Saturday, December 27, 2014

Thoughts on Supreme Court reform

The legislature wants to amend the Constitution to allow the justices on the Supreme Court to select their own chief justice and to pass a statute setting  a mandatory retirement age for judges. The latter does not require a constitutional amendment because the state constitution already empowers the legislature to set such an age at not less than 70. Current proposals would set the retirement age at 75.

I am not persuaded, however, by the argument that the legislature cannot set a retirement age that would cut short the term of sitting Justices. There is, I think, an uncomfortable separation of powers feeling to the thing, but the state constitution does not qualify the legislature's authority. But I am not enamored with the setting of a mandatory retirement age (indeed I become less enthusiastic about such limits with every passing year) and I do not believe that the legislature is constitutionally compelled to set one. Given the the voters have recently re-elected justices who were 75 (Chief Justice Abrahamson) and 73 (Justice Roggensack) at they time that they stood for election, a retirement age of 75 would seem to run contrary to the will of voters. It is not so much, as the Chief Justice argued, that voters re-elected those two (one could simply grandfather sitting justices if that were a a concern), but that their elections demonstrated that voters might wish to elect an older candidate to a full term.

It would seem to me that any mandated retirement age - if it is a good idea - would have to be higher. My guess is that an examination of judicial history would find many judges who remain effective throughout the seventies and relatively few after that.

The idea that the Court itself should choose its own chief is more intriguing. It is not simply about the current Chief Justice, although people certainly have been critical of her leadership on the Court - as distinct from her jurisprudence. Having the most senior (in terms of service) justice assume the role of chief has the benefit of not embroiling the court in controversy and competition over whom will be selected for the role.

But that is of relatively little value. The chief justice has a tough job. He or she must have the administrative and managerial skills necessary to lead and foster cooperation among a collection of jurists who will have sharp disagreements on the law and over whom he or she has no real authority. These jurists are likely to have large egos (you don't get that far in the legal profession without one) and strongly committed to their own ideas. One cannot simply be a "decider" or issue "wise" diktats. Effective leadership must be subtly and modestly exercised. A successful chief justice must know when to pick his battles, be willing, for the most part, to swallow his tongue and must be willing to give up what he doesn't need in order to have what is essential. Not everyone - even judges who are brilliant lawyers - can do this.

There is no reason to believe that the most senior justice will have the skill set and personality to perform the functions of a chief justice. This is without regard to ideology. The most senior member of the United States Supreme Court is Antonin Scalia. I am a huge fan (although not as much as I am of Clarence Thomas), but I doubt that Justice Scalia has the personality to be the Chief Justice. (My guess is that he would agree.)

Cross posted at Purple Wisconsin.

Wednesday, December 17, 2014

What are you willing to give up for the Milwaukee streetcar?

I have a post on the streetcar project over at Right Wisconsin. The issue flips our common political assumptions in a number of ways.

Here is what is happening. Among other feats of financial ledgerdemain, the city wants to take $ 31,000,000 in tax revenue that is being generated by a project that is already underway - the 833 Building - and divert it to the streetcar. This money would undeniably be available if the streetcar was never built (the 833 project is already under construction) and, because of what the city proposes to do, cannot be made available for anything else.

It cannot be used for the schools.

It cannot be used to improve athletic facilities in the neighborhoods.

It cannot be used to rehabilitate inner city housing.

It cannot be used to fund community policing programs that might help to protect inner city residents while relieving tensions between the police and the minority community.

It cannot help build a new arena for the Bucks.

It cannot be spent for anything to help low income residents of Milwaukee.

It cannot be used to reduce the levy on a heavily taxed community.

Instead, it will be used to fund a transit technology that was the latest and greatest thing - in 1906. It will be used to fund a transit technology that is less energy efficient and slower than buses.

It will be used to fund a transit technology that was considered obsolete and counterproductive in the late 1940s. When the streetcar was offered for sale to Milwaukee's then-socialist government in the 1950s, the answer was no.

The justification for all of this is that it will be considered groovy by the well-heeled Millennials and empty-nested Baby Boomers that live downtown. These people don't actually need it, but they will like it. My colleagues and I joke that we will be able to ride the streetcar (which will stop close to our office on Burns Square) to the Milwaukee Club to meet with conservative donors at taxpayer expense. But, in reality, we won't. It will be quicker to walk.

Writing at Vox, left wing writer Matthew Yglesias calls the DC streetcar project the "worst transit project" in America and the case for a streetcar in densely populated DC is much stronger than it is here. This project is, at best, a naked exercise in redistribution from the less well off to the well heeled. In fact, it's boondoggle that will benefit nobody, If it's such a good idea - if it is more important than all of the things that I just mentioned - then why not let the people vote on it?

Cross posted at Purple Wisconsin.

Monday, December 15, 2014

Accountability and School Choice: Let's Begin

Because accountability - for both private schools participating in one of Wisconsin's three school choice programs will be an issue in the coming legislative session - we at the Wisconsin Institute for Law & Liberty released the first of what we expect to be a series of reports on the issue.

The first report is descriptive and is called, not surprisingly, "Let's Begin by Understanding Where We Are." The report describes and comments upon state accountability measures applicable in the choice and public sectors. It concludes that it is simply not possible to claim that the state holds public schools to a greater measure of accountability than private schools participating in the choice program or vice versa. (We do note, however, that accountability measures for schools in the choice program appear to be more immediate and the consequences more onerous.)

We do not claim that the accountability measures imposed on the schools in the choice program are "too strict." We did note that, "whatever one might think of the adequacy of these standards," the DPI's interpretation of them seems to be, in certain respects, more aggressive than state law provides. These issues relate not to the standard themselves, but to requirements that a single standard be chosen at the beginning of the school year and that DPI policy seems to rule out the exercise of statutorily mandated discretion in it s enforcements.

But we take no position in this report as to what the accountability standards should be. Our report was descriptive and comparative, not normative.

There is a reason for that and it goes back to the title of the report. We do not expect the standards to remain the same. We anticipate a robust debate about what they should be in which we expect to participate. But, as that debate begins, we thought it important to draw attention to what the standards are and to address, in part, the common argument that public schools are held accountable in a way that choice schools are not.

