Sheryl Gay Stolberg has written this article for the NY Times making the point that Obama's nuance on race is increasingly frustrating black leaders and black scholars. The question raised by the article (and a question that has been asked since President Obama was a candidate) is a normative one: what should be the relationship between the Mr. Obama and African-Americans.
After spending some time thinking about this question, my answer is the relationship should be viewed as one between a representative and his electorate. President Obama is right to constantly remind us that he is the President of the United States not simply of African Americans. his is good politics on the part of the President. But I also think that he is right.
African Americans are right to ask President Obama how his policies will benefit them, not because President Obama is black, but because he is the President. This is the same question that should be asked of every President, but more particularly, of those who owe their office in part to the support of the black community. Thus, the black community has no special race claim on the President.
Note however, that there are two sides to this coin. Black people were excited to vote for President Obama in part because he is one of them. Though most black people have more affinity for the Democratic Party, they did not turn out simply to vote for a Democrat. They were obviously excited to vote a black Democrat for President. Now that the President has clarified that the electoral connection, as opposed to the racial connection, is the lens through which he views his relationship with the black community, I wonder to what extent this will change the way the black community views the President.
Will black voters be excited to vote from President Obama again in 2012 because he's a black Democrat or will it be a case of "what have you done for me lately"? If black voters will turnout in strong numbers no matter what, then the President's current posture is brilliant. If however black voters are going to hold him to account, then he has to walk a fine line.
Tuesday, February 9, 2010
Sunday, February 7, 2010
Part One-Working Through Citizens United: Confrontation
I've had a chance to re-read Citizens United (CU), the Supreme Court's latest campaign finance decision and upon re-reading I've found the majority much more interesting than I did on the first reading. In a series of posts, I will work through the Court's CU reasoning. In this post, I make the point that the Supreme Court wanted to reach the constitutional question. Even though the Court had an option of avoiding the constitutional question, the simple fact of the matter is that the Court sought a confrontation with Congress on this issue.
Wednesday, February 3, 2010
Harold Ford, Jr., Media Star
A few nights ago, Harold Ford, Jr. appeared as a guest on the Colbert Report, to the delight of columnists and bloggers everywhere. Depending on who you ask, the interview was "painful -- yet strangely captivating;" a "skewering;" and "[t]he most charitable thing to say about it is that it did not go well." In a word: Colbert "destroyed" Ford, Jr.
Undoubtedly, this was not a good interview. Again.
Rather than focus on the limitations of his as-of-yet unannounced candidacy, however, we should focus on the opportunities that his candidacy bring.
Think of it as community service.
I alluded to some of the lessons of his candidacy last week. Are representatives supposed to speak for us, so stand-in and say the very things that we want them to say? Or are they to act as trustees, doing what they deem best and irrespective of what we would want them to do? This is by no means an easy question, nor does it have a definitive answer. In fact, Ford's candidacy amply demonstrates that we hold conflicting views on this important issue.
Sometimes we criticize him for changing his views and pandering to a New York constituency; while other times we criticize him for misunderstanding this constituency in the first place.
Thus the opportunity: rather than criticize him for trying to squirm out of the difficult position he is in, we should engage the larger debate that his candidacy represents. To run for office in Tennessee, after all, is far different than running for office in New York state. I am afraid that it is just too much fun to watch him squirm, so the larger lessons and debates will have to wait for another day.
In fairness, he is partly at fault for this. Rather than try to make his views square up with the the electoral realities of his new state, Ford should just embrace the change and be honest about it. The evidence is clear and unassailable, and trying to re-write it only makes matters worse.
In this, he should listen to Kelli Conlin, President of NARAL Pro-Choice New York. When asked why NARAL had backed Ford initially and even gave him a 100% rating at one time, she answered: "You have to look at it in context. In the South, we're constantly looking for candidates that will be moderate and progressive. It's hard down there."
It is hard down there indeed, not just for NARAL, and context is everything.
This is all to say that Ford should just stop treating New York voters like idiots. This reminds me of President Obama's speech on race during the campaign. This is similarly a teachable moment.
While in the end he might lose all the same, at least he would do so with dignity.
Undoubtedly, this was not a good interview. Again.
Rather than focus on the limitations of his as-of-yet unannounced candidacy, however, we should focus on the opportunities that his candidacy bring.
Think of it as community service.
I alluded to some of the lessons of his candidacy last week. Are representatives supposed to speak for us, so stand-in and say the very things that we want them to say? Or are they to act as trustees, doing what they deem best and irrespective of what we would want them to do? This is by no means an easy question, nor does it have a definitive answer. In fact, Ford's candidacy amply demonstrates that we hold conflicting views on this important issue.
