Friday, September 30, 2011

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?

Thursday, September 29, 2011

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. 

Tuesday, September 27, 2011

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.

Monday, September 26, 2011

Guest Contributor Terry Smith: Transracial Universalism

Obama’s “transracial universalism,” as Randall Kennedy calls it in The Persistence of the Color Line, assumes something about White voters that history doesn’t bear out.  It assumes that White voters are capable of ascertaining and willing to vote their own self-interests.  If they can’t or won’t, there’s little point is seeking non-racial common ground, for that common ground will remain obstructed to White voters.

The 2008 presidential contest is instructive.  Even when the country was on the brink of an economic depression; even after the Republican brand had been badly damaged by eight years under George W. Bush; and even against a Republican nominee who recklessly selected a running mate with neither the background nor intellect to lead a country, more than 55% of White voters voted for John McCain. If ever there were a moment when transracial universalism should have taken root, it was during the perfect storm of 2008.

To be sure, Obama assembled a winning coalition from that storm, but not without significant caveats.  If one examines regional and demographic data from the election, certain misperceptions are dissipated.  For instance, while it is true that Obama took the female vote, McCain actually carried the White female vote.  This is important because the media portrays females as more liberal and amenable to a candidate like Obama—and hence more likely to entertain transracial universalism.  But while White women were somewhat more likely to support Obama than White men in 2008, Black women were twice as likely to support Obama as White women.  In other words, once we refract the election results through race, we begin to see a basic reluctance on the part of White voters to find common ground with Blacks even when Whites are suffering severely, as they were in 2008.

Which leads to another questionable assumption of transracial universalism:  that Americans can transcend race without first grappling with racism and its lingering effects. Race is always a subtext for national elections in the United States.  It speaks whether or not a candidate like Obama speaks back to it.  The South, teeming with poor and under-educated Whites, delivered abysmal results for Obama in 2008.  Surely many  White southerners have a vested interest in the progressive, race-neutral themes sounded by Obama as a candidate.  But not even the precipice of a depression could pry them from their self-defeating habit of supporting Republicans who work against their economic interests.  To the extent that race misguides them, confronting race is a pre-condition to transracial universalism.  Contrary to the way President Obama has attempted to govern, transracial universalism is not a means of race avoidance.

Sunday, September 25, 2011

Latinos and Accent Discrimination in Arizona

When you thought Arizona could not become any more inhospitable to Latinos, here's the latest: the state is now monitoring "repeated pattern[s] of misuse of the language or mispronunciation of the language." Teachers who attract the attention of state monitors are asked to take a class with an "accent reduction specialist." This is because, according to Andrew LeFevre, a spokesman for the State Department of Education, “[i]t’s critically important that teachers act as models when it comes to language.”

The point is not that the teachers are not fluent in English but, rather, that their pronunciation is not to the district's standards.  A federal review found, for example, that teacherts were written up "for pronouncing 'the' as 'da,' 'another' as 'anuder' and 'lives here' as 'leeves here.'"

This baffles on many fronts.  At root, and as federal officials and attorneys filing complaints acknowledge, this is discrimination.  I would love to test the district's resolve on this: how would they approach teachers who have recently moved to Arizona from Boston, New York, or South Carolina?  How do they decide what kind of language role models are acceptable and which ones are not?

I can only wonder, and shudder about, what state officials will come up with next.

Thursday, September 22, 2011

On-Line Forum on The Persistence of the Color-Line

The NY Times posted today a Room for Debate forum on Obama, Race, and Randy Kennedy's fabulous new book, The Persistence of the Color Line: Racial Politics and the Obama Presidency. The commentators were:
Fordham's DePaul's Terry Smith, Cardozo's Julie Suk, Cardozo's Michelle Adams, UNLV's Sylvia Lazos, Harvard's Randy Kennedy, Luis, and me.  As a follow-up to the Room for Debate postings, I've invited the commentators to join us on Colored Demos as guest bloggers to have a more extensive debate on the book, their ideas, and anything related that they want to talk about.  This should be a lot of fun and we're extremely pleased to host such thoughtful scholars.