The recent story regarding the Ceria M. Travis Academy illustrates this. I - and WILL - are not familiar with the school and, for that reason, take no position on its recent difficulties. But however poorly the Travis Academy may be faring, it is hardly the only failing school in the city of Milwaukee. It is being held accountable. Are failing MPS schools - and there are plenty - facing the same consequences?

Cross posted at Purple Wisconsin.

Wednesday, December 10, 2014

We need a better debate on Ferguson

Following last month's elections, I was intrigued by David Haynes call - or at least longing - for greater civility in our political discourse. I share his objective and his interest in Jonathan Haidt's writings on the topic. I have some differences with Haidt who I think does not understand American conservatives, but that's a topic for another post. We'll get back to Haidt in a moment.

What does it mean to engage in civil discourse? I'd start by suggesting that it requires us to assume - until proven otherwise - the good faith of our opponents. If you find yourself believing that everyone you disagree with is monstrous or corrupt, you are almost certainly wrong. It also requires an openness to the facts; a willingness to at least adjust your argument in the face of the evidence.

Not one, but two Purple Wisconsin bloggers have endorsed - or come awfully close to endorsing - violence in the wake of the failure to indict Officer Darryl Wilson in the shooting of Michael Brown. They call it "disruption."

What are we to make of this? Imagine that a conservative blogger here called for secession from the Obama "regime" or wrote a jeremiad defending the need to "disrupt" society until the President respected the constitutional limits on his authority or until the rights of the "53 %" who fund our government are respected. Imagine that a blogger had written that "black people" ignore other black people who cause "white death" or were "cooperating" with violent black criminals. Imagine that a blogger had claimed that only a "scarce" number of black people were trying to be "dutiful members of the human race."

The call for - or tolerance of - "disruption" is a very extreme position. Now, of course, if I thought that the white people in the United States were engaged in a systematic campaign of genocide against black people - if I thought there was an "indefatigable pattern of black death at white hands" (in fact, interracial crimes are more likely to be black on white) - I'd call for "disruption" as well. But that would be an astonishing belief. To the extent it is based on a claim of deliberate indifference to widespread homicide, it implies that most of us are very bad people.

And if I thought these things, I would be wrong. While I suspect that race can race play a role in interactions between citizens and the police, there are, in fact, only relatively small differences in the likelihood that black or Hispanic - as opposed to white persons - will be stopped by the police. According to Justice Department statistics, blacks are slightly more likely than whites to report having been the subject of a traffic stop (13% v. 10%) or street stop (0.7% v. 0.6%). Roughly 1 % of the 25 % of all citizens who have had a face to face encounter with the police are subjected to force or the threat of force. The percentage for blacks (3.7% of those experiencing police encounters) is higher than that for whites (1.2%) or Hispanics (2.2%), but the fact is that the use of force or threat of force is a very rare event for blacks generally as well as for blacks who are stopped by the police.

But what about these differences in the reported use of force? A far left group called ProPublica calculates that young black males are much more likely to be killed by police as young white males (31/1,000,000 vs. 1.47/1,000,000), but this does not make such events frequent or even tell us much about police conduct. Statistically, young black males are also much more likely to commit homicides and other violent crimes (even though the overwhelming majority do not do so) and this is going to affect those numbers in ways that have nothing to do with bias. Are these police shootings justified? Is race a factor? We don't know. We do know that they are rare. While the numbers are disputed, it appears that two hundred African Americans are killed by the police each year. But there are over 6200 African American murder victims each year. Even if every one of the deaths caused by the police are unjustified or could somehow be eliminated, the impact on black victimization rates would be negligible. In a very large country, the law of large numbers will mean that there are always incidents - involving both blacks and whites - to talk about, but there simply is not an "indefatigable" parade of the improper use of force against black suspects.

Of course none of this means that we should ignore or minimize police brutality when it occurs (and it does). It does not mean that we should not take allegations of police misconduct seriously. It does not even mean that race is never a factor when interactions between young black men and police go wrong. But calls for "disruption" are predicated on claims that it is somehow "common" for police to wrongfully kill black people. That predicate is wrong. If there is an African American blood bath, it is not the police (or, for that matter, white people) who are causing it. If  we are concerned about reducing black deaths, the police -as imperfect as they may be - are not where we should begin. Indeed, we need to acknowledge that the police are, on balance, the solution and not the problem.

In other words, if, to quote the hashtag, "black lives matter," we have remember that police protection is far more important for people in the inner city than it is for most of us in the suburbs. Black lives in the city are at risk in a way that the lives of people who live in safer areas are not.

So there is simply no justification for calls for - or the tolerance of - "disruption" which will, of course, harm innocent black folks already targeted with high levels of violence - not by the police - but by people that the police are trying to stop.

But returning to Haidt, moral positions are not always determined by the facts. Here, there seems to be a studied indifference to the facts - both of the Brown case itself and the larger issue of police misconduct. There is a certain power and self righteous frisson in imagining oneself to be a sentinel of justice against "indefatigable" oppression; to regard oneself as part of a scarce cadre of decent people. Against that, facts don't count for much.

Cross posted at Purple Wisconsin.

Wednesday, November 26, 2014

Lack of leadership on Ferguson

Rudy Giuliani had it right. The reason that we have heavier police presence in some (not all) areas with high concentrations of African Americans is some (not all) of these areas have a lot of crime. The purpose is not to protect white people from black people (most, but not all, violent crime is intraracial, although the matter may not be that simple) but to protect the African American residents of these communities.

That's not only a good thing; it is essential to the development of these communities. If you do not have public safety, you will have nothing else. No amount of social spending can make up for its absence. Complain, if you wish, about overpolicing but without a greater level of police protection in communities that need such protection, life would indeed be nasty, brutish and short.

But the need for heightened police protection is not without its costs. It means that there will be more contact between police and, in particular, young African American men. Sometimes these contacts will result in the use of force and sometimes  things will go wrong, whether by innocent mistake, negligence or even malevolence. Cops are human beings and, therefore, as flawed as the rest of us.

It is not clear to me that use of force is disproportionately directed toward black persons who come in contact with the police. What evidence I have seen suggests that it is not. It is clear to me that there is nothing resembling "open season" on African American males.

