Monday, December 20, 2010

Judge Ed Chen and Diversity: Recalling Justice Sandra Day O'Connor's and Justice Samuel Alito's Appreciation of the Importance of Diversity in the Judiciary

In the pages of the California Law Review, Judge Chen cites Justice O'Connor for the value of diversity on the federal bench:

The practical value of diversity within the judiciary is illustrated by Justice O'Connor's 1992 tribute to Justice Thurgood Marshall. She re- counted Justice Marshall's fondness for sharing personal stories with the other justices in conference in order to emphasize legal points, including stories about Ku Klux Klan violence, jury bias, defending an innocent African American wrongly convicted of rape and sentenced to death, and the many indignities of racial segregation he personally had endured.' an wrongly convicted of rape and sentenced to death, and the many indignities of racial segregation he personally had endured.’ Justice O’Connor spoke about the impact those stories, told by a man who had traveled a very different path than her, had on her own understanding of the issues confronting the Court. She spoke about the impact of legal rules on human lives, and the need for judges to strive to narrow the gap between the ideal of equal justice and the reality of social inequality:

No one could help but be moved by Justice Thurgood Marshall’s spirit; no one could avoid being touched by his soul.... Occasionally, at Conference meetings, I still catch myself looking expectantly for his raised brow and his twinkling eye, hoping to hear, just once more, another story that would, by and by, perhaps change the way I see the world.

Judge Chen's remarks recall Justice Alito's statement about the importance of his family's own immigrant experience--a diversity of experience that he believes valuable to the judiciary:
When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position…

Video of Justice Alito's remarks here.

Confirm Judge Ed Chen--An American Patriot

The SF Chronicle's editorial on February 4, 2010 reveals the unfairness of today's attack on him in the pages of the Washington Times.
Edward Chen: Portrait of a patriot
In his State of the Union address, President Obama implored members of Congress to rise above the highly partisan and often petty “if you lose, I win” mentality that seems to pervade Washington. A test of who will heed those words comes today, when the Senate Judiciary Committee is scheduled to take up Obama’s nomination of Edward Chen to become a U.S. District Court judge in Northern California.
Chen, 56, has become a target of the type of ideological smear campaign that corrodes the level of public discourse as the vacuous vitriol echoes in the blogosphere and on talk radio. Chen has been assailed in right-wing talking points as a radical who is obsessed with racial grievances and hates the country so much that he recoils at the sound of “America the Beautiful.”
There are two telling traits about the utter dishonesty in the trashing of Edward Chen. One, each of the anecdotes being used against him looks dramatically different in context. Two, the “case” against Chen does not include a shred of evidence from his nine years as a federal magistrate to challenge his dedication to administering the law in a fair and impartial manner.
The “America the Beautiful” example is the most common and the most outrageous distortion. Its origin was Chen’s May 20, 2005, speech to law graduates at the UC Hastings College of Law. Chen talked about being moved to tears when mourners sang the song during a service for Fred Korematsu, a U.S. citizen who had been convicted of defying the internment of Japanese Americans during World War II. Chen had been a member of the legal team that helped overturn Korematsu’s conviction in 1983.
Chen extolled the beauty in the principles of patriotism – “freedom, justice and equality under the law” – and how adherence to those American values was so much deeper and enduring than waving a flag or singing a song. No reasonable person could read the full text of that speech and not be struck by Chen’s reverence for his country – and the song “America the Beautiful” too. Other Chen speeches and writings have been similarly distorted.
It seems that much of the “evidence” of Chen as a radical is drawn from his work for the ACLU. But, again, an attorney’s advocacy role is much different than that of a judge – and Magistrate Chen has demonstrated his full appreciation for the value of a neutral arbiter who can act with absolute fidelity to the law.
Chen should be confirmed.

Wednesday, December 15, 2010

From the Health Care Ruling to Advice and Consent

After thinking about Judge Hudson's decision in Sebelius for some time, there was something still gnawing at me, something I couldn't quite figure out. The case itself is uneventful, as far as the legal particulars are concerned. For a judge appointed by a Republican President -- and not just any Republican President, but George W. Bush -- to side against any part of a health care bill signed into law by a Democratic President should surprise no one.