Forgetting that Race Matters: Troy Davis, AEDPA, and the Death Penalty in Georgia

David Baldus was a brilliant legal scholar who is best known for his work on race and the death penalty.  Professor Baldus and several of his colleagues conducted a study of the death penalty in Georgia and found that, when controlling for 230 different factors, defendants accused of killing white victims were four times more likely to be sentenced to death than defendants accused of killing black victims.  In the 1987 case of McClesky v. Kemp, the Supreme Court, in a 5-4 decision, found that this evidence, which indicated that race discrimination was a systemic problem in the Georgia criminal justice system, did not prove that the conviction and death sentence of Warren McClesky was racially motivated.  Justice Powell, writing on behalf of the majority, found that the risk of racial bias in the administration of the death penalty, even if supported by social scientific research, was not constitutionally significant in “light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants.”  In particular, McClesky did not show racial bias on the part of the law officials associated with his case and therefore was not entitled to relief. 

The safeguards that Justice Powell pointed to in McClesky---procedural rules that allow defendants to introduce mitigating evidence that might influence the jury not to impose the death penalty, the fact that death sentences are automatically appealed to the state supreme court among other things---do not mean much if the entire system is racially biased.  This issue has come to forefront again because of the case of Troy Davis, an African-American executed yesterday in Georgia for the 1989 murder of Mark MacPhail, a white police officer.  Davis was executed despite the fact that 7 of the 9 eyewitnesses who testified against him recanted in the years since his jury trial.  Moreover, there was no conclusive evidence such as DNA linking him to the crime, and the ballistics evidence has also been called into doubt in the years since Officer MacPhail’s death.  Davis’s many supporters believe that this far exceeds the reasonable doubt necessary to overturn his conviction.

The problem is that, once convicted, the standard for a prisoner challenging his conviction, at least in federal court, is not reasonable doubt.  The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires that a person collaterally challenging their state conviction in federal court show that the state court’s resolution of their case involved an unreasonable application of clearly established federal law or that their conviction was based on an unreasonable determination of the facts.    

In his appeals, Davis argued that the witness recantations cast doubt on his conviction, but thanks to AEDPA, Davis had to forego any other arguments challenging his conviction that did not fit within the narrow grounds outlined by the statute.  AEDPA also does not leave much room for subsequent courts to consider the context in which the death sentence has been imposed.  For this reason and others, throughout much of this dispute over Troy Davis there has not been a great deal of focus on what Professor Baldus showed us more than twenty years ago about Georgia: race matters in the implementation of the death penalty.  Race has certainly been lurking in the background of this debate, but it has not been as prominent as it should be given that we have solid empirical evidence that race really does influence whether someone is sentenced to death.  The McClesky decisionalthough declining to find that the defendant was entitled to relief, does not undermine the validity of the Baldus study and its conclusion that race matters in this context.  

Given this, it is entirely possible that since Davis was convicted of killing a white police officer (and in 1989, only two years after McClesky), the jury considered the race of his victim in sentencing him to death.  Moreover, racial considerations made it unlikely that new evidence, such as the eyewitness recantations, would have convinced a trier of fact to disturb the original sentence on appeal.  Whether the trier of fact has given appropriate weight and consideration to new evidence could conceivably be affected by the larger systemic issues of race that infected the system.  And even if there is only a small probability that race was a factor in Troy Davis's case, the fact that the system as a whole is infected by racial bias still matters and should matter in implementing something a final and irrevocable as the death penalty.    
 
Indeed, Troy Davis’s execution leaves us with important questions about race and the future of the death penalty.  Given the systemic problem of race discrimination that has been empirically proven to exist in Georgia’s criminal justice system, what kind of “safeguard” can effectively minimize racial bias against defendants convicted in this system?  Federal habeas relief used to be one avenue (and it is questionable whether this was sufficient), but AEDPA has limited both the legal and factual questions that defendants can raise in order to challenge their state convictions in federal court. 