But that doesn't mean that each such incident need not be taken seriously. Just as the improvement of underdeveloped communities require safety, it also requires public confidence in the rule of law. I also appreciate that these incidents are going to be viewed through the lens of our racial history. We live in a country that, while it has made great racial progress, still struggles with racial mistrust.

But mistrust - and misunderstanding - run in both directions. It is simply not the case that any of us have special knowledge of racial truth. None of us have special knowledge of what happened in Ferguson because, in the insidious phrase,  we "look like" Michael Brown or Darren Wilson.

But even if that's so - or even if the opposite (police disproportionately target black men) is true, the frequency of police misconduct in all cases does not tell me what happened in any particular case. Even if was "open season" on young black males, knowing that would not help me decide what happened between Michael Brown and Darren Wilson.

The only way I can understand what happened is to carefully assess the testimony of witnesses and the physical evidence.

But that isn't what happens in our public discourse about the case. When, for example, someone writes an article and says only that Michael Brown was shot multiple times and was unarmed, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Being "unarmed" will keep you safe only if you do not attack someone who is. Last night, I actually heard Lawrence O'Donnell argue on MSNBC that, even if Brown charged Wilson, the latter could have "sidestepped" him. That's not a serious argument. It's the kind of thing that you say when you have nothing better.

When someone writes an article and says only that Brown had just robbed a convenience store, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Lots of people rob stores and don't attack the officers who arrest them.

It does no good to say that prosecutors have "disparaged" Brown by suggesting that the evidence does not establish that Wilson acted improperly. It is not "out of the norm," as Al Sharpton says, for a prosecutor to explain that the physical evidence does not support an indictment. It is, in fact, a prosecutor's job.

Based on what I have seen, however, it is not surprising that the grand jury could not return a true bill. The initial narrative about this case fell apart in the face of the physical evidence. There will always be questions and conflicts about what happened but I have yet to see anyone make a persuasive argument - based on the facts that exist rather than the ones they presume - that there is much chance to prove a crime beyond a reasonable doubt.

That's where leadership comes in. It is simply not responsible to say, in response to rioting, only that one "understands" the anger but believes that violence is nevertheless unwarranted. It is unwarranted but more is required. True leadership would point out that this was not an inexplicable outcome. It is also "understandable. "That's why most observers expected it.

Here in Milwaukee, we await a decision on the Dontre Hamilton case. I do not know what should be done. I haven't reviewed the evidence. It does appear that the District Attorney's office does not believe charges are warranted, but is reluctant to say so. The normal crowd of racialists that pass for "leaders" in Milwaukee won't lead. They'll follow the crowd.

Cross posted at Purple Wisconsin.

Saturday, November 22, 2014

Washington harasses school choice

In his latest column, George Will* describes the United States Justice Department's wrong-headed "investigation" of Wisconsin's school choice program for "discriminating" against students with disabilities. As we at the Wisconsin Institute for Law & Liberty have explained at length, the DOJ is proceeding on a contrived and erroneous legal theory that blurs the distinction between public and private. Will writes:

DOJ’s perverse but impeccably progressive theory can be called “osmotic transfer.” It is called this by DOJ’s adversary, the Wisconsin Institute for Law & Liberty (WILL), which is defending Wisconsin children against Washington’s aggression. DOJ’s theory is: Contact between a private institution and government, however indirect or attenuated the contact, can permeate the private institution with public aspects, transferring to it, as if by osmosis, the attributes of a government appendage.
Let me extend Mr. Will's remarks. Choice schools cannot discriminate against children with disabilities. Period. Full stop. Common claims to the contrary; suggestions that these schools "won't take" kids with special needs are just false. State law requires that  choice schools must take all comers. If the number of applicants exceeds the spaces available, students must be selected by lottery (with a small exception for sibling preference).

Now people will argue that private schools do not have certain obligations regarding special needs children that federal law imposes on public schools. In their view, this constitutes discrimination. Disabled students may not get the same services or accommodations in a private school that they will get in a public school. This, in their view, constitutes discrimination.

It's not. Public schools get funding to provide these services that is largely unavailable to choice schools. Just as importantly, federal standards for accommodating students with disabilities do not - and ought not - apply wholesale to private schools. The value of school choice is to encourage a multiplicity of approaches. Not all behavioral disabilities should be medicalized in the way typically encouraged by federal standards. Parents ought to be able to choose between alternative approaches for their children.

* Of course, George Will is on the board of the Lynde & Harry Bradley Foundation which provides funding to the Wisconsin Institute for Law & Liberty. I guess he likes what we do. Conservative board member of conservative foundation likes conservative legal organization. Who would have known?

Wednesday, November 12, 2014

Why public collective bargaining privileges unions

Before the election, I had a column in the Journal Sentinel's Crossroads section reflecting on Scott Walker's historical significance. A reader - someone from Shorewood named James Anello - wrote a letter to the editor completely mischaracterizing my position and that of my "ilk." (If you find yourself said to be part of an 'ilk," it's never a compliment.)

Mr. Anello thinks that I was arguing that negotiating in good faith is bad. Not at all. What I was saying is that to impose a legally enforceable obligation on government to bargain with unions gives them an advantage over everyone else. No one else has a legally enforceable right to make the government bargain in good faith over whatever it is that they want the government to do. Here's is what I wrote, with the part quoted by Mr. Anello in italics:

While it is not often acknowledged, collective bargaining privileges organized public workers over the rest of us. Because it imposes a mandatory obligation to negotiate in good faith, public-sector collective bargaining requires the government to listen to unions. If this bargaining reaches an impasse — if the government says "no" — then disappointed unions often will have recourse to arbitration. 
You and I don't have these rights. If the local school board ignores my request that it adopt merit pay for teachers or devote more money to science and math education, I am out of luck. I can try to elect new school board members, but I can't force the existing board to listen to me. Prior to Act 10, however, if the teachers union wanted tenure or some particular package of benefits, the school board had to listen and respond.

I take the trouble to highlight this here because Mr. Anello's error is a common one. The mistake is to fail to see a collective bargaining as a petition to the government asking it to adopt a certain set of policies. You can argue that government unions should have this advantage, but you can't pretend that is doesn't exist or pretend that government has a legally enforceable obligation to negotiate with everyone who asks it to do something.

