Saturday, June 30, 2007

Auto sanctimony

I didn't have my camera with me so I can't do an Althouse, but the Reddess and I were in Washington D.C. the past few days for a conference sponsored by the American Association of Law Schools. (More accurately I was. She was there because she likes the place.)

Walking through Adams- Morgan in about 164 degree heat, we saw a bumper sticker declaring that the car's owner had a "PBS mind in a Fox News World."

How precious and wonderful the owner must be. I felt privileged that he or she was moved to let us passersby know how special - how really superior - he or she is.

Fortunately, it was too hot to let the air out of the tires. But the hotel was air conditioned and Brit Hume was waiting.

Friday, June 29, 2007

Yet another question on the Healthy Wisconsin Plan

I note that the Healthy Wisconsin plan apparently tries to control what qualified heath care networks can do with their money. It says that 92% of the revenues that a qualifying network receives under the plan must be spent on providing health care or on things that the network reasonably believes will improve care or reduce cost.

I assume that the idea is to control profits and expenditures on things like advertising. What's wrong with that?

One thing is that, like making payment for health care a cost of employment, it distorts the market. In this case, the impact may be to divert capital from health care in Wisconsin by limiting the return that can be earned. The response that 8% is enough is just an ipse dixit
Is an 8% margin (actually probably something less than that) enough to compensate for the risk involved? Is it enough to attract the capital away from other more profitable uses? I don't know and neither do the Senate Democrats.

Wednesday, June 27, 2007

Grumpy old shark

Dahlia Lithwick writes in Slate that she does not quite know what to see about the Roberts court. She recognizes - at some level - that it would be - oh I don' t know - puerile to simply call them mean (although she thinks that they are), but just can't put her finger on what's wrong.

The one thing that she seems sure of is that there is no point in engaging the court on the merits. The key, for her, seems to be that they are ruling against the little guy - or, more accurately, wh0 she sees as the deserving little guy (unborn babies and grassroots organizations bucking the power of entrenched incumbents apparently have nothing coming). Chief Justice Roberts apparently does not see the need to set the court up as the arbiter of contentious social issues. What gives with that?

This is the type of thing that annoys conservatives about the left (and which, incidentally, drives a lot of people to the right.) It is the smug assumption that there cannot be any plausible reasons for others to disagree with you. It has to be "greed" or "hate" or just plain "meanness." It is the unexamined assumptions about what comprises the good and how it is to be achieved. (Government intervention on behalf of the poor is compassionate; free markets that raise our very definition of what it means to be poor are selfish.)

It really is embarrassing.

And, in any event, the heat is really ticking me off.

So, to climb out of the fray, what is it that distinguishes the Roberts court from what the Lithwcks of the world want it to be? Is it just cruel and vengeful? Is the problem, as she suggests, that it is a bunch of lawyers? If that's so, what does that mean? Is the problem too many people from Harvard and Yale ? (Pop quiz: who on the court did not go to one of these schools?) What would that mean?

Tuesday, June 26, 2007

Milwaukee Magazine needs technical advice

Bruce Murphy apparently thinks that at least parts of the state criminal complaint against Alderman Michael McGee, Jr. are "overkill."

But as a result of wiretapping McGee’s phone, Chisholm has thrown in this bizarre conspiracy by McGee and two others to commit bodily harm against someone – except that no violence ever occurred. Even weirder is a charge of contempt of court because McGee was overheard calling a judge names on the phone. Is Chisholm serious? Contempt of court normally occurs in public, in an open courtroom, where negative comments might help undermine our respect for the judicial system. But McGee was having a private conversation with a couple friends and blowing off a little steam.

What’s next, nabbing the alderman for writing naughty graffiti?

Murphy has done some great reporting, but this one really got past him. In this case, he doesn't seem to understand what he is writing about.

The first two counts - solicitation to commit a felony and conspiracy to commit substantial battery - do not require that "violence" occur. The first requires only that McGee advise another to commit a crime under circumstances that indicate unequivocally that he had the intent that the crime be committed. The second requires only that he conspire with others to commit the crime of substantial battery and that one of the conspirators do an act to effect the object of the conspiracy.

According to the complaint, McGee - in multiple phone calls - acted as a go between for an individual who believed that the potential victim had burglarized his home and another who was initially going to kill the alleged burglar but, ultimately, agreed to have him beat up when the first man indicated that he did not want him killed. According to the complaint, McGee facilitated the agreement of a price for the beating and provided the person who was to have it done with a photograph of the intended victim.

Maybe these things will not be proven or there is evidence - not referred to in the complaint - that will support a defense. But the fact that the conspiracy was not completed or the solicitation not acted upon does not, in and of itself, make the charges defective or unusual. There is a reason that solicitation and conspiracy are called "inchoate crimes." They need not be finished.

The supposedly "even weirder" criminal contempt counts are not, as Murphy seems to think, based upon McGee "calling a judge names on the phone" (although the complaint does recite that he did that). Rather these counts - 10, 11, and 12 in the complaint - are expressly predicated on McGee's alleged disclosure of the substance of the John Doe proceedings in violation of a secrecy order. In other words, the contempt is based not on calling the judge a name, but upon disobeying her order.

I'm not swooning over the Dem's health care plan

I am not a huge fan of our current way of paying for health insurance. By tying insurance to employment, it creates market distortions. Imagine you are a 45 year old woman with a great idea for a new business. You have had breast cancer - now in remission. Leaving your job to pursue that great idea becomes extremely difficult because you may find yourself essentially unable to purchase private insurance.

The new health care plan offered in Wisconsin by the senate Democrats continues to distort the labor market. It will be funded by a payroll tax - 10.5% of social security earnings to be "paid by the employer" and 4% to be paid by the employee. Putting aside the dubious notion of "savings" that will make those numbers work, the plan continues the current system's promotion of market inefficiency, albeit in a different and potentially more insidious way.

Supporters of the plan note that many businesses and their employees already pay this much and making it a "tax" just changes the identity of the payee. No real problem.

Here's the problem: Employers do not provide health insurance for their employees because they are big -hearted or "good corporate citizens." They do it because the market demands it. It is necessary to obtain the employees they desire.

When they do not provide health insurance, it is not because they are big green meanies or exploiting the workingman. It is because the market does not demand it. Simply put, it is because the employee does not add sufficient value to the enterprise or insurance is simply not necessary to attract the type of employees that the employer desires. The latter circumstance would be most likely if there was, for example, a buyer's market for low-skill labor.

If you raise the cost of employing these folks by 10% (while reducing their take-home pay by 4%), three things will happen. Guranteed. Some lucky ducks will keep their jobs and now have health coverage. They will probably, however, see a reduction in their wages. Others will lose their jobs because it will no longer make sense to hire them.

Second, you will - at least up to the social security maximum - reduce the return to labor. This works in a couple of ways. First, obtaining a raise (perhaps in return for increased responsibilities) or overtime becomes less rewarding. For a person in the 25% tax bracket, the marginal tax rate will go from roughly 39% to 43.5%. Second, the marginal rate for new entrants to the labor market will go up. Imagine a woman whose husband is employed but who has been out of the market raising small children. The kids are older. Should she work? The calculus has just been modified.

