Friday, May 28, 2010

Leonard Pitts' Way Back Machine

Patrick McIlheran is properly put out by Leonard Pitts' column claiming that Rand Paul's musings about the Civil Rights Act prove, once again, that social conservatives are always "against us" - "us" being African Americans. Pitts cites arguments against the Act made by segregationists like Richard Russell which, in his view, are similar to Paul's defense of private property.

Pitts commits two errors - a category mistake and an anachronistic fallacy. First, it is not clear to me that Paul is a social conservative. He is pro-life, but there is a huge tension between social conservatives and libertarians. (The most preeminent social conservative in the academy, Robbie George, recently referred to libertarianism as "heresy.") More fundamentally, Richard Russell and other Southern Democrats who opposed the civil rights acts were not necessarily "conservatives" in the sense that we use the term today. They were often progressives who tended to support New Deal and Fair Deal policies. Russell, for example, had little or no concern about limiting the power of the federal government or respecting private property in other areas. He was a staunch supporter of the New Deal and considered his most important legislative accomplishment to be the National School Lunch Act of 1946.

Second, it makes little sense to speculate about what Sarah Palin or some other contemporary conservative "would have" done in 1964. Their political views have been formed during a time - and consistently with - a national consensus that racial discrimination is wrong. (In fact, opposition to affirmative action is an application of that principle, albeit not one that all of those who oppose racial discrimination accept.)These people are what they are. Pitts doesn't like them. But it is intellectually dishonest to smear them by imagining that, if they were different people born at a different time, they would have taken positions that they do not, in fact, take.

"Daddy, Did You Plug the Hole?"

The sad fact is that he can't. Just like George W. Bush couldn't stop a hurricane or prevent its foreseeable impact on a city that took no care for its own welfare, Barack Obama can't plug an oil leak that is almost a mile below the surface of the ocean.

In a sense, he is being hoisted on his own petard. There are few, if any things, that he has been willing to admit that the federal government cannot do. This was supposed to be the moment when we begin to "provide care for the sick and good jobs to the jobless" and "when the rise of the oceans began to slow." Instead, it was the moment when we couldn't "plug the damn hole."

Of course, our expectations of the federal government have become oversized without regard to Barack Obama. We think that the President runs the economy and that the federal government ought to bend the laws of nature.

The irony is, having bought into and doubled down by these expectations, the President's first impulse was to blame BP. It was BP's fault. BP's mess. BP's problem.

All of this may be true, but, as he seems to have belatedly recognized, it was his problem as well. The more that he seemed to be blaming BP, the more it seemed that he was not accepting his own responsibility. As Peggy Noonan points out, Katrina fed a certain narrative about President Bush, i.e., that he was clueless and slow to respond. The oil spill underscores a developing narrative about President Obama, i.e., that he is aloof and arrogant. His indifference to concerns about illegal immigration, health care and the rather enormous increase in government spending is exacerbated by the impatient and peevish way in which he responds to criticism. His hectoring and defensive press conference did not help. He should wait at least another 309 days before doing it again.

Thursday, May 27, 2010

Don't Cry for Me, Arlen Specter

It's hard to imagine a good resolution for the Democrats on the Joe Sestak mess. If Sestak is telling the truth, there may have been a crime committed. (Rick Hasen has an explanation here.)Very bad for the Obama administration. If he isn't (or exaggerated), very bad for Joe Sestak. What is certainly not going to work is for Sestak and the administration to continue to say no more. I'd look for something tomorrow afternoon.

Don't Hate Me Because I'm Beautiful

Today's self serving award goes to Madison blogger Emily Mills who writes:

Imagine the Democratic Party as Darwin's Galapagos finches, closely related but still wildly diverse and ever-evolving, and the Republican Party as, let's say, a clan of Neanderthals facing a choice between extinction or inter-breeding with Homo sapiens.

There's some brutal honesty for you.