Nor, it seems to me, that you can argue that government should have a legally enforceable obligation to negotiate in good faith with everyone. Such a rule would tie up every government action in court with judges expected to apply a pretty amorphous standard - good faith - to uphold or strike down whatever the government has done.

Cross posted at Purple Wisconsin

Tuesday, November 11, 2014

Nine random thoughts about the election

Because it seems to be a popular number.

1.  After every election defeat, the losing side forms a circular firing squad. No matter which party has lost, the crossfire tends to come from three directions. One, we were cheated. Two, if we had only communicated who we really are, we would have won. Three, whoever was in charge of strategy and tactics screwed up and must be fired. It would be a mistake for the Democrats to believe any of them.

2.  The Democrats weren't cheated.  They didn't lose because of "dark money," "dirty tricks" or "voter suppression." All indications are that they spent as much as - if not more than - the GOP. There were no dirty tricks. Turnout was at record levels for a November gubernatorial election.

3,  The problem wasn't that the voters didn't understand who the Democrats were. While their candidate didn't come across as a true believer (see below), the Democrats conveyed their message. You would have had to be unable to speak or understand English (or Spanish, for that matter) not to understand that the Democrats wanted to spend more money on public schools (but not vouchers) and raise the minimum wage. It was quite clear that the Democrats thought the Republicans were "against" women and minorities and liked "rich" people. The first two were not winning issues while the latter three were simply unbelievable - they have, if you'll permit me, jumped the shark for most voters.

4.  Other than these insipid and hateful themes of the "war on women" and "dog whistle" politics (which I think the Democratic base wanted to see), the Democrats ran a pretty good race in Wisconsin. I would not have expected them to be able to match the recall turnout. Yet they did. But the GOP ran  a good ground game as well. While I think the ads ran by Democrats and their allies often conveyed messages that were toxic and false, they were well executed. The problem may have been the message and not the way it was rolled out.

5.  Mary Burke wasn't a good candidate but she wasn't an awful one. If the Democrats think that someone like Kathleen Vinehout would have done better, they are smoking the stuff that Ray Burke wants to make legal. Walker would have topped 55% against a candidate like that. It is true that another candidate - maybe the reluctant Ron Kind (best they stop waiting for him) or Russ Feingold - may have done better. But those guys weren't on offer.

6.  The Republicans did not win because of gerrymandering. It has nothing to do with the state wide races. While the GOP's share of the legislature will exceed its share of the statewide top of the ticket vote, this will almost always be the case because Democratic voters tend to live in clusters. Take away Dane and Milwaukee Counties (really just the north half of Milwaukee) and Wisconsin is deep red.

7.  While it partially contradicts my absolution of the Democrats' strategic and tactical approach, Last week's results hurt the idea of the stealth candidate.  Part of the attraction of Mary Burke was that she could pretend to be anything because she had been, when it comes to politics, nothing. No record. No body of political expression. There is often a fascination with running candidates who claim to be "non-ideological" or say they are for "whatever works." Think of John Anderson, Ross Perot and, more recently, Jon Huntsman. The problem is that you can't know what "works" until you decide what you want to do. You can't even make judgments about what will work in particular without some set of beliefs about how the world works in general. Those general beliefs are a big part of our ideological differences. (Nevertheless, I do think that the Democrats' ideological preferences were expressed.)

8.  I'm glad Brad Schimel won, but Attorney General should be an appointed office.

9.  To my fellow conservatives, it was a great week to be us. But there are no permanent victories in politics and winning is only worthwhile if we make something of it. Expanded school and parental choice. Regulatory reform. An end to crony capitalism. A fresh approach to strengthening our urban areas. More economic freedom. Reform of the campaign finance laws. An end to John Doe gag orders.

Cross posted at Purple Wisconsin.

Friday, October 31, 2014

Why the Journal Sentinel editorial board is wrong about Burke firing story

How are we to assess claims that Mary Burke was forced out of her own family's business in 1993?

The Journal Sentinel editorial board dismisses it all by telling us to "consider the source." I have applauded the editorial board for seeking to promote a diversity of opinion on their page. Here is, as they say, another view.

First, the board trashes the Wisconsin Reporter, a nonprofit news organization, because it has a conservative bent and is funded by the Bradley Foundation. (Yes, yes, so is the nonprofit I run. So are half the charities in Milwaukee.)

The attack on the Wisconsin Reporter is completely unfair.  First, I have not noticed the editorial board dismissing the work of other nonprofits - say the Brennan Center, the Center for Media & Democracy, the League of Women Voters  - simply because these groups have an ideological bent. It shouldn't. The fact that these groups have a perspective may effect the issues they emphasize and what they have to say about them. It doesn't mean that they make things up.

I know Matt Kittle, who runs the Wisconsin Reporter and have spent countless hours discussing a variety of stories with him. Matt does not run things that he has not confirmed in accordance with standard journalistic practice. He is as much a professional as the reporters at the Milwaukee Journal Sentinel.

The fact that the Wisconsin Reporter is a conservative outlet is relevant in assessing its work, but it is hardly a basis for dismissing what it has to say. It's report stands on its own merits.

In assessing the report, the editorial board attacks people rather than evaluating facts.

I would have been skeptical of the report about Burke if the only source was Gary Ellerman, a human relations person who was himself discharged from Trek and who now chairs the Jefferson County Republican Party. In addition, there have been allegations that he is no more measured and careful in his political expression than some of the people that have been added as bloggers at Purple Wisconsin in the past year.

This is not to say that Ellerman should be dismissed out of hand. Nothing about his background brands him as a liar. But if he was the only source, I would have conceded that the question is so unsettled as to be a minor story. I don't deny having a dog in the fight but I try very hard not to jump on allegations from my side that are undersupported.

But Ellerman wasn't the only source. Others confirmed what he said and the report became more plausible when it was corroborated by the company's former COO. Even allowing for the fact that Tom Albers gave the princely sum of $ 50 to Scott Walker, his confirmation of Ellerman's story makes it much more credible. The editorial board's ad hominem dismissal of Trek's former COO  - "consider the source" - reads more like campaign literature than fair analysis.

