How not to criticize the supercommittee

On his eponymous show, last night Lawrence O'Donnell offered one of the most bizarre and wrong-headed critiques I have heard so far with respect to the so-called super committee, the committee of 12 congresswomen and men (or really 11 men and one woman) that is tasked with reducing the deficit.  O'Donnell argues that the super committee is problematic because it does not adequately represent America on a per population basis.

There are many criticisms that one can offer of this committee--not enough expertise, not sufficiently bipartisan, it is structurally set-up to fail--but criticizing it because its members represent too few Americans is just plain silly.  First, it is a committee, a section of the whole.  If per population representation was the goal then you would not set up a committee in the first place.  Put differently, the committee is not a representative body.  It was not intended as such, that is not its function.  So criticizing it on that basis makes no sense. Second, the committee derives its legitimacy from Congress, which is a representative institution.  Congress set up the committee and Congress will have to ratify whatever agreement comes out of the committee. Put differently, the output that comes of the committee will be the output of Congress, a representative body.  Third, it is clear that Congress as a committee of the whole cannot come to a long-term agreement.  This structural move might actually be an ingenious mechanism for addressing the gridlock that plagues our legislature.

Let's give this super committee a chance before we tear it down.  Let's encourage its members to rise above their partisan identities and to be statesmen and stateswomen.  Let us not poison the well that we might have to drink from.

On the Embarrassment of Higher Education and Student Athletes

Here are a few headlines from the last few days:

• Records: Tressel made $21.7 million at Ohio State (this would be deposed football coach Jim Tressell, he who won over 80% of his games at Ohio State, a national championship, and beat hated arch rival Michigan eight out of nine times)

• UNC supporters want more on Butch Davis' firing (this one is soon becoming orthodoxy: boosters help pay for stuff.  Coach is fired.  Boosters are mad because they weren't consulted and want to know why they weren't consulted)

• Student-Athlete Equation Could Be a Win-Win

The last headline doesn't quite tell the whole story.  Here is how the article begins:

Joseph Agnew was once a Friday night superstar. A defensive back, he led his Texas high school football team to consecutive state titles in 2004 and 2005. He was also an A student.

Agnew went on to Rice, a first-rate university with an improving football program. But things didn’t quite work out for him, at least football-wise. The coach who had recruited him left after his freshman year. Agnew struggled to find playing time and had a string of injuries. After his sophomore season, he was cut from the team. The next year, he lost his scholarship and later left Rice.

 Somebody should be embarrassed.  Coaches get paid, booster influence is on the rise, and student athletes continue to be treated as means to the much larger aim of winning games and entertaining the masses. 

 This is not to say that the answer is simply to pay student athletes. This is too simplistic and probably unfeasible.  But this is not to say that better answers do not exist.  Here are a few few suggestions, from Jonathan Mahler, a writer for the Times:

They could start by declaring freshmen ineligible for intercollegiate sports to encourage them to focus on their classwork. They could take the scholarship status of athletes out of the hands of coaches, who have the power to cut off a player with a 4.0 grade point average but a bum knee. Most of all, they could place strict limits on full-contact football practices, a step recently taken by the Ivy League, so the minds they’re developing in the classroom aren’t being hastened toward dementia on the field. 

This is just the beginning. The real strides would come when universities declared a truce in the arms race of new athletics facilities and agreed to cap the soaring pay of coaches. Earlier this summer, John Calipari signed a contract extension with Kentucky that guarantees him $3.8 million a year — nearly 10 times what the president of an average state university makes.

Better yet, why not compel football and basketball programs to contribute a modest percentage of their revenue to their universities’ primary mission, education? These programs are heavily dependent on their universities. They leverage their brands, use their facilities and take up more than their share of their administrations’ time. (How do you think the Ohio State president, E. Gordon Gee, spent his summer? Reviewing course offerings, or dealing with the Jim Tressel mess?)

 The NCAA is looking into the matter.  Maybe they are finally embarrassed enough.  They are considering, among other things, extending scholarship offers from one year renewables to multi-years; increasing scholarship offers through stipends; and simplifying the NCAA rulebook. 

For one, I am not holding my breath.  Self-interest will rule the day, and that usually is bad news for student athletes.

Giving Back the First Amendment

To those who want to see the Supreme Court adopt a strict scrutiny standard for gender discrimination, I say, be careful what you wish for.  Adoption of any such standard would likely render Title IX unconstitutional, and myriad other federal and state laws.  This is the lesson of the Court's bizarre race jurisprudence.

My response is to give back the 14th Amendment. 