And yet, we as a politico-legal community seem either surprised or else, depending on one's point of view, relieved that the judge would decide as he did. I have in mind here a quote from Randy Barnett, professor of law at Georgetown University. It went something like this: “All the insiders thought it was a slam dunk,” . . . “Maybe a slam dunk like weapons of mass destruction were a slam dunk.” The Times reporter similarly wrote that the many challenges to the law could "no longer be dismissed as frivolous, as they were earlier this year by some scholars and Democratic partisans." This is clearly a theme of the ruling, as a different Times reporter similarly wrote that "the ruling was nonetheless striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous.

This struck me then, and still strikes me now, as simply nonsensical. This is especially so in light of everything we know about Judge Hudson and his politics as well as the arguments he made. Frivolity -- or lack thereof -- is the order of the day. Jack Balkin has a terrific response to this push on the part of Barnett and others to legitimize the commerce clause argument at the heart of Judge Hudson's ruling.

But this still didn't quite get at what wasn't quite right about the case and our responses to it. And then this occurred to me. What if, instead of Judge Hudson, the judge in the case were none other than Judge Judge Dick Cheney, or, even worse, Judge Limbaugh or Judge Beck. It may be that our reactions would still be the same. It may be, that is, that congressional Republicans would feel emboldened by such a ruling and renew their attacks on the law all the same, and that political support for the law would still destabilize as a result of the ruling. Who knows.

I suspect as much. Irrespective of the identity of the judge, the reactions would not change one bit. For support, one need to look no further than the mother of all activist decisions, Bush v. Gore. This was a case where the law took a backseat to pragmatic considerations and the short term goals and ideologies of the justices. What we knew as a practical reality meant little in the real world. President Bush went on to govern as if nothing unseemly had happened, and we were told to move on and "get over it."  The same would be true after a health care ruling striking down the law en toto, by a Judge Glenn Beck, even if every single law that had ruled on the question had upheld its constitutionality.

This must mean, in sum, that the confirmation process is really that powerful. A conclusion reached by a private citizen can be considered "frivolous," yet legitimate once the same conclusion is reached by the same person once confirmed by the Senate. Put more simply: the decision reached by Judge Hudson was considered frivolous a month ago, yet somehow is no longer frivolous because one federal judge, appointed by a Republican president and with strong ties to the Republican Party, placed it at the heart of his opinion.

The implications could not be clearer. The confirmation process is the end game, the place where legal revolutions are won and lost. This is why nominees need not be smart, or even qualified by whatever standard of one's choice. The nominee just needs to be part of the right team. I don't know much about Judge Hudson, but I know one thing: he is clearly playing for the team that put him in the game.

Consider in this vein today's latest plea by the editors of the New York Times. The crux of their critique boiled down to the following:
The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.
Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)
Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.

In light of the foregoing discussion, I have a completely different reaction to the Republican's delaying tactics decried by the Times. To my mind, the miracle in all of this is that any nominees get confirmed at all.

Study: Asian American Men Earn Less Than White Male Counterparts

R&D Magazine summarizes an interesting study published in the American Sociological Review this month:
A new study by a University of Kansas sociologist shows that U.S. employers fail to pay Asian American men as much as similarly qualified white men.
"The most striking result is that native-born Asian Americans - who were born in the U.S. and speak English perfectly - their income is 8 percent lower than whites after controlling for their college majors, their places of residence and their level of education," said ChangHwan Kim, an assistant professor of sociology at KU, who led the study.
Full results of the study - "Have Asian American Men Achieved Labor Market Parity with White Men?" - appear in the December issue of the American Sociological Review.
According to Kim, who co-authored the study with Arthur Sakamoto of the University of Texas at Austin, the findings show that the U.S. falls short of the goal of a colorblind society.
"As an individual, you can reach as high as president," said Kim. "But as an ethnic group, no group has reached full parity with whites. That's the current status of racial equality in the United States."
Kim and Sakamoto combed data from the 2003 National Survey of College Graduates to investigate earnings - numbers that have not been used previously in research on Asian Americans.
Among their other notable findings:
  • First-generation Asian American men, who were born and completed their education overseas, earn 29 percent less than white men in the U.S.
  • 1.25-generation Asian American men, those who earned their highest degree at a U.S. institution, but were born and previously educated in a foreign country, had incomes 14 percent lower than those of white men.
  • The only group to have achieved earnings parity with white men is 1.5-generation Asian American men. Though foreign-born, these men came to the U.S. as children, so therefore speak perfect English and have U.S. educations.
Kim said that 1.5-generation Asian American men could benefit economically from their parents' immigrant work ethic: "They see their parents struggle, and they understand that their achievement in the United States is actually their parents' achievement. It's not their own goal, it's the goal for their whole family," he said. "They actually have a burden of success."