But, for the editorial board, Albers is, as David Haynes tweeted, "discredited" because he is "vested" in the race. By that he means no more than Albers - who gave Walker's campaign the price of dinner for two and a couple of margaritas at La Perla - presumably wants Walker to win. But, by that standard,  everyone who has had anything - good or bad - to say about Burke's tenure at Trek is "vested" in the race. No one can be believed. Yet the editorial board accepts Burke's claims of success in business - even though they are unsubstantiated by anyone who is not "vested in the race."

There is no end to this "consider the source" calumny. Burke's family stands by her - although they provide no detail of what actually did happen and won't provide documentation of her claims regarding her successes at Trek. Shouldn't we "consider the source?" Are they any less "vested in the race" than Ellerman or Albers? Members of the Burke family understandably don't want to hurt a relative and, to be honest, stand to gain quite a bit by having one elected Governor. There is, to be frank, less reason to believe them than there is to disbelieve Albers. As far as we know, he has no family or financial interest in the matter.

Having said all that, I might be less inclined to credit the story if Burke's own version of the events didn't tend to confirm it. Here's where we get into facts rather than people.

Burke now says that her position was "eliminated" because of "downsizing."  You don't "eliminate" the job of someone who has, as Burke claims, been a phenomenal success, particularly if she's a member of the family that owns the company.  You promote her. But that didn't happen. Of course, it's possible that she walked away from a company that still wanted her - even as it eliminated her job - but that is hard to believe.

Finally, the editorial board stoops to sexual politics to dismiss, rather than engage, Burke's critics. Certain sources from within Trek say that she acted like "a pit bull on crack."  The editorial board plays the gender card to rule this criticism out of bounds. To them, it sounds "strikingly similar to the way other strong women have been portrayed once they reach positions of authority."

But it is not just women who are criticized for being overly authoritarian and demanding. In our fallen world, the sad fact is that there are bad managers and one of ways in which people manage poorly is to exalt themselves and be dismissive of their subordinates. One of the ways in which people manage poorly is to demand that their subordinates do what cannot be done, relieving the manager of the obligation to figure out how an organization's objectives can actually be achieved. There is no reason to think that women are incapable of making these mistakes. (Indeed, wouldn't it be sexist to believe they are not?) In dismissing this criticism, the editorial board is just as guilty of stereotyping as the "sexists" who they purport to oppose.

I don't know if this criticism of Mary Burke is accurate. I am sure that a dime store sexual politics won't help us answer the question.

Normally, I'd prefer a campaign limited to issues. But the Democrats have chosen to run someone for Governor whose resume, regardless of whether she was forced out in 1993, is astonishingly thin. To bolster the absence of a record , she has made claims about her long ago tenure at Trek that cannot be verified. Under those circumstances, this story matters and it can't be dismissed by attacking those who tell it.

So what's the truth? My own sense - trying to reconcile what Albers says with what Burke and her camp does and does not say - is that no one said "you're fired," but it was "agreed" that she should go and do something else.

But, as I'll explain in my next post, even the most favorable reading of her version of events undermines the case for Burke as Governor.

Cross posted at Purple Wisconsin.

Tuesday, October 28, 2014

Obfuscation on the minimum wage

Here's a bit of free advice. When economists - or any social scientist - tells you that "studies" show something, remain skeptical. As a general rule, there are almost always contradictory studies and those that purport to "show" some real world cause and effect usually do not.

This op-ed by Mike Rosen, an MATC instructor with decidedly heterodox views of economics, The sayt that, the science is "in," minimum wages do no harm.

But that's just wrong. Some studies show no loss of employment. Others do. Indeed, a recent study by the John K. MacIver Institute for Public Policy shows that an increase in the minimum wage to $15/hr would cost 90,000 jobs.

This shouldn't surprise us. Basic theory tells us that the impact of a minimum wage increase will be complicated. In almost all places and at all times, some workers will make more money, some will lose their jobs, some will keep their jobs and work fewer hours, others will be made to work harder and some will never be hired. The return on labor saving technology will increase. There will be winners and losers and there is no guarantee that the poorest of low wage workers (not all low-wage workers are poor) will be ones who are helped.

Because things other than the minimum wage will be affecting unemployment and low-wage job growth, it is difficult to figure out - even after the fact - what has happened. To simply say, well, we raised the minimum wage and employment didn't decline may or may not mean that there are no fewer workers today than there would have been had the minimum wage not increased.

The idea that politicians - or even economists - can find the "sweet spot" where benefits exceed costs seems implausible. Indeed, where this inscrutable "sweet spot" might be will differ from place to place, time to time and industry to industry. Even if "we" decide that we know what the benefits and costs are and the benefits of any particular minimum wage increase exceeds the cost, "we" are not the ones that have to pay those costs. "We" are not the sixteen year old who doesn't get her first job at McDonald's or the grandmother who loses her job - or has her hours cut - at WalMart.

This is why increasing the minimum wage is an inefficient and counterproductive way to help low income workers. If we want to help the working poor, things like the earned income credit or food stamps seem less likely to have harmful effects.

Rosen says that minimum wage employers are big companies who are somehow immune from concerns about the marginal cost of labor exceeding its productivity. This, not to put too fine a point at it, is preposterous. fact, Rosen can't actually believe it. Even he would concede that there is an increase - say to $15 or $20 or $30/hr - at which the "productivity of labor" would be lead to declining - even catastrophically declining - rates of employment.

What he really means is that some more modest increase will not have a negative impact that he is not willing to accept. He seems to base this on an assumption that national chains, unike "Mom and Pop" stores, are either high margin businesses who can afford to lower their margins or have market power that would permit them to pass increases on to customers.

I doubt that. Wal-Mart, to take an example, is successful because it is a low margin business. It works because it has figured out how to provide acceptable (if lower quality) goods at astonishingly low prices. If you raise its costs, it will figure out other ways to lower them. This is because it has little margin to erode (as rich as they are, the Waltons are not going to keep open stores that lose money) and little room to raise prices - if Wal Mart charged Target prices, no one would go to Wal Mart. The latter's customer loyalty is rooted in little but price.

The idea that you can increase the cost of hiring low skilled workers without increasing the demand for them is like saying that you can raise the price of a good - even a popular one like an iPhone 6 - without dissuading some people from buying it. There are, I suppose, cases where this could be true - where, as economists say, demand is price inelastic - but it almost never is. I doubt that the demand for counter workers at Burger King or greeters at WalMart are among those cases.