At the end of the day, Troy Davis may, very well, have been guilty---we will never know.  Mark MacPhail’s family cannot be faulted for seeking justice against a man whom they believed committed the ultimate wrong against them.  Let us not forget the human side of all this.  But what still remains is an uncertainty in the process that we must rightly consider, as a society, in punishing those who wrong us.  The possibility that race plays any role in the administration of the death penalty should make us hesitant to use it.  This is especially true when our system relies on fallible human beings to weigh the evidence in determining whether to impose the ultimate punishment; moreover, AEDPA has limited the scope of the inquiry that subsequent courts can engage in to assess the propriety of the decision.  As a society we have to figure out if, when we make these life and death decisions, we care about getting it right.    

Wednesday, September 21, 2011

When it comes to the NCAA, when will we have enough?

In case this coffin needed a nail, here's an amazing report by Taylor Branch on "The Shame of College Sports," published in The Atlantic.  Within a few minutes I had seen it on line, two friends had emailed me the link to it.  This is spreading like wildfire.  In a nutshell:
But after an inquiry that took me into locker rooms and ivory towers across the country, I have come to believe that sentiment blinds us to what’s before our eyes. Big-time college sports are fully commercialized. Billions of dollars flow through them each year. The NCAA makes money, and enables universities and corporations to make money, from the unpaid labor of young athletes.

Slavery analogies should be used carefully. College athletes are not slaves. Yet to survey the scene—corporations and universities enriching themselves on the backs of uncompensated young men, whose status as “student-athletes” deprives them of the right to due process guaranteed by the Constitution—is to catch an unmistakable whiff of the plantation. Perhaps a more apt metaphor is colonialism: college sports, as overseen by the NCAA, is a system imposed by well-meaning paternalists and rationalized with hoary sentiments about caring for the well-being of the colonized. But it is, nonetheless, unjust. The NCAA, in its zealous defense of bogus principles, sometimes destroys the dreams of innocent young athletes.

The NCAA today is in many ways a classic cartel. Efforts to reform it—most notably by the three Knight Commissions over the course of 20 years—have, while making changes around the edges, been largely fruitless. The time has come for a major overhaul. And whether the powers that be like it or not, big changes are coming. Threats loom on multiple fronts: in Congress, the courts, breakaway athletic conferences, student rebellion, and public disgust. Swaddled in gauzy clich├ęs, the NCAA presides over a vast, teetering glory.
 This is embarrassing.  Not new, mind  you, but coming from the pen of Mr. Branch, it packs a particularly poignant punch.    So the question is, what will it take to bring down this behemoth?

Tuesday, September 20, 2011

The Over-Under on Obama's Fight on Taxes

This past Monday, President Obama offered new proposals for solving our long-tern economic woes.  Unofficially branded the "Buffett Rule," these proposals focus on the rich paying more in taxes. They include closing the Bush tax cuts to higher incomes, new taxes on the wealthy, a special new tax for millionaires, and closing loopholes for those who make over $250,000. Unsurprisingly, critics immediately branded the proposal "class warfare."

According to Robert Reich, this will be not only the fight fight of 2012, but "perhaps the defining battle."

This makes me wonder, in light of everything we have seen from the president to this point: how long will this fight last until he caves to the Republican side?

Could he possibly last until the new year?

How not to be Cynical about the Individual Mandate in Court?

There is a new opinion on the constitutionality of the health care law, by Judge Christopher Connor of the Middle District of Pennsylvania, striking down the mandate.  Unsurprisingly, all you need to know about the opinion is encapsulated by the fact that Judge Connor was nominated to the bench by President George W. Bush.  

It is getting harder and harder not to be cynical about this. Only two out of the twelve judges who have ruled on this question have not ruled in line with the ideology of their nominating president.  Both are appellate judges, one in the Sixth Circuit -- Judge Jeffrey Sutton, nominated by George W. Bush -- and one in the 11th Circuit -- Judge Frank Hull, nominated by Bill Clinton. (Incidentally, the three judges on the Fourth Circuit who dismissed the challenges were, unsurprisingly, nominated by Presidents Obama and Clinton).

