Tuesday, March 30, 2010

Could the Health Care Law be Unconstitutional?

A recent online debate in the New York Times asked whether the recently enacted health care law is unconstitutional. For answers, the editors recruited four law professors and two attorneys in the federal health care lawsuit. Their answers will not surprise you.

Those in support of the law argue that Congress is well within its enumerated powers to tax and spend money for the general welfare, the commerce power, and does not commandeer the states under the 10th Amendment. To Jack Balkin, for example, critics of the law “are really claiming that it is unconstitutional to make Americans pay taxes,” while James Blumstein writes that success on this particular suit would require overturning decades of precedent under the Commerce power. This is something that a self-professed “minimalist” Court should not take lightly.

In contrast, those who argue against the law understand it as a quintessential exercise in police powers and thus outside the powers of Congress to regulate. According to Randy Barnett, for example, the text of the Constitution does not authorize this exercise of power, nor has the Court ever upheld anything like it. To David Rivkin and Lee Casey, counsel in the federal suit, allowing this law to stand would essentially put an end to the notion of limited, unenumerated powers. If Congress can do this, they argue, there is simply no limit to what it can do.

Can you tell what is missing from these four accounts?

These debates never cease to amaze me. To the question, is X law unconstitutional, answers are usually given in the form of legal arguments. In other words, whether the health care law is unconstitutional depends on one’s reading of the 10th Amendment, or the Ninth, or the powers of Congress under Article I. This is right out of an “Alice in Wonderland” world that I don’t think many people recognize as their own. Were the Supreme Court to accept review on this case, does anybody really believe that its decision will be controlled by pre-existing law?

I understand these are lawyers and law professors writing these short responses, and to teach in a law school under the legal method must mean that the law means something and that precedent matters. I get that. But surely there is a difference between day-to-day cases and the cases that rivet a nation. Think here Bush v. Gore; a future challenge to the Voting Rights Act; even Citizens United. Does anybody really believe these cases were or would be decided by existing law, and that the justices’ personal preferences played no role at all?

In fairness, Professor Barnett comes closest to the nub of the case. He concedes that it is a safe bet to assume that five justices will choose not to overturn the law. Yet in the following sentence, he appears to give the game away:
But what if the bill turns out to be supremely unpopular? What if one or both houses of Congress flip parties because of it? What if majorities in Congress favor repeal but are blocked by a Senate filibuster or a presidential veto? Still as confident about five votes?

I agree with Barnett that the justices will not choose to step into this morass. I also agree that the Court is influenced by context and public opinion. This is simply another way of saying that the law will play a secondary role, if any role at all. The rest of it is just window-dressing. No need to bother wasting our time.

Saturday, March 27, 2010

Race and College Basketball

Anyone watching the Kentucky - West Virginia basketball game will come away admiring the skill and athleticism of the players on the floor. These players are terrific talents, no question about it.

I just can't help but notice a far more interesting phenomenon. For long stretches during the first half, all ten players on the floor were black players. In contrast, when the cameras turned to the crowd, it was predominantly white, as were the bands for both teams, the announcers and the coaches.

Finally, around the 10:47 mark, what appeared to be the first white player stepped on the floor for West Virginia: Deniz Kilicli, a freshman forward from Istanbul, Turkey.

I kid you not.

This is embarrassing in so many ways that I don't even know where to begin.

Above all, I wonder whether the people of Kentucky and West Virginia are as welcoming of students who apply to their university as they are of their basketball stars.

I also wonder whether admission officials at both schools are similarly welcoming of applicants of color as they are of basketball players, black or white.

Same for residents of both states: I wonder about their views on race and affirmative action.

Back in January, I wrote about the blatant the hypocrisy in the affirmative action debate, written in the context of the hiring of two white coaches whose credentials were questionable at best. I wondered then whether we could only "find Ward Connerly when we needed him."

I am still waiting for the outrage. After all, aren't these players taking seats on college campuses -- and college teams -- away from deserving whites?

Maybe the tea partiers could add this issue to their cause.

Friday, March 26, 2010

Are we all activists now?

President George W. Bush reminded us any chance he got that he would only appoint strict constructionists -- whatever that means -- to the federal bench. These would be judges in the mold of Justices Thomas and Scalia. This is a conservative canard, but one with plenty of traction among the public.

An article posted today by Linda Greenhouse reminded me of this old debate. Greenhouse is weighing in on looming constitutional attack on the health care bill and argues that the Supreme Court is unlikely to strike down the recent legislation. I agree with her position wholeheartedly. But her article is far more important for all that it implies about judicial behavior and the many relevant influences on federal judges.

Three passages in particular caught my attention.