For example, let's say that the minimum wage were increased to $ 10.10/hr. The cost of employing those who actually earn the current minimum - a relatively small number - would increase by almost 40%. Does anyone really believe that this would not decrease the demand for such workers? Is it even remotely likely that such an increase would not create powerful incentives for employers to find ways to employ fewer of them. It is those who actually earn minimum wage who are most likely to be hurt.

So why do our friends on the left work so hard to avoid the obvious. First, increasing the minimum wage is politically popular. People support it because it does not seem to cost them anything (unlike welfare benefits) and they imagine that the pinch will be felt by rich people who "can afford it." Second, those who lose when minimum wages arise are invisible. They tend to be people who did not get something - a job or increased hours - that they otherwise would have. No one knows who they are. Finally, for these reasons, its free "generosity." It is a chance to put on the cloth of righteous and appear magnanimous without having to pay for the privilege.

Don't believe me? Here's one more thing to ponder. Democrats applaud Mary Burke for announcing that she knows, as a business woman (someone who worked in the family business before apparently dropping out of the work force in 2007) that minimum wage hikes will not hurt business. Yet her family business - the same one from which she derived millions to spend on her campaign - shipped jobs to China - where it does not pay US minimum wages -  to lower labor costs.

I am not about to criticize Trek for that. But it lies ill in the mouth of Mary Burke to advocate for imposing costs on others that she and her family would not accept for themselves.

Burke and attack ads

Over at Right Wisconsin, I wrote about some of the legal issues presented by what appears to be an intentionally false ad ran by the Mary Burke campaign. Since I wrote, Politifact (certainly not in response) rated the ad as "false." As a First Amendment absolutist, I am not about to call for anyone to be prosecuted. While I think it's too simple to say that there is a constitutional right to lie, I think that the circumstances under which the state can punish or restrict political speech because it is false should be essentially nonexistent.

But the voters can take notice and what bothered me about the Burke ad is that it attacked Walker's character. It's one thing to lie or mislead about the budget, jobs, abortion and equal pay - Burke and her allies have done all of that - it's another to lie about your opponent as a person. It strikes me as a more serious form of sin.

The other thing that is noteworthy is the frequency with which one is able to point out that Walker attack ads are simply not true. No, Walker didn't abolish "equal pay" laws. We don't have a budget deficit. Job creation is not "worse" during the Walker administration (just the opposite if fact). Walker and the legislature have not mandated transvaginal ultrasounds.

What type of Governor would Mary Burke be if she thinks this type of thing is OK?

Some of this is undoubtedly the residue of Saul Alinsky's odious philosophy for the political left. If one is head over heels self righteous about using the coercive authority of the state to promote equality or some notion of fairness, hum drum concerns about things like honesty and intellectual integrity seem like fiddling while Rome burns - roadblocks to the revolution.

But I think that some of it is Mary Burke. I doubt that she is a bad person and I understand that politics ain't bean bag. But the larger problem is not what she does but that she is simply not there. She seems not only like an empty vessel, but  a spectator of, rather than participant in, her own campaign. There is no there there and some pretty bad things have filled the vacuum.

Of course, what kind of governor Mary Burke will be doesn't matter. As recent polls have shown, no one is voting for her. They are voting for or against Scott Walker. But here's the thing.

If Walker loses, we get Burke. How can anyone be comfortable with that? The best thing that could happen for the Democrats in this state is for her to lose. She will be a disaster that will lead to a Governor Vos, Fitzgerald Duffy or Vukmir in 2018. (I chose those names randomly so no offense intended for anyone else.) That GOP victory won't be permanent, but it may last for quite some time.

Cross posted at Purple Wisconsin

Monday, October 27, 2014

Bias and judging

Fellow Purple Wisconsin blogger Jay Miller raises the "appearance of partiality" in our judiciary, noting the way in which judges disagree on controversial issues such as voter ID. I sympathize with the reaction. It brings to mind an exchange I had with a student a few years ago.

I was teaching Civil Procedure.  We were discussing divisions in the Supreme Court on a somewhat arcane point about pleading when a student lost her religion. "These are some of the smartest lawyers in America," she said, "why can't they agree?"

"Welcome," I said, " to the legal profession."

Mr. Miller is a lawyer - so I do not attribute these attitudes to him - but he begins his post with what my favorite professor from the first year of law school, leftie Duncan Kennedy, called "lay naïveté." "The law is the law," they say.

And mostly it is. But sometimes it's not. There are cases in which the law is what legal academics call "underdetermined" (they say this because it sounds more sophisticated, and it sort of is, than saying "uncertain"). The idea is that established principles do not yield a clear answer. In such cases, judges have discretion and the way in which they exercise that discretion will reflect their pre-existing beliefs about the way in which the world works and how our Constitution, common law and rules of statutory interpretation should approach it.

Once you realize this, it's not hard to see how, say, Judges Rudy Randa and Lynn Adelman, would come to different conclusions. One judge is suspicious of progressive designs that seek to perfect the world. The other is drawn to them. Both will understand when they have no room to maneuver, but, when they think that they do, each will reach different results.

But that recognition can lead us to a different problem - what Professor Kennedy called "lay cynicism" - and to which Mr. Miller's post also alludes. Seeing that judges sometimes decide cases based on their political preferences, the public concludes that they always do. This is not true. The public thinks it to be so because it's attention is normally directed to cases in which these philosophical differences are more or less free to express themselves. This is a small fraction of all cases.

Mr. Miller says that he'd like to read a story about cases in which judges decide cases in a way that is contrary to their political preferences. One commenter to his post thought that Judge Richard Posner's vote against voter ID was an example because Posner is "famously conservative."

Actually, he's not. He may have been once, but Posner is now "famously liberal." I could say more about that. Posner has been, more than anything else, a pragmatist and relativist - someone who doesn't believe in overarching principles. There is value in such approach, but the danger is that it becomes a crass utilitarianism in which there is little difference between one's political predilections and the law. I would suggest that Judge Posner is an example of the way in which the line between law and politics blurs, rather than an exception.

But I would have no problem finding many examples of what Mr. Miller is looking for. In the recent Act 10 cases, Justice Patrick Crooks used his concurrence to express his support for unions. The opinion had little to do with the law and everything to do with Justice Crooks' politics. One might criticize him for using a judicial opinion to express those views, but he did vote to uphold Act 10. He did it because there really was no serious argument for Act 10's unconstitutionality.