Sometimes we criticize him for changing his views and pandering to a New York constituency; while other times we criticize him for misunderstanding this constituency in the first place.
Thus the opportunity: rather than criticize him for trying to squirm out of the difficult position he is in, we should engage the larger debate that his candidacy represents. To run for office in Tennessee, after all, is far different than running for office in New York state. I am afraid that it is just too much fun to watch him squirm, so the larger lessons and debates will have to wait for another day.
In fairness, he is partly at fault for this. Rather than try to make his views square up with the the electoral realities of his new state, Ford should just embrace the change and be honest about it. The evidence is clear and unassailable, and trying to re-write it only makes matters worse.
In this, he should listen to Kelli Conlin, President of NARAL Pro-Choice New York. When asked why NARAL had backed Ford initially and even gave him a 100% rating at one time, she answered: "You have to look at it in context. In the South, we're constantly looking for candidates that will be moderate and progressive. It's hard down there."
It is hard down there indeed, not just for NARAL, and context is everything.
This is all to say that Ford should just stop treating New York voters like idiots. This reminds me of President Obama's speech on race during the campaign. This is similarly a teachable moment.
While in the end he might lose all the same, at least he would do so with dignity.
Saturday, January 30, 2010
The BCS, Antitrust Laws and Politics
Back in October, Senator Orin Hatch wrote a letter to President Obama asking for a Justice Department probe of the Bowl Championship Series, the method currently in use to determine the national champion in Division I football. The Department of Justice acknowledged that it is reviewing the Senator's request.
I have three reactions to this.
The cynic in me wonders whether the federal government, and particularly the Department of Justice, doesn't have anything better to do with its time. Gone are the times when the Attorney General would go to Congress and explain that some federal laws would go under-enforced for lack of attorneys to enforce them (I have in mind here the debates over the Voting Rights Act back in 1965).
The college football fan in me hopes they succeed. For the life of me, I cannot understand the appeal of the BCS, nor do I, or anyone anyone, believe the arguments proffered by University Presidents against a college football playoff. The usual response is their worry that a playoff would cause too much disruption to the lives of student athletes. Tell this to college basketball players who participate in the three-week long basketball tournament March Madness -- or to the scores of student athletes who take part in playoffs for lower divisions within the NCAA, or those players who appear on ESPN night games on ESPN, some of which ended long after 11:00pm. The Presidents' want to tell us they care about the students, but their hypocrisy is too apparent.
The American citizen in me is tantalized. We know this much: Senator Hatch and President Obama do not agree on many things. After the recent State of the Union address, for example, Senator Hatch issued a statement labeling the President "stone deaf" for refusing to hear the American people on health care. He also called the President's budget for the fiscal year 2010 "simply awful."
And then there is college football and the BCS. For his part, Senator Hatch has been a longtime critic of the system. President Obama similarly said in 2008 that he was going to "to throw my weight around a little bit" to move college football towards a playoff.
Strange bedfellows, don't you think?
Maybe the BCS violates antitrust laws, maybe it doesn't. The real lessons, however, lie elsewhere. When the President reaches out to Republicans, as he recently did during a House Republican retreat, it might be a good idea to air their policy differences over a game of basketball, maybe touch football. Or perhaps they should debate our country's many problems while watching a football game.
Super Bowl Sunday might be a nice place to start.
I have three reactions to this.
The cynic in me wonders whether the federal government, and particularly the Department of Justice, doesn't have anything better to do with its time. Gone are the times when the Attorney General would go to Congress and explain that some federal laws would go under-enforced for lack of attorneys to enforce them (I have in mind here the debates over the Voting Rights Act back in 1965).
The college football fan in me hopes they succeed. For the life of me, I cannot understand the appeal of the BCS, nor do I, or anyone anyone, believe the arguments proffered by University Presidents against a college football playoff. The usual response is their worry that a playoff would cause too much disruption to the lives of student athletes. Tell this to college basketball players who participate in the three-week long basketball tournament March Madness -- or to the scores of student athletes who take part in playoffs for lower divisions within the NCAA, or those players who appear on ESPN night games on ESPN, some of which ended long after 11:00pm. The Presidents' want to tell us they care about the students, but their hypocrisy is too apparent.
The American citizen in me is tantalized. We know this much: Senator Hatch and President Obama do not agree on many things. After the recent State of the Union address, for example, Senator Hatch issued a statement labeling the President "stone deaf" for refusing to hear the American people on health care. He also called the President's budget for the fiscal year 2010 "simply awful."
