What’s so hard about televising oral arguments?

The question whether the cameras should be allowed in the Supreme Court is heating up. Most recently, CSPAN asked the justices to allow it to televise the oral argument over the health care law. It is unlikely that the justices will grant the request. In a recent sidebar, Adam Liptak argues that these refusals are based on “paternalism and self-interest.” Tony Mauro similarly argues that the Court's refusal to allow cameras in its courtroom "is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court's view of itself as a unique institution that can and should resist the demands of the information age."

Nancy Marder disagrees and argues instead that the justices have struck the right balance between the openness that the justices have chosen for themselves and their work and the obscurity in which their work must take place.

Liptak and Mauro take this one, and it’s not even close.

The Republicans turn to their favorite punching bag once again: the courts

It appears, if the editorial page of the New York Times is to be believed, that Newt Gingrich is at it again. I figured as much. His apparent conversion to moderate politics – I have in mind here his recent position on illegal immigration – was too good to be true. In his defense, running for the Republican nomination is not easy. Lots of crazies out there. Ask Romney. 

Here is the latest. According to Gingrich, Congress and the President must begin to push back on the Court, Cooper v. Aaron and judicial supremacy be damned. Among the tools at the politico’s disposal are the power to strip jurisdiction; impeachment; and the right to abolish specific judicial seats. The affected institutions could also ignore rulings they don’t like. 

The Times’ editors find this approach distasteful. As a general matter, they argue that Gingrich’s attack on the courts takes “the normal attack on the justice system to a new low.” They equate his criticism to “McCarthyist tactics” designed to “smear judges.” Gingrich’s view that the political branches must stand up to the court is described as “twisted.” They close with the following: “His ideas would replace the rule of law with a reign of ideology. If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches.” 

I have three reactions, and a better response to Mr. Gingrich. 

The Republican party on Illegal Immigration: where has its heart gone?

The Republican obsession with illegal immigration continues.  The latest salvo came last night, as GOP presidential candidates debated national security.  It came from Newt Gingrich, an unlikely source who, according to recent polls, has recently taken the lead in the GOP race.  Here is what he said:

"If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."

 This is a perfectly reasonable, sensible -- dare one say it, humane -- response.  But we know that such an approach has already derailed the candidacy of Governor Perry, who led the field at one point yet now sits at 6% according to Quinnipiac's latest poll.  

The question everybody is asking this morning is whether this stance will cost Gingrich in the race.  History suggests that it will.  I have a slightly different question.   What must happen within a political culture for a person who has lived in a place for 25 years, with three children and two grandchildren, who pays taxes and obeys the law, goes to church to be removed from his family, uprooted, and forcefully kicked out?  How is such a consideration even on the table?

Rick Perry got it right the first time: such a culture has "no heart."  The question we must ask ourselves is how such a thing happened in the first place.

The health care litigation comes to the Court . . . whether the Court wants it or not . . .

Last week, the Supreme Court announced its decision to grant certiorari on the various challenges to the health care law. Since then, the coverage has been relentless, and promises to continue (these include calls for recusal and televising of the oral argument, as well as the usual substantive legal commentary on the law itself and what the justices must do -- according to Randy Barnett, for example, “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law.”)

The basic legal argument is as follows, courtesy of Jamal Greene:

The administration has made a Necessary and Proper Clause argument in the Obamacare litigation, but commentators have been too fixated on vegetables to focus on it. The goal of the health insurance mandate is to prevent insurance companies from discriminating against people because of pre-existing health conditions. 

No one in these cases disputes that Congress has the power, again based on its authority over interstate commerce, to forbid this kind of discrimination. But doing no more than making it illegal for insurers to discriminate would not be effective, because making insurers cover high-risk individuals would require them to raise premiums so much that no one could afford to buy insurance. 

Congress could have responded to this challenge by raising everyone’s taxes and using the revenue to provide single-payer government health insurance. Instead, it chose to require that Americans purchase health insurance but gave them the freedom to choose their own private plans. Doing so expands the pool of insured people enough to enable insurance companies to cover high-risk individuals without breaking the bank. 

Anyone can argue that the individual mandate is a bad idea, but no one can argue that it isn’t rationally related, indeed intimately related, to Congress’s legitimate objectives.

Persuasive as this argument appears to be, I just don't think the case hinges on whether the justices will find it similarly persuasive.  This is not really a case about law, the limit-setting function of the justices and the rote application of precedent. This is not a case, in other words, about the power of Congress to force people to eat broccoli.  

Does anybody really believe that the justices will decide this case in accordance to their best reading of the commerce clause power? Or else, that established precedent offers clear answers to the questions presented?

In other words, does anybody truly believe that the Court is about to just call "balls and strikes" and do little else?

Legal Education hits the big time, Again . . . and its connection to the affirmative action debate

I am starting to wonder about the New York Times' fascination with legal education.  Today's edition, right smack in the center of the first page, finds an article about "law schools that teach little about legal practice."  The punch line?  Law schools teach little about legal practice.

This is a great debate, even a debate worth having.  But to me, the most interesting aspect of the Times' fascination is in how it reflects on the larger debate over affirmative action.  Here is why.  The argument, stated simply, is that justice demands that colleges, including law schools, must only look at grades and test scores when making admissions decisions, and only those students with the highest scores deserve admission to elite institutions.  When pushed, critics concede that institutions may consider other factors.  But the one factor that schools may not consider is race.  As soon as you find one student of color who got in with lesser metrics than a white student, a constitutional violation is born.  The argument is really that basic, and cares little for what happens next, or for what the purposes of higher education may be, or even what the particular profession at issue demands.

This is not only short-sighted, but if pressed, one might even choose to call it racist.

Start with the law in question.  The colorblind argument should strike anyone familiar with the history of the 14th Amendment as odd and misplaced.    It is particularly embarrassing for originalist justices to take a colorblind view of equal protection.  One need not be a historian to know that the Reconstruction Congress intended no such thing.  Consistency is indeed a virtue.

The beginning argument -- on the original meaning of the 14th Amendment -- is dead wrong, and the conservatives don't even try to pretend otherwise.  They simply ignore it.  And so all that remains is a debate over the wisdom of the use of race in public life.  To be sure, this is a debate worth having, but we should not for one moment pretend that this is a debate about law.  It is not.  It is a debate about Justice Kennedy's vision of a good society, and the best way to get there.  

Here is where the Times' story comes in.  It is one thing to argue that law schools may not consider race because the law demands it.  Once this argument goes away, all we have left is an argument that law schools may not consider race because it is bad for the legal profession, that is, because in so doing law graduates will not be properly prepared to handle the rigors of the profession.

But then, note what the real problem is, according to the Times: 

“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”

Here is what a recent graduate of the George Washington University School of Law, had to say: “What they taught us at law school is how to graduate from law school.”