Moving forward, the interesting question lies in explaining these two votes.  Could they have voted as they did in order to force a circuit split and thus making review by the Supreme Court more likely? 

This question leads directly to a second, more interesting question: while the commentary assumes that the existing circuit split ensures that the Court will take up this question in the near future, will four justices choose to thrust the Court into this debate on an election year?

I am not so sure.  And yet, whether four justices so choose will tell us a great deal about the Court and the role that it sees for itself in our constitutional system.

Friday, September 16, 2011

When the Constitution Doesn't Stand a Chance

Umar Farouk Abdulmutallab goes on trial Oct. 11 on charges of trying to blow up a plane on Christmas Day, 2009 with a bomb that he his in his underwear.  A leading piece of evidence against him are incriminating statements he gave to police before any Miranda warnings were read.  Are these statements admissible in court?

On Thursday, a federal judge in Detroit ruled that prosecutors could use these statements against Mr. Abdulmutallab.  
 
To be sure, I don't know what kind of evidence the government has against Mr. Abdulmutallab, so in the whole scheme of things, this ruling might have little effect on the outcome of the case. But did anybody honstly think that the Constitution stood a chance against the war on terror?
 
Anyone?

Tuesday, September 13, 2011

How Dare He??

Fox News does not have it out for President Obama.  They simply object to his choice of office supplies.  If you are going to raise taxes, Mr. President, please do it with a staple. 

Big ups to the President

The President's diversification of the federal bench has been tremendous.  I hope that this also means that law students of color will be able to compete for more clerkships.

Thursday, September 8, 2011

George Will and the Chief Justice On Lochner

This is why silly labels, such as "conservative" and "liberal," get me.  In yesterday's Washington Post, after apparently running out of things to write about, George Will defended the Court's decision in Lochner as "flow[ing] from bedrock American doctrine: The individual possesses inalienable rights — here, liberty of contract — that cannot be legislated away for casual or disreputable reasons." This is not Will's original thinking, of course; as he concedes, he is simply pushing David Bernstein's recent defense of the opinion. 

Will closes with the following:
Long execrated by most law professors, Lochner is the liberals’ least favorite decision because its premises pose a threat to their aspiration, which is to provide an emancipation proclamation for regulatory government. The rehabilitation of Lochner is another step in the disarmament of such thinking.
Could you think of anything sillier than that?

Here's a thought, for starters.  Tell me what you think of it:
I think most cases, most judges, know what it means to interpret the law, and can recognize when they’re going too far into an area of making law, but certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases, you do need to focus again on the question of legitimacy, and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.
You go to a case like the Lochner case. You can read that opinion today and it’s quite clear that they’re not interpreting the law, they’re making the law. The judgment is right there. They say: We don’t think it’s too much for a baker to work whatever it was, 13 hours a day. We think the legislature made a mistake in saying they should regulate this for their health. We don’t think it hurts their health at all. It’s right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said. So, you know, the fact that it’s difficult to draw the line doesn’t relieve a judge of an obligation to draw the line.
This is a statement by none other than Chief Justice Roberts during his confirmation hearing.  He is hardly a liberal, it goes without saying (this was the hearing where the Chief Justice famously invoked the "judge as umpire" metaphor, so maybe we can best understand him as playing a role).

This is why labels can be so unhelpful.  I wonder, in this vein, what Will thinks about the recent decisions over the use of race in admissions, employment, and redistricting.  I wonder, in other words, where his strict constructionism gets him.

I can only imagine.

The Fourth Circuit Ducks Two Separate Health Care Challenges

Earlier today, the Fourth Circuit dismissed Virginia's challenge to the individual mandate on standing grounds.  According to the three-judge panel, the state of Virginia does not have a "sovereign interest in challenging" the individual mandate simply because it enacted a law that memorialized its disapproval of a federal law.