The problem is not really offset by the notion that presumably such an employee
will no longer have to pay the employee's share of group coverage. Insurance premiums do not go up if you earn more or work more.

Maybe 4% will not deter all that much work. That is not, however, self-evident and, in any event, who knows if these numbers will prove out?

All of this is exacerbated by the fact that Wisconsin is not an island. Its businesses compete with firms in other states who almost certainly not have these costs imposed upon them. For those for whom the plan is a wash or saves money, there will be no problem. For others, the impact will be less salutary.

Perhaps these market distorting impacts are the best way to extend coverage to the 1 in 10 Wisconsin residents who lack it. I doubt that, but I know that it would be foolish to pretend that they won't happen.

Monday, June 25, 2007

Explaining the "racist tripe"

Mike Plaisted wants to know why I - and some others - haven't written about gunplay at a country music festival in Oshkosh:

But, nothing. Not from Sykes, McBride, Robinson – even the often-thoughtful Esenberg. Forget the weekend – if this had happened with black people in Milwaukee on Saturday, they would have all left their Sunday picnics to wring their hands over their keyboards about the sad community in which they don’t live. All of the above had a field day over the attack on a motorist by stupid kids after the Juneteenth celebration on Thursday. That unfortunate event played right into their – yes – racist tripe about how bad things are in the City and how only Clarence Thomas wannabees like Sheriff Clarke and the newly-anointed OK-black-guy James Harris can save us, er, them.

Well. I had not heard about the Oshkosh incident and I was not at a picnic. I spent Sunday afternoon taking down some Christmas lights (really) from two trees in my backyard, trying (unsuccessfully) to get a motor scooter started and reading about the 1908 baseball season. I doubt that there is much that could have pried me away from that.

But there is a bit of an obvious difference between this and the stuff that I have been concerned about. Oshkosh and its residents are not dodging bullets on an almost nightly basis. If the problem following Juneteenth Day was an isolated incident, it wouldn't be so newsworthy. Unfortunately it is not and, objectively, it seems to me to be a larger racial insult to ignore it than to acknowledge that there is a real crisis in which real people (almost all of whom are black) are being killed and injured.

If what happens nearly every weekend in the inner city of Milwaukee happened over any two days in Oshkosh (or Mequon), there would be a police mobilization of biblical proportions. Why do people in the central city deserve less?

Thank you, Wisconsin Right to Life

I have only skimmed today's decision in Wisconsin Right to Life v. FEC, but have the following initial impressions.

The McCain-Feingold "blackout" provisions - the banning of unregulated expenditures for express advocacy for or against a candidate during a period immediately preceding a federal election - survive to fight another day, but only barely and in severely weakened form.

Justices Scalia, Thomas and Kennedy, concurring, would have stricken the blackout provision as facially unconstitutional, i.e., as inherently "chilling" to constitutionally protected speech.

Chief Justice Roberts and Justice Alito would not go along, but went out of their way to define express advocacy (not permitted unless funded in a way that comports with McCain-Feingold) and issue advocacy (permitted - even if funded from corporate and union treasuries) in a way that will permit a great deal of election time advocacy. They flatly reject the suggestion that the "intent and effect" of an ad to favor or disfavor a candidate ought to matter. They say that we may only consider the content of the ad. WRTL's ad was clearly advocacy about an issue (the confirmation of judges) and lacked what the opinion calls indicia of express advocacy for or against a candidate.

Alito even suggests, in a brief concurrence, that should Scalia and company prove to be correct about the "inherently chilling" nature of the blackout period, he is prepared to consider a facial challenge and the reversal of that portion of McConnell v. FEC upholding the blackout provision.

My sometimes interlocutor, Illusory Tenant, will certainly note that, in part, the Chief Justice based his rejection of the FEC's justification for the regulation of election time issue advocacy on the Courts' holding in Bellotti that corporations have free speech rights. The dissent, it seems, did not seek to overrule Bellotti but thought that the regulation could nevertheless be justified.

My sympathies lie with the Scalia concurrence and I think that at least one basis for that sympathy was well put by Chief Justice Roberts, notwithstanding his failure to follow the implications of his own justification. He rejects the suggestion that, even if the blackout is applied to WRTL's ad, there is no constitutional problem because unregulated issue advocacy would still be permitted as long as it did not mention a candidate for federal office." In so doing, Roberts cites "the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his message."

But, if that's true (and it certainly ought to be), then why can't a truly independent speaker who chooses the quite obvious time - an election - to speak on a candidate's position on the issues communicate at least "some indicia of express advocacy" - i.e., mention of "an election, candidacy, political party" or even " a candidate's character, qualifications or fitness for office." If we are satisfied that the potential for corruption does not justify regulation of an ad that quite clearly may have the "intent and effect" of favoring one candidate over another, why should the inclusion or exclusion of the "magic words" of advocacy make a difference?

O, Science

Via the Marquette Warrior, Boston Globe columnist Jeff Jacoby comments on the disingenuous nature of much of the Democrat's response to President Bush's opposition to embryo-destructive research. Bush, they say, is ignoring "science" as if that answers the question of what should and should not be permitted in its name.

In this, the Dems remind me of Paulie Walnuts in the Sopranos episode "From Where To Eternity." Paulie has been visiting a psychic who has convinced him that he is being haunted by the ghosts of those he has killed. Tony expresses skepticism but Paulie alludes to "research" that has "proven" this kind of thing. With an expression of fear and submission, he gives an irrefutable response. "It's science, T. It's science."

There is a double irony. The obvious one is that Paulie cites science in support of claims that are pretty unscientific. The second is that he invokes science as the new God. When it claims supremacy, all heads must bow and all knees must bend.

Both levels of irony may be present here. This time the obvious one is the elevation of science to an arbiter of good and evil. Bush is not "ignoring" the science as much as he is saying that just because a thing can be done does not mean that it should be done. On another level, though, it may be that the "promise" of embryo-destructive research has become a materialist's Holy Grail.

Thursday, June 21, 2007

The problem on Juneteenth Day

I have been reluctant to blog on the violent incident at the end of Juneteenth Day. It was awful and its hard to know what to say beyond that. But, predictably, Eugene Kane weighs in and solves my problem. After observing, quite correctly, that most people who attended the event enjoyed it peacefully, he writes:

Also, like most folks with any knowledge of the way Juneteenth Day gets covered by the media, I also realized if there was any negative event during the approximately ten-hour long festival, some people in town would use it as yet another example of why black folks in Milwaukee are such a problem.

Frankly, it was discouraging to see the videotape of a violent crowd of young people attacking cars after the festival was over.

It sure was. Hundreds of kids walking in the street disrupted traffic. Some of them smashed car windows and pulled a driver out of his car and beat him. This was not just "any negative event" and, in the context of the violence in our central city, it is not simply the regrettable youthful fervor of a some "knuckleheads [the preferred epithet for those who want to minimize this stuff] who don't understand how to just have their fun and go home."