Put all the pieces together and tell me what you see.  Law schools may not use race in admissions not because the law demands it, or because it produces better lawyers, but because . . . why exactly?

I would like to think that racism has nothing to do with it.  But sometimes, I can't help but wonder . . . 

JoePa, Penn State, and (Dare I Say It) the Need for Moral Legislation

As the events involving the Jerry Sandusky/sexual abuse scandal continue to unfold at Penn State, I am struck by how these victims have been failed by both the adults in this situation and the legal system.  I am troubled by the fact that all Pennsylvania law required of Joe Paterno and the other coaches is to report the abuse to the head of the department and not to the police.  Pennsylvania’s Code § 3490.4 requires teachers and school administrators at public institutions to report child abuse, either to a superior or the authorities.  Joe Paterno was the most powerful man at Penn State so the requirement that he report the abuse to a superior didn't amount to much.  Although many in the media have focused on how these coaches failed in their moral obligation to report the abuse because they didn't go to the authorities, I am more troubled by the fact that there is a credible argument that, consistent with Section 3490.4, they were not required to go to the authorities.  I think Section 3490.4 reflects a larger issue --- the inconsistency with which the law approaches moral issues.  Perhaps the underlying basis of the law is that teachers and school administrators should not be required to go straight to the authorities because they will likely feel morally compelled to do so anyway.  For this reason, it is enough that, by law, they have to report the abuse to someone.  Yet this reporting requirement fell short in this situation, where you have a football program that brings in $70 million dollars a year, a powerful coach, and a group of low income, predominantly minority youth alleging sexual abuse. 

Moreover, the fact that people feel compelled to do the right thing in most circumstances has not stopped the law from mandating behavior that citizens would otherwise feel morally obligated to engage in.  For example, although many people would tell the truth under oath for moral reasons or otherwise, this does not prevent the law from imposing penalties for a failure to do so as a deterrent.  I know that the inconsistency with which the law approaches morality is obvious and should probably be expected given the disagreement that we, as citizens, have over moral issues, but I must admit that I am having a difficult time understanding what the “gray” area is in the circumstance of Penn State.   Why didn't Section 3940.4 require individuals to report abuse directly to the police? Was it viewed as needless moral legislation in a situation where individuals will feel compelled to report the abuse anyway?  In my opinion, this is a situation where moral legislation was needed (by saying that the "moral" thing to do is to report the abuse to the police and require it by law), to prevent abusers and their supporters from legally keeping the abuse in-house.  This is not one of those "gray" areas that lead folks to disagree about the extent to which the government can pass moral legislation.   

In other situations, the fact that there is a gray area as to whether moral legislation is appropriate is quite obvious.  I teach constitutional law, and my students and I often have a lively discussion about whether the government should use the law in order to promote a certain view of morality.  Among the cases we discuss are the abortion funding cases (Harris v. McRae and Maher v. Roe), which hold that even though abortion is a fundamental right, the government does not have to make it easier for individuals to obtain an abortion by providing funding.  Notably, the Court held that funding childbirth, as opposed to abortion, does not infringe on this right, even though the government is, in a sense, expressing a moral viewpoint by funding one and not the other. 

In contrast, in Department of Agriculture v. Moreno, the Court held that excluding households containing unrelated individuals from foodstamp assistance in order to prevent “hippies” from taking advantage of the program is not a permissible governmental purpose.  In other words, excluding unrelated individuals because of moral disapproval of a particular lifestyle is not rationally related to the government interest in preventing fraud.  These cases reflect that although the government can promote certain moral views through its legislation, there are certain constraints on its ability to do so.  In the course of discussing these cases, my students and I often disagree about when and if moral legislation is ever appropriate, particularly given the extent of government involvement in our everyday lives (laws forbidding same sex marriage, alcohol sales on Sunday, narcotics and prostitution are just a few examples of moral legislation that citizens have to contend with).  Above all else, I am certain that there is no “right” answer to this question, or if there is, I don’t know what it is.      

But I question the government’s willingness to influence morals through law in virtually every situation but this one --- a situation involving the safety of children and the reporting requirements of adults who are aware of abuse.  While many (including myself) may disagree about the extent to which the state can use its legislative authority to influence moral behavior, I believe that requiring Joe Paterno and others to report this behavior to the police is one situation where few would object to the law promoting a certain view of morality.  I find comments in the media that Joe Paterno and others breached a “moral” obligation to report a massive understatement, particularly in light of the fact that all of this is coming out almost ten years after one of the coaches called his father and told him he saw assistant coach Jerry Sandusky raping a ten year old in the showers.  At the end of the day, I am just appalled at how many people failed these kids, including a legal system that should have required that the adults in the situation call the police.  Not the dean, the department head, the provost, or the campus police – the real police.  Now, instead of holding Joe Paterno responsible for downplaying this incident and reporting it to people who did nothing for almost a decade, we have to have a discussion as to whether or not Paterno was a "person in charge" and therefore was required to report the abuse to the authorities.  I wonder where we would be now if JoePa had to, by law, call the police when he found out about the abuse instead of reporting the information to "superiors" who were considerably less powerful than Paterno in the world of Penn State.  That would be moral legislation I could live with. 

“Our whites are so much better than their whites” (or still waiting on my apology from Ann Coulter)

Imagine that it is 1998 and the House has filed articles of impeachment against Bill Clinton for perjury emerging from his affair with Monica Lewinsky.  A political pundit, who happens to be African-American, remarks that Bill Clinton is being persecuted because of his efforts to help minorities in this country, and that efforts to impeach him are consistent with conservative goals to effectively “end” the middle class in this country and relegate minorities to permanent underclass status.  This unnamed pundit ends his comments by observing that the efforts of Bill Clinton to help minorities and his persecution by conservatives is indicative of the fact that “Our whites are so much better than their whites.”  

What would follow these comments is the immediate resignation of this pundit from the network and an apology to all who were offended.  This fact pattern is obviously a spin on Ann Coulter’s recent defense of Herman Cain, who is currently under fire for sexual harassment allegations made against him while he was the head of the National Restaurant Association.  She noted that “there is nothing liberals fear more than a black conservative” and she observes that, ““Our blacks are so much better than their blacks” because “you have fought against probably your family, probably your neighbors. . . that’s why we have very impressive blacks.”

Despite the controversial nature of these comments,  I suspect that there will be no apology or resignation, but here is why there needs to be an apology for a couple of reasons.  First, I think Ann Coulter is continuing a theme that Herman Cain himself started – that African-Americans who support the Democratic party have been brainwashed into doing so.  This view of African Americans as passive participants in politics, reinforced by a cowherd mentality, is a statement that in and of itself suggests a hierarchy within the race that is reinforced by Coulter’s remarks.  In other words, “the talented tenth” vote Republican and are rich because they “choose” not to be poor.  This is not a theme that the Republican Party, who has already been accused of being anti-gay and pro-death, wants to run with going into 2012.      