Tuesday, December 14, 2010

Judging the Health Care Law

A federal judge in Virginia has fired the first direct salvo against the constitutionality of the health care law, and the debate now rages in the blogosphere. This is a debate largely about the merits of Judge Hudson’s opinion in Virginia v. Sebelius striking down the law’s specific mandate that individuals buy health insurance. To the critics, this ruling is "bizarre," significant error" and invites “mischief,” with parts of the opinion reading “as someone determined to strike the mandate regardless of the force of argument in the way.According to Jack Balkin, Judge Hudson could only make his case by “dredg[ing] up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.” The argument, Balkin concludes, is “remarkabl[y] weak.”

Critics of the law take the opposite view. To Randy Barnett, for example, the ruling is “a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. According to Peter Wehner, former domestic policy advisor to President George W. Bush, argues that “Judge Hudson’s a serious judge and he has put into words, and into a legal decision, a fairly profound pronouncement, which is that a key element of Obama’s health care plan is unconstitutional, Ilya Somin similarly argues that to uphold the individual mandate “would give Congress virtually unlimited power to mandate anything it wants.” This would be both “dangerous and unconstitutional.”

This is an important debate, and I don't mean to minimize it here.  But to focus on the legal debate would be to miss what is far and away the much more interesting story and its many lessons.

Thursday, December 9, 2010

Gangsta, Minstrel, & House Negro: Race and Obama's Critics on the Left

An observation on the racialized critique of the President from those on the left.  The new left fashion is bashing President Obama, see here, here and here.  It is still two long years away from 2012 and many in the President's own party have started writing him off.  My crystal ball is not working today, so I can't say what will happen in 2012. If I were a betting man, I would bet on the President.  After all, the man did pull the country back from the brink of financial disaster, not to mention other significant accomplishments such as the historic healthcare bill.  And until a serious Republican challenger emerges, Chris Christie?, the odds should favor the Obamas holding on to their current abode for a another four years.

There's nothing wrong with criticizing the President and many of us would not be honest if we did not engage in good faith criticism of the President.  But some of the criticisms of President, and I mean to single-out the recent criticism from the left, have a particular racial tincture to them that leaves me quite uncomfortable. These types of critiques rely upon certain familiar racial tropes: the gangsta or thug, the minstrel, and the house negro.  An example of the thug is from comedian Bill Maher's explicitly racial critique, where he complains that the President should be a real black man and start shooting up people.  Recently, Maher followed up his early critique with the following:
"I thought, when we elected the first black president, as a comedian, I thought two years in, I'd be making jokes about what a gangsta he was, you know?" Maher said. Instead, Maher said we've got "President Wayne Brady."
For Bill Maher, Suge Knight is his vision of who Obama should be.  Interestingly, his vision of Obama is actually another racial stereotype, that of the black jester, the minstrel.  While few critics have been as explicitly racial as Maher, many of the left criticisms implicitly rely upon the gangsta/minstrel stereotype: We expected a black gangsta as a President, instead of we got an effete shuckin' and jivin' president.

There is another set of criticism that is less overtly racial but perhaps just as troubling.  In this set of criticisms the President is chided for not being sufficiently progressive.  These writers tend to talk down to the President as if he's a schoolboy who did not learn his lesson.  They remind him that the only reason that he is the first black president is because of them and their good graces.  Otherwise, he'd be another Jesse Jackson or Al Sharpton.  The President is not viewed as the pragmatic politician/scholar that he is, but like a house negro.  These folks are constantly reminding the President that if he does not behave, they'll return him to the field.

The house negro is both good negro and servant.  You expect the house negro to be a grateful negro because he knows (or should know) that your good grace is the only thing that preventing him from being a field negro.  And if the house negro ever gets out of line, your remind him that he is one step away from the field.  You expect the field negro to lead the revolt, but you expect the house negro to be docile and obedient.

If these critics were coming from the right, many of these same folks would be crying racism because it would politically expedient to do so.  I'm not ready to cry racism, but some of the President's critics need to be more thoughtful; their racial bias is showing.