The first passage responded directly to the states' arguments against the health care legislation. As she points out, one can find much commentary on this questions around the blogosphere, often made by people who ought to know better. For, as Greenhouse writes, "the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no." This is, without question, the crux of the case. Will the conservative justices have the will to take on the landmark health care legislation? Or in Greenhouses words, "Students of Rehnquist-style federalism will recall that the master himself blinked when his revolution got too close to the core of issues that people really care about."

Make no mistake, to take on the health care legislation would entail judicial activism of the highest order. In the wake of Citizens United and, a decade ago, Bush v. Gore, it would be hard to be surprised by anything the "conservatives" on the Court choose to do anymore.

The second passage is closely connected to the first point:
But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

I cannot help but read this passage and recall the recent Sotomayor hearings and the feigned indignation by Senator Sessions and many conservatives about her "wise Latina" remark. Her point was simple and hardly newsworthy: the background of a nominee will shape how s/he decides cases on the bench. I can hardly think of a more benign statement. This is Linda Greenhouse's point, and I wonder whether the conservatives who attacked Justice Sotomayor will likewise attack Ms. Greenhouse. I seriously doubt it.

Finally, Greenhouse writes that "John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own." I wonder whether this is true, in light of Citizens United. Perhaps this is a bad example, since few people understand the arcana of campaign finance law and the way in which the conservatives went about overturning the Austin case. Greenhouse's sentiment does help explain the recent Namudno case, where the Chief Justice avoided a constitutional confrontation with Congress over the Voting Rights Act. If Greenhouse is correct, it may just be that the Voting Rights Act is on safe constitutional ground after all. I have my doubts. Either way, I am more interested in how this argument casts the Chief Justice, as a judicial strategist more interested in his image and that of the Court than in following the exacting demands of the law.

This is exactly how we ought to view federal judges, and conservative judges should not be an exception. Somehow, however, I have a sinking feeling that it will take much more for the conservative canard to fade from view.

Tuesday, March 23, 2010

The Health Care Debate Heads to Court

Go back to my colleague Dawn Johnsen's Senate hearing last year to head the Office of Legal Counsel (a position for which, embarrassingly enough, she is yet to even get an up-and-down vote). At about 1 hour and 11 minutes into the hearing, Senator Sessions volunteered the following:
“I think that Roberts and Alito represent two of the finest exponents of a classical interpretation of law, a classical view of the role of a judge I have ever seen, and it troubles me that you would think that they . . . would be somehow setting about to radically remake the Constitution.”

“I think Justice Alito and Justice Roberts have classical judicial philosophies that would really trouble me if somebody thought they were unfit for the bench, and somehow set about to radically remake the constitution.

“It’s the activists that are remaking the constitution, not the classical judicial jurists.”

Reading these words, the recent Citizens United case might readily come to mind, as clear an exercise in judicial activism as we are likely to see. What that case has to do with a classical judicial philosophy, I cannot say.

I wonder what Senator Sessions thinks of the next step in the health care debate: a call by various state attorney generals, joined by Baker Hostetler as outside counsel, to overturn the legislation in the courts.

I understand the logistics: to lose in Congress is only to lose the first fight in a long and drawn out battle. It is also true that this is not a new development, as just about every major piece of legislation is ultimately challenged in court. Nobody likes to lose, after all, and you only need to find find five justices at the end of the line who agree with you. The Republicans can count votes as well as anybody else.

It is also hard to blame the lawyers. As they pointed out, to work in this particular case is "enormously gratifying and intellectually rewarding," and the law firm will only charge a "substantially reduced" rate.

I get all that. What I don't get is the unchallenged assertion that "conservative" justices are paragons of judicial moderation, classical jurists who interpret law, not make it, while the "liberals" are the judicial activists, hell-bent in their desire to radically remake the Constitution.

That so many people believe such a lie, and that a sitting U.S. Senator can tell it publicly, is one of the great conservative triumphs of this generation. Conservative jurists can strike down any piece of legislation they want, from the Religious Freedom Restoration Act to gun control legislation and campaign finance laws, and rather than scorn, Senator Sessions welcomes it as exercises in judicial restraint and classical jurisprudence (whatever that means).

The health care debate is only the latest installment in this ongoing narrative. Republicans fought the good fight, yet ultimately lost. It happens. Rather than prepare for the next fight, however, they are preparing to go to court. Their arguments are not novel: Congress lacks power to require individuals to buy health insurance; penalizing those who fail to buy insurance violates the tax-apportionment clause of the U.S. Constitution; and the legislation grants the U.S. government new powers in violation of the 10th Amendment. But that is hardly the point.

This is a canard, plain and simple. Conservatives, no more and no less than liberals, are judicial activists, and Justices Scalia and Thomas are just as intent in "radically remaking the Constitution" as Justices Marshall and Brennan. The moment we come to recognize this, the better off we will all be. For one, the judicial confirmation process would improve immeasurably.