Second, Coulter’s statements bring to mind many of the divisions that were present during the Antebellum period – notably, the division between house slaves and field slaves as a result of the fact that house slaves were treated better and therefore more loyal to the master than field slaves.  That is why her statement, which claims possession over African-American conservatives and references the dissension caused in African-American families when an individual family member decides to vote Republican, is so troubling.  In fact, the reason I started this post with “Our whites are so much better than their whites” is because I want readers to get a sense of how ludicrous it sounds when a minority claims ownership over a group of white people and how this would be discrediting to the speaker, but how troubling and disturbing it sounds when a white person claims ownership over a group of minorities because it harkens back to a historical truth.  Coulter paints African-American conservatives as the “house negros” who are brave and loyal because they dare to stand up to the “field negros” who would betray the master.  This makes her comments dangerous in a way that demands a response, either from Fox News, the so-called “liberal” media, bloggers, Bill Maher, Herman Cain --- someone needs to remind Ann Coulter that this is 2011, not 1811. 

The Ghost of Clarence Thomas: Herman Cain, Sexual Harassment, and “High-Tech Lynchings”

Politico posted a story alleging that Herman Cain, who is running for the Republican presidential nomination, sexually harassed two female employees of the National Restaurant Association while he was head of the Association in the 1990s.  Given that Cain is running for the Supreme Court, this story immediately brought to mind the Clarence Thomas/Anita Hill dispute during Thomas’s confirmation proceedings to the Supreme Court and what, if anything, we have learned since then.  Thomas has publicly stated that he felt like he endured a “high tech lynching” and Hill, a respected law professor, also had her credibility and integrity attacked throughout the proceedings.  In the twenty years since Justice Thomas’s confirmation proceedings, I think that there are some powerful lessons that we (hopefully) learned that resonate in the Herman Cain controversy. 

The first is that men of power often abuse that power, and this is true regardless of race.  But black men who abuse their power (or are accused of doing so) have to factor in that it is going to be potentially more costly, even if the allegations are later proven to be false.  In fact, Justice Thomas referred to his confirmation hearings as a “high tech lynching” in part to give the impression that he was treated more harshly because he is a black man.  The reality is that there are still stereotypes about black masculinity that impact the public’s perception of black men who are accused of wrongdoing, independent of the actual truth of the allegations.  This has particular force in the context of sexual harassment, given that the stereotype surrounding black masculinity often turn on black men being portrayed as aggressive and sexually deviant.  Contrast this with Arnold Schwarzenegger, who was elected governor with 48% of the vote (with the candidate who came in second receiving only 32% of the vote) despite admitting to 25 years of sexual inappropriateness on various movie sets, but Justice Thomas was barely confirmed to the Supreme Court by a vote of 52-48.

The second lesson has to do with how the public treats the victims of black men who abuse (or are alleged to have abused) their authority.  What gets lost in the Clarence Thomas controversy is that his accuser is a well-respected law professor who was also crucified in the national media and by some leaders in the black community for telling her story.  There is a racial dynamic that is relevant when the harasser is an African-American who has “made it” and that success is potentially undermined by another African-American who should understand how difficult the journey is.  Thus, instead of Anita Hill’s background lending to her credibility, it was used to discredit her.  For this reason, I was very relieved to see that Politico opted not to publish the names of the women who filed sexual harassment complaints against Cain.  But I think that we should not be surprised if these allegations put an end to Cain’s frontrunner status to be the Republican nominee.               

Redistricting, Once Again, Comes to Court

We had a census. We had new districting maps. And now, like death and taxes, we have litigation. To date, redistricting-related suits have been filed in 28 states. To Justin Levitt, “[t]he sheer volume of litigation is pretty amazing.” In so doing, these legal challenges are “giving the courts, once again, a major role in drawing districts that could help determine the balance of power in Congress for the next decade.” 

Should anyone be surprised by this? 

The real question in all of this is what role the federal courts should play in this mess. The conventional wisdom ascribes to the courts the role of countermajoritarian saviors, saving the American voter from self-serving, entrenched politicians. Theories and standards abound, and come in all shapes and sizes, for how the courts should handle these questions. But this is very deceptive; easy answers are nowhere to be found. 

Remembering Bork’s Failed Nomination

Last Sunday was the 24th anniversary of the day when Robert Bork’s nomination was voted down by the Senate. Much has been written about this moment in history and its effects on the confirmation process by very thoughtful people. The debate belies easy answers. Not so for Joe Nocera. 

In a short piece, Nocera sought to put the debate to rest. Where did the confirmation ugliness that we presently see begin? To Nocera, it began with the relentless attacks by Democratic Senators and interest groups on Judge Bork. As a result, “[t]he next time a liberal asks why Republicans are so intransigent, you might suggest that the answer lies in the mirror.” 

I’ll say this: the piece piqued my interest. 

Judicial Engagement as the New Activism:

Linda Greenhoiuse has a terrific piece in yesterday's opinionator about the conservative campaign for a more activist conservative judiciary.  She quotes from a report from the Institute for Justice, a libertarian group, entitled "Government Unchecked: The False Problem of 'Judicial Activism' and the Need for Judicial Engagement." According to this report, the usual dichotomy between judicial activism and judicial restraint is a false one: 

“Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather it is judicial engagement – enforcing limits on government power consistent with the text and purpose of the Constitution.”

To the Institute, this means that courts are not doing enough.  For example, 

Of the 15, 817 new laws enacted by Congress between 1954 and 2002, the Court only struck down 103 (two thirds of one percent)

Of the 1,006,649 laws enacted by state legislatures, the Court struck down only 452 (less than one twentieth of one percent) 

Of the 21,462 regulations enacted by the federal government between 1986 to 2006, the Court only struck down 121 (half of one percent)

Of the cases it considered between 1954 and 2010, the Court overturned earlier precedents in only two percent of the cases

From these numbers, the authors of the report conclude that "the image of rampant judicial activism is false."  Needless to say, this also means no more rationality review for economic regulations.

I know, I know.  We are all shocked.

I am not sure whether the authors intend for us to take their report seriously.  But I have a few questions: 

Could anyone -- and I do mean anyone -- possibly fall for this? (anyone, that is, other than the two members of the 11th Circuit panel that struck down the individual mandate in State of Florida v. United States Department of Health and Human Services? -- check out page 104).

How long until Senators Sessions and/or Hatch manage to incorporate the term "judicial engagement" into their attacks on progressive judicial nominees?

Is it no longer possible to have a real debate about the role of the courts in democratic society without playing these silly games?