There is a much larger issue and it isn't that "black folks in Milwaukee are such a problem." It's that black folks in Milwaukee have such a problem. There is a subculture of violence in our inner city and it is overwhelmingly black people who are its victims.

The problem is not that people are outraged at what happened. The problem is that it happened.

I understand the fear that incidents like this can exacerbate racial fears. But ignoring it or minimizing it or dismissing it as a "cry for help" won't solve a thing.

You will listen and you will like it

Bill Christofferson likes the recent "report" by the self-styled Center for American Progress and an organization known as Free Press.

The study tallies up the imbalance between conservative and "progressive" talk radio (what it did with NPR is unclear) and calls for action. What I am interested in is the study's assertion that market forces can't explain the predominance of conservative talk because, and I think this is a fair paraphrase, some talk radio listeners are liberal and an occasional "progressive" talk show is successful.

Nothing in the study undercuts the thesis that there is relatively little liberal talk because the market won't support it. Xoff asks "when is the last time anyone tested that theory and actually put a liberal talk show on the air, in the daytime, with an engaging, entertaining host?"

I think that's what Air America was trying to do. It was extremely well-funded, highly promoted and, presumably, featured the best hosts that could be found, including well-known Hollywood celebrities. It has, generally speaking, flopped.

He asks why WTMJ here in Milwaukee won't put a lefty on the air but that reflects a lack of understanding of the radio business and, therefore, is the wrong question. Radio stations generally don't adopt multiple formats. A classic rock station won't throw in some country and western because it knows that the audiences for those genres is different and a mixed format will undercut the listener loyalty that it is trying to build. If you believe that the audiences for liberal and conservative talk are different, it's not surprising that TMJ put James Harris - and not James Rowen - on the air.

A better question is why any of the number of unlistened-to AM stations in Milwaukee have not taken a flier on liberal talk. That's a question to which I have yet to hear a credible answer other than the obvious one: No one believes it will work.

The answer of the Center for American Progress and the ironically named "Free Press" is to get liberal talk on the air through regulatory coercion. How the current absence of forced liberal talk amounts to, as Bill puts it, "shutting up progressives" is beyond me.

NB: Bill does point out that there is a "progressive" talk station in Milwaukee, WMCS-1290. As is normally the case on Thursday afternoons, you can hear me on Backstory this afternoon from 4:30 to 6:00.

Congratulations, Monica

Congratulations to our niece Monica Cooley who received honorable mention on the all-conference girls soccer team in the North Shore Conference. Not bad for a sophomore.

"Corporate" free speech

In yesterday's Capitol Times, Mike McCabe of the Wisconsin Democracy Campaign sounds like he expects the Supreme Court to overturn McCain-Feingold's restrictions on grassroots lobbying immediately prior to a federal election. I hope his worst fears are realized.

But my job this morning is to fisk his piece. He's managed to pack three huge conceptual errors in one short column.

First, the restrictions at issue in Wisconsin Right to Life v. FEC cannot accurately be described as simply keeping "corporate" money out of politics.
Wisconsin Right to Life is a corporation (albeit not the big bad for profit type that McCabe is referring to) but its funds come from a variety of donors in varying amounts - most of whom, I suspect, are individual persons. McCain-Feingold wants to restrict what these people can give to facilitate the communication of an idea that they care about. It wants to require that their contribution be publicly disclosed notwithstanding the reluctance of many to give to a controversial cause if their involvement would become known to their employers, neighbors, etc. In other contexts, courts have recognized that forced disclosure can burden associational rights.

McCabe thinks that this is justified by what has been and, unless we repeal the First Amendment, always will be a futile attempt to keep "big money" out of politics. Not surprisingly, he wants to mischaracterize the cost.

Second, McCabe thinks that strict constructionist judges are somehow bound to respect all precedent and that this issue was decided in the McConnell case.
Putting aside the fact that WRTL is making an "as applied" challenge that wasn't present in McConnell, McCabe's characterization of "strict constructionist" (or, as others might put it, "textualist" or "originalist" ) jurists as "precedent judges" isn't quite right.

The considerations of judicial modesty and predictability that inform these interpretive theories probably do imply a greater respect for precedent, but prior decisions that have gotten the text or the original intent wrong are certainly subject to reversal. Nothing in these theories requires that error, once made, must be repeated in perpetuity.

Finally, McCabe indulges in the left's curious demonization of the corporate form and trots out its beta noire, the Supreme Court's 1886 decision in Santa Clara County v. Pacific Railway Company. According to McCabe, a "footnote" by a single Justice in this case held that corporations were "persons" under the 14th Amendment, presumably reversing all sorts of precedent that limited their nefarious designs.

We can put aside the fact that Santa Clara County has no such footnote (McCabe means to refer to a reported pronouncement before oral argument that the justices all agreed that a corporation was a "person" so no argument on that point was necessary) or "holding" (the court ducked the constitutional issues). He is certainly right that corporations are "persons" under the 14th Amendment.

McCabe seems to think that this tore down a "wall of separation" between "democracy" and an "aristocracy of monied corporations." That's a stretch. It was legislation in the various states that created corporations as juridical persons and the Court had long ago recognized constitutional protection for corporate charters.

In any event, whether or not these entitites were "persons" under the 14th Amendment could hardly have been answered before the 14th Amendment was ratified in 1868. There is ample legislative history and sound policy supporting the view that the choice of a person or group of people to organize in a particular form (with all its advantages and disadvantages) ought not to result in the forfeit of constitutional protections. Would McCabe believe that Wisconsin Right to Life or, for that matter, the Wisconsin Democracy Campaign ought not have any first amendment protection?

Wednesday, June 20, 2007

Hard cases and bad law

Yesterday's Court of Appeals decision on W-2 reads as a curious thing. DWD had apparently adopted a practice of placing people who were "job ready," i.e., employable in unsubsidized employment, in the "unsubsidized employment" category even if they had not found employment. Perhaps more accurately, they have not placed such people in one of the W-2's "employment positions" - trial jobs, community service and something called a "transitional placement." Putting them in this "job ready" category apparently means that they do not receive wages but are eligible for other W-2 services.

The majority held that this was inconsistent with the statute because "unsubsidized employment" is defined as employment for which no subsidy is required. Because these folks are unemployed, the court reasoned, they must be placed in one of the other categories.

This does not appear to be a necessary reading of the statute and the majority opinion does not make a strong case for it. Defining what "unsubsidized employment" is does not mean that only those who have found it can be regarded as appropriate and ready for it. The statute expressly provides that only those who, "are unable to find to obtain unsubsidized employment [or other employment], as determined by the Wisconsin works agency"may be placed in the trial jobs or community service. Only those falling within specified criteria that would preclude a finding of "job readiness" (and so not applicable here) may be put into a transitional placement.

While I suppose you could argue that this language opens up those categories to those who are have not found unsubsidized employment even if they are capable of performing it, there appears to be nothing in the statute that mandates such placement and, as both the majority and dissent note, the statute expressly states that even if a person has fulfilled the eligibility requirements for any component of Wisconsin works, no one is entitled to W-2 services and benefits.

The impact of the decision seems to require DWD to offer all or nothing. To provide other W-2 services, an individual is either going to have to have an unsubsidized job or be in one of W-2's subsidized "employment categories."