And then there is college football and the BCS. For his part, Senator Hatch has been a longtime critic of the system. President Obama similarly said in 2008 that he was going to "to throw my weight around a little bit" to move college football towards a playoff.
Strange bedfellows, don't you think?
Maybe the BCS violates antitrust laws, maybe it doesn't. The real lessons, however, lie elsewhere. When the President reaches out to Republicans, as he recently did during a House Republican retreat, it might be a good idea to air their policy differences over a game of basketball, maybe touch football. Or perhaps they should debate our country's many problems while watching a football game.
Super Bowl Sunday might be a nice place to start.
Thursday, January 28, 2010
On Judging, Race and the Game of Basketball
I was at a girls high school basketball game last week when the most amazing thing happened. It was a game between my local high school, middle class and predominantly white, and a high school from Indianapolis, which happens to be predominantly black. The teams reflected their schools' student bodies and were mirror images of one another. The local team only had two black players, and the visiting Indianapolis team had only one white player. Their respective fans at the game were mirror images as well.
This game helped me understand many things, most notably the Ricci firefighters case, the Supreme Court's continued attacks on the use of race in public life, and even the recent Citizens United case.
However indirectly, this game is the reason the Voting Rights Act will not be among us much longer.
The game began uneventfully and remained so for some time. Over the span of a few short minutes, however, the complexion of the game changed and the Indianapolis team surged to a double-digit lead. One player in particular was clearly the best player on the floor. She could do anything she wanted. The game seemed over, and this was only the second quarter.
Then the tide changed, and it was then when things got curious.
Things got chippy, play tightened, and the local team began to chip away at the lead. What had been a 15 point lead became 9, then 5, and towards the end of the fourth quarter the game was close once again. I could give away one punch line, as it appeared in the local paper the next day. To paraphrase: the local girls high school team played with guts and great courage, hung in there, and ultimately won a hard-fought battle.
Or I could give you an alternative reality, the one deeply felt by the players and fans from the visiting team.
Go back to that time in the game when the visiting team held a double-digit lead. From that moment forward, there is no question that the complexion of the game changed. I wish I could say that one team began playing harder than the other. What I saw, and what fans from the visiting team saw as well, was a number of calls by the referees go against the Indianapolis team. Not just a few calls, mind you, but just about every close call. Whether a foul, a walking violation, or who knocked the ball out of bounds, the calls went largely to the home team.
I happened to be sitting close to a man who had traveled all the way from Indianapolis to watch the game. He was neither happy nor afraid to show it. He was clearly frustrated, at one point yelling "let us compete;" at another, "you're not letting us play!" But he was not alone. The coaches soon showed their frustration as well, and so did the players. The star player never stopped playing, mind you, but by the end of the game, you could see that her demeanor changed. She was still smiling, but it was not a confident, assertive smile. By then, it was more of an incredulous smile. She knew she was beat and there was nothing she could do to stop it. As for the fan, the last straw came with 20 seconds left, when the refs called a phantom traveling violation on the Indianapolis team. The man got up from the bleachers, mumbled some choice words, and stormed off.
This game offered alternative realities. From the same set of facts, one side rejoiced in their hard-fought victory, the other left angry and feeling cheated. The fans and players saw and experienced completely different games. If asked, both sides would argue the other side is crazy for feeling the way they did.
In the end, there was only one reality that mattered: the referees'. They made the calls, disputed or not, and there was no way to appeal them.
Now, I don't think they were biased, at least not overtly. They did happen to be white, all three of them, and most of their calls did happen to go against the Indianapolis team. But by most objective markers, something was awry (at one point, for example, the foul differential was 7 fouls to 1). One side felt it deeply; the other was indifferent, maybe incredulous.
I could not help but think of Chief Justice Roberts' balls and strikes analogy during his confirmation hearings (he would only call cases as he saw them, no differently than calling balls and strikes). If only judging were that simple.
More troubling still, what to do when our realities differ as markedly as they sometimes do, and often along racial lines?
This game helped me understand many things, most notably the Ricci firefighters case, the Supreme Court's continued attacks on the use of race in public life, and even the recent Citizens United case.
However indirectly, this game is the reason the Voting Rights Act will not be among us much longer.
The game began uneventfully and remained so for some time. Over the span of a few short minutes, however, the complexion of the game changed and the Indianapolis team surged to a double-digit lead. One player in particular was clearly the best player on the floor. She could do anything she wanted. The game seemed over, and this was only the second quarter.
Then the tide changed, and it was then when things got curious.