Justice Alito and the Art of Doing Justice

When I think about the qualities that inform Justice Alito's jurisprudence, a desire to "do justice" easily ranks at the bottom.  Not so for Adam Liptak, who argues that Alito "is alert to injustice, and he is a careful legal craftsman." I don't have a lot to say about Alito's legal craftsmanship, though I imagine that his colleagues might find the comment offensive, distracting, or even silly, if by it Liptak means to draw a distinction between Alito and his fellow justices (note the headline: "When fairness and the law collide, one jurist is troubled."  One jurist?  Shouldn't all jurists be troubled?). I am far more interested in the first quality.

Are we supposed to believe that Justice Alito is "alert to injustice?" What could that possibly mean?

Liptak's choice of examples is telling.  One is the case of a death row inmate who lost his chance to appeal when his lawyer missed a crucial filing deadline (Maples v. Thomas, discussed here).  Another is the case of a client whose lawyer gave him bad advice, which ultimately subjected him to deportation proceedings (Padilla v. Kentucky).  A third is yet another case where the lawyers missed a deadline (Holland v. Florida).  These cases share an obvious, common thread.  They are cases of procedural justice, cases where clients have a right to an appeal taken away through what Alito terms in the Maples case "a series of very unusual and unfortunate circumstances," or else, as in Padilla, the right is exercised poorly, in that the advice of the lawyer subjects the client to "such a harsh consequence" (i.e., deportation after living in the United States for 40 years).

Without question, these are troubling cases. So what makes them interesting is not that Alito is struggling with a legal standard, but that Scalia and Thomas dissented in the first two (and might yet dissent in Maples, which will be decided later this Term).  Also, what to make of the other six justices who joined the majority opinions in Padilla and Holland?  Are they not struggling with the same sets of issues that trouble Justice Alito?  And if not, why not?

Liptak closes the piece with the well-known exchange between Judge Learned Hand and Justice Holmes, which Judge Hand recalled in his 1958 Holmes Lectures at Harvard.  According to Judge Hand, he told Justice Holmes as Holmes walked off on his way to the Court, "Well, sir, goodbye. Do justice!" To which Holmes famously replied, "That is not my job. My job is to play the game according to the rules."  Liptak uses this exchange to illustrate Alito's apparent conundrum; in Liptak's words, "Justice Alito struggles to bridge the gap. He wants to do both."

This is a curious piece on too many levels.  I have already alluded to the notion that singling out Justice Alito in this way is a bit silly.  It is not entirely clear why this is a struggle in Alito's mind but not for the rest of the justices.  But more importantly, why this piece, and why now?  Surely, it cannot be the case that Mr. Liptak is running out of ideas, if the last month is any indication.  This is the beginning of the Court's Term, a time when cases are plentiful and topics abound.  And we are reading about Justice Alito's struggle between "doing justice" and applying the law?  Seriously?

Here's an easy way to show how silly this all is: go back to Liptak's own piece this past Sunday on the latest challenge to racial diversity in college admissions. In order to understand how silly this concept of justice is as applied to Supreme Court justices, take a look at that debate and the role played by "justice" in it.  This is a debate about racial justice; it just so happens that both sides of the debate disagree about what this kind of justice looks like.  And when the five member majority on the Court decides this case, they will apply their very own brand of racial justice, unmoored from constitutional norms as established in 1868.  This will be racial justice understood as personal preferences, no more and no less. You can even call it "living constitutionalism" if it helps.

What to make of Justice Alito and justice, then?  Nothing.  This alleged conflict is only a struggle of Liptak's own making.  This is because Alito is only wanting to have his cake and eat it too.  He wants to be free to do as he wishes within the shallow constraints of his office. 

This is neither new nor peculiar to Justice Alito.

Latinos, Obama, and 396,906

Ah, Mr. President, do us proud.  Figures released and reported by administration officials show that the government has deported a grand total of 396,906 "foreigners" over the last year.  Unsurprisingly, these are record levels.  The officials defend this deportation strategy by focusing on the deportees.  As reported by the N.Y. Times:

The officials said that 55 percent of the immigrants deported were criminal convicts, including 51,620 people convicted of felonies like homicide, drug trafficking and sexual offenses. The results were an 89 percent increase in deportations of criminals since the beginning of the Obama administration, the officials said. Of the remaining illegal immigrants deported, the great majority were arrested soon after they crossed the border illegally or had returned illegally after being deported, officials said.

 How is that for law and order?  Is this what passes for immigration reform in our present political climate?

Worse yet, according to a report by the Warren Institute on Law and Social Policy at Berkeley: the strategy has had a disproportionate impact on the Latino community.  Under the administration program, known as "Secure Communities," 93% of those immigrants arrested were Latino, even though Latinos as a whole only form two-thirds of those who immigrate into the United States illegally.  Also, about a third of the 226,000 immigrants deported under the program have spouses and/or children with American citizenship.  The researchers also found cases where immigration agents held U.S. citizens, even though immigration officials do not have authority to prosecute or deport American citizens.

This is change, all right.  Whether we can believe in it or not is a much different question.

The Supreme Court's Recent Approval Rating

Here's the recent polling data on the Supreme Court's public approval, courtesy of the Washington Post:

Notably, the data shows a five point dip from last year and a fifteen percent dip from two years ago.  To those who study public opinion and the Court, this is not a big worry.  According to James Gibson, for example, “the kind of basic loyalty to the legitimacy of the institution has changed very little.”

He may be right about that, though I have a different question: in light of everything we know about the Court, how in the world does 46% of the public support it at all?

This is a testament to the the mythology of the Court.

Here they come again: the justices and affirmative action

Stop me if you have heard this one before: a student applies to an elite university and is denied admission.  Incidentally, admissions officials concede that they consider many different factors when making decisions, one of which is the race of the applicant.  The student who is denied admission then searches through the many applications only to discover that some Black and Latino applicants with lesser grades and/or test scores are granted admission to said university.  Alas, a federal case is born.

Abigail Fisher is only the latest in a long line of white applicants so aggrieved. It just so happens, however, that the U.S. Supreme Court might finally fall for the ruse once and for all.  Or in the words of Adam Liptak, "college diversity nears its last stand." 

This is ridiculous on too many levels. It is not terribly difficult to parse through the applicant pool and find admitted Black and Latino applicants who scored worse yet got in.  But it is also not terribly difficult to find in-state residents who scored worse than out-of-state residents yet got in, or mountain climbers, or sons and daughters of alumni, or applicants who can throw a football or hit a ball with a stick.  Somehow, we need an argument in order to differentiate the use of race from all these other factors.  But the justices -- or for that matter, critics of affirmative action -- have yet to offer one.

Here is what passes for a good argument nowadays, from anthropologist Peter Wood:

“The part of diversity that matters to me and a lot of academics is the intellectual diversity of the classroom. . . .  The pursuit of a genuine variety of opinions that are well thought through and well grounded is essential. But that has an off-and-on, hit-or-miss connection with ethnic and racial diversity.”

Here is another, from Yale law professor Peter H. Schuck: “The idea of racial and ethnic diversity altering the kind of conversation that goes on in the classroom is so overrated.” 