This is a largely uneventful opinion, authored by a Clinton appointee and joined by two Obama appointees (this same panel also dismissed a challenge to the law by Liberty University on jurisdictional grounds). Towards the end of the opinion, however, the following observation caught my eye:
Thus, if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court. . . .  We cannot accept a theory of standing that so contravenes settled jurisdictional constraints.
Think for a moment about what this means.  Were a state allowed to challenge a federal law simply by passing a statute in conflict with it, federal judges would have no way to become embroiled in any issue, "no matter how generalized nor quintessentially political."

That simply makes no sense.

If you don't believe me, think only about the Bush v. Gore litigation, and how long the standing question occupied the justices' time.  (In case you don't remember, the answer is, not one second).  Instead, justice Scalia was fond of reminding his adulating audiences that there was nothing the justices could do other than accept the case.  As he recently said in an interview:
Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn't important enough?
Well, how about, nobody had standing to bring suit; or maybe this was a political question best left for the political branches; or maybe federal law placed this controversy within the explicit purview of the Congress?  Would any of those work?

The point is not whether a litigant has standing, or whether a question is political or not.  The only question is whether a court wishes to decide the question or whether it wishes to duck the issue.  This is another way of saying, had the Fourth Circuit panel wished to decide the question, there is simply no way that standing doctrine or jurisdictional hurdles would have stood in the way.

Romney Lives (or its not about Obama, its about your Mama)

One of the most provocative moments of last night’s Republican primary debate (second only to Rick Perry’s denial of climate change and his incoherent reference to Galileo) is when Rick Perry called the social security program “a Ponzi scheme.”  Mitt Romney bristled at this description, saying that the Republican Party needs a candidate that is committed to preserving social security, not dismantling it.  Perry undoubtedly scored some points with his conservative base with his description of social security and his refusal to back down or alter his position.  However, given the popularity of the program, Perry’s view will almost certainly hurt him in the general election if he is the Republican nominee.  Indeed, it was this exchange between Perry and Romney over social security that allowed Romney to shine as a candidate, which is something that he really needed given that Perry had taken Romney’s place as the frontrunner.   

But I want to ask a question that none of the candidates clearly answered last night—how is social security, as the program currently stands, not a Ponzi scheme?  Beneficiaries receive money based on contributions from people who are currently working and who are paying into the program based on the assumption that they will receive benefits when they are older, but everyone knows that the program as it currently stands will go bankrupt long before current payees can receive any benefits.  Isn’t that the textbook definition of a Ponzi scheme?  Mind you, I think social security is a good thing, but I am down right puzzled by the push back that Perry is getting on this point from both the left and the right.  Maybe I am missing something, but I think that his other positions--- denial of climate change, his misrepresentations of Texas’s job creation record, the large number of uninsured Texas residents, the fact that Texas kills people so often---are much more criticism worthy than his description of social security (which has a ring of truth).  So I guess my question is: Is Perry wrong on social security?  What am I missing?

Wednesday, September 7, 2011

Peter Beinart's over-analysis of Mitt Romney's chances?

Peter Beinart has this piece on the Daily Beast on Mitt Romney and why he can't win the Republican nomination.
This is the opening paragraph, which also contains Beinart's thesis:
According to the old rules of American politics, Mitt Romney should win the Republican presidential nomination. He came in second last time. He’s got lots of money. He’s got a better chance of defeating Barack Obama than his leading opponents. But he’s unlikely to win because we live in an age of presidential hatred. These days, to win your party’s nomination you must be the polar opposite of the president your party despises. Any significant resemblance between yourself and him and you’re done. 
I think this is an over-analysis.  Mitt Romney is currently running second in the Republican primaries for two reasons.  First, he is to the left of the Republican primary electorate, which is being dominated by members of the Tea Party and they are extremely conservative.  Second, right now President Obama looks quite weak, which is leading voters in the Republican primary to prioritize ideological purity over electability.  If Perry implodes or if Romney moves more to the right to match the ideological distribution of the Republican electorate, or if the President regains his footing Romney is likely to win the Republican Primary.