Friday, May 21, 2010

Rand Paul was wrong even on libertarian terms

It was a political and substantive error for Rand Paul to criticize those portions of the Civil Rights Act (largely Titles II and VII) that applied to private business. It is wrong as a matter of constitutional principle. A unanimous Supreme Court upheld Congress' ability to prohibit discrimination in public accommodations in Heart of Atlanta Hotel v. United States. Even if you believe that its scope goes beyond what should be subject to the commerce power (perhaps even even as applied to Ollie's Barbecue, a segregated restaurant that was among the plaintiffs in Katzenbach v. McClung, argued along with Heart of Atlanta and decided the same way), it does not seem unreasonable to think that Congressional authority under section five of the Fourteenth Amendment either supports federal intervention (perhaps to counter the impact of Jim Crow laws) or suggests a rationale for a broader reading of Congressional authority in matters of racial discrimination. In any event, the matter is water under the bridge.

Nor it seems to me do typical libertarian arguments against the need for legal proscription of discrimination work in the context of the 1964 Act. The argument, drawing on the work of economists like Gary Becker, usually says that the market is the best antidote to discriminatory practices. Irrational discrimination - not hiring the best workers or accepting profitable business on the basis of race - comes at a cost. The discriminating party acts as if the cost of hiring, say, an African-American is higher than it is or that the price paid by an African American customer is lower than it is. Thus, discrimination is economically detrimental and, in a market without entry barriers, nondiscriminating competitors will have an advantage.

But putting aside normal market perfections, the theory won't work if there is a pervasive economic demand for discrimination, e.g., if white employees won't work with blacks or if white customers won't sit at a lunch counter with black customers. Then the cost of hiring or serving African Americans really is higher and the market won't help us.

Of course, those are conditions under which laws prohibiting discrimination are unlikely to be passed. We weren't likely to see anti-discrimination legislation get through the Alabama legislature in 1960. But, in 1964, the areas in which there was a pervasive demand for discrimination were part of a larger community in which discrimination was, although certainly not eliminated, more broadly disfavored such that a coalition to pass a law prohibiting it could be formed. Under those conditions, it seems, a law prohibiting discrimination would change market conditions in the south and reinforce the principle of nondiscrimination throughout the nation. (The law has expressive as well as regulatory impact.)

So, even if Rand Paul is correct to say, that, were Titles II and VII to disappear overnight, we wouldn't see much more discrimination in today's world, that wasn't the case in 1964.

Having said that, I do think there is some value in the observation that the more effective barriers to a discriminatory practice are public attitudes and the market (which, of course, reflects public attitudes). While I am certainly not an expert, I have been a lawyer for quite a while and it has also struck me that age discrimination laws seem much less effective than laws prohibiting other forms of discrimination. Many - perhaps even most of us - don't really believe that age discrimination is wrong in the same way that racial discrimination is. In the eyes of many, age seems to be a more relevant factor than race and assumptions based on age are more likely to be true. The same moral stigma does not apply. I'm not sure that the mere fact of legal prohibition has done much to change those underlying attitudes.

Cross posted at Marquette University Law School Faculty Blog and Point of Law

Wednesday, May 12, 2010

Some Suggested Questions for General Kagan

My Marquette University Law School colleague Peter Rofes has suggested, with tongue placed strategically in cheek, four questions for Supreme Court nominee Elena Kagan. While I enjoyed Peter's contribution, I have a few of my own. Any Republican Senator or his or her staff may borrow all or any of this.

"General Kagan, several years ago, a majority of the Court held that due process did not require impartiality in the sense of an absence of a view on or commitment to a particular view of the law. The absence of any opinions about what the law is or should be, in the view of the Court, would not be evidence of the absence of bias, but of the absence of qualification.

You have have written that confirmation hearings ought to include discussion of a nominee's "broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.” We on the Republican side of the aisle agree and, therefore, anticipate and look forward to your responses to the following questions.

First, significant growth in the size and scope of the federal government have once again raised questions about federalism and structural limitations (as opposed to those that inhere in individual rights such as freedom of speech or the right to equal protection of the laws) on the power of Congress.

Do you believe that there are any structural restrictions imposed on Congressional authority to impose a tax on persons who have failed to act in a way that Congress desires? If so, what are these limitations and, broadly speaking, how are they to be defined and applied? To cut to the chase, can Congress really impose a tax on people who fail to buy what Congress wants them to buy? Going further, apart from whatever protection might be provided by the Bill of Rights, can Congress impose a tax on persons whose way of life is said to affect commerce or impact a system of federal regulation in a way that is said to impose external costs?