I happily concede either argument.  But note that similar things could be said about the use of any other factor considered by universities today, from the use of legacy or residency to extra points for doing extracurricular work or having elite athletic credentials.  

The point is this: the critics are make policy arguments, not constitutional ones.  So the issue here is whether the Constitution has anything to say about this question. If the Court's opinions are any indication, it appears that the answer is not as easy as one might think.

Here's what I would love to see in these opinions: a detailed analysis of the history of the 14th Amendment and the reasons why the Reconstruction Congress -- Bingham, Trumbull, and friends -- intended to bar the use of race by the state.  I think this is a tough argument to make, but I suppose it is possible.  Surely, I would expect Justice Thomas to at least pretend that such an argument exists.  Instead, all we get are silly and inane platitudes about the harmful effects of using racial factors.  

Hypocrisy is not becoming, much less by our resident philosopher kings.

Also, whatever happened to the norm of stare decisis?  I would expect the conservative justices to be particularly sensitive to this norm, and the notion that the public has a right to expect that the Court will not change its collective mind as the institution changes membership.  After all, remember the debate during the Kagan nomination about what makes a judge an activist.  The answer from the Republican leadership in the Senate, using the example of Justice Marshall, was that an activist judge is a judge that does not abide by established precedent.  They used the example of the death penalty and how Justice Marshall refused to accept these cases as settled law and instead continued to dissent in case after case. 

Could they really turn around this quickly and overturn Grutter, decided in 2003?

I still think that the case is still up for grabs.  The conventional wisdom is that the five conservative justices on the Court are prepared to take on Grutter.  Yet Justice Kennedy might not be quite so willing. His views on this question may be changing.  His recent concurring opinion in Parents Involved, for example, show a side of Justice Kennedy we had not seen before.  He even went as far as push back on the old conservative trope, Justice Harlan's dissent in Plessy. But to say that Justice Kennedy's views are evolving should not surprise anyone. Such is the lot of the super median.

In the end, he might ultimately save the Court from this embarrassment.

Warren Buffet's Tax Rate

In response to a request from a Kansas congressman, Warren Buffett disclosed in a recent letter that his tax rate last year was 17.4%. His reasons are noble:

“If you could get other ultra-rich Americans to publish their returns along with mine, that would be very useful to the tax dialogue and intelligent reform,” Mr. Buffett said. “I stand ready and willing — indeed eager — to participate in this exercise.”

But clearly Mr. Buffett is confused.  Well-intentioned, to be sure, but confused all the same.  This is not a debate seeking "intelligent reform." Far from it. When it comes to tax reform, intelligence often takes a back seat to ideology and partisan gain.   Evidence such as the one Mr. Buffett adduces only serves to confuse things.

Justices Scalia and Breyer on the Court's Workload

Last Wednesday, Justices Scalia and Breyer made a rare appearance in front of the Senate Judiciary Committee to take questions on the role of judges under the United States Constitution.  The hearing must be watched by anyone who cares about the Court and its decision-making.  It also makes for interesting -- if frustrating -- viewing.

I was preparing for class and trying to watch at the same time -- multi-tasking, I believe it is called -- when the following exchange caught my attention:

The questioning is by Senator Grassley, who asks the justices to comment on Justice Brandeis' comment that "the most important thing that we do is doing nothing." Justice Breyer initially punted the question and pass it to Justice Scalia, who did not do much better.  They both agreed that the best thing to do is, in Justice Scalia's words, to "leave things alone unless there is reason to change it."  

But Justice Breyer had more to say on this issue.  This is how he put it:

"What your question brought to my mind was, there is something in deTocqueville which is really. . . . one of the things he says, which really stuck, is he says, whenever I come to the United States, the first thing that strikes me is the clamor.  What's he thinking of?  Everybody's screaming at each other, is what he meant.  And what he really meant is they're debating. They're talking about things.  They're disagreeing.  And he thinks that's good.  And I do too.  because that's . . . suppose you really have a tough problem sometime, lets imagine you are trying to figure out some bill and it has to do with privacy and it has to do with free expression.  And there're all kinds of tensions right there with the internet and, uh, new methods of communication and Twitter and Facebook and whatever they are and people privacy and you're more familiar with all those than us.  

"How do we decide those in this country?  I think the general word I use is to talk to about that is "bubbling up."  The first thing that happens is that people start to talk.  They talk in newspapers, they talk in classrooms, they talk in articles, they talk in small groups, they talk with policemen, they talk with the firemen, and they talk with civil liberties groups, they talk to everybody under the sun, and they begin to debate, and they get into arguments, eventually it gets to [the Congress,] and you have hearings, and eventually you have to decide, maybe an agency should do it, maybe we should have a statute, maybe we change our minds five times, and eventually things will settle down.  And what I say about my Court?  It's really wonderful if we don't get involved until it settles down.  Because our only job is going to be to decide if what you decide is within the boundaries.  And it's going to be a subject where we will know less about it than those Americans who have gone into it in depth, so be careful of intervening before this big debate, this clamor that Tocqueville is talking about, has a chance to take over, take effect, scream, change, try it on, try it off.  I think that's really the wisdom that underlies this view of, don't decide too much, too fast."

This is very interesting on many levels, but one level stands out above all others: what does this notion of "bubbling up" tells us about the upcoming challenge to the individual mandate?  Could it be honestly said that this debate has "settle[d] down"?

Minutes later, Senator Kohl took up the obvious rejoinder, and what some scholars call the Court's "disappearing" workload. Here's a graphic illustration (courtesy of David Stras):

Scholars spend a great deal of time debating explanations for this sharp drop in the Court's plenary docket.  Is it the the jurisdictional change in 1988, which eliminated much of the Court's remaining mandatory jurisdiction; or is it the change in membership since 1986?  Could it be that the federal courts are now much more homogeneous, which leads to much less conflicts for the court to resolve? Or is it a question of judicial philosophy?  Could the much-derided cert pool, and the clerks "just say no" mentality, be at the root of this issue? 

Little did all these scholars know, all they had to do was ask: it is all about conflicts below and the decline in "breathtakingly important new legislation."  In fact, Justice Scalia goes as far as to call the need for a conflict below "a general rule." (This makes me wonder: is the sign of a conflict below objective proof that the issue has "settle[d] down"?).

According to Justice Scalia, in fact, if his standards in accepting cases have changed at all, "it is only because I am trying to take more [cases], rather than trying to take less."  And according to Justice Breyer, the Court really would like to take more cases: "the attitude in the conference is, there's a split, lets take it.  We have room, we have room to hear more."

This is a remarkable exchange on many levels, though by no means the only exchange worthy of attention.  It also makes me wonder about the utility of these hearings.  Not for one second do I think that the justices are lying, or misleading, or being disingenuous.  To be sure, they are being careful; this is Congress, after all, and there are also cameras in the room.  But more importantly, they are reinforcing a consistent story about the Court and its inner-workings.  This is a story of the Court as objective and apolitical whose only role is to uphold the rule of law.  These hearings, rare as they may be, serve an important purpose in furthering that story.  