On the one hand, it seems that there are very few people in this category of "job ready but unemployed" which seems to say something about the current job market and/or the skills of W-2 participants. Under these circumstances, the state can now presumably decide to either subsidize these participants or dismiss them from the program without a huge impact on the budget or the effectiveness of W-2 as a jobs program. (Obviously the impact on the individuals will be more significant.)

Critics of the "job ready" category suggest another possibility. They say that the program does not do enough to help people find jobs (and, in fact, discourages job ready people from applying by not offering them cash assistance.) This criticism rests uneasily with the purpose of W-2 which was, in part, to encourage employment by denying cash subsidies to those who are employable.

The decision effectively convert W-2 into a program that either 1) guarantees - for a time - subsidized employment or community service jobs or 2) provides nothing to people who are qualified for, but so far unable to find, work. Maybe that is what the legislature intended or what the law that it passed requires, but the majority opinion is not very persuasive.

Monday, June 18, 2007

Street sweeping

A sharply divided Milwaukee Common Council passed a new anti-gang loitering ordinance which essentially empowers the cops to order "known" gang members to disperse. Alders Michael Murphy and Ashanti Hamilton denounced the new law as "pandering" and "meaningless."

A recent article in the National Law Journal (I'd link but you need a subscription) discusses a related phenomenom, civil injunctions prohibiting gang members from congregating in specified zones (normally the gang's presumed "turf.") The injunctions (and ordinances like Milwaukee's) are not without legal problems (they can be, but are not always, constitutional), but law enforcement authorities do cite significant crime reductions as a result of the injunctions - at least within the protected zones. If nothing else, they reduce the feeling of law abiding residents that they are living in an occupied zone.

Taking Thomas seriously

Someone needs to do a psychological study of the way in which liberals view Clarence Thomas. He stands as such a stark contradiction of so many core assumptions that they have to view him as suffering from emotional scarring or exhibiting some type of maladjusted overcompensation.

The New York Times is all into this. Following Adam Cohen's op-ed of a few weeks ago, yesterday saw Orlando Patterson's review of a recent Thomas biography by Merida and Fletcher. Aptly titled "Thomas Agonistes" because, you know, a conservative black man must be at war with himself and his past, it is the same old, same old. After spending most of the review lingering over what he regards as self-evident contradictions, traumas, and pathologies in Thomas' life (the list is actually a bit underwhelming and no less complex than the messiness that you'd find in the lives of most people), Patterson finally observes that the biography does not really examine Thomas' legal philosophy and work on the Court. He knows just enough not to let this go because, he allows, some legal scholars have concluded that Thomas' thought is actually worth taking seriously.

Not that this interests Patterson very much. He dismisses it as a topic for "lawyers." Earlier in the piece he suggests that Thomas' "ardent defense of states’ rights would have required him to uphold Virginia’s anti-miscegenation law, not to mention segregated education" yet he lives with a white wife in Virginia. He believes that there is some type of fascinating contradiction between his "unfeeling" judicial opinions and the apparent fact that Thomas is, personally, warm and compassionate.

I do not know why Patterson believes Thomas would overrule Brown v. Board of Education. I am not aware of everything that Justice Thomas has written, but I don't recall that he has written that. Perhaps someone can fill me in, but there is a substantial difference between the process of incorporating other rights into the 14th amendment to be applied against the states and applying the terms of the 14th itself which is explicity applicable to the states.

I do know that Thomas was critical of Brown's rationale in a case called Missouri v. Jenkins, but his point there was that the Brown court should not have emphasized the psychological harm stemming from segregation. In his view, de jure segregation was unconstitutional because it violated the plain terms of the 14th amendment. Whether or not it results in psychological harm is legally irrelevant. I think there's a great deal to be said for that view.

Maybe Patterson means that Thomas would not find a constitutional remedy for de facto segregation. But the fact that a judge does not believe that there is a constitutional remedy for every problem or that it is his job to impose a "feeling" kind of result hardly requires us to search for personality flaws or a tortured past.

Sunday, June 17, 2007

The trouble with Fairness

The Brew City Brawler and Milwaukee Journal Sentinel Patrick McIlheran have been trading posts on the return of the Fairness Doctrine. Not surprisingly, Jay Bullock thinks the Brawler is winning. I think that someone in BCB's corner should throw in the towel before the damage becomes permanent.

Revealingly, Jay cites, as a kindred soul, Trent Lott who wishes that the Senate could conduct its business without that pesky matter of public opinion.

Which is precisely the point of all of this.

The Brawler thinks that the public interest requires mandating radio stations to provide content for which there is apparently little public demand. He accuses those who say that stations will simply get out of issue-oriented programming of a lack of confidence in the market.

But the function of a market is to provide what consumers want, not what the Brawler thinks they should want. We know what radio programming was like with the Fairness Doctrine. I was there. Stations did not do issue-oriented programming.

And, in a way, that may have been the lesser of two evils. Assuming that the stations stay in the game, how is the government supposed to manage "balance." The Brawler may think that it is sufficient to balance Rush Limbaugh with Randi Rhodes. But others are going to think that it is also necessary to hear from Hugh Hewitt and James Dobson.

How are we to deal with less obvious forms of imbalance? The most insidious bias in the media comes from the way that stories are selected and framed. Do we want the state to manage that as well and, if we don't, have we really accomplished anything?

What about "non-news" programming? If we don't want WTMJ to shill for the GOP, then we certainly can't have shows like the West Wing shilling for the Democrats without requiring a show that paints Republicans in a flattering light. No admiring biopics on Robert Kennedy without a hagiography for Barry Goldwater as well. Certainly no Daily Show or Colbert Report on broadcast TV. Ideological censors to enforce balance for SNL.

It is, of course, this lesser of two levels is waht proponents of the doctrine want. They prefer to shut up Limbaugh even if it means there will be no Rhodes (there barely is anyway.)

The irony, of course, is that the Fairness Doctrine was developed at a time when a limited broadcast spectrum severely restricted the number of media outlets. With the internet, cable TV and the advent of satellite radio, this is no longer the case. The justification for regulation is simply not what it was in 1969.

Even if we restrict our discussion to the AM radio band, there are - in just about every metropolitan area - some seriously down in the mouth radio stations. If there was a demand for liberal talk, why isn't it taking off on these stations?

My own sense is that the left gets so incensed by conservative talk radio that it fails to understand it. It sees Limbaugh et al. as just talking trash about Democrats and that is what they tried to emulate on Air America. Al Franken is a very funny guy. From the little I heard, he was very unfunny on Air America.

I guess that TMJ and WISN can't be skewing our local politics that much. We have two Democratic Senators, a majority Democratic congressional delegation and a Democratic governor. We've been going blue in presidential elections. This sounds like a solution in search of a problem.

Friday, June 15, 2007

Our big tent includes cavemen

Lefty bloggers all over are having fun with a recent Gallup survey purporting to show that a majority of Republicans do not believe in evolution. (The same poll shows that a significant minority of Democrats don't either.) Local political consultant Bill Christofferson crows about the "rejecting the caveman vote" - a phrase with a secondary meaning that left liberals just love. They are so persuaded that they are smarter and more enlightened. Jim Rowen even suggests that this reflects the "essential difference" between Democrats and Republicans. I guess that a good "progressive" just can't have enough mirrors.

