms about the propriety of racial discrimination. And, of course, stories of more subtle or ad hoc forms of racial exclusion from places of public accommodation are fairly easy to come by. So it would be wrong to think that the law does not have something important to contribute. In addition, there is no doubt that employment discrimination (prohibited by Title VII) continues to be a problem in the United States, as well racial discrimination in private housing markets (prohibited by the Fair Housing Act, aka Title VIII of the Civil Rights Act of 1968). I hope folks in the press will ask Paul what he thinks about those provision, which libertarians have also criticized as infringements on the rights of property owners and employers.

Listening to Paul on NPR last night, what struck me most was his inarticulate ignorance. He admitted that he had little idea what was actually in the Civil Rights Act of 1964. I doubt he has much idea about the history behind it or the impact that private discrimination in places of public accommodation. If he's interested in boning up, he might want to start with this documentary. Notwithstanding his admitted lack of information, he steadfastly refused to say he supported the prohibition of discrimination in places of public accommodation. It will be interesting to see how mainstream conservatives respond to this.

Are We Witnessing the Beginning of the End for the Voting Rights Act?

 From the time the landmark Voting Rights Act of 1965 became law in 1965, critics have challenged it on constitutional grounds.  Critics complained then that the Act was beyond the powers of Congress, an illegitimate affront to states’ rights and principles of federalism, as well as arbitrary in its coverage.  Months after its passage, the Supreme Court upheld the constitutionality Act; only Justice Black accepted these arguments as applied to the application of the Act to the southern states. 

Through the years, the dissents have grown louder and stronger.  In the Namudno case, decided last June, the Supreme Court made clear that the Act is on borrowed time.  During oral arguments, the conservative wing of the Court voiced its reservations about the constitutionality of the law; and writing for himself and seven other justices, Chief Justice Roberts could hardly hide his contempt for the Act.  When the Court decided the case on statutory grounds, it was only postponing the inevitable.

The question at the heart of the constitutionality of the VRA is easily stated: Is this a world where racial discrimination continues to exist, or have we reached a state of affairs where the Act is no longer a justified intrusion into state affairs?  Too often, discrimination is in the eye of the beholder.  We know how Congress decided this question, when it extended the special provisions of the Act in 2006 for the next 25 years.  In fact, a big part of the hearings were spent focused on this particular question.  The signals from the Court suggest that its conservative wing is not similarly persuaded.

The upcoming challenge to the constitutionality of the Voting Rights Act will not be decided by law as commonly understood, but by the justices’s own visions of the world.  To be clear, this is not a development new to the Roberts Court.  From the moment the justices first upheld the constitutionality of the Act in the Katzenbach cases, the question has been one of judicial will and the justices’ willingness to defer to the findings of Congress about the existence of racial discrimination in American society. This has been true through the years and remains so to this day.  In case after case, from Georgia v. United States to City of Rome to Monterey County, the Court has deferred to the findings of Congress on this complex question.  Whether the Court continues this pattern of deference is the question for the future.  We know where Justice Stevens stood on this question.  It is hard to conclude with any degree of confidence where Elena Kagan stands; and the few data points we do have do not inspire much confidence.  In fact, they make anybody who is serious about the state of civil rights in America "uneasy". 

What is Elena Kagan's Vision of Racial Justice?

The record speaks for itself: Harvard made 32 tenure and tenure-track faculty hires, of which only one was a scholar of color and seven were women. By any metric, these are bad facts.  But what these numbers don't tell us is what lies behind them.  This is where Kagan's defenders spend the bulk of their time, explaining and justifying this "abysmal" record without at the same time undermining Kagan's narrative as "coaliton-builder."

The responses are not surprising: for example, the pool of candidates is shallow; Kagan is deeply committed to racial diversity and showed it in myriad ways; she in fact hired scholars of color for clinical positions; and besides, it is a well-known fact that deans do not have sole  control of the hiring process and, in fact, have much less influence than our argument ascribes to them.

These reponses highlight some of the lessons of the Kagan nomination, namely, the power of networks and the social construction of merit.  In the context of the critique of Harvard's hiring record under Kagan, it is important to understand how faculty hiring in fact works, that is, how faculties make decisions among candidates with an array of competing qualifications.  It is important to understand, in other words, why Kagan's hiring record at Harvard matters.

Cutting the Cards

The last few days have brought a whirlwind of comments about how former Harvard Law School Dean Elena Kagan’s record on tenured and tenure-track faculty hiring of women and people of color may reflect a lack of commitment to racial and gender equality. As I stated earlier, I have been encouraged by the supportive statements from professors who know Kagan well and whom I know to have a strong commitment to racial and gender equality themselves.

Though I am encouraged, I am not entirely persuaded just yet. No matter how hard I try to convince myself, I keep coming back to this one saying, which has meaning beyond just the ordinary poker game: “Trust everyone, but cut the cards.”

You see, it’s not that I do not trust people like Professor Charles Ogletree or Professor Randall Kennedy. I mean, how could I not trust them? They are two of my very own heroes! Believe me, I trust them, but I have to admit that it’s hard for me to fully trust, without more of a paper record, that Solicitor General Kagan will become the next Thurgood Marshall (or even somewhere in that vicinity) on legal issues that concern racial and gender equality. Let me explain why—why I find it necessary to play it safe and cut the cards.