But I am not holding my breath.

Monday, March 22, 2010

Tea Parties and Racial Epithets

I don't know whether it is true that that individual tea party protesters have used racists and homophobic epithets against Democratic lawmakers (see for example this report by Politico's Kenneth Vogel and this report). But even if it is true, Democratic leaders should have a muted reaction and should not attempt to use this for political gain.

Friday, March 19, 2010

Black Elites' Increasingly Public Rift on President Obama: What Does it Mean?

When President Obama was candidate Obama one question that preoccupied many black intellectuals was whether his candidacy or eventual presidency would be good for the blacks.  Notwithstanding the tremendous amount of progress that African Americans have made in the last 50 years, experts who work in this area will tell you that African Americans lag whites in almost all areas of socio-economic well-being.  The question among black elites was : (a) whether candidate Obama should be viewed as just another politician and thus should be made to compete for the votes of black voters by stating explicitly what he would do to help narrow the myriad equality gaps  or (b) whether the tantalizing prospect of a black man becoming President of the United States was so significant that all black people should simply get in line and vote.  Black people did get in line and vote in overwhelming numbers and the question was trampled by the euphoria of having a black family in the White House. But now the dissension among the black elites is back and it is becoming increasingly public.

Thursday, March 18, 2010

Would the Supreme Court Find Deem and Pass Constitutional?

After the strum and drang on the constitutionality of deem and pass, there seems to be less hyperventilation from the blogosphere on the constitutionality of deem and pass. For example Jack Balkin is now also citing Field v. Clark (see my earlier post here relying on Field v. Clark for the proposition that deem and pass is constitutional) for the proposition that the procedure would be effectively unreviewable.  In my view, the constitutional question is pretty much settled.  Left unexplored however is how the current Court might react to deem and pass.  This is a question that will pit the formalists versus the pragmatists.

From "Deem and Pass" to Citizens United

The debate over health care reform is now in its final stage. The Democratic House leadership is considering use of a self-executing rule known as the "deem and pass," which Republicans criticize as ultimately unconstitutional.

This is the latest example of everything that is wrong with American politics.

It also exemplifies why campaign finance in general, and Citizens United in particular, troubles me as much as it does.

Go back to the last time Republicans held a majority in Congress, from 2005 to 2006. During that time, the Republican leadership used the same self-executing rules they now deride no less than 35 times, and even defended them in court. Needless to say, Democrats criticized them then, yet defend them now.

Similarly, yesterday's Washington Post published an editorial by Tom Scully, former administrator of the Centers for Medicare & Medicaid Services from 2001 to 2004, that criticized the price tag on Obama's health care plan:
If we want health coverage for all Americans, it has to be paid for. The tough choices needed to reduce this massive gap: Cut spending and/or raise taxes. Raise the Medicare retirement age as we did with Social Security. This year's $1.6 trillion deficit is approaching 11 percent of GDP. That's unsustainable. We can't expand health subsidies until we get the deficit under control.

In case the reader missed it, this is the same Tom Scully who, according to Bruce Bartlett, former Deputy Assistant Secretary for economic policy at the U.S. Treasury Department, "was responsible for one of the most reprehensible episodes in recent American political history." This was the passage of the "totally unfunded Medicare Part D program that will cost taxpayers roughly $1 trillion over the next decade--that's $1 trillion more than Obama's plan, which is fully paid for according to the Congressional Budget Office." According to Bartlett, Scully was critical to the passage of Medicare D, "because he personally hid from Congress critical details about its cost that would have torpedoed the legislation had those facts been known prior to the congressional vote in 2003."

Taken together, these episodes led Andrew Leonard to write that "healthcare reform hypocrisy goes supernova." Norm Ornstein similarly asks, "is there no shame anymore?"

Note the problem: politicians can say whatever they want, whenever they want to say it, yet voters rarely hold them accountable for it. How could the same practice be used by congressional leaders one term yet criticized by the same leadership in subsequent years? One view clearly points to the hypocrisy that inheres to the politics of the day. Fair enough. But a view just as strong points to the American voter and how little interest s/he pays to what happens in the world of politics. The voter does not care, a fact that politicians of all stripes know full well.

The implications are dire. The argument for competitive elections, for example, hinges on a view of voters as political animals, engaged in the politics of the day and aware of the debates around them. To have a choice, in other words, demands a reasoned choice, a rational choice among competing alternatives.

This is why the campaign finance debate should give us pause. A view of the First Amendment as expressed by the majority in Citizens United places heavy demands on the citizenry. To say that the cure for speech must be more speech implies that the listener can discern fact from fiction, right from wrong. At the very least, it implies that there is somebody at the other end of the speech paying attention.