Things got chippy, play tightened, and the local team began to chip away at the lead. What had been a 15 point lead became 9, then 5, and towards the end of the fourth quarter the game was close once again. I could give away one punch line, as it appeared in the local paper the next day. To paraphrase: the local girls high school team played with guts and great courage, hung in there, and ultimately won a hard-fought battle.
Or I could give you an alternative reality, the one deeply felt by the players and fans from the visiting team.
Go back to that time in the game when the visiting team held a double-digit lead. From that moment forward, there is no question that the complexion of the game changed. I wish I could say that one team began playing harder than the other. What I saw, and what fans from the visiting team saw as well, was a number of calls by the referees go against the Indianapolis team. Not just a few calls, mind you, but just about every close call. Whether a foul, a walking violation, or who knocked the ball out of bounds, the calls went largely to the home team.
I happened to be sitting close to a man who had traveled all the way from Indianapolis to watch the game. He was neither happy nor afraid to show it. He was clearly frustrated, at one point yelling "let us compete;" at another, "you're not letting us play!" But he was not alone. The coaches soon showed their frustration as well, and so did the players. The star player never stopped playing, mind you, but by the end of the game, you could see that her demeanor changed. She was still smiling, but it was not a confident, assertive smile. By then, it was more of an incredulous smile. She knew she was beat and there was nothing she could do to stop it. As for the fan, the last straw came with 20 seconds left, when the refs called a phantom traveling violation on the Indianapolis team. The man got up from the bleachers, mumbled some choice words, and stormed off.
This game offered alternative realities. From the same set of facts, one side rejoiced in their hard-fought victory, the other left angry and feeling cheated. The fans and players saw and experienced completely different games. If asked, both sides would argue the other side is crazy for feeling the way they did.
In the end, there was only one reality that mattered: the referees'. They made the calls, disputed or not, and there was no way to appeal them.
Now, I don't think they were biased, at least not overtly. They did happen to be white, all three of them, and most of their calls did happen to go against the Indianapolis team. But by most objective markers, something was awry (at one point, for example, the foul differential was 7 fouls to 1). One side felt it deeply; the other was indifferent, maybe incredulous.
I could not help but think of Chief Justice Roberts' balls and strikes analogy during his confirmation hearings (he would only call cases as he saw them, no differently than calling balls and strikes). If only judging were that simple.
More troubling still, what to do when our realities differ as markedly as they sometimes do, and often along racial lines?
Tuesday, January 26, 2010
On the Candidacy of Harold Ford Jr.
Guy poses two questions on Harold Ford, Jr.'s impending primary challenge: has he correctly read the political tea leaves within the state of New York; and, if he fails, is his political career over?
I am not sure how to answer either one. If pressed, I'd say that he is on the wrong side of public opinion. It is also a safe bet that a failure to win the Democratic nomination would end his political career.
But his challenge to Senator Gillibrand is much more interesting than that.
Take first the early criticisms from the left. Criticisms against Senator Gillibrand focused on her centrist and right-of-center positions on issues ranging from gun control to immigration reform. Any primary challenger hoping to unseat her would need to bring an attack from the left. This would be difficult for Ford, whose last race was state-wide, and in Tennessee no less. This is when we saw him telling Tucker Carlson, " "I'm pro-life, I'm pro-life, so I mean, I don't run from that." He also flaunted his vote for the PATRIOT Act, defense spending, and opposition for amnesty for illegals immigrants. Try running away from that. This would be a tall order even for Winston Smith.
Yet I choose to view in a more forgiving way. In fact, Ford's Senate candidacy in Tennessee and his primary challenge in New York ask us to think hard about the concept of representation. What is it that we want and expect from our politicians? One view is that we want them to represent us, their constituents, and if they don't, we are ready to hold them accountable for their votes and positions. A competing view sees politicians as Burkean trustees, holding views independent of those held by their constituents and ready to carry them out even if it means losing future elections.
In recent days, Ford has changed some of his earlier views on some of these volatile and controversial issues. For example, he has recently changed his position on same-sex marriage and on the abortion question. Senator Gillibrand's positions similarly evolved once she was appointed to the Senate. To some, Ford's policy shifts underscore his "soullessness" and "deceit," as well as his willingness to humiliate himself in his quest for public office. Maybe. But isn't this what a representative, or a candidate running for office, should do? He is either out of touch, for sticking to his guns, or pandering, if he changes his views.