You Cannot Have Your Cake and Eat It, Too

Although I am still cautious, I have been encouraged somewhat by comments from other progressives who know Solicitor General Kagan personally. Most importantly, I was thrilled to hear Kagan emphasize, rather than shy away, from her connection to the late Justice Thurgood Marshall. It made me hopeful that she would follow in Justice Marshall’s footsteps, bringing his same strong sense of justice for the disadvantaged to the bench.

BUT . . .

The Kagan Nomination as a Lesson on the Social Construction of Merit

President Obama has made his choice and, unsurprisingly, Elena Kagan won the Supreme Court derby.  To many people on the left, this is now the end of the discussion and time to rally around Obama's choice.  But this would be misguided on many fronts. The lessons of the Kagan nomination are almost endless.

For example, consider what the nomination teaches us about the Supreme Court appointment process and the power of networks.  To get ahead, one must have the right friends, positioned in the right places.  Consider also how liberals and progressives lost the fight over the Supreme Court long ago (see here and here).  "Conservative" justices are by definition paragons of judicial restraint, strict constructionists who interpret the Constitution as written, not as they wish it to be; "liberal" justices, of course, do exactly the opposite.

Far more important is how the Kagan nomination helps us understand the social construction of merit.  While we carry on as if the twin concepts of merit and qualifications have objective, platonic qualities, the reality is far from that.  The Kagan nomination underscores how mushy and malleable these concepts are.

Why Elena Kagan's Hiring at Harvard Matters

In a post on the widely-read SCOTUS blog, under the topic of "issues that will be mentioned in the Kagan nomination but won't get traction," Tom Goldstein writes,

Race in Harvard’s faculty hiring under Kagan. Some law professors complain that the faculty hires at Harvard during Kagan’s tenure were mostly white. However unfair it is that this issue could get traction, the truth of the matter is that the suggestion that a progressive woman who served as a dean of Harvard Law School harbored some racial bias will not go anywhere. Conservative opponents will also hesitate to legitimize arguments like that.

I like Tom Goldstein, and his move here is a familiar one, but it is wrong. To see how silly this move is, it is tantamount to saying that we called Kagan a misogynist because of the paucity of women hires under her deanship at Harvard. Since I was among the "complain[ants]", I'll take a very quick stab at explaining why Kagan's hiring record matters and why our complaint has nothing to do with intentional racial bias.

The Kagan Network

A few days back, I wondered about Elena Kagan's meteoric rise. My answer was that one cannot underestimate the importance of "privilege and connections." Privilege and connections are also not unrelated to how one becomes the leading candidate for the Supreme Court. One must be smart, work hard,and be focused; all of those qualities must be credited. But "the force of social networks and 'the people you know'" are not only extremely useful but almost necessary. I suggested that some of this explained why Elena Kagan would be nominated for the Court.


According to an insider to the process, this is precisely what happened. The many criticisms on Kagan as a viable candidate did not hurt her prospects. Due to her work in the Clinton administration, an activist suggested that "she has a lot of powerful liberal friends in this town. She has been very effective in using her progressive allies."


This should surprise no one; and yet, paradoxically enough, I am still surprised.

How to Explain Supreme Court Nominations? (or, An Essay on the Art of Becoming Brilliant)

It is beginning to look more and more that Elena Kagan will be President Obama's replacement for Justice Stevens' seat on the Court. This is true in the face of growing skepticism (see, for example, here, here, here, and here) about her nomination. These concerns are outweighed, at least on President Obama's mind, by the notion that she would be "a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions."


The little evidence we have on the Kagan-as-fearless-counterweight view is scant, yet hardly encouraging. In fact, it is the complete opposite. I have in mind here here what James Doty labels her "occasional obtuseness," or what she herself called "panic." The idea that General Kagan would be a coalition builder on the Court while serving as a counterweight to the conservatives justices is nothing more than "unsupported fawning fantasy."


In light of all of this, two questions keep turning up in my head. First, and for all the noise made about Kagan's qualifications, how far would she have gone in her life in the legal academy without the support of critical networks? And second, what does the fact that she is even a candidate to replace Justice Stevens tell us about President Obama's values and priorities, especially in light of his recent call to voters of color to come out and support the party in November?

The Immigration Debate, Public Opinion, and Winning Elections

According to the latest New York Times/CBS News poll, a majority of Americans support Arizona's recent immigration law even while they think it will lead to more racial profiling.  Moreover, a majority also thinks that the federal government must do more to protect the border and think illegal immigration is a serious problem. Unsurprisingly, the public is divided about what to do with the illegal immigrants already in the country. A recent USA Today/Gallup Poll finds a similarly conflicted public.


None of this should be terribly surprising.  Public sentiment appears to mirror long-standing public debates on this issue.  Even the first point -- support for the law in the face of the risk of racial profiling -- is easily explained.  This is the classic "tyranny of the majority" danger lurking in democratic societies.   I get that.  


 Far more important is the fallout of the law for the major political parties, both short and long term.


What to do, what to do . . . 

Race, Hiring and the Lessons of Becoming Justice

From the moment that stories about the inevitable nomination of Solicitor General Elena Kagan appeared on blogs everywhere, a picture soon began to emerge.  For me, however, it was not the picture her supporters are trying to paint for her.  For the more I read, the more she looks like the anti-Sotomayor.

The Telos of Supreme Court Nominations and Vacancies

The debate over Elena Kagan and what seems to be -- according to Tom Goldstein -- her surefire nomination to the Supreme Court provides an important opportunity to reflect on the purpose of Supreme Court nominations.  I want to present two contrasting views.