Do you believe that the Commerce power enables Congress to regulate activity that is noncommercial in the sense that it does not consist of productive economic activity? Is there any sense in which the Commerce power might extend to noneconomic activity?

In short, General Kagan, are there any justiciable structural limits on the authority of Congress? Is there anything that is none of our business and what might that be?

Second, in connection with your nomination as Solicitor General, you stated that there is no federal constitutional right to same sex marriage. At the same time, you are reported to have said that traditional marriage laws, restricting marriage to unions between one man and woman, have no rational basis. Is the latter remark indeed your view? Would you care to explain why? If so, do you believe that traditional marriage laws may violate the Equal Protection Clause?

Putting it starkly, General Kagan, is it your view that those who believe that marriage ought to be limited to one man and one woman have no rational basis for that view and are, therefore, endorsing invidious discrimination?

Third, you have written that Justice Marshall's view that the judiciary ought to "show a special solicitude for the despised and disadvantaged" and "to safeguard the interests of people who had no other champion" is a "thing of glory."

Do you share that view? Do you believe that it is the role of the judiciary to act in a way that "evens" the political process? If so, is that role limited to the way in which the Court interprets enumerated rights and other textual provisions or might it extend to the recognition of unenumerated rights? Who are the "despised and disadvantaged" and persons "with no other champion?" Might they include the unborn and elderly? Could they be fundamentalist Christians and those with unpopular political views?

Put bluntly, is it the Court's role to interpret the Constitution in a way that politically empowers those that five justices believe do not have "enough" power ?

Fourth, in discussing a Supreme Court decision striking down a hate speech ordinance, you have written that it might be argued that "[i]f there is an ‘overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,' rather than skew, public discourse."

While we appreciate that you may not have been endorsing that view in your article, let's explore what you do believe.

Is it ever appropriate for the government to act in a way which is intended to "un-skew" public debate? If so, how does one go about determining what an "ideal state of public debate" might be? May the government intervene to correct "imbalances" in the discussion of issues in media outlets?

If government may work to "redistribute" or "balance" speech due, say, to an inequality of resources among speakers, is government itself subject to some obligation of neutrality or balance in the messages that it communicates or subsidizes? If not, how do you reconcile the permissability of state intervention to correct imbalances in private speech with the deliberate creation of imbalances by goverment speech?

May the government act to restrict speech based on the harm that may be caused by the message conveyed? If so, under what circumstances?

In other words, is it the role of the Court to "improve" or "balance" political discourse?

We look forward to your responses. There may be follow-ups."

Cross posted at Point of Law.

You Have the Right to Remain Silent

This morning I spent an hour debating David Cole of Georgetown on Wisconsin Public Radio. The question was whether we should read Miranda rights to suspected terrorists. Not a lot of sparks. I tend to believe that the public safety exception to Miranda should be broad enough to include (in some way that requires further definition) questioning undertaken to protect the public from an ongoing terrorist operation or to determine that there is no such ongoing operation. I don't agree that Miranda is completely off the table just because the suspected charge is terrorism. While Professor Cole wants a more immediate geographically bound exception that I'd draft, the devil is in the details.

On more fundamental level, it doesn't seem that deferring Miranda rights is among the most difficult legal trade-offs in the war on terror. Both its value to national security and its imposition on the rights of suspects is limited.

I would have preferred to discuss Professor Cole's views in Holder v. Humanitarian Law Project, a case currently pending before the Supreme Court in which he represents the plaintiffs.

The case presents, among other things, a facial challenge to 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization ...."

The case, which was argued on February 23, presents some interesting constitutional questions regarding the impact of the law on constitutionally protected speech and rights of association. It raises some fascinating question regarding whether it is possible to distinguish the "peaceful" and "violent" aims of terrorist organizations.

Professor Cole did manage to mention the case and to point out that the government had conceded at oral argument that the law could apply to filing an amicus brief.

It's true that the government's lawyer did say at oral argument (pp. 47-49; although the position was also taken below) that the statute might apply to filing an amicus brief for a terrorist organization if the organization itself was the amicus party (although not a brief that might take a position favorable to the position of such an organization.)