Wednesday, December 8, 2010

Connecting the Dots: Of Haves and Have Nots

I am thinking about three separate pieces this morning, brought together by President Obama's recent tax deal.  The first is a terrific video by Swedish academic Hans Rosling doing the rounds on the internet that illustrates graphically the last 200 years of global development.

You can watch the video here.

The second is, of course, Obama's tax deal, and particularly the extension of Bush's high end tax cuts.  It is all about the economy, stupid, and particularly job creation.  Economists and Democratic policy experts are pleased with the deal, as Democrats in Congress are clearly not.  So if you make in excess of $250,000, go create us some jobs.  And Happy Holidays.

The third is the recent decision by Don Blankenship, notorious CEO of Massey Energy, to resign from his position on the heels of a scathing Rolling Stones' profile piece by Jeff Goodell. It was the closing line of the piece that brought all three pieces together for me:
If any of this troubles Blankenship, he doesn't let on. By his own accounting, the bottom line provides all the proof he needs of his virtue. "I don't care what people think," he once said during a talk to a gathering of Republican Party leaders in West Virginia. "At the end of the day, Don Blankenship is going to die with more money than he needs."
We can only hope, at the end of the day, that Blankenship creates us some jobs.  Obama's presidency, it might appear, hinges on it.

As for the moral of all these stories?  Andrew Leonard put it best: "Suffering pays -- as long as it is inflicted on other people."

Monday, December 6, 2010

Who Could Possibly be Against the Dream Act?

 This coming week, a showdown looms in Congress over passage of the DREAM Act.  This is a bill that provides permanent resident status to illegal residents who came into the country as minors and who have been admitted to college or have earned a college diploma or a general education development (G.E.D.) certificate.  The bill also provides that the applicant must be of  "a person of good moral character since the time of application" and neither inadmissible nor deportable under the immigration laws.

This bill has much to commend it.  The arguments should be familiar ones. For example, why in the world would a society choose to punish a child for decisions made by her parents?  In the context of the DREAM Act, why keep a child from attending college because his parents happened to have come into the United States illegally? Whatever else one thinks of the parents' initial choice, how could be possibly hold the child morally responsible for that decision?  Relatedly, once the child graduates from high school and/or enrolls in college, what is gained by keeping her from getting a college degree?  This is not much different from an H-1B work visa, which allows applicants from "specialty occupations" (such as accounting, engineering, doctors, nurses, and financial analysts, to name a few) the opportunity to apply for work in this country ahead of others.  The same policy would appear to apply in both situations.

If neither of these two arguments persuades you much, then think about the DREAM Act simply as a crude policy calculation.  That is, what is the downside of encouraging young children to apply themselves in school and graduate from high school, and to try to attend college?

When I first heard about this legislation, I remember thinking, who could possibly be against this bill, and what would their reasons be?

Silly me

Sunday, December 5, 2010

The Misleading Metaphor of Political "Capital"

A folk belief in contemporary politics is the notion of "political capital." The idea is that a political leader begins with a certain amount of "political capital." The leader is well-advised, the belief goes, to shepherd that capital well, deploying it in careful measures only towards the highest aims of that leader. In deploying it, one trades that capital for the hope of achieving one's highest aims.

The necessary corollary of this approach is that a leader avoids applying herself to anything other than her highest aims. Everything else, even if desirable, must be sacrificed, so as not to use up one's political capital. Thus, if one wants health care, one should not try to do too much for gay rights.

I believe that this approach is usually wrong. Applying one's power towards an end might in fact generate more power, demonstrating to the other side the power of a leader's constituents, and the strength of her resolve. It also generates goodwill among one's followers, necessary to fight the political battles ahead.

Friday, December 3, 2010

Looking for a Few Good Conservative Constitutionalists

What is not to like about a constitutional conservative? This is a person, according to the Mount Vernon statement, who believes in five basic principles:
limited government based on the rule of law to every proposal.
the central place of individual liberty in American politics and life.
free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.
America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.
conservatism’s firm defense of family, neighborhood, community, and faith.
In a recent essay in the New York Times, Lincoln Caplan argues that the biggest challenge for those who wish to understand constitutional conservatism lies in "understanding what, if anything, it actually means." According to Caplan, some might call the slogan "vague" or "arrogant." However, "it would be shortsighted to dismiss this increasingly used rallying cry."