But the health care debate teaches us exactly the opposite. The public is hardly paying attention, and sophistry is the order of the day.

This is depressing indeed.

Wednesday, March 17, 2010

Deem and Pass Misunderstood

Over at the Atlantic, Marc Ambinder has a very helpful post explaining the self-executing maneuver known as deem and pass.  Ambinder's post helps one understand why the constitutional argument on this issue is a bit muddled.

Tuesday, March 16, 2010

What Does "Pass" Mean? Is the House's Method for Passing Healthcare Reform Constitutional?

Ezra Klein outlines the House leadership's strategy for getting healthcare reform through the House (see also this story for the Washington Post) and Michael McConell, former federal court of appeals judge and current Stanford Law Professor, argues that it is unconstitutional.  One hates to disagree with Judge McConnell but I think under current law the procedure is constitutional.  Though I should hasten to add that Judge McConnell may be right if the question is whether this Supreme Court would find the procedure unconstitutional.

Friday, March 12, 2010

The Indiana Voter ID Law Comes Home

The debate over voter identification continues. After the state Court of Appeals overturned the law last September, in League of Women Voters v. Rokita, the Indiana Supreme Court took up the case. Late last week,the justices heard oral arguments.

This entire odyssey continues to intrigue me.

I get the politics behind it. It is not as if the state legislators even attempted to hide their politics, nor could they. Republicans supported the measure, the Democrats opposed it. The U.S. Supreme Court refused to strike down the law, in Crawford, and probably for good measure. Judicial activism should not be a question of whose ox is being gored. (The conservative majority on the Court only needs to work on its consistency).

The plaintiffs then came to the state courts, where they should have been in the first place. To think the federal courts would be receptive to their claim, with a record lacking even one aggrieved voter, was sheer lunacy. The state Court of Appeals accepted their claim on state constitutional grounds,in a unanimous ruling. Critics branded it judicial activism, supporters called it a sound judicial ruling, a decision grounded on law, not politics. Most puzzling to me was the response from some of the Republican leaders of our state. They argued immediately after the ruling not only that this was an activist ruling -- I get that part -- but also that the question was already settled by the U.S. Supreme Court and the plaintiffs should well leave it alone. This is clearly wrong; the federal court did not pass on the state constitutional question.

I had two reactions soon after the Court of Appeals ruling back in September. The first was a reminder to Justice Brennan's argument in the 1970's for litigants to turn to the state courts to bring their claims, as he well knew that the federal courts would no longer offer a receptive forum. The Warren Court era had come to a close, and it was time to switch strategies. This was sound advice, from a very strategic justice. The plaintiffs in the voter id case finally heeded his advice.

The second reaction focuses on the state Supreme Court justices. Why would they step into this minefield if they did not intend to overrule the lower court? I have nothing but the utmost respect for the Indiana Supreme Court justices; they are sound, level-headed jurists. They would not court trouble lightly.

Hearing the argument from last week reinforced this last point for me. The justices lobbed hard yet fair questions at both sides. They did not tip their hand. Yet I still wonder why they would take the case if not intending to overrule it. Could it be that they would rather shine the focus of this political football on themselves, and away from the Court of Appeals. That is, and as political scientists and law professors often remind us, are the justices simply seeking to legitimize what the Court of Appeals did? After all, it is one thing for a three-member court to strike down a law, yet quite another for a state Supreme Court to do so. This would be an act of statesmanship of the highest order.

I cannot wait to see how this issue finally ends.

Thursday, March 11, 2010

Earmarks in the House

On Wednesday, House Democratic leaders banned budget earmarks awarded to for-profit industries. Looking for the moral higher ground, House Republicans pushed to extend the ban across the board, to for-profits and non-profit institutions alike. The Senate is yet to come along and, according to Senator Daniel K. Inouye, chairman of the Senate Appropriations Committee, is unlikely to do so.

This is one of those puzzles of American Democracy that never ceases to amaze me.

Consider, first, the reasons that led to the ban on earmarks. The practice is rife with corruption and has led to political embarrassments in many instances, sometimes to criminal investigations and ethics inquiries. This is the classic congressional pork; in the last fiscal year alone, Congress doled out $16 billion dollars in this awards.

These facts alone would seem to indicate that members of Congress would use earmarks at their peril. After all, should not the electoral process take care of this problem, assuming it is a problem in the first place? Take the case of Peter J. Visclosky, an Indiana Democrat presently under investigation by the FBI. Could the voters in Indiana's first congressional district possibly vote for him ever again? And if so, wouldn't that be the clearest indication that they approve of his work and the earmarks he has directed to their district?