The government's lawyer? Solicitor General Elena Kagan. I'm not sure what to make of that, but I thought it was interesting.

Cross posted at Marquette University Law School Faculty Blog.

Monday, May 10, 2010

"Harvard," I spoke the word/ as if a wedding vow

Now that the President has nominated to the United States Supreme Court a woman whose signature (and not inconsiderable) accomplishment in life was to serve as Dean of the Harvard Law School, I expect (with apologies to Bob Dylan) that the name of my alma mater will be invoked reverently and frequently over the next month or so.

If for no other reason than to temper the vainglorious monster that beats in the chest of every son and daughter of Harvard, it is right and meet (see what I mean?) that we be reminded that having "Harvard" on your resume does not mean that you are immune from saying or writing ill considered things.

No, this is not about Elena Kagan (I'll get to her). Nor is it about me although I suppose I could find plenty of examples. My subject is Harvard law professor Noah Feldman who suggested in yesterday's New York Times that the next nominee to the U.S. Supreme Court should be a "young person" by which he appears to mean under 40. (Professor Feldman is 39.) He has been disappointed but the point still deserves a response.

Note that the point is not that we should be open to the possibility that someone under 40 might be as suitable nominee. No, we need someone who is under 40. In support of his call for chronological diversity, Professor Felman offers up - there is no better way to say it - every brainless conceit that the young have about the ways in which they are smarter and way cooler than their elders. The reason that I know is that I used to believe such things myself.

According to Professor Feldman, we need to get past Baby Boomers for whom the internet is a "new fangled contraption" (cute choice of words) as if Pa Kettle and his old lady don't surf the web for Woodstock memorabilia or text each other about scoring some weed (actually they'd call it pot) for the next Tom Petty concert. (If you don't believe me on the latter, just go to one of those things. Breathe and you'll be high by "I Won't Back Down.")

Young people, says Professor Feldman, have lived through "not only a technological revolution but a demographic one" and so are "comfortable with people who look and think differently."

Dude, please.

Who hasn't lived through some type of social or technical revolution? Remember the Civil Rights movement? Feminism? Those were ours*, whippersnapper! Boomers may not have been assigned "Heather Has Two Mommies" for extra credit, but I seem to recall (when I can recall anything - it gets hard) a number of university administration buildings being seized in conjunction with demands for black studies programs.

Remember the aforementioned Woodstock ? Boomers have been the Kings and Queens of flying (or letting the next guy fly) that freak flag for longer than Professor Feldman has been alive. Indeed, our singular contribution to the culture may have been the notion that virtue consists in never making a judgment about anyone or anything (other than, of course, our own conviction that we are ineluctably special.)

Professor Feldman reminds us that people over 40 voted for John McCain (another old guy!). Let's pick a justice from Barack Obama's America (but not one so ancient as the President himself). In this, I suppose he demonstrates that Gen X truly is comfortable with "the other." Boomers wouldn't trust anyone over 30.

As an example of the wisdom of youth, Professor Feldman offers us Justice William Douglas who is, in his view, an exemplar of the "openness, new ideas and energy" that comes with youth. Apparently borrowing from the the then new science of thaumatury, Justice Douglas, starting with nothing but penumbras and emanations, conjured - or (in Professor Feldman's circumlocution) "devised" - "the right of privacy that gave us reproductive freedom."**

Whatever one thinks of abortion rights, Justice Douglas (who, in fairness, did retain an energetic interest in young people as he aged) was famously unimpressed in any disciplining methodology other than the wisdom of William O. Douglas. Professor Feldman might have picked a better example. Let's try Clarence Thomas who was only a bit older than Douglas at the time of his confirmation.

Justice Thomas has also been an energetic proponent of unorthodox ideas. He would not have "devised," "materialized," or even "imagined" a constitutional right to abortion, but he has tried to revitalize structural limits on Congressional authority.

And, notwithstanding the obvious fun I'm having, therein lies my point. The distinctive views of youth tend to fade over time as we gradually accept responsibility for the world and stop defining ourselves in opposition to our elders. We become who we are. To use some examples from the legal academy, there are young scholars like Noah Feldman and Goodwin Liu. There are young scholars like Richard Garnett and John Yoo. The only thing they have in common as potential Supreme Court nominees (and I suspect that each would differ in significant ways from the other three) is that they would have a chance to serve for a very long time.