I was prepared to write this entry late last week. In the meantime, Ford wrote an op-ed for the New York Times where he called for, among other things, tax cuts and malpractice reform. This is either a statesmanlike display of his views or sheer foolishness. Over at Salon, Alex Koppelman nails the issue in the head: "[Ford] doesn't seem to realize that he'll be running in his new home state of New York and not in Tennessee." Pandering is thus expected of somebody running for statewide office; you just need to know who you are pandering to. Harold Ford Jr.'s sin, to go back to Guy's initial question, is not that he is shifting his views, but that he is misreading the relevant electorate.
I then came upon his N.Y. Times interview, which Glen Greenwald has labeled "cringe-inducing" and Peter Beinart at Daily Beast has called "the most embarrassing interview I’ve ever read by a politician not named Sarah Palin." This is where Ford declined to disclose how much Merril Lynch pays him and where he exhorted the virtues of capitalism and his belief that "people take risk, and there are rewards if they do well; they should lose if they don't" while at the same time blasting Senator Gillibrand's opposition to the taxpayer bailout of the financial industry. Come again? At the very least, nobody can accuse him of pandering on this issue. He also redefined what it means to be "pro-life" and acknowledged visiting all five New York City boroughs "by helicopter."
To end where Guy began: this interview reminds me of some professors all three of us encountered at Michigan Law: very smart, to be sure, even brilliant.
And maybe a little too smooth, with a tad of crazy.
I am not sure how to answer either one. If pressed, I'd say that he is on the wrong side of public opinion. It is also a safe bet that a failure to win the Democratic nomination would end his political career.
But his challenge to Senator Gillibrand is much more interesting than that.
Take first the early criticisms from the left. Criticisms against Senator Gillibrand focused on her centrist and right-of-center positions on issues ranging from gun control to immigration reform. Any primary challenger hoping to unseat her would need to bring an attack from the left. This would be difficult for Ford, whose last race was state-wide, and in Tennessee no less. This is when we saw him telling Tucker Carlson, " "I'm pro-life, I'm pro-life, so I mean, I don't run from that." He also flaunted his vote for the PATRIOT Act, defense spending, and opposition for amnesty for illegals immigrants. Try running away from that. This would be a tall order even for Winston Smith.
Yet I choose to view in a more forgiving way. In fact, Ford's Senate candidacy in Tennessee and his primary challenge in New York ask us to think hard about the concept of representation. What is it that we want and expect from our politicians? One view is that we want them to represent us, their constituents, and if they don't, we are ready to hold them accountable for their votes and positions. A competing view sees politicians as Burkean trustees, holding views independent of those held by their constituents and ready to carry them out even if it means losing future elections.
In recent days, Ford has changed some of his earlier views on some of these volatile and controversial issues. For example, he has recently changed his position on same-sex marriage and on the abortion question. Senator Gillibrand's positions similarly evolved once she was appointed to the Senate. To some, Ford's policy shifts underscore his "soullessness" and "deceit," as well as his willingness to humiliate himself in his quest for public office. Maybe. But isn't this what a representative, or a candidate running for office, should do? He is either out of touch, for sticking to his guns, or pandering, if he changes his views.
I was prepared to write this entry late last week. In the meantime, Ford wrote an op-ed for the New York Times where he called for, among other things, tax cuts and malpractice reform. This is either a statesmanlike display of his views or sheer foolishness. Over at Salon, Alex Koppelman nails the issue in the head: "[Ford] doesn't seem to realize that he'll be running in his new home state of New York and not in Tennessee." Pandering is thus expected of somebody running for statewide office; you just need to know who you are pandering to. Harold Ford Jr.'s sin, to go back to Guy's initial question, is not that he is shifting his views, but that he is misreading the relevant electorate.
I then came upon his N.Y. Times interview, which Glen Greenwald has labeled "cringe-inducing" and Peter Beinart at Daily Beast has called "the most embarrassing interview I’ve ever read by a politician not named Sarah Palin." This is where Ford declined to disclose how much Merril Lynch pays him and where he exhorted the virtues of capitalism and his belief that "people take risk, and there are rewards if they do well; they should lose if they don't" while at the same time blasting Senator Gillibrand's opposition to the taxpayer bailout of the financial industry. Come again? At the very least, nobody can accuse him of pandering on this issue. He also redefined what it means to be "pro-life" and acknowledged visiting all five New York City boroughs "by helicopter."
To end where Guy began: this interview reminds me of some professors all three of us encountered at Michigan Law: very smart, to be sure, even brilliant.
And maybe a little too smooth, with a tad of crazy.
Monday, January 25, 2010
What to Make of Harold Ford Jr
Both Luis and I went to law school with Harold Ford, Jr., who was in our first-year section at the University of Michigan Law School. At the time, we both knew Harold quite well.
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