Sometimes the simple explanation is probably the right one.  Perry, the former Democrat, is more conservative than Romney; he is more ideologically aligned with the Republican electorate, which is why he has taken all the winds out of out Michele Bachmann's sails.  It is that simple.

What profiteth a man to seek the middle but lose his base?

 See here re: the President's struggle with his base.

Tuesday, September 6, 2011

Fuentes-Rohwer contributing to NY Times Room for Debate

Luis has a post on NY Times Room for Debate on Rick Perry's education plan.  It is characteristically thoughtful.

Bailout for the Post Office?


On Wednesday Thursday, President Obama is scheduled to give a speech on jobs and the economy.  The timing of this speech coincides with news that the post office is set to default on a $5.5 billion dollar payment to their retiree health benefits fund.  The possible default emerges because what has been a possibility for many years has finally come to fruition: the post office has run out of money and is basically bankrupt.  Given the political climate, however, I can think of no worse time for any entity to need a bailout, even one as heavily regulated as the U.S. Post Office.  


In my mind, the upcoming jobs speech is an added complication for post office officials.  President Obama, by some reports, may be planning to ask for what is essentially another stimulus including, for example, infrastructure investments, payroll tax cuts, and extensions in unemployment benefits.  But I wonder if the post office, which also needs a bailout of sorts, will fall victim to the nasty politics that are sure to follow in the wake of the President’s speech if he does ask for these things.  In fact, there has not been bipartisan support for some of the proposals we have heard thus far about how to make the post office solvent again, and I suspect that, like the debt ceiling negotiations, the post office will become another political pawn that each side will try to use for its own political gain.  Maybe I am wrong, but who knew that raising the debt ceiling could become as politicized as it did?  It will be interesting to see how all of this unfolds in the coming weeks.            

Saturday, September 3, 2011

Race-Neutral but Race-Conscious Policies

There's a very thoughtful and smart op-ed by Professors Desmond King and Rogers Smith in the NY Times on the absence of race on the political agenda.  King and Smith make two points.  First:
The two parties, which openly clashed over race from the late 1970s through the mid-1990s, have for the last decade pretty much agreed not to talk about race — a silence that impedes progress toward racial equality.
Democrats mention race as little as possible, even though minority voters are crucial constituents, because colorblind positions are far more politically popular. Affirmative action has been supported in every Democratic presidential platform since 1972, but since the Reagan era, Democrats speak of it less and less.
President Obama, for example, does not openly renounce affirmative action, but he pragmatically stresses universal social programs like health care. He manages to avoid appearing especially concerned about African-Americans.
This tack leaves modern Republicans with little to criticize, lest they appear to be race-baiting, so they too keep quiet.
Second:
Political leaders must openly recognize that we cannot progress either by ignoring race or focusing exclusively on it. It is not only legitimate, but also essential, to evaluate policy options partly on the basis of whether they are likely to reduce or increase racial inequalities.
Compromise policies — measures that are not explicitly race-targeted but are chosen partly because they will benefit nonwhites especially — should become the basis for policy debates.
Incidentally, the King/Smith prescription is similar to one advanced by Virginia Law Professor Kim Forde-Mazrui in this paper in which he advocates the using race-neutral measures that are motivated by race-conscious aims to address racial inequality.

I have a couple of brief quibbles with the King/Smith prescription.  The first quibble is minor.  They date the Democratic Party's silence on race to the mid-1990s.  I date it to the 2008 Presidential election.  But let us assume that they are right.  My second quibble is that the same reasons that have moved racial equality from the public policy arena are the ones that will make it hard, if not just as hard, to implement race-neutral but race-conscious policies (policies that are racially-neutral but are enacting with an intent to have a disproportionately beneficial impact on communities of color.)  A recent case in point is the recent controversy in Wake County North Carolina where a new school board reversed a previous policy that promoted socioeconomic integration in the way that school lines were drawn.  The old policy was thought to benefit students of color primarily.  White parents revolted, elected new members to the school board, and they changed the policy.  It did not seem to me that the old race-neutral but race-conscious policy that used socioeconomic diversity as a proxy for race was any more popular than good old-fashion race-conscious affirmative action.  Indeed, one could argue that by failing to make the case for race-conscious affirmative action, the race-neutral policy became incoherent.