Caplan gets it largely right. The term "constitutional conservatism" does no substantive work, nor does it need to. It is a rallying cry, to be sure, but also a label. The good guys, those who agree with us about all that is good in the world, or all the things to which we ought to aspire as a nation, are constitutional conservatives. Everybody else, I suppose, is a constitutional liberal. Beyond that, the term is short on specifics.

For example, is Justice Scalia a constitutional conservative when he opposes race conscious measures as contrary to the equality principle of the Fourteenth Amendment, even if, as we very well know, the Reconstruction Congress did not pursue the colorblind principle as a guide to its own actions? Similarly, is Scalia a constitutional conservative when he rewrites the Voting Rights Act to his own liking, or when he enshrines a personal right to bear arms at the heart of his vision of the Second amendment?

I can't tell. And neither those who call themselves constitutional conservatives nor the Mount Vernon statement itself provide any answers.

But that is probably the point. The use of the “conservative constitutionalism” slogan is no different than the use of terms like judicial activism or strict constructionism. These terms are deployed as labels to signal one’s agreement or disapproval with a decision, but mean nothing. Scalia and Thomas are no more or less activist than Brennan or Warren might have been.

This is not to say that we should dismiss the term and those who now deploy it. I agree with Caplan on this point wholeheartedly. Rather, the question is, what is the intended audience? I think, in light of the recent election returns, that we know the answer to this question all too well.

Wednesday, December 1, 2010

A White Middle Earth

Little did us Tolkein fans realize that elves, hobbits and dwarves were all white.  Here from the NY Times:

Casting Director Dismissed From ‘Hobbit’

You’d think a movie project whose roster of characters runs from dwarves to dragons would need to be as inclusive as possible in its casting. But on Monday a casting agent was let go from Peter Jackson’s planned film adaptations of“The Hobbit,” after placing newspaper advertisements seeking extras with “light skin tones” and a prospective performer said she was told she was too dark to appear in the movies, Agence France-Presse reported.
A spokesman for Wingnut Films, the production company of Mr. Jackson, the “Hobbit” producer and director, told Agence France-Presse that the casting director, who was not named, was not directed by the company to make these restrictions. “No such instructions were given,” the spokesman said. “The crew member in question took it upon themselves to do that and it’s not something we instructed or condoned.” In addition to an ad that appeared in The Bay of Plenty Times, a regional New Zealand newspaper, Naz Humphreys, an actor who attended a casting meeting, told The Waikato Times, “The casting manager basically said they weren’t having anybody who wasn’t pale-skinned."

This story made me look for the composition of the Fellowship of the Ring, as imagined by Peter Jackson--and indeed, "light skin tones" abound: 

Is the Arizona Campaign Finance Case the Death of Public Financing?

So says my friend Rick Hasen.  But I'm not so sure.  The Supreme  Court recently agreed to hear a case from Arizona that challenges that state's public financing scheme, McComish v. Bennett.  Oversimplifying slightly, Arizona's public finance scheme attempts to provide enough public money  to candidates who agree to forgo private money so that they can compete against privately financed candidates and independent groups.

Arizona provides an initial lump sum payment to candidates (we'll call them the public candidates) who choose to forgo financing their campaigns with private sums.  If the candidates' opponents  (we'll call them the private candidates) spend more than the public candidates received in the initial lump sum payment, the public candidates are entitled to more public money to match the excess amount spent by the private candidates.  Arizona also takes into account the amount of money spent by independent groups against the public candidate.  The public candidate is entitled to more public money to match the combined spending of independent groups and the private candidate if the combined spending of the private candidate and the independent group exceeds the initial lump sum provided to the public candidate.  Lastly, there is a cap to the amount of public money that the public candidate can receive; the public candidate cannot receive more than three times the amount of the initial lump sum.  Thus, the private candidate, if they're a good fundraiser, always has the potential of out-funding the public candidate.

So who is complaining about this scheme?  Private candidates who maintain that they've refrained from spending money or raising money in their campaigns because they did not want to trigger the matching funds that their public candidate opponents would receive.  They argued that the availability of matching funds to their opponents puts them at a competitive disadvantage.  Some of them argued that the availability of matching funds forced them to self-censor because they did not want to trigger matching funds.