Being second half baby boomer and having been a precocious little nerd, I can recall (over the rumble of the ever lengthening freight train of years) when then President Richard Nixon dipped a goose feather into an ink well and signed the Twenty Seventh Amendment lowering the voting age to 18. Pundits said that he was signing a death warrant of the Republican Party because the rising and very groovy baby boomers were never going to vote for them. Some serious people - even an Ivy League law professor like Professor Feldman - thought that we were going to usher in a "revolution by consciousness" that would create a new way of life and a New Man. So did we.

And then, dag nabbit, we went and voted for John McCain. We had some revolutions (some might say counterrevolutions), but they were lead by people like Ronald Reagan, Margaret Thatcher and the Pope. Had we known, it would have seemed, at the time, like that famous stage announcement at Woodstock (" ... the brown acid that is circulating around us is not specifically too good ...") had come to pass.

In fairness, I admire Professor Feldman's work. I enjoyed his book Divided By God and have cited it and some work he has done on the history of the Establishment Clause quite extensively. He is an accomplished and productive scholar.

But, dude, think!

Cross posted at Point of Law and the Marquette University Law School Faculty Blog

* Actually, for people my age, it was our older brothers, sisters and cousins who tended to hog everything before we got a chance. But that's another story.

**Unless, if I may be permitted an editorial comment, one turns out to be the collateral damage of reproductive freedom.


Friday, May 07, 2010

Does This Stuff Fan the Flames?

In the wake of the huffing over the Arizona immigration law, I posted this on our faculty blog.

To provide a local twist, Christine Neumann-Ortiz, director of Voces de la Frontera and subject of a hagiographic profile in the Milwaukee Journal Sentinel, calls the Arizona law a product of the forces of hatred and bigotry that will lead to a “return to Jim Crow segregation and violence."

Given that the federal law mimics state law and allowing that a national community has a right to regulate the presence of - and even to exclude - outsiders, this is over the top.

And it isn't it also at least just a tad irresponsible. Tell me how that is different from the worst that we hear from Glenn Beck and Rush Limbaugh? I am sure that Ms. Neumann-Ortiz doesn't seen herself in this way. I appreciate that political operatives must talk smack.

But her comments are the political equivalent of "shut up." It makes the issue something it is not as reflected in the Phoenix Suns' odd adoption of "Los Suns" jerseys. To turn the issue into whether one is for or against Hispanics (the Suns are for!) is just as silly as saying that anyone who is concerned about the potential abuse of the law is indifferent to the need to control illegal entry into the country (the Suns hate Arizona!).

Obey Says Goodbye to All That

Republicans and Democrats differ about the retirement of Dave Obey. The former want to say that he read the handwriting on the wall and dropped out rather than, as Reince Priebus put it, have a knife fight at 72. The Democrats say that an old soldier, having passed health care, has decided it's time to fade away. For his part, Obey says that his "progressive district" will never elect a Republican.

My guess is that there is a little truth in all of it. It's hardly shocking for people in their seventies to retire. But the health care reform that was passed was not the reform Obey wanted and, whether or not it can be repealed, it is hardly a finished product. It would require ignoring the obvious to think that the Seventh wasn't potentially in play and Obey must have anticipated at least the possibility that the 112th Congress will be much more Republican than the 111th. A younger Obey may have decided to stay and fight to preserve - or to reshape - such important legislation.

Nor can he be sure that his seat will stay blue. The district is hardly firmly "progressive." Although President Obama carried it comfortably in 2008, it was a toss-up in the preceding two presidential elections. It may very well elect a Republican.

A more plausible scenario is that Obey was disappointed in what the Democrats, with extraordinary - perhaps even unprecedented majorities (large Democratic majorities in the past contained many more conservatives) - and understands that things are, from his perspective, going to go south for awhile. Rather than risk having a long career end in defeat or frustration, he decided to call it a career.

The legacy of that career is a huge mess. He may have, as he likes to say, outlasted George W. Bush, but the fiscal disaster that has been brewing ever since Mr. Obey went to Washington outlasted him.