I could go on. Wisconsin's liberal justices voted to reject a procedural challenge to the constitutional amendment banning same sex marriage. Its conservative justices voted to reject a challenge to the state's domestic partnership bill. Despite what you may hear, conservative justices vote to uphold the claims of criminal defendants and liberal justices vote to reject them.

On the United States Supreme Court, the Obama administration has lost an extraordinary number of unanimous decisions. The liberals - and, make no mistake about it, Justices Ginsburg, Breyer, Sotomajor and Kagan are well to the left of the legal center - have voted against it. Conservatives voted to dismiss review of the Ninth Circuit's decision striking down California's constitutional amendment limiting marriage to one man and one woman because they thought the petitioners lacked standing.

One commenter to Mr. Miller's post cites Judge Richard Posner, who he describes as "famously conservative" but who voted to overturn voter ID, etc. Judge Posner is not "famously conservative." He may have been once, but he has moved sharply to the left. Judge Posner was always a tentative - an somewhat unusual - "conservative." His judicial philosophy is largely a sort of utilitarianism that is highly susceptible to his individual assessment of the merits of the question before him. Thus when his political views change, the outcomes change.

In this, his underlying approach is quite compatible with Professor Kennedy, one of the giants of Critical Legal Studies and my left-wing (and quite good) torts teacher.

Cross posted at Purple Wisconsin

Thursday, October 16, 2014

Demands and reality

What is the first thing to know about the Wisconsin Jobs Now! and the demand that the Governor unilaterally raise the minimum wage using the "authority" supposedly conferred by Wis. Stat. sec. 104.02.

It seems a just a tad partisan and hypocritical.

I run a 501(c)(3) and I understand that, if your organization believes that left-leaning policy solutions are in the public interest, your activities will tend to lend comfort to Democrats and vice versa. That doesn't make your activities "partisan" in a way that runs afoul of the tax laws or that could conceivably trigger campaign finance regulation.

But sec. 104.02 has been on the books for a long time. Did WJN - or like minded groups (I'm not sure how long WJN has existed) - ever call on Governor Doyle to unilaterally raise the minimum wage? The minimum was raised in the Doyle years (as it was during the Thompson administration) but certainly not to the "family supporting" level that WJN calls for.

Here are a few things to keep in mind.

First, were Governor Walker or any other governor to use sec. 104.02 to unilaterally raise the minimum wage, there would be one serious lawsuit. Since enacting sec. 104.02, the legislature has subsequently fixed a minimum wage. For the Governor to conclude that increase is not "enough,"  would raise separation of powers. Even if that weren't so (or it could somehow be discarded, say, because it could be argued that the legislature really intends the Governor to supersede its enactments), sec. 104.02 does not articulate an intelligible principle on which a "living wage" could be determined. A wage conducive to some one's "welfare" is no guidance at all. If acted upon, sec. 104.02 would be an unconstitutional delegation of legislative power - and, no, the legislature can't decide to do that.

Second, it is unclear that, by its terms, sec. 104.02 could even be invoiced to raise the minimum wage. I don't doubt for a minute that $ 7.25/hr is not a lot of money. It would certainly be tough to support anyone but yourself on that income - and even a single person will struggle if that's all she has to live on.

But sec. 104.02 doesn't say that the requisite wage should be enough to support a family. To the contrary, the statute only says that a worker must be paid a wage conducive to "his or her" welfare. As little as it is, a full time job paying $ 7.25/hr results in an income above the poverty level for a single person. Government benefits will, moreover, significantly supplement those earnings. While it is certainly the case that a low-income worker may have children to support, sec. 104.02, even read for all its worth, does not address that problem.

Third, that brings us to the real problem with all of this. A minimum wage job - or even one that pays slightly above the minimum wage - won't buy a middle class standard of living.  But WJN and similar organizations believe that the only thing that stands in the way of more money for low wage workers is to demand it - to say "yes" to a more than 100% increase in the minimum wage as if it were some law of nature that every one's labor is worth at least to $15/hr to whoever has hired him.

But there isn't. If you prohibit anyone from working for less than $15/hr, there will be certainly be some  workers who benefit. Others will lose their jobs, see their hours reduced or never be hired in the first place. The return to labor saving technology will increase and more workers will be replaced by machine. Prices will go up and business start-ups will go down.

Proponents of minimum wage increases like to think that these adverse impacts will somehow be mitigated by the supposed "multiplier effect" of more spending by low income workers. But since the minimum wage imposes costs - on consumers, the newly unemployed and business owners - a minimum wage increase does not result in more spending. It just shifts it around. Maybe this "shifting around" of spending will result in more economic activity, but that seems unlikely.

Whether an increase in the minimum wage makes everyone - or even poor persons better off (most minimum wage workers are not poor) - is a question that requires recognition of its costs. WJN's campaign - which is nothing more than an assertion of the self evident - ignores them. Demanding the world you want does not make it possible.

Finally, I'll end with a observation for my fellow conservatives. We are right to note that a minimum wage increase might well hurt more people than it helps. We are right to say that distorting labor markets is not way to help poor people. But we ought to acknowledge that, once we recognize that the marginal value to an employer of certain workers will not exceed a relatively low level, we need to also recognize that this is not the same as the value of those workers as people. Some folks are going to need help - preferably on a temporary basis and from voluntary sources - so there must be some sort of safety net. Raising the minimum wage, however, does not appear to be a very good way to provide it.

Cross posted at Purple Wisconsin.

Wednesday, October 15, 2014

On not understanding school choice

One of the oddest arguments made about school choice is, as argued here, that it is a "subsidy for the wealthy ..." and somehow enriches ... well, I'm not sure who.

In a recent Milwaukee Journal Sentinel column, Christian Schneider pointed out that money sent to educate choice students in private schools do not necessarily "cost" the public schools anything. This is because, if the choice program were eliminated, not only tax dollars would return to the public schools. So would the students. Depending on what it would cost the public schools to educate these students, the end of choice would not benefit public schools at all.