Rick is a more perceptive watcher of the Court than I am.  I don't know why the Court takes certain cases and except in the most obvious cases I'm often less sure how they'll decide the ones that they take.  And Rick's assertion that there is no other reason for the Court to take the case other than to reverse the Ninth Circuit is facially plausible. For the reasons I lay out below however, I'm less sure of Rick's claim that this case will be the death knell for public financing.  This is not an easy case for the Court to overturn.  If he's right, campaign finance reform advocates are truly doomed. But here are some hurdles that the Court would have to overcome.

First, it is not clear that the plaintiffs' First Amendment rights are burdened in any way.  The plaintiffs' central argument is that they will refrain from campaign spending  so as not to trigger matching funds.  This is not a case of the government limiting the plaintiffs' spending or punishing them for spending.  Consider this scenario, suppose the State of Arizona had said to public candidates, if you opt into our public finance system, we will give you public funds to match your opponent's spending dollar for dollar.  Would such a scheme be a burden on the free speech rights of the private candidates,the ones who opt-out of public financing?  Is this any different from the state providing funds to a public school to compete with a private school?  To have the devastating impact that Rick is predicting, the Court would have to find that the availability of public funds is itself a burden on the speech rights of a privately-funded candidate.  Indeed, to the extent that there is a good argument here, the better argument is that the availability of public funds itself, as opposed to matching, is the burden.  While the public candidate can focus on campaigning the private candidate has to raise money.  If the Court did that, Rick would surely be right.  But such a move would be truly unprecedented.

Second, even if the Court concludes that the public financing scheme burdens the plaintiffs' speech rights, the Court would have to find that the burden is substantial.  Some of the plaintiffs' in this case are individuals who were successful officeholders even after triggering matching funds for their opponents.  Assuming that that they did self-censor and this self-censoring constitutes a cognizable burden, the significance of this burden is not very clear.  To be actionable the burden must be substantial. Even if one is charitable to the plaintiffs' claim, I cannot see how the burden is substantial.  Moreover, it is quite clear that by publicly financing candidates the state satisfies directly its concern to limit corruption in campaign financing.

Third, if the Court is inclined to overturn the Court of Appeals, the most vulnerable part of Arizona's scheme is the part that grants the public candidate matching funds to counteract independent expenditures against the public candidate.  I can't fathom a constitutionally cognizable justification, state interest, for granting matching funds to counteract independent expenditures.  There, I think the private candidate has an equality claim.  Moreover, that equality claim may be exacerbated if the state does not take into account independent expenditures in favor of the public candidate.  As I understand Arizona's scheme, it is not clear that the State takes into account independent expenditures in support of the public candidate to offset the grant.  If you're a private candidate you do have a basis to complain where the state is providing funds to your opponent for independent expenditures that are, by definition, outside of your control when the state does not provide you funds to counteract independent expenditures deployed against you.  This comes closer to the scheme the Court struck down in Davis v. FEC.

But if the Court went down this route, it would largely leave the public financing scheme intact.  The opinion would be narrow and would only communicate that the Court is serious that campaign finance regulations must hew closely to judicially-recognized legitimate state interests.  I can easily see the Roberts Court taking this approach.

If the Court overcomes these hurdles and goes down the road that Rick predicts, McComish will not only signal the death-knell of public finance, it will signal the death-knell of all campaign finance reform.

The New Racial Discrimination

I am convinced that the term “racial discrimination” must be the most overused term in our popular culture, ranking alongside “invidious discrimination” in the legal culture.  Neither term means all that much. For a recent example, look no further than a recent letter from Roger Clegg, President and General Counsel of the Center for Equal Opportunity.  In the letter, Mr. Clegg complained that “[t]here can be no serious doubt that whites face more racial discrimination in [the context of university admissions] today than do African Americans.”

In reading this passage, and the letter in its entirety, I was reminded of Herbert Wechsler’s much criticized Holmes lecture, where he offered a critique of the Court’s reasoning in Brown.  I was particularly reminded of his closing, where he offered the following:
I think, and I hope not without foundation, that the Southern white also pays heavily for segregation, not only in the sense of guilt that he must carry but also in the benefits he is denied. In the days when I was joined with Charles H. Houston in a litigation in the Supreme Court, before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.
I must confess that I really don’t get what Professor Wechsler means, the same way I simply cannot understand what Mr. Clegg is referring to.  This is cognitive dissonance in full display.

But to dismiss these views off-hand would be to miss a far more important and interesting story.