The same goes for the First Amendment.  Just this morning, the New York Times editorial once again chastised the Court's notorious Citizens United decision for allowing the infusion of so much money into our political system.  From the editorial:

When the Supreme Court ruled that the government may not ban campaign spending by corporations in the landmark Citizens United decision last year, it argued that disclosure of contributions would protect American democracy from hidden corporate agendas.

The court reasoned that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”

American elections have since been flooded with corporate money. And the court’s reasoning is proving to be wrong: Shareholders of most American companies can’t determine whether corporate campaign spending is in their best interest because they haven’t been told how the companies are spending in political races.

Of course the Court was wrong.  Citizens United is not about the conservative justices' best guess about what a healthy democracy needs and wants.  It cannot even be pretended that this is so.  Instead, the case, as most others, is about ideology and the political preferences of the justices in the majority. 

If this is not an activist decision, then the concept has ceased to have any meaning.

The answer is usually that Citizens United is demanded by the First Amendment.  This is the one that bars Congress from "abridging the freedom of speech."  If the First Amendment in fact demands the conclusion the Court reached in Citizens United, then it is time to give back the First Amendment as well.  

While we are at it, we might give back a few others.  The Second Amendment is an easy target.

Should Liberals Fret about Future Supreme Court Rulings?

In a very provocative article in the New York Times Magazine, Emily Bazelon suggested that "[t]he next few years of Supreme Court rulings could be brutal for liberals."  This is because some weighty issues are coming to a Court where conservatives hold a 5-4 edge.  And the issues are certainly volatile, from the constitutionality of the health care law to same sex marriage, affirmative action and illegal immigration.  Fretting appears to be in order.

There is reason to fret, for example, about the state of the federal judiciary.  As Bazelon writes, Republican Presidents since 1981 nominated and confirmed 41 appellate judges under the age of 45, as contrasted to only 10 for the Democrats.  President Bush contributed 10 appellate judges to this list.  president Obama?  Zero.  This is baffling, especially since Obama is a former law professor who seemingly understood that lower court judges "turn the Supreme Court's vague decrees into actual marching orders for the country."  Instead, the President has shied away from big fights, and in so doing has left the federal bench with more than 80 vacancies.  Incidentally, these vacancies are unparalleled in the history of the federal judiciary.  

There is further reason to fret in Bazelon's plea for strict scrutiny for sex discrimination. She writes that the three women justices might be able to find two more votes -- Breyer's, Kennedy's, or maybe Scalia's -- to change the standard for sex discrimination from intermediate scrutiny to strict scrutiny.  On her account, this is important because the government has an easier time justifying such discrimination under intermediate than under strict scrutiny.  This is right, of course, but it is also why I think she has it exactly backwards.  This is not Bazelon's fault, of course; her argument is on the side of reason. This is due to the conservative justices' ahistorical and disingenuous application of strict scrutiny.

Their story is quite simple.  While facing a state racial set-aside program, Justice O'Connor wrote for the Court that she could not tell whether the program was in fact a benign law designed to help its intended beneficiaries, or a law analogous to Jim Crow statutes  of old.  She had no idea.  And so the only way she was able to draw that distinction was by applying strict scrutiny and asking the government to proffer a compelling interest for enacting any such laws.  Needless to say, whatever interests the government proffered fell short.  And the laws were struck down time and again.

Note what this would do for sex discrimination statutes. As matters stand, the government only needs to identify an important interest for treating men and women differently.   Under this standard, Title IX remains a constitutional exercise of congressional power, as does Title VII's prohibition against sex discrimination.  Were the standard ratcheted up to strict scrutiny, it remains to be seen whether the government could justify either of these two laws.  It seems unlikely.  

This is why if given a choice, I'd happily give back strict scrutiny as applied to racial classifications.  I don't think advocates of gender equality want any part of it.

* * * 

Bazelon makes a third point, and by the title of her essay, this is where I thought she'd spend most of her time.  This is the question of what the Court will do with the big cases it will soon face.  On this point, she hedged: on the one hand, she offered Kennedy's opinion in Brown v. Plata, the California prisoner population case where Kennedy wrote that “[p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.”  This ruling signals that Kennedy might be inclined to rule in favor of the health care law.

On the other hand, Kennedy joined the five-member majority that upheld Arizona's laws that crack down on businesses who hire illegal immigrants.  This is a strong signal that Kennedy will vote to uphold the notorious Arizona immigration law that allows the state to stop people and ask for their papers.  Bazelon also cites work by Professor Lee Epstein that suggests that median voters on the Court "line up almost exactly with the president who chose him."  In Kennedy's case, Bazelon points out, that would be President Reagan. Hardly a comforting thought for liberals, "no matter how many times Obama invokes him in speeches."