One answer is that it should not take a federal investigation, much less an indictment, to stop this corrupt practice. I get that. But this answer actually reinforces the puzzle to which I alluded earlier. Short of an indictment, is the point that constituents do not mind earmarks at all, and in fact welcome them?

This puzzle comes up in election law debates often. My favorite one is the almost universal call for courts to put a stop to the odious gerrymandering of state and congressional districts, where candidates win without much of a fight. The argument is that constituents have no real choice. In the end, this argument gives voters very little credit. After all, elections must still take place, and votes must be counted. A majority within the district must choose the winning candidate.

I know that constituents love their representatives yet Congress as a whole gets low approval ratings. This is one of those cases when that axiom is clearest. When members of Congress direct money to their districts, constituents rejoice in the fact that their elected representatives are doing a good job. This is why earmarks are to Congress what alcohol is to an alcoholic.

But make no mistake, to the untrained eye, this is Democracy at its finest. In fact, if you asked the conservative majority on the Supreme Court, this might be the price we must pay for our First Amendment.

So maybe it is the Senate, that most undemocratic of institutions, that finds itself on the right side of Democracy on this one.

Wednesday, March 10, 2010

The Chief Justice Strikes Back: Is he Right?

Chief Justice Roberts, apparently, was not happy by the fact that the President used part of his State of the Union address to express his displeasure with the Court's decision in the Citizens United case. I'm not with the Chief on this one.

As my colleague Neil Siegel has argued, the Chief is in the process of changing a fair amount of the Court's jurisprudence. When the Executive Branch strikes back, as the President did at the State of the Union, the Executive Branch is performing its checks and balances function. The hopeful consequence of this clash between the Executive and the Judiciary is that we will have a healthy debate in this country about both the judicial power and the executive power. What role should courts play in a democratic society and what are the limits of executive power? These are both important questions that we must examine continually. If the Chief does not enjoy being called out during the State of the Union address (and I can't imagine why he would enjoy it), he can, as some of his colleagues have, refuse to attend. Moreover, the beauty of our system, the Chief will get his opportunity to pushback against the Executive. The hope is that our republic will be better for it.

Saturday, March 6, 2010

Justice for Judges?

Judicial salaries in New York state have not increased for over 10 years. Judges have complained about it, legal scholars have argued against it on grounds of legal justice and the need to safeguard judicial independence, and critics in general have denounced the tactic of tying judicial salaries to lawmakers' salaries as a political ploy. Or so tells us the New York Times in an editorial published today. The editorial concludes that "[r]efusing to grant any increase would be grossly unfair to judges, undermine the quality of the court system, and ignore the ruling by the Court of Appeals."

There is so much wrong in that one statement that I do not even know where to begin.

The unfairness point and the view that quality is undermined by low pay are just silly. Many things in life are unfair. But to argue that a salary of over $130,000 is unfair is hard to do, irrespective of what the judges do. If they don't like it, they can always get a new job. This, of course, is the segue to the quality argument. If judges are not paid enough, the best judges will choose to leave the judiciary for better paying positions elsewhere. This assumes many things about judges, including a method of judicial selection that ensures that only the best qualified candidates will assume office. New York state chooses its judges through elections, however, so the quality argument rings hollow.

Further, the quality argument takes a formalistic view of judging that does not comport with real life. Think of it this way. There are many people who would be willing to assume judicial office in New York state. The state chooses among them through elections. To be sure, many of these candidates are undoubtedly qualified, and hopefully the winning candidate is one of the qualified choices. But we have no way of ensuring that. This is one of the classic critiques of judicial elections. Note, however, how we readily equate quality with achievement, as if judging should only be reserved for the most qualified. This is simply not true, not even at the federal level. We know that. We also know that judges are not automatons, and that only the best judges will get the right answers to the legal questions presented to them. This is also a fanciful view of the judicial function. Judges are policy-makers,and elected ones at that; they just happen to have different constraints from legislators and executives. That does not make them any less political, or driven by ideological considerations.

The argument that low pay will affect the quality of the judiciary is simply not borne out by reality.

The third argument offered by the Times' editorial is curious at best. The state's highest court ruled last week that linking judicial pay to legislative pay violates the separation of powers' clause of the State Constitution. This is a lawsuit, mind you, began by judges wishing to see their pay increase.

You cannot make this stuff up. I think we have a name for this in law: conflict of interest?

Without question, these are difficult times. People are struggling to find jobs, or to hold on to the ones they have. Law school graduates are no exception. In this environment, pleading for higher pay is a hard sell. To invoke the state constitution, or argument of judicial quality or threats to judicial independence, should be taken for what they are.