My initial reaction is to wonder how many Democrats would flunk a quiz testing one's knowledge of basic economics or endorse some pre-scientific notion like the idea that price controls work or that increases in the minimum wage won't cause unemployment.

But that's another topic. I have no doubt that there are more "young earth creationists" who vote Republican than Democrat although, given that debunking the theory of evolution is not among the planks of the GOP platform or, however they might answer when asked about it, is not a priority of any Republican presidential candidates, I think we are talking correlation and not causation. These people like the GOP's support on other social issues as do many other people who do "believe in" evolution.

But there is, as Gallup notes and Xoff does not, a potential problem with the poll question. The results that he posts (taken from a May 21-24 poll) are apparently in response to the following question:

Now thinking about how human beings came to exist on Earth, do you, personally, believe in evolution, or not?

The problem with the question is that, having failed to define evolution, the preface implies that the concept includes a claim that evolutionary science does not and can never support, i.e., that the mechanism of evolution is the sole explanation for the existence of human life. Science can demonstrate change and modification through descent. It can adduce evidence of the common ancestry of species. It might even demonstrate - although I'm not sure that it has or ever could - that, given enough time, an entirely random process could have changed an amoeba into Mozart.

But it can't really demonstrate that the whole thing was an accident without a first cause. That is a question that the scientific method is not capable of answering.

While one could understand the question to make no such claim, the popular association of "evolution" with "Godlessness" (an association promoted by evangelists like Richard Dawkins and Daniel Dennett) suggests that many respondents will not. Gallup recognized that, noting:

It is important to note that this question included a specific reference to "thinking about how human beings came to exist on Earth . . ." that oriented the respondents toward an explicit consideration of the implication of evolution for man's origin. Results may have been different without this introductory phrase.

There were other questions with results not broken down by political affiliation with results suggesting that lots of Americans are confused about evolution (giving what seem to be inconsistent responses) and many reject the scientific consensus, but the money result is not as clear as our Democrat friends claim.

Thursday, June 14, 2007

Retire "diversity"

One of the catch phrases that I absolutely hate are calls to "celebrate diversity." Yesterday afternoon, city development commissioner Rocky Marcoux and a woman from a Menominee Valley industry group kept repeating the phrase on WMCS in connection with an event they are sponsoring this Saturday.

There was nothing wrong with the substance of what they said. They appear to have done some great things in the valley. But I found the invocations of "diversity" to be only slightly less annoying than a cat in heat dragging her claws across a chalkboard.

Why is that? I am not oblivious to the need for inclusion. As I have blogged before, despite my opposition to racial preferences, honesty compels me to admit that I have practiced them. Recently, in connection with the work of a search committee that I chair, my same-sex marriage opposing self went out of the way to make clear to candidates that a welcoming attitude toward gays and lesbians was a material and non-negotiable condition of the job. I realized a long time ago that, to the extent I have an innate bias in hiring, it is in favor of women and I have to be careful about it. I can do "diversity." Why can't I stand the word?

I think the term has been co-opted. When I hear the word diversity, I hear someone who believes that people are defined by their gender or ethnicity to a greater degree than they are. I hear someone who believes that people ought to be treated on the basis of their gender or ethnicity to a greater extent than they should be. I hear someone who is being less than candid on issues of gender and diversity, suggesting that the only obstacles to a world resembling a perfectly proportionate rainbow are bad faith and ignorance. I hear people for whom diversity is nothing more than a multi-hued orthodoxy.

In fairness, I can't say that either Marcoux or his colleague believe any of this. It's just that, for me, the word has become hopelessly tainted. It has become, for me, a sort of "screwphemism" - a word that is meant to convey tolerance and openmindedness, but which now suggests the opposite.

Wednesday, June 13, 2007

I'm just asking

Yesterday we learned that health care in Wisconsin leads the nation in quality indicators measured by the US Department of US Department of Heath and Human Services. We are. of course, used to hearing that we pay well above the average for health care. (One local blogger made that point only a few days ago.)

Is it possible that we get what we pay for?

Update: Here's a study that suggests we may not.

Tuesday, June 12, 2007

More on vote fraud

The Brew City Brawler takes me to task for suggesting that there could actually be such a thing as fraud associated with voter ID. He quotes election law expert Rick Hasen who claims to have thought about it for a long time and concluded that, if he wanted to cheat, having people pretend to be someone they are not in order to cast multiple votes would not be the way to go.

It may well be that identification fraud is not the best and highest form of electoral crime. It may well be better, for example, to work through absentee ballots. That doesn't mean that it can't happen and we generally don't assume that criminals will attempt their crimes only in the most intelligent manner. Election lore involving the graveyard returns and the idea that, in Chicago, folks are encouraged to vote early suggests that phantom votes are not historically unknown. While Professor Hasen believes that it would be "better" to buy eligible voters, that requires a larger conspiracy and the more conspirators, the greater likelihood that someone will say the wrong thing to the wrong person.

But what troubles me more is that, in states like Wisconsin which permit same day registration with easily fabricated forms of identification, this form of fraud is not nearly as difficult as Hasen maintains. If you want to vote 4 or 5 times in the next election and exercise a reasonable degree of care, you have little chance of being caught. You don't have to pretend, as Hasen argues, to be someone else. All you have to do is pretend to be someone who lives at a nonexistent or nonresidential address.

Post-election "confirmation mailings" may show votes from improper addresses but you will be long gone. Election officials may conclude that fraud occurred or they may dismiss these discrepancies as clerical errors.

The reason that I do not believe this type of fraud (or, for that matter, any other) occurs in massive numbers is that I think it is unlikely that a large conspiracy could exist without someone talking about it. But is that enough comfort to ignore the fact that, absent confession, such a scheme would not be nearly as hard as it should be?

The only argument against ID has to be that acting to prevent this type of fraud will "deter" more voters than it is worth. The unstated assumption is that we should not require ID if we believe that more legitimate voters will not bother to obtain ID than fraudulent voters will be deterred from casting phony votes.

But why is that? Does it really make sense to say that voters have been "deterred" because they can't be bothered to obtain free identification? Does the state have an obligation to make voting as easy as the indifferent voter wants it to be? I would want identification to be free and available at lots of places in the community. I'd want to send people into nursing homes.

But, if after all that, you don't obtain identification, I guess you just don't want to vote. The Brawler can call me an ultramontanist (and I'm not even Roman Catholic), but this just doesn't keep me up at night.