Were the public ever to stop believing this story, the Court as we know it today could not possibly survive.  

The debate over playing poker online

I have never understood why playing poker online is considered a vice, a game of luck, and is ultimately illegal, yet states can go to great lengths to promote their many lotteries. This is hypocritical at best.  As an article in yesterday's New York Times' makes clear, however, these laws are clearly analogous to Prohibition: 

. . . the poker world now finds itself in a situation many liken to Prohibition. America didn’t stop drinking when the government outlawed alcoholic beverages in 1919. And, in this Internet age, it won’t be easy to prevent people from gambling online, whatever the government says. “It’s a game of whack-a-mole,” says Behnam Dayanim, an expert on online gambling and a partner at the Axinn Veltrop & Harkrider law firm. “They’ve whacked three very large moles, but over time, more moles will pop up.”

I feel about this the way I feel about alcohol, or marijuana, or even crack cocaine.  How to explain why regulations treat these various drugs differently?  

So here's the thing: some pretty powerful lobbyists have managed to hold Congress from getting its hands on the $42 billion dollars in tax revenue that online poker would generate over 10 years.  How much longer will these lobbyists manage to keep Congress at bay in these dire economic times remains to be seen.  

Could marijuana be next?  More importantly, where might Congress find any limits to this new found need to tax everything in sight?

For those who say that empathy plays no role in judging . . .

I wonder whether President Obama's critics on the right have seen the Times' piece today about Judge Denny Chin.  Judge Chin was a federal district judge in Manhattan for 16 years who was elevated by President Obama to the Second Circuit last year.  This is a terrific account of some of the nuance and idiosyncrasies of being a judge, particularly at the sentencing stage.  I have never doubted that those who argue that empathy plays no rule in judging are clearly pursuing a political agenda; nothing could be farther from the truth.  This piece makes this point clearly and poignantly.  Two particular passages stuck with me.  In one, Judge Chin makes clear that sentencing people is not an easy thing to do:

“It is just not a natural or everyday thing to do, . . . to pass judgment on people, to send them to prison or not. I mean, there is so much at stake,  . . . and there are so many different considerations that come into play.”

In the second, he explains why sentencing is particularly hard for a judge: 

“That’s why it makes it so hard. You can’t predict the future. You don’t know what’s going to happen. . . . You do what you think is best for the defendant, for society, and you hope it works out.”

This is a must-read piece for anyone interested in the debate over empathy in judging.  I don't think one can come away from it believing that this is a debate at all.  Of course empathy matters and plays a role in judicial decision-making.  To suggest otherwise is to engage in deception.  

In Memoriam: Derrick Bell

It is with great sadness that I report the death of Professor Derrick Bell, who passed away yesterday after a long illness.  Professor Bell was the first African American tenured professor at Harvard Law School.  Professor Bell also served as dean of the University of Oregon School of Law, and was a visiting professor at NYU Law until his death.  His scholarship influenced a generation of scholars interested in changing the racial narrative in our country, and he will be sorely missed.  The New York Times obituary is here.

Herman Cain: Cracking the Black Walnut

According to at a CBS poll, a black man is tied for the lead for the Republican nomination for President.  That is a fact, not fiction.  Moreover, it does not appear to be an artifact of polling.  Public Policy Polling, one of the more respected polling outfits, found that in the most recently polled states, North Carolina, West Virginia, and Nebraska, Cain is leading his fellow contenders.  What should we make of this fact? I am surprised that this issue is not receiving much attention.

Perhaps it is because no one, other than Herman Cain himself, believes that Cain can win the nomination. One possibility is to assume that Republican voters will come to their senses and "Cainmentum" will go the way of Bachmanmania. This seems to be the view of Meghan McCain who seems to be horrified that Cain could be the nominee and has exhorted the base "to start getting serious and concentrate on electability as opposed to the person who can garner the best sound bites and media attention (I’m looking at you, Donald Trump). The time for flirtation with media personalities is over. It’s time for Republicans to commit to real leadership." 

Does Herman Cain's unexpected surge show that conservative white voters in very conservative places are willing to vote for a black person provided that the candidate shares their ideology? If the Cain flirtation is indeed a serious one, what does it say about the relationship between race and politics?  I think it makes that relationship extremely more complicated.  When Barack Obama won the Democratic nomination and was eventually elected to the presidency, some commentators viewed that event as exorcising the last racial taboo in American politics thus undermining the regime upon which the Voting Rights Act is built.  I was and remain skeptical that President Obama's election fundamentally altered the story that we tell about race and politics,but it certainly complicated the story.  If we see more Barack Obamas and Deval Patricks,  we will then need to rethink at least part of the simple story that we tell about race and politics.

The question is even more pertinent in the case of Herman Cain and the Republican Party.  The Republican Party is overwhelmingly white and its leaders are also overwhelmingly white.  Many liberals and folks of color believe that the Republican Party is inhospitable to the interests of people of color.  Indeed, some would go so far to call the Party (or perhaps more accurately important elements of the Party) racist.  If Herman Cain wins the GOP nomination or even comes in second, does it complicate the story that we can tell about the relationship between race and politics in the Republican Party?

Consider this question from another and completely different vantage point.   After the Washington Post wrote an article about Niggerhead Rock, the long-time purported name of Rick Perry's hunting camp painted on a rock outside of the camp, Herman Cain chastised Governor Perry for taking too long in removing the word Nigger from the rock.  Not surprisingly there was some conservative blowback.  Many such as Rush Limbaugh raised cain (sorry) on the ground that Herman Cain was playing the race card and exploiting an issue for racial gain in the mold of Jesse Jackson and Al Sharpton.  What was surprising to me was the reaction of progressives and leftists to the conservative blowback.  Markos Moulitsas tweeted that "Herman Cain's usefulness to the GOP ended the second he decided to call out obvious, overt racism."  Moulitsas also tweeted "Cain had some promise. Unfortunately for him, nothing turns off GOP more than a black guy taking umbrage at racism."  The thoughtful Ta-Nehisi Coates wrote:

It has charged earlier by some commenters that liberals only offer a racial critique when it's a conservative. I can't speak for "liberals," but the record on this board is fairly transparent. 

It's not so much that there are no liberal racists, it's that liberals have cultivated a constituency which takes racism seriously as opposed to claiming that  Karl Rove actually writes Bill Maher's jokes. All liberals aren't on board with that constituency, and so there's a fight. This is a good thing.

But the GOP has no real need of black voters, and to a lesser extent, non-white voters period. And on the national level, it has no need of black candidates to speak on race--except in so much as they defuse the sense that an uncomfortable portion of the GOP's base is racist. 