Friday, March 5, 2010

The Future of Majority Minority Districts

Last Friday, Duke Law School hosted a conference on the future of redistricting in the United States. The last panel of the day debated the future of the majority-minority district. However one comes out on that question -- whether these districts are either necessary or no longer needed, even unconstitutional -- should be informed by the successes and failures of James Fields, a black representative elected by a southern white electorate, and J. Raymond Jones, Harlem's longtime political boss.

In a recent post, Guy posed two questions in response to Mr. Fields' experience representing a southern white constituency: What is the cost to black elected officials of running in white districts in the South; and, is the case of Mr. Fields proof of the declining need for majority black and Latino districts? In his post, Guy examined the first question. In this post, I explore the second.

Mr. Fields ran for office in Cullman County, a county of 81,000 people yet only 401 blacks. This is the county known in Birmingham, Alabama as "the racist white bigot county." This is also the same Alabama where 88% of whites voted for John McCain over President Obama in the last election. This is a figure that David Bositis, a well known political analyst for the Joint Center for Political and Economic Studies, attributes, "all of it to racial bias."

In sum, this is not only not a majority black district, but as far from it as an electorate can be. Yet Mr. Fields won election with 59% of the vote, a remarkable figure by any metric. This raises the immediate question of, how was he able to do it?

As the article illustrates, Mr. Fields personalized the election. He broke down "the traditional Southern political narrative." Accordingly, he was not a black candidate, he was a Southern candidate. For example, he does not have an office in the county, but rather, "he comes to you. Most of the county seems to know his cellphone number." He is a black man only until he starts talking to his constituents, "whereupon he really seems just like another Southerner." Most telling are the words of one Rickey Peek, a used-auto-parts dealer who watches Fox news, listens to Rush Limbaugh and hates President Obama. Here is what Mr. Peek has to say about Mr. Fields: "James is not like any black man that I know. He’s just different. He just don’t have that mentality, anybody owes him anything. He just gets out and works and helps people, earns what he gets. If James wasn’t black, you’d think he was white. That doesn’t sound right, but you know what I mean."

What this means, according to Wayne Flynt, a retired Auburn historian, is that "personalism can trump racism." This is also the view of Congressman Arthur Davis, who says that in the Alabama of today "race is not an insurmountable obstacle." In fairness, this view is not universally shared. But the election of Mr. Fields is no less significant. It is nothing short of remarkable.

Standing alone, Mr. Fields symbolizes the America that supporters of the Voting Rights Act envisioned over forty years ago, a polity where race would ultimately cease being the driving force in Southern elections. This is also the America that justices on the U.S. Supreme Court often uphold as the aspiration of the Act. Supporters of the Act today argue, to my mind convincingly, that we are not there yet. It might appear, if Mr. Fields example is any indication, that we might be closer than generally presumed.

After reading about Mr. Fields, I subsequently came upon the example of Raymond Jones, documented in the same edition of the Times yet in a separate section. The contrast is remarkable. Mr. Fields highlights the exciting possibilities that a competitive South may bring. Mr. Jones, in contrast, highlights the dangers of power and incumbency, the very things that are often established by safe districts.

Mr. Jones, also known as "the Harlem Fox," is the legendary Democratic leader from New York who nurtured the political careers of many New York politicians, including Charles Rangel, David Dinkins, and David Patterson. The last week has not been kind to this group, with recent revelations leading Governor Patterson to announce that he is not seeking reelection and a House ethics panel admonishing Congressman Rangel for recent actions, with more inquiries soon to follow.

I could not help reading these two articles as one piece on the state of Black politics and, more specifically, black politicians. Now, I understand that the goal of the VRA, and particularly section 2, is to afford black and Latino voters the opportunity to elect their candidates of choice. I get that. But these two examples place much stress on defenders of the VRA to defend the use of race in the 21st century. This is not to say that such a defense is not possible. Rather, it is to say that such a defense would be difficult.

At the very least, supporters of the Voting Rights Act better hope that Justice Kennedy does not read the Times.

Wednesday, March 3, 2010

Are the Democrats Winning on Healthcare?

I have no idea whether the President has been listening more to Rahm Emmanuel or not, but whoever is devising the White House's new healthcare strategy deserves a raise.  There was no doubt that not too long ago, the White House was getting killed by the healthcare question.  But the tide appears to be turning.

The Second Amendment and the States: The City of Chicago Case

The Supreme Court heard arguments yesterday in McDonald v. City of Chicago, this Term's Second Amendment case. The case follows the recent Heller decision, which held that the Second Amendment encompasses the individual right to possess guns, at least to defend oneself in the home. In City of Chicago, the question is whether the holding in Heller extends to state and local communities.

The transcript of the oral argument should be required reading for anyone trying to understand how the Supreme Court works. Everything you needed to know about the Court, you can learn from the City of Chicago transcript.