I should hasten to add that I am not faulting King and Smith.  They are addressing a difficult problem that all of us find challenging: how do you address racial inequality, which is becoming greater in some measures, when there is no longer the political will to put racial equality on the public policy agenda?

By the way, as I understand King/Smith, they are not advocating Obama's race-avoidance strategy, which I recently criticized.  King and Smith are advocating for, in part, public policies that are intended to and designed specifically to disproportionately benefit communities of color even though the policies themselves are race-neutral.  As I understand the Obama administration's race policies, they are not designed specifically with communities of color in mind.  They are designed to address disadvantage and the assumption is that because people of color are more disadvantaged than whites, than people of color will benefit disproportionately.

Friday, September 2, 2011

Dr. Ronald Fernandez, RIP

What a remarkable story.  On his way home from work, Ronald Fernandez was detoured by a police barricade because a Wells Fargo robbery was underway.  Anyone who grew up in Puerto Rico would appreciate the historical significance: this was the robbery perpetrated by Los Macheteros, the militant Puerto Rican independence group.  When I grew up in Puerto Rico in the 1970's, every school boy new of Los Macheteros.

This day in the life of Dr. Fernandez led him to a lifelong scholarly project documenting the colonial history of Puerto Rico. His first project, “Los Macheteros: The Wells Fargo Robbery and the Violent Struggle for Puerto Rican Independence,” was the first of his five books on the subject.  

Dr Fernandez died last Tuesday. He was 67.

Two things about his life's work bear mention.  One is the focus of his work.  From the Times:
[Four of his books] were deeply footnoted histories of American military and economic domination of a tiny island that has existed in a kind of limbo since becoming a United States possession in 1898, among the spoils of the Spanish-American War: neither colony nor part of the union.
This is a remarkable history, often ignored or neglected in the United States.   The history of the relationship between the United States and Puerto Rico should be a treasure trove for students of democratic theory.  For example:
The nearly four million residents of Puerto Rico are United States citizens, subject to federal taxes, but cannot vote in federal elections. They are represented by a nonvoting representative in Congress. Tax and regulatory exemptions given businesses based on the mainland raise perennial public complaints about environmental and economic exploitation.
A second important aspect of Dr. Fernandez' work is his focus on race and ethnicity as understood in the Caribbean. This is something that every Latino in the United States experiences when asked to fill out the Census, or any other time we are asked to indicate our race.  We are asked whether we are Latino or some other ethnicity, and the next question usually asks if we are black or white.  But this makes no sense.  As Fernandez wrote in his last book, “America Beyond Black and White: How Immigrants and Fusions Are Helping Us Overcome the Racial Divide:"
Americans want Jamaicans or Puerto Ricans to think (and act) in black and white . . .  Qualifications never exist; you see skin color or you do not. When Caribbean people try to explain that their world is much more complicated, we too often write them off as hypocrites and miss one of the most remarkable features of life in many Caribbean nations: When it comes to race and ethnicity, they are among the most civilized people on earth.
May he rest in peace.

Thursday, September 1, 2011

Perception is Reality (Or why President Obama should not have moved his speech)

I would like to thank Guy for inviting me to contribute to Colored Demos, which is a wonderful and insightful contribution to the blogosphere that I follow regularly.  I am looking forward to having great exchanges about a variety of issues. 

For my first post, I want to talk about President Obama’s capitulation---yes, capitulation---to House Speaker John Boehner about the date for President Obama’s joint address to both houses of Congress.  President Obama originally wanted to give the speech on September 7th, but moved the speech to September 8th after Speaker Boehner balked at the date.  I have no doubt in my mind that President Obama viewed the date change as small potatoes compared to the bigger issues that are on his plate, but the reality is that President Obama looked weak when he moved the date of his speech.  And appearing weak in one area will unfortunately filter into the public’s perception of how effective the president is in other areas.  The “showdown” over the date was not small potatoes because in the grand scheme of things, it looked like the President had acceded (yet again) to John Boehner’s wishes.   