Herman Cain--a man who owes his place in the primary to an almost exclusively white electorate--forgot that prime directive. Today he was given a reminder[.]

Or consider Adam Serwer's take:

But when a man who is old enough to recall living under American apartheid gets a little emotional over a piece of land called "Niggerhead," that's where the right draws the line. Not just because Cain is attacking a fellow Republican, but because he stepped out of the proper role of a black conservative, which is to reassure Republicans that their political problems with race are the inventions of a liberal conspiracy. Cain just ran head first into the brick wall of conservative anti-anti-racism, the attitude on the right that accusations of racism directed at white people are of far greater consequence than any lingering vestiges of institutional racism nonwhites might face.

I think these analyses are too simple and too comforting. First, they don't seem to take the Cain candidacy seriously.  The black man here is window-dressing; you trot him out when you need evidence that you're not racist or all-white, but he is not a serious contender for the top prize.  (Those in legal academia who have seen a dean search finalist pool recognize the move here.  There is almost always a black person in the finalist pool that almost everyone, including the interviewee, knows is not going to get the job.  But we have to pretend. So you ask him/her what is the first thing they would change as dean.)  But if the Cain candidacy is a serious one and the GOP needs this black candidate because he might be their best chance to regain the White House then Coates and Serwer are painting too simple a picture.  Their message to Cain is "Dude, quit pretending everyone knows that you're not going to win and that they won't vote for you.  Your only purpose is to make them look good."  But what if he could win and what if they would vote for him?

This leads to the second point.  How would a black candidate behave when faced with a white electorate who is skittish about race?  The answer is pretty obvious: one need only look at Barack Obama, the current President of the United States. (Remember the beer summit). Racial equality has generally fallen off the Democratic Party's radar.  This has been the complaint of the CBC for the last few months.  Remember Representative Maxine Waters' dare to the Obama aide "say black."  To single-out the Republicans here as especially deserving of opprobrium is comforting but I don't think it provides a full picture of a more complex landscape.

If Cain wins the nomination (yes, very big IF) or even if he comes second, I think the political reality will change our race and politics narrative and it will not do say that the Republicans have a problem with race but the Democrats don't.      

Florida Moves its Primary Date . . . and I Feel Fine

As in 2008, Florida moved its presidential primary almost a month ahead of the date authorized by the Republican National Committee.  This means that Florida leapfrogs the votes in  Iowa, New Hampshire, South Carolina, and Nevada.  Officials in those affected stats are none-too-happy about it, and I can's say that I blame them.  

I'll say this: I have never been to New Hampshire, and have spent very little time in South Carolina and Nevada. I have spent far more time in Iowa.  And every time I go to that lovely state, I ask myself the same question: how in the world do we allow this state to play such an influential role in choosing presidential candidates?  No offense to Iowa, but I can hardly think of a state less representative of the nation as a whole.  

Florida's move makes me wonder: how will the affected states go?  Will they call Florida's bluff?

I wouldn't bet on it.

The Killing of American Citizens During War

Last week, an American drone killed Al Qaeda leader Anwar al-Awlaki.  I must confess, I am not sure what to think about that.  Yes, Al Qaeda has done terrible things.  There is no debate on that score.  But killing people is not something that we should ever take lightly, no matter the justifications. 

The killing of Mr. Awlaki is particularly controversial, however, because he was an American citizen.  Here's an argument:

But a range of civil libertarians and Muslim-American advocates questioned how the government could take an American citizen’s life based on secret intelligence and without a trial. They said that killing him amounted to summary execution without the due process of law guaranteed by the Constitution.

I have a better question.  How could the government take anybody's life based on whatever they deem good intelligence and without any trial?  I must be going crazy, but this does not make any sense.  

Soon after the killing, Jack Goldsmith wrote a piece for the Times entitled "A Just Act of War." I was hoping the piece would lend me some clarity on this difficult issue. The title suggested as much. But Professor Goldsmith could do no such thing. 

Goldsmith concedes that “this fateful new step” – killing American citizens intentionally -- is fraught with dangers. He mentions executive overreach or mistakes as two such dangers. Yet he argues that President Obama is balancing these dangers admirably against larger security needs of the country. This is fine as it goes. 

The security needs are clear: Mr. Awlaki was “an operational leader of a Qaeda affiliate that had been involved in terrorist plots on American soil and . . . he was hiding in a country that lacked the capacity to arrest him and bring him to justice.” 

As for the notion that Mr. Awlaki was assassinated without due process, his response borders on silly: we’ve done this before. That is, we’ve assassinated people during times of war, and did not call it assassinations. Also, he was afforded process, since “[w]hat due process requires depends on context.” Then he explains that a federal judge last year (one!) left it up to the president and Congress to determine “military targeting issues” during wartime. 

Nope. He is not helping one bit. 

In fairness, however, I was not really holding my breath.

The Difficulty of Race Talk on the Left

There are helpful ways to talk about and disagree about race and there are less helpful ways.  The latest poster child for one of the least helpful ways has to be this column published in Salon by Gene Lyons.  Mr. Lyons' column is purportedly a response to Professor Harris-Perry's piece on President Obama and white liberal racism.  I talked about the piece here.

Unfortunately, Mr. Lyons could not restrict himself to reasoned argument, but stooped to name-calling (he called her a fool) and a racial fundamentalist.  Needless to say, there are ways of disagreeing with an argument without resorting to ad hominem attacks.  Might it be possible that in the Obama era the left might have a harder time talking about race than the right?

Pennsylvania's Mis-Adventures with the Electoral College

The Republican Party is hard at work in Pennsylvania. Under a new bill now making its way through the state legislature, the state would change its long-standing practice of awarding Electoral College votes under a winner-take-all system and instead would award them by Congressional districts. Why would Pennsylvania Republicans take this new route?  According to Dominic Pileggi, the Senate majority leader, “The goal is to have the votes in the Electoral College more closely reflect the popular vote . . . [and] [t]his is one way to do that.”

Really.

Last week, I was asked by the Washington Post to host an online session on this issue.  The questions were many and I couldn't possibly get to all of them in the time allotted.  Two themes immediately emerged.  One was the notion that Republicans were rigging the rules of the game for political advantage. A second was that Democrats were no better and would do the same thing if they could get away with it.  

The political calculation is easy enough to discern. Republicans are assuming that they will lose the statewide popular vote, something they have done since 1988.  But this is not a slam-dunk as a question of politics.  In going to a districting system, the state is simply shifting electoral incentives and will force candidates to campaign differently.  Whether this makes sense as a question of partisan politics thus requires a crystal ball, and Republicans clearly do not have one.  

It is hard to get worked up over this.  This is precisely what we would expect from a state where one party controls both the governorship and the state legislature.  And yet, it is hard not to be cynical about it. The question of how we elect a president is fraught with much difficulty. This is not an easy question, and the American nation has struggled with answers from the time of the founding.  While I am agnostic whether the Electoral College should be amended or even abolished, I am far more confident in the view that political expediency should play no role in this debate. 