For example:

--You can tell good oral advocacy from bad pretty quickly
--The oral argument changes few minds and is, at best, a ceremonial display of the Court's power
--You get a pretty good idea of where the justices stand from the questions they ask
--Justice Scalia might actually be funny, even if sometimes he tries too hard.
--Justice Thomas might not even be there.

It is impossible to read the transcript -- even if you gave it a cursory reading at best, as I did -- and not conclude that political scientists have it right: ideology drives the justices' decision-making; the law plays a secondary role at best.

Consider, for example, how the conservative justices come to the defense of counsel for their preferred side. In an exchange between Justice Breyer and counsel for the petitioner challenging the city ordinance, for example, Justice Scalia at one point didn't even bother to ask a question, wishing instead to answer Justice Breyer's. The Chief Justice similarly came to the defense of Paul Clement, former solicitor general and counsel for the NRA, or else he was simply thinking out loud the implications of Justice Stevens' question. Very kind either way. It also makes you wonder what the role of the oral argument is, and who is the justices' intended audience.

Unsurprisingly, the conservative justices were not as kind to James Feldman, counsel for the city. Even Justice Alito sprung into action and joined in the fun.

Two moments in the argument deserve special mention. The first happened right at the onset, when counsel for Mr. McDonald pressed his first argument to the Court: overruling the Slaughterhouse cases, a precedent that has stood for over 150 years. As he told the justices, "the Slaughter-House cases should not have any stare decisis effect before the Court. The Court has always found that when a case is extremely wrong, when there is a great consensus that it was simply not decided correctly, especially in a constitutional matter, it has less force."

This is clearly the argument of a lawyer who pays attention and knows to count to five. This is hubris, plain and simple, or else stupidity. Only Justices Ginsburg and Sotomayor bothered to pursue this line of inquiry, until Justice Scalia came to the rescue and offered the second moment.

Recall that the argument is whether to bring the Second Amendment (that is, to incorporate it) to the states. Rather than waste any more time with the prior line of argument, Scalia helpfully asked: "Is it easier to do [bring the Second Amendment] under privileges and immunities than it is under substantive due process?" The answer was obvious, though not free of difficulty. Yes, it is easier to place oneself within existing doctrine, distasteful as that doctrine may be, than to overrule a precedent 150 years old. But make no mistake, this is substantive due process. This is the terrain of unenumerated rights, of Roe v. Wade and the right to privacy. Hardly the stuff of conservative jurisprudence.

Not to worry, Justice Scalia helpfully reminded us: "Why do you want to undertake [the burden of overruling the Slaughterhouse cases] instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?"

Whew. Maybe this means that Roe is on safe ground?

This case makes me long for the conservative justices of old, believers in judicial restraint and for allowing the political process to run its course. After all, how else to decide contested questions of public policy? (In the interest of full disclosure, I am a big fan of Justice Frankfurter. That puts me in distinct company.) These old justices had principles. They had conviction. They would make the Federalist Society proud.

In contrast, the modern conservative justices are conservative in name only. This is the bloc that gave us Citizens United and who take on Congress with increased regularity. These are the justices who have set their sights on the Voting Rights Act and will likely cripple it or strike it down altogether in the near future. These are the justices who can now turn to substantive due process, smile, and tell us that the Second Amendment is incorporated by the 14th and applies t the states.

Only the sky appears to be the limit.

If I ever hear a President tell us that she wants to appoint Justices in the mold of Justices Scalia and Thomas, I will throw up.


Tuesday, March 2, 2010

The Puzzling Case of Harold Ford, Jr.

In today's edition of the New York Times, Harold Ford, Jr. explains why he will not be challenging Senator Gillibrand for the U.S. Senate. To run in the primary would be to cripple the eventual Democratic nominee, and Ford, Jr. simply "refuse[d] to do anything that would help Republicans win a Senate seat in New York, and give the Senate majority to the Republicans."

We can certainly disagree about the sincerity of his views, and whether he stood a chance in the primary contest. From where I sit, far away from New York politics, the Harold Ford, Jr. non-campaign raises innumerable questions about the media and U.S. politics. As I think about these, I cannot help but return to the one fundamental question: why the obsession with Mr. Ford?

From the moment in early January that we heard that Mr. Ford was contemplating a challenge to Ms. Gillibrand, the attacks began slowly yet relentlessly. They came from all quarters, and even Steven Colbert joined the fray. In fairness, Mr. Ford offered an easy target. It was also great fun to boot, to watch him squirm and defend past positions in light of a changed prospective constituency.

(In the interest of full disclosure, I must note that I am a big fan of the Colbert Report AND loved the Ford interview, the way one loves an impending car crash)

The day Ford announces his decision not to enter the race, Steve Kornacki over at Salon asks "where will Harold Ford Land?" He offers four choices: the governorship of Michigan or Texas, the DC mayor's office, or the U.S. Senate race in Pennsylvania. It is pretty funny stuff, even worth reading.