Looking like a poor negotiator has been a reoccurring problem in the Obama presidency.  When President Obama agreed to extend the Bush tax cuts for all Americans instead of limiting it to individuals making less than $250,000, Speaker Boehner came out on top.  Similarly, after President Obama agreed to massive spending cuts with no tax increases in order to raise the debt limit, John Boehner boasted that he got 98% of what he wanted while most Democrats remain angry about the agreement.  The reality is that extending the Bush tax cuts to everyone kept a struggling middle class from seeing a tax increase and the deal over the debt ceiling saved our country from default, but the perception is that President Obama looked like a poor negotiator and a weak leader by giving into Republican demands.  Unfortunately, changing the date of his joint address does little to erode this perception of weakness.   

It appears that President Obama has forgotten the number one rule of politics: perception is reality.  This rule is why negative campaigning is so effective.  It is also why politicians engage in so much posturing and tell half-truths.  They are trying to change the public’s perception about either themselves or their opponent, regardless of (or in spite of) the truth or reality.  Perception is reality, and unless President Obama learns this lesson, then his chances for reelection are slim.       

Obama Approval Hits New Low Among Black Voters

A recent PPP poll has found that Obama's approval among African-American voters at 76%.  I have long suspected that the public criticism of the President by black leaders and the dire circumstances within which too many African Americans find themselves are starting to take their toll on the President.  The concern is not that African Americans will start to vote for the the Republicans, but that they'll stay home and not turnout.

There is no doubt that the Administration is paying attention.  I am still concerned about their strategy of soft-pedaling the concerns of the African-American community.  Moreover it is not clear that they fully appreciate the depth of this problem.  My worry is not only that there is a fundamental problem with the strategy, but that the strategy may be wrong on its merits. The Administration's strategy is to enact general public policy with the expectation that those policies will disproportionately benefit distressed communities.  Thus, you pass healthcare reform and because blacks are more likely to be uninsured or under-insured, the expectation is that they will benefit disproportionately from the public policy.  A recent Politico article reported that the " president is reportedly angry that African-American leaders aren’t crediting him for his hard-bought achievements that will especially help communities of color, including health care reform, aid to cities, student aid and protecting Medicaid."    The worry is that this trickle-down strategy may be wrong on the merits.  A rising tide may not lift all boats if we are not all in the same body of water.  If the strategy is wrong on the merits, general public policy measures will have little impact on the black community and will certainly not be as effective as specific public policy measures.

My guess is that the President's upcoming jobs speech is potentially vulnerable in this regard.  I think he needs to acknowledge explicitly the jobs problem in the African-American community and communities of color.  He might also be wise to provide specific prescriptions directed toward the economic plight of African Americans. I was quite struck by this interview that the President gave recently on the Tom Joyner Morning Show, which has a very large and predominantly black audience.  What struck me was that the race-avoidance strategy was still in effect, even talking to a predominantly black audience.  The President did not specifically address the African-American community as such until toward the end of the interview when he was talking about healthcare.  He said, "Well, I think one of the things that we really emphasized during health care reform was prevention. And nobody benefits more than the African-American community from that because we have so many preventable diseases. And that’s why what Tom is doing is so important."  Notice that the pitch is again general and not specific to the needs of the black community.


So far, this strategy has been defended on the grounds that a black President cannot be seen to be overtly responsive to the needs of the black community; if he is, he will lose the election. Maybe. I'm becoming less persuaded that the risk-reward calculus here favors the black community. Perhaps more importantly, I think there is a serious likelihood that enough black voters will sit out 2012 and I'm not sure that even Rick Perry will scare them to the polls. You need to give people a reason to vote for you. You need to tell them what you're going to do for them, especially when they are hurting. It is early and there is still time, but the warning signs are there.