When Racism Talk is Counterproductive?

I have been following the recent kerfuffle between Melissa Harris-Perry and her critics over whether white liberals are holding President Obama to higher standard than they would a similarly-situated White President and whether this double standard is evidence of white liberal racism.  I'm a big fan of Professor Harris-Perry's work; she is one of the more insightful voices in pundit land. I am also sympathetic to what she wanted to do in the piece.  Specifically, I think what I take to be the essence of her claim--that on average, black citizens see the political world differently that white liberals--is an important point. But I think the column is generally off the mark on the racism charge and it does a disservice to the essence of the claim, which does deserve a hearing.  This is one example of where I think racism talk is counterproductive and I'll say more about that below.  Professor Harris-Perry also offered a response to the critics, which I found useful in parts and unpersuasive in other parts.  Here I'll focus on the main article.

Let's meet the charges.  In a recent article that has apparently caused a firestorm, Professor Harris-Perry writes:

If old-fashioned electoral racism is the absolute unwillingness to vote for a black candidate, then liberal electoral racism is the willingness to abandon a black candidate when he is just as competent as his white predecessors.

Professor Harris-Perry then explains that White liberals are guilty of electoral racism because they are abandoning President Obama when they did not abandon the last Democratic President Bill Clinton, even though Obama's record as president is similar to that of Bill Clinton's record at comparable periods in their respective tenures.

Harris-Perry's argument seems quite simple on its face, but requires a lot of assumptions/factual assertions that makes her argument pretty easy to attack and the responses to her argument quite predictable.  First, are white liberals in fact abandoning President Obama?  What is the evidence for that claim?  Second, is Obama comparable to Clinton (Harris-Perry's preferred baseline)?  That is, isn't Obama's performance in office worse than Clinton's performance as president. Third, did white liberals fail to criticize Clinton?  Fourth, what about the fact that African-American leaders have also been quite vocal in their criticism of the President and that support for the President among African Americans has started to soften?  Are they alone entitled to be critical and unsupportive?  Fifth, assuming that there is a double standard, what is the evidence that it is racial?  Maybe white liberals are more impatient now than they were under Clinton.  Maybe the expectation for Obama was greater because of his campaign rhetoric.  Or maybe the stakes are higher now than they were under Clinton. Or maybe there is now a more militant and more vigilant liberal base that came of age post-Clinton.  Sixth, Harris-Perry's temporal comparisons are not comparable.  She's comparing Clinton's reelection numbers to Obama's current popularity. Seventh, isn't the charge of racism simply a political move meant to silence the President's perceived opponents? Etc.

The bottom line here is that there are a number of strategies for meeting and parrying the racism charge.  The response to Professor Harris-Perry has been quite predictably along the lines outlined above, though of course not as systematic.  See for example Salon's Joan Walsh's piece, Salon's David Sirota's response, and Corey Robin's here. These responses are generally hard-hitting, but not unexpected when one accuses people of racism.  I found most of the responses, at least the serious ones, generally thoughtful.  By that I meant they met the claim on its merits and attempted to refute the claim with merits-based arguments.

To accuse someone (or a group of someones) of racism is to level a significant charge that requires the complainant to meet a great burden.  In my view, Professor Harris-Perry did not meet her burden which left her open to the rejoinder that the racism charge is too facile and misguided. By the same token, I think the critics missed the core of Professor Harris-Perry's complaint, which is that disparate racial perceptions are consequential.  But I also think that that core complaint was occluded by the charge of racism, which is why racism talk here is ineffectual.

This exchange between Professor Harris-Perry and her critics is an example where racism talk is counterproductive.  Those times include when the complainant has not met his or her burden of proof and when the real aim of the complaint is not so much racism but disparate impact.  Disparate impact can be the product of racial animus and racism, but that is not always so.  Moreover, simply because a disparate impact is not the product of conscious and intentional racial animus does not mean that disparate impact is irrelevant to racial justice.  In the context of Professor Harris-Perry's column, I would much rather have a discussion on disparate racial perceptions than a discussion on whether white liberals are racist.  (Thus, for example, when Professor Harris-Perry writes in her response to her critics that perceptions of racial inequality by folks of color ought to count, I think that opens a real avenue for conversation about the agency of citizens of color this democratic polity and how far perceptions of legitimacy ought to take us.)

Though I think that Professor Harris-Perry's initial column failed to meet its burden of proof, it was not clear to me how to take her response to her critics.  In her response to her critics, she sought to expose three "common discursive strategies that are meant to discredit" those of us who write about race and politics.   I'll only focus on the first strategy here. The first strategy of the critics is to demand proof of racism.   Professor Harris-Perry observes:

The first is a common strategy of asking any person of color who identifies a racist practice or pattern to “prove” that racism is indeed the causal factor. This is typically demanded by those who are certain of their own purity of racial motivation. The implication is if one cannot produce irrefutable evidence of clear, blatant and intentional bias, then racism must be banned as a possibility. But this is both silly as an intellectual claim and dangerous as a policy standard. 

. . . .

I believe we must be careful and judicious in our conversations about racism. But I also believe that those who demand proof of interpersonal intention to create a racist outcome are missing the point about how racism works. Racism is not exclusively about hooded Klansmen; it is also about the structures of bias and culture of privilege that infect the left as well.

 I think Professor Harris-Perry is clearly right that intentional racism does not exhaust the racial inequality category.  However, I also think that race scholars need to be much more precise about what they mean by racism.  In particular, I think we need to do a better job of theorizing the link between racial inequality and disparate impact.  Keeping with what I've said above, it is not clear to me that it is helpful, either rhetorically or theoretically, to call disparate racial impact racism when disparate racial impact is unmoored from intentional racial discrimination.  (Here's a hypo: suppose you find out that one of the most liberal members of the Supreme Court after reasonably opportunity has never hired a black clerk, is that Justice a racist?  Is it useful to label that Justice a racist?  Or should we simply talk about why that practice is problematic and leads to racial inequality?  Are we better off taking about making sure that all doors are open to all regardless of race, or are we better off by saying that Justice so and so is a racist.)  If Professor Harris-Perry is urging us to broaden our concept of racial equality outside of a racism/not-racism frame or racism-as-intentional discrimination construct, I think that's helpful.  If she's saying that racial inequality claims are hard to prove and therefore claimants should be relieved of proof, then she's off the mark.

I was not sure how to process the other two claims, so I won't dwell on them here.  My bottom line is two-fold.  First, when scholars or intellectuals of color (or anyone else for that matter) level a charge of racism, we need to meet our burden of proof.  Second, we also need to think hard about when it is productive to talk about racism and when it is productive to talk about practices or perceptions that lead to racial inequality even though there is not a bad actor that serves as the prime mover.