But the whole story is still puzzling all the same. Certainly Ford is not the first candidate to relocate to New York and run for office there. Surely commentators remember Bobby Kennedy's 1964 successful Senate run, or Jim Buckley's successful run in 1970, not to mention Hillary Clinton's run in 2000. So carpetbagging can't be it.

Another reason often cited is that Harold Ford is a phony. This might be part of the answer, but cannot be all of it. After all, we are talking about politics, an arena where phoniness and flip-flopping are job requirements. It is not as if politicians have just acquired a new persona in the public imagination, yet Harold Ford somehow missed out.

Besides, as I have written before, Ford's "phoniness" is not as simple as columnists like to argue. He is a politician running for office in New York, trying to make his case to a left-of-center electorate. In his last race, for a Senate seat in Tennessee, he had to make his case to a right-of-center electorate. Now, it is obvious that his prior views must change if he stood a chance in the New York race. But the better question is, what exactly do we want to see in our ideal representative? I won't rehash this argument here. Rest assured, the argument is not terribly complicated. Unfortunately, that argument neither sells papers nor amuses readers.

I neither have the time nor the inclination to look back through prior campaigns and compare the media treatment given prior outsiders running in New York. I can sincerely say that I do not remember a similar skewering of Clinton's obvious carpetbagging. I also wonder about Kennedy and Buckley.

As I ponder the questions posed by the Ford "campaign," I think of James Fields, the Alabama state representative featured on the Sunday Times. In reaction to this piece, Guy asks: "what does it cost black elected officials (or would be elected officials) to run for office in predominantly white electoral districts in the deep South." That is a very important question to ask. The treatment of Harold Ford Jr.'s non-candidacy makes me wonder whether the question should be applied across all fifty states.

The Black Representative of the White Electorate

There is a great article in the NY Times Magazine by Nicholas Dawidoff entitled Race in the South in the Age of Obama. The article, which is beautifully written, brings to light local black politicians in places in the deep South who have managed to win elections in predominantly white electoral districts. The Article raises two questions for me. First, what does it cost black elected officials (or would be elected officials) to run for office in predominantly white electoral districts in the deep South. Second, are these black elected officials indicators of the future of black politics. Put differently, are we witnessing the demise of the justification for majority-minority districts (districts in which voters of color--the minority--are the majority of the electorate)? In this post, I will address the first question.

Monday, March 1, 2010

Busing in North Carolina

On Tuesday, the Wake County Board of Education will consider whether to restrict the distance that students may be bused. This sounds like the prototypical busing example where race takes center stage, with white parents pushing back on busing plans that take their kids away from local schools.

But the Wake County example appears more complicated than that.

Two aspects of the debate jumped out at me. First, this is a busing plan defended on the value of economic diversity, not race. This is a sensible strategy. This comes up often in affirmative action debates: rather than take race into account, which in the end might benefit rich and poor indiscriminately, plans should take class, or economic disadvantage into account, which will target the "truly disadvantaged."

Incidentally, it appears the plan is working, if test scores are any indication. But the benefits of the plan might not be enough to offset the costs, at least for the parents whose children must bear much of this cost. Unfortunately, Black and Latino children are disproportionately poor within the district, so the plan ultimately pits rich white parents against parents of color. And in such a fight, I think we can safely predict who will prevail.

Second, this debate is taking place in Wake County, an affluent and Democratic county outside Raleigh, North Carolina. Busing is traditionally a highly polarizing issue. After all, it asks parents to bear direct costs of policies that will benefit their own children indirectly. Adding race to the mix only worsens matters. Wake County is not an exception. In the most recent election, four Republican candidates won a seat on the school board, pledging to end the policy. They swept into office by an average of 64% of the vote. After the election, the composition of the Board shifted from 8-1 in favor of the busing policy to 5-4 against it.

This is yet another example of the toxicity inherent to debates over race and politics. More importantly, this is an example of the promise of political action as well as its inherent limitations. White parents mobilized and, aided by the Republican Party, were able to see direct results. This is sure to warm the heart of anyone who believes in the promise of Democracy and the power of people to affect action in their communities. What is not to like about that?

Conversely, to lose in this debate is to end up in inferior schools. This is no small matter. Worse yet, this is an outcome that could have been predicted even before it began: rich white parents against poor and often colored communities.

This was hardly a fair fight.

This is the oldest story in history, the classic prisoners' dilemma: what to do when community benefits come in direct tension with benefits to individuals? For a majority of parents in the Wake County district, the answer is clear. Their position should surprise no one.

All the same, it is regrettable.