  

The question of what Kennedy will do in the future presents one of the most interesting questions in constitutional theory and law.  This is why I think Bazelon gave it short shrift.  Undoubtedly, Kennedy is the Court's median justice, and according to Epstein, a super median justice at that.  He holds the future of the Court in his hands. This is key, as the Court is gearing up to face some of the iconic statutes that form part of the Second Reconstruction.  The next few years could indeed be "brutal" for liberals.

When it comes to questions of race, however, Kennedy has given us enough information to think that he will give these questions the considered attention they deserve.  I am thinking here of his concurrence in Parents Involved and his majority opinions in both Ricci and LULAC v. Perry.  I will say much more about this argument in a future post. For the moment, I can say that I do not think he will take that fateful step.

As for the implications of this view: it is clear that the conservative justices are gearing up to examine the constitutionality of the Voting Rights Act and select portions of the Civil Rights Act. This means that one person, properly situated, can single-handedly bring down the Second Reconstruction. This is a remarkable fact of American political life. Justice Kennedy will choose to uphold or strike down these revered civil rights laws on the basis of his idiosyncratic cultural worldviews and his particular understanding of the politico-constitutional domains in question. How in the world do we justify that?

In the end, I think Alexander Bickel had it almost right. The challenge of constitutional theory lies in justifying placing this power not on an unaccountable court but on a single justice.

Devasting indictment of Obama Presidency

Drew Westin has published this devastatingly critical op-ed in the NY Times on the Obama presidency.
I found the following paragraph particularly heart-wrenching:

Like most Americans, at this point, I have no idea what Barack Obama — and by extension the party he leads — believes on virtually any issue. The president tells us he prefers a “balanced” approach to deficit reduction, one that weds “revenue enhancements” (a weak way of describing popular taxes on the rich and big corporations that are evading them) with “entitlement cuts” (an equally poor choice of words that implies that people who’ve worked their whole lives are looking for handouts). But the law he just signed includes only the cuts. This pattern of presenting inconsistent positions with no apparent recognition of their incoherence is another hallmark of this president’s storytelling. He announces in a speech on energy and climate change that we need to expand offshore oil drilling and coal production — two methods of obtaining fuels that contribute to the extreme weather Americans are now seeing. He supports a health care law that will use Medicaid to insure about 15 million more Americans and then endorses a budget plan that, through cuts to state budgets, will most likely decimate Medicaid and other essential programs for children, senior citizens and people who are vulnerable by virtue of disabilities or an economy that is getting weaker by the day. He gives a major speech on immigration reform after deporting a million immigrants in two years, breaking up families at a pace George W. Bush could never rival in all his years as president.

 The President and his political team are going to need to come back to the left.  These narratives have a way of snowballing.  It is way too early to pass judgment on the likelihood of success of the Obama re-election effort, but there are very clear warning signs.

The Canard of Judicial Diversity

My ninth grader tried out for the high school soccer team a few weeks back.  And as I watched a practice here and there and wondered who would make the team and who would not, I could not help but think about debates over judicial diversity.

The question is this: how do you choose the eighteen best deserving players to join the team?  Is it the players who best handle the ball?  The ones with the best shot?  Or is it the ones who run fastest, or who hustle on every play?  In a nutshell: who deserves to make the team?

This is not an easy question when talking about putting together a soccer team, and nobody pretends that it is.  Yet somehow we pretend otherwise as soon as we translate this question into debates over racial diversity.  Here is an example, from Curt A. Levey, the executive director of the Committee for Justice:

Diversity is a good thing, but how do you achieve it — by quotas? . . .  Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?  The more you focus on race and gender, . . . the less you’re going to focus on other traditional qualifications — that’s simply the math of it.

This is a canard, plain and simple.  But there is no denying that it is a very effective canard.

What makes a deserving judicial candidate?  This is a very difficult question.  We ought to stop pretending otherwise.

Diverse Populations, Non-Diverse Leadership in Silicon Valley

The Mercury News has a very interesting story on the lack of diversity in certain areas of Silicon Valley, including Santa Clara, a city where white Americans constitute 36% of the population, but 100% of the city council:

Silicon Valley may have the most dynamic, multiracial society on earth, but you wouldn't know it at city hall. With the 2010 census in, minorities now outnumber whites almost 2-to-1 in Santa Clara County. Yet non-Hispanic whites hold the vast majority of local city council seats, as well as every city manager's office in Santa Clara County's 15 towns and cities.