Properly managed public schools should lose money only if the marginal cost of educating students lost to schools participating in the choice program exceeds the revenue lost as a result of their departure. Poorly managed public schools with large fixed costs - say districts with huge unfunded legacy costs paying substantial sums to persons who no longer work there or who have large entrenched bureaucracies - may lose money. But that's because those districts need state revenue in excess of the cost of educating current students to pay retiree payments or administrators now serving fewer students.

This is incontestably true, but seems to be a hard concept for choice critics to understand or, at least, to respond to. So the argument is often made that school choice is some sort of "privatization" (it is in one sense, but not in another) that "enriches" somebody. Foundations such as Bradley, Walton or DeVos that spend a lot of money to promote parental choice are said not to "care about" poor kids although, if they don't, just who they do care about it and why they are spending millions of dollars to direct money to poor families is unclear.

It is certainly not students and their families are enriched. In Wisconsin, a family's income must be at the poverty level to participate in the statewide program and no more that 3 x the poverty limit to participate in Milwaukee. It's certainly not school operators. Asking schools to educate kids for amounts well below the average spent in public schools is not a recipe for building wealth. (To be sure, one may be able to find examples of school operators misusing funds but public funds get misused as well. Sadly, such is human nature.)

One might make the argument that taxpayers have been "enriched" because children in choice schools receive an education for less than they do in public schools. Although evidence is limited, these kids seem to do at least as well if not better on some measures.

Cross posted at Purple Wisconsin.

Tuesday, October 14, 2014

What is an Attorney General to do?

So Brad Schimel is being criticized for saying that he would have felt it his duty to defend bans on interracial marriage in the 1950s.  I would not have answered the question the same way but the attacks reflect a misunderstanding of the law and the office that Schimel is running for. To his credit, he understands both. Here is what you need to know.

First, he was not asked if he would defend a ban on interracial marriage today. He certainly would not. Such a ban was declared to be unconstitutional in 1967. No legislature would pass it today and no competent lawyer would defend it. Indeed, virtually every lawyer under the age of 72 was trained after this issue was resolved. Thus, if you hear attacks on Schimel that say he "wants" to "go back" to the 1950s, they are either demagogic distortions or based in a misunderstanding of the question.

Second, the role of the Attorney General is not to defend only those laws that he or she disagrees with. It is not to act as a judge who weighs the arguments and decides which of them are right. His or her job is to defend the state as long as one can make a colorable legal argument in its favor.

So the question that was put to Stimuli was effectively this. Even though we all know that there is no colorable argument that a ban on interracial marriage is constitutional from any time between 1967 and today, what would you have done had you been asked to defend such a ban in the 1950s?

The easy thing would have been to say he would not have defended it. but Schimel - who certainly doesn't oppose interracial marriage - took the question seriously. He did so because he has criticized Susan Happ - who has essentially said that she won't defend any law that she thinks should be struck down - for failing to understand what the state's lawyer is supposed to do.

So what should Schimel have done in the 1950s?

In answering that question, his personal feelings - either as they actually exist in 2014 or as one imagines they might have existed in 1954 - are irrelevant. If he had been the AG in 1954 and asked to defend a ban on interracial marriage, he would have had to survey the law at the time and see if the state's position in favor of a ban was clearly unconstitutional. He would have found no Supreme Court decision holding that a ban on interracial marriage was unconstitutional. Unfortunately, he would have found an 1883 decision holding that it was not. So he would have had to decide whether he could make an argument that case should be overturned.

Maybe he would have concluded that he could. Maybe he would have decided, for example, that the decision in Brown v. Board of Education ended the doctrine of separate but equal in areas other than public schooling. Ironically, he might have been impeded in so concluding by the way in which then Chief Justice Warren wrote Brown. Warren, wrongly in my view, seemed to base his decision on social science evidence regarding the psychological impact of school segregation rather than a far more robust rule of no racial decision-making ever. (The problem, you can see, is that you risk losing your principle of racial equality if the psychological evidence turns out to be wrong or inapplicable in particular context.)

 As a constitutional lawyer, I might have said that I would have relied on Brown to argue that existing precedent should be overturned. If I wanted to be more careful, I might have refused to enter the way back machine and say what I would have done had I been born in 1906 instead of 1956.

As a prosecutor, Schimel answered the question by resort to the default position. He would have to defend the state's laws. This is mostly true. Whether it actually would have been true in 1954, would require an analysis that Schimel has not had an opportunity to make. His instincts were consistent with the nature of the job he is running for. His answer says nothing about his attitude toward race. It does say something about how he views the law and the job that he is seeking. And what it says about that actually reflects well on him.

Cross posted at Purple Wisconsin.

Sunday, October 05, 2014

Do they have wickedness thrust upon them?

Continuing the theme of seeing what we want to in art, we also saw Wicked at the Gershwin Theatre in New York. Lavish production combined with a heavily troweled musings on moral ambiguity. One of the themes is the way in which ineffectual political leaders (here, the Wizard) create scapegoats (Elphaba and the animals) to deflect attention from their own failings.

Standard commentary has drawn a parallel between demonization of the Witch of the West and talking goats (see what I mean by heavily troweled - one of the scapegoats literally is a goat) and the war on terror. The wizard is Bush, man !

But I see it differently. Maybe the Wizard is Obama and the scapegoats are Republicans and conservatives accused of crimes that they did not commit.
The silly meme of a “War on Women” (which is either uninformed or unserious) and the enflaming of racial passions as an electoral strategy seem like classic instances of scapegoating to me.

Nothing Obama has tried has worked very well. Six years into his administration, we are mired in a historically weak recovery. The best that can be said about the Affordable Care Act is that it might be a nonevent and, if so, only because most of its supposedly “essential” provisions have not been implemented and the cost of subsidies has not yet hit home. The reset on our relations with the world has done nothing but reverberate against us. Hopes for a transformative presidency – one that would heal the sick and still the waters – have been mocked by events.

So, just like a Wizard without magic, our President without hope must find some one to blame. This explains the hysteria – the sophistry – behind these themes. As Jonah Goldberg puts out, “women’s health” has become another word for abortion on demand. Respecting the views of a few employers with religious objections to paying for what they believe to be abortifacients becomes compelled breeding.

Criminal investigations – something that ought to be conducted dispassionately – become backdrops for race baiting.  Pay no attention to the failed programs behind the curtain.

Cross posted at Purple Wisconsin.