Monday, June 11, 2007

Doyle's three-card monty

I have not blogged on the constitutionality of Governor Doyle's proposed tax on oil companies that, he says, may not be passed on to consumers. The constitutional problem lies in something called the dormant commerce clause. The Constitution gives Congress the power to regulate interstate commerce. Courts have found in the grant of authority under this explicit commerce clause" an implied restriction on the ability of states to regulate interstate commerce (a "dormant" commerce clause.) Subject to certain exceptions, states may not discriminate against out of state businesses or unduly burden interstate commerce. The argument here is that the provision that forbids the oil companies from passing the tax on to consumers will do so because the cost will have to be borne by customers outside of the state of Wisconsin. While, under traditional dormant commerce clause analysis, Wisconsin might still be able to have its "no pass through" if sufficiently needed to serve a sufficiently weighty state interest, it is unclear that the state can make that claim here. If, the argument would continue, the state is concerned about Wisconsin derived income evading taxation, there are other remedies such as requiring consolidated statements of income, etc.

The state relies on a 1988 Supreme Court decision which upheld a Puerto Rican law with a no -pass through provision. The problem is that the case in question did not rule on whether such a provision violated the dormant commerce clause, but whether Congress had preempted the field of oil price regulation. (The court concluded that it had not.) The dormant commerce question was not before the court, so the case provides no comfort.

I don't believe that the legislature should never pass a law about which there is a serious constitutional question. But here is where the Governor is playing a shell game. He is selling the tax with a promise that we in Wisconsin won't have to pay it. It'll fall entirely on those big bad oil companies and who cares about them.

Just how we can know that it was not passed on is unclear and, even if we can, the Wisconsin Policy Research Institute has done a good job of explaining - to those who did not take introductory economics - why the tax is still a bad idea. But, for my purposes, the important thing to note is that the bill enacting the tax has what is called a severability clause.

This means that if any portion of the bill (say the no pass-through provision) is declared unconstitutional, then the remainder stands. So if the courts say that the oil companies cannot be probibited from passing the tax through, the tax remains and we will wind up paying after all.

Doyle's proposed tax on the oil companies is typical Clintonian misdirection. He wants more money but he doesn't have the temerity to ask for it. So he creates the fiction that someone else will pay.

Don't stop

Not even close on the Sopranos.

Joanne Weintraub in this morning's Journal-Sentinel thinks the ending was "sweet," although she acknowledges that a less benign interpretation is possible.

The ending was, in fact, both sweet and ominous. Does Tony look up to see his daughter or a hit man? Does he see anything at all or has he wound up like Phil Leotardo whose last vision is of his wife and grandchildren before he is shot in the head by an assailant that he never sees? (Jim Rowen reminds us that Bobby said "you probaby never hear it when it happens" although Bobby certainly did.)

Of course, we get no answer but maybe we don't need one. It could have been Meadow this time. What about the next? Will it be murderous rivals? Will it be the feds? And even if it isn't, will he wind up like Junior unable to remember any of it? Will it all turn out to be, as his mother said, a big nothing. Can he do anything but focus on the good times for which he has paid so dearly?

Sunday, June 10, 2007

Sopranos prediction

It is a bit late - but not too late - to make a Sopranos prediction. I am of the "Tony won't die" school, having been persuaded by the view that a theme of the show has been about the hell that bad people create for themselves in life. I am also moved by the idea that Chase won't want to kill off such an interesting character. He lives but nothing good is coming.

It would be in keeping with the show for something really awful to happen and I am afraid that it is going to happen to A.J. or Meadow. "They never touch the families," Tony told Carmela. This time - whether intentionally or not - they will. Hiding out in a home that Carmela owns doesn't seem like a good move.

But that horror won't be enough. Carmela will turn state's evidence. She has always been loyal to Tony but that loyalty has been in service of her pretense of being the matron of just another affluent suburban family. I could see Carmela soldiering on, but my guess is that she doesn't. She dimes out Tony to get away with the survivor and he is on both the giving and receiving end of his mother's parting judgment: "Your family always lets you down."

(Another option: Janice does it.)

There must also be some injustice and my view is that it will be the awful Paulie Galtieri skating away, perhaps as part of the ascendant Leotardo family.

In a little over three hours, I'll know how wrong I was.

Saturday, June 09, 2007

It's the Highlanders' world; we just live in it

I have blogged about the Homestead girls soccer team's run through the state tournament. This afternoon, they took the state title, edging a gutsy DePere team 3-2 in double overtime. The golden goal came in the 98th minute.

The kids from DePere deserve a lot of credit. They were completely outplayed but came within 2:59 of sending the game to penalties. That is one of the fascinating and frustrating things about soccer. Concentration and effort can keep a game in which the run of play is lopsided close on the board.

Congratulations again to our niece Monica Cooley (did I mention she scored the winning goal in the semis? I guess I did) and her teammates. They did something they'll never forget.

Grothman deserves a little more credit

One commenter in response to my recent post about Glen Grothman's opposition to affirmative action suggested that such opposition - at least as advanced by Grothman - was an example of intellectual dishonesty, wild oversimplification and masked a lack of concern about racial equality.

I concede that affirmative action (and here we are referring to racial preferences in hiring, college admission, etc.) has been motivated by legitimate concerns. Although it may surprise Eugene Kane and some people on the left, I understand the desire on the part of many whites to look around and see black people. We know our racial history and we want to get past it.

But to think that we can get past it by fiat requires its own oversimplification. Getting past an obsession with race by obsessing on race is rife with danger.

Via David Bernstein at the Volokh Conspiracy, the Tapei Times reports "caste" riots in India. The instigating factor was the desire of members of one caste to move "down" in India's multi-tiered affirmative action and, therefore, move "up" in terms of preferences for government jobs, etc.

There is no getting around the fact that when you treat race as important, you create incentives for people to emphasize their racial identity and the burdens that it is claimed to bring. That is not an unalloyed good. You can't tell people that the deck is stacked against them without inducing a substantial number of them to quit the game.

There is no getting around the fact that when you exclude people on the basis of their race, you create resentment. Telling them that you are doing so in pursuit of cosmic justice or to remove a "white privilege" that doesn't seem to be doing them much good won't change that. If they are prone to an innate culturally imprinted racism, you've just fed them some justification.

Supporters of affirmative action argue that our society is already racialized in a way that cannot really be undone - at least not now. They worry that, without racial preferences, too much that matters would be too white.

I don't buy into that but I also don't dismiss it as intellectually dishonest, simplification or, as is done with Grothman, "stupid." When I have been involved in hiring, I have bought into a lot of things that come under the rubric of affirmative action and maybe even racial preference. I'll probably do so again. But "quotas," "goals" and substantial departures from the criteria that we would otherwise follow in admitting students or hiring people are problematic on a number of levels.

There is some recognition of the problem among affirmative action proponents. Following Justice Powell's lead in Bakke, they generally insist that the operation of racial preferences remain opaque. The move toward "holistic" admissions, whatever its other benefits, has the merit of hiding the ball. Just how are we using race in admissions? No one can really say.

Racial preferences may have remained constitutional in large part due to Justice O'Connor's view that they will probably end in 25 years. This too reflects a recognition that they are problematic. What other reason is there to look for their end?

But how is the end of affirmative action supposed to come about? How easy is it to end a benefit for which we have created a constituency? What will happen to tell us that we no longer need affirmative action? Already, much of the racial disparity that we see in America is tied to the persistence of the black "underclass" - a problem that affirmative action does little or nothing to address.

Friday, June 08, 2007

Goal goal goal goooooooooooooooaaaaaaaallllllllllll

The Reddess and I spent the evening at Uhilein Field watching the Mequon Homestead girl's soccer team play Middleton in the state semi-finals. Wouldn't you know that our niece Monica Cooley scored the game winner in a 1-0 Highlander win? I called it. To myself.

Middleton has a fantastic keeper who is headed to Wisconsin to play Division 1 ball. This was apparently only the third goal she has allowed all year. They've got a good defense but that's not even human. It took something to get one by her, but the kid came through. Must be a red hair thing.

Homestead vs. DePere for the state title tomorrow at 2.

Thursday, June 07, 2007

Hilton checks out

So Paris Hilton is released because jail sucks and it is upsetting to be there. The poor dear wasn't eating and we all know what a chow hound she is. (I hear that she just loves Carl 's Jr. BBQ Burger.) You have to wonder what type of oblivion reigns in the Los Angeles Sheriff's Department.

Putting aside the remote possibility that she actually did have a serious medical problem that permitted her to attend the MTV Movie Awards but not to sit in her cell, why would you want the ridicule that will almost certainly attend the decision? Even if you have an extraordinarily thick skin, why would you want to send this type of message about our justice system? Al Sharpton (while fondly recalling his night with Paris) is already on his soapbox and, this time, it's hard to argue with him.

If you really don't mind going through the rest of your life with your picture in the dictionary under "grovel", wouldn't you want to shuck your (wo)manhood for a bigger star than Paris Hilton?

Shark and Shepherd on the Air

While you are hiding in your basement this afternoon, be sure to listen to Backstory on 1290-WMCS where we will be talking about Obama, Bush-bashing Republicans and robocalls. We brave the storm from Hell for your entertainment.

Wednesday, June 06, 2007

Grothman's Uncomfortable Questions

What created all the heat at Monday's meeting of the Special Committee on Affirmative Action?
Fred Mohs apparently asked Sen. Lena Taylor (D-Milwaukee) to "shut up" after Taylor yelled at committee chair Sen. Glen Grothman (R-West Bend), accusing him of doing something that was "a disgrace to this committee ...." Taylor accused Grothman of trying to abolish or scale back affirmative action.

What could Sen. Grothman's offense have been? Certainly it was nothing that the committee approved. It only recommends phasing out race-based preferences for minority businesses with a net worth in excess of one million dollars and requiring beneficiaries of racial preferences to be U.S. citizens. Kind of weak lager.

Maybe it was a proposal to require those seeking to be preferred over others on the basis of their race or ethnicity to prove that at least one quarter of their lineage actually comes from that race or ethnicity. Local blogger Michael Mathias dislikes that one, invoking the other "N-word" and observing that there was a once a country in Europe that obsessed over who your parents were.

On that, Mike's point proves too much. If we are going to prefer people of a particular race or ethnic identity, don't we have to ensure that they actually possess the characteristics that we seek? Would it be o.k. for my son (you can see his picture below) to claim that he's black when he applies to professional or graduate school? If not, then aren't we admitting that its o.k. to inquire as to a candidates' "real" bloodline? If we think it's all right to treat people differently based upon nothing other than their race, then why should we be uncomfortable with the notion that they prove that they are who they say they are?

The objection might be made that this proposal is designed to make a point rather than to solve a problem. There may not be (at least not that I know) a problem with people claiming some racial or ethnic status other than their own. But what's wrong with making a point?

If you believe that we can treat people differently on the basis of their race "just a little" and only for "good" without perpetuating our tendency to see race before all else, then shouldn't you also be able to believe that we can verify the race of proposed beneficiaries without bringing about Kristallnacht?

Doesn't the requirement of proof flow inexorably from the endorsement of preference? If the former makes you uncomfortable and conjures up visions of a racial state, then you probably ought to ask yourself if there is an unexamined problem with the latter.

Of course, I am not saying that there is anything like an equivalence between affirmative action (in the sense of preferences) and Nazi doctrines of racial superiority. But I do believe that systematic racial preference is a potentially dangerous and morally problematic remedy that ought to be avoided if it can be. Maybe the offending proposal at least hints at the reason for this.

Tuesday, June 05, 2007

Fueling "the controversy" on McGee, Jr.

Eugene Kane's latest column reveals more of what can only be regarded as wilful ignorance (or calculated obfuscation) regarding the McGee case. He begins by noting the confusion of some - presumably "savvy" - people about why McGee, Jr. is still in jail when other other alderman who were charged with corruption were released after a few hours.

Kane refers to, although he does not endorse, the answer when he refers to the state charges against McGee - something which did not exist with those "other" alders.

But those charges, Kane implies, are somehow subject to more than the reservations we should bring to all criminal charges because there is supposedly some controversy over what some of the statements cited in support of those charges could mean. He notes that supposedly "clueless" listeners have misunderstood McGee before, citing a time when Charlie Sykes misheard one of McGee's slurred observations on WNOV and another time when McGee said something vile which Kane apparently now wants to dismiss as harmless hyperbole. (No, I don't think McGee was actually going to hang Leon Todd; that was never the point.)

The phrase at issue here ("peeling back" a "wig"), Kane says, "came from a rap song," implying that it could be fantastical.

But Gene knows that this phrase or its equivalents is not just in "a" rap song and is well established street language meaning "to kill someone" or "to shoot them in the head." I guess that if the feds ever overhear some organized crimes types discussing a plan to "ice" or "whack" a guy, Kane would imply the existence of some legitimate controversy over what that means. McGee might be able to argue that he did not mean what he said. He cannot argue that what he said does not mean what the DA says it does. (He is not, in any event, charged with conspiracy to commit murder.)

Kane goes on to argue that it would be best if the details underlying these charges were released. While he doesn't explicitly blame prosecutors for the fact that the charges are sealed, he connects a statement that the prosecutors "say" they have evidence (who knows?) with an observation that the information remains sealed. The implication is that they ought to put up or shut up.

He fails to note, however, that the reason they remain so is the objection of McGee's lawyers. If they wanted those transcripts to be made public, it could happen today. I am not criticizing them for that. I'd do the same thing. But, in a column addressing the community's "confusion" over why a black alderman is being treated in the way he is, that is a critical bit of information.

This is a classic op-ed tactic. You refer to what "some people believe" and to the existence of a controversy. You don't endorse those beliefs but you don't fully engage the reasons they are without substance either. In doing so, you fuel a bogus "controversy."

As regular readers of this blog know, I do not share the prevailing conservative antipathy toward Kane. But this was bad work and it fuels a misunderstanding and resentment that responsible commentators ought to try and clear up.

Monday, June 04, 2007

That's not the "danger;" it's the point

There was an interesting article in Isthmus last week (which the editor was nice enough to send me) about a woman who is fighting poverty by teaching relationship skills with a decided emphasis on marriage and the "delaying" of sex (she doesn't use the term "abstinence.") Regular readers of this blog will know that I think this is good stuff.

What struck me about the article though was a quote attributed to Bradford Brown, a psychologist at UW-Madison.

“There’s a certain value orientation in it,” he says. “There’s a danger in imposing a set of values not consistent with someone’s cultural beliefs or personal beliefs.”

I guess he must not believe in diversity training either.

Clarence Thomas don't know his place

Adam Cohen writes on Clarence Thomas in the New York Times, jumping off from the recent biography of Thomas by Kevin Merida and Michael Fletcher.

There is, in Cohen's view, no need to treat Thomas as anything other than a black guy who doesn't act like he's supposed to. There is no need to explore his view of race relations and what is likely to improve them. There is no point in trying to understand his philosophy of judging and interpretation.

The problem, for Cohen, is that Thomas is just a big meanie. He is concerned about what the law says and doesn't say when he ought to be looking out for who Cohen perceives to be the deserving little guy. He cites a couple of Thomas opinions arguing that treatment of state prisoners that seemed unduly harsh (but that apparently was not life-threatening and did not result in serous injury) did not rise to the level of cruel and unusual punishment. For Cohen, this could only be an indifference rooted in maladjustment of some kind (he's a self-hating black!) and not a reluctance to federalize all forms of prisoner mistreatment.

He thinks that Thomas' opposition to affirmative action is somehow inexplicable given that Thomas has experienced racism and believes that it persists. The idea that Thomas might also believe that the Constitution prohibits - and the need for racial progress militates against - racial preferences is not to be found in Cohen's world.

Cohen sees no need to see Thomas as a real person with real ideas. He is an "enigma." He is "the justice who has faced the greatest hardships [but] regularly rules for the powerful over the weak." Thomas has redirected his (righteous) anger against whites toward "liberals and civil rights organizations." He hangs with Rush Limbaugh. He's gotten all uppity.

Cohen contrasts Thomas with Thurgood Marshall. He played his part. He was "humane." He never allowed the law to get in the way of a good result.

Thurgood Marshall was a great lawyer. His representation of the NAACP's "Inc. Fund" earned him an honored place in American history.

As a Supreme Court Justice, he was a good trial lawyer.

Clarence Thomas' career before he joined the Court was not as extraordinary, but on the Court, he has proven to be a thoughtful jurist with his own philosophy. He is committed to the discipline of the law.

If you don't like his jurisprudence, then show him the respect of engaging it on its own terms. Don't treat him like a "Negro gone bad."

Sunday, June 03, 2007

Personal bragging about things that I did not do

Yesterday I went out to Hartland to watch our niece play in the sectional girl's soccer finals for Mequon Homestead against Wauwatosa West. The Highlanders came back from a 2-o deficit to win 3-2 and advance to state. It was one of those classic "refuse to quit" stories. Very large congratulations to Monica and her teammates. They showed a lot of the stuff that sports is supposed to teach us.

Since I don't get to a lot of high school sporting events (it may have been the first one since 1974), one of the things that struck me was the "boy jocks" cheering section which seemed to be largely made up of Homestead football players. Back when I was in high school, male athletes were indifferent to or actively disdainful of girl's sports. I myself wrote a (slightly) satirical column in the school paper about the new (it was) girl's basketball team and couldn't get a date for three months (not that there was anything unusual about that).

But these guys (who won the state championship themselves) were way into the game. They were rabid. At the end of the game, they fired up the suburban parents - a group that is not generally shy about cheering for their children.

And speaking of cheering, I feel compelled to note again Shark II's graduation from UWM.

The two the left are my lineal descendants which means that you ought to pray for the poor woman on the right.

Saturday, June 02, 2007

Voter Fraud comes in many forms

Allegations of voter fraud against associates of Michael McGee, Jr., have brought the following reactions from the Democrat side of the blogosphere. This, they say, is voter fraud and would not have been prevented by voter id.
Because we don't have many people convicted of fraud that voter id would have prevented, there is no need for it.

There are two problems with this. First, the relatively few "identification" related convictions may just as readily be a function of the fact that we don't require identification - not at all to vote and not much to register. We allow organizations that are functionally partisan to register to voters.

During the 2004 election, I was a poll watcher at the Washington Park Library polling place. The woman running the place was a consummate professional and there was, at one point, eight lawyers on site.

You could have waltzed in there and voted in the name of someone else or someone dead and we would have had no chance of catching you.

If a number of people did this, what might show up later would be anomalies in the number of votes or the addresses of voters. These might be clerical errors or there might be evidence of fraud. It may or may not be possible to tell which.

Second, the notion that identification-related fraud "doesn't happen" requires one to believe either that no one cares enough about the results of election to try or, unlike every other area of human endeavor, we all manage to become saints when making some of the most important choices a community must make.

My guess is that there isn't widespread identification fraud because someone would talk, but that's about the only way to catch it. Still, we normally don't accept the absence of confession as equivalent to the absence of crime, see. e.g., racial discrimination which also has a low rate of confession and "capture."

Opposing voter ID seems to be a choice to accept the potential (and, to some degree, the reality) of fraud because you don't think it's "fair" to require someone who wants to vote to go to the trouble of getting identification or, more accurately, because you know that many of the people whose votes you want won't think it's worth the effort.

Friday, June 01, 2007

Where the Mayor and I may disagree

Paul Soglin recently quoted at length from my series of posts on conservatives and urban poverty. He seems to have culled out some things on which he and I agree on some basic level and there seem to be quite a few. He also emphasizes William Julius Wilson and his book, The Truly Disadvantaged. Wilson is an important scholar. He recognizes that it really isn't so much about race any more but, if I am correct, still believes that the solution can largely be imposed from above by somehow providing jobs and fixing cultural deficits through job training and the like. If I am wrong, Mayor Soglin will correct me.

And that's where he and I may start to disagree. Paul argues "[e]liminating poverty will go along way to change that culture, which will in turn, motivates others to move beyond poverty."

The problem, I think, is that we don't really know how to eliminate poverty "from above." We could do it, I suppose, if we designed transfer programs that were large enough (that's just math) but 1) that won't happen politically and 2) the impact of creating a class of free riders are such that we probably shouldn't. Although there were a lot of people who argued for that in the '60s, no one - at least not within mainstream liberalism - really does anymore. We can - and should - ameliorate the harsher aspects of poverty, but we are not going to will it away.

Recently, local commentators as diverse as David Dodenhoff of the Wisconsin Policy Research Institute and Marc Levine of UWM's Center for Economic Development have remarked upon the persistent failure of job training. The government does a very poor job of making up for what your parents didn't give you. When it goes head to head with the culture, it loses.

The "spatial mismatch" between jobs and poor workers that concerns Wilson is not going to be addressed from the top down. You can create all the incentives that you want but businesses are not going to locate in high crime areas from which they cannot meet their need for labor.

I believe that it is the culture of poverty and the associated problem of crime that are now the "root causes" that must be addressed. In my view, this does require a greater emphasis on subsidiarity and organic intermediary institutions such as churches. It requires more cops, snitchin', leaving the race card in the deck and intolerance by the community of the predators within it. It requires the aggressive promotion of marriage and the disapproval of the choice of single parenthood. It may require isolating those who do not wish to learn from those who do. Public assistance may have to become even more rigorously conditioned on doing the right thing.