I have a column up on the unbearable lightness of the John Doe here.
Yesterday afternoon I returned to Milwaukee and as soon as I hit the ground noted e-mails about a Journal Sentinel story saying that prosecutors had alleged that Scott Walker was at the center of a criminal scheme.
What happened?
Nothing. All we had was the release of old documents including a brief in which prosecutors tried to defend their investigation. They were not, strictly speaking, alleging anything but saying that they had reason to believe that conduct had occurred that might be a crime and that justified an unprecedented raid on a host of conservative groups.
But maybe that's just semantics. The larger problem is that two judges have said that the "criminal scheme" that the prosecutors think may have occurred is no crime at all. A very recent decision of the Seventh Circuit - while not directly addressing the question - seems to me to suggest that they were right. As George Mitchell says, to announce the prosecutors' plan to get Scott Walker has now been "unsealed" and alleges a criminal scheme is a bit like announcing that we have unsealed Dom Capers great plan to contain Colin Kaepernick - after Kaepernick has run right through that plan three times.
It is,of course, possible that Judges Randa and Peterson will turn out to be wrong and that my reading of the Seventh Circuit's recent decision won't go as far as I think it may, but - for right now - it doesn't seem all that likely that any prosecutors will ever actually be alleging any criminal scheme.
This is incredibly complex stuff resting on concepts like "express" and "issue advocacy," "political purpose" and "coordination" that have a technical purpose and, at least at various points in time, an indefinite meaning. We can debate what those ought to mean. But the real abuse here may have been to take a real difference of opinion here about where the lines are regarding the financing of political speech and criminalizing it.
I get that knowing violations of the campaign finance laws are crimes but, when we are talking about constitutionally protected activity, very clear restrictions are absolutely essential. For example, the e-mail from Scott Walker to Karl Rove could not have reflected coordination between candidate Walker and the independent groups. It was written in 2011 and referred to Senate recalls, not any race in which Walker was a candiate. The argument that Walker wanted these candidates to win so that what helped them could be considered a contribution to him is truly unprecedented.
How you feel about that should not turn on whether you like Scott Walker or not. What the Democrats - and this was started by Democrats - tried to do to Walker could just as easily be done by a Republican DA to a Democratic elected official. Politics ain't bean bag, to be sure, but it also shouldn't be waged by armed people in windbreakers.
Cross posted at Purple Wisconsin
Friday, June 20, 2014
Monday, June 16, 2014
Reaching across the fence Monday
In honor of yesterday's celebration of Father's Day (warning; picture of me looking like one of the heavies on Miami Vice) and this week's arrival of summer, let's make some softer observations.
Yesterday's Journal Sentinel had a profile on Chris Ahmuty of the ACLU. Have only met him once; seemed like a nice guy. I don't always disagree with the ACLU. i think that they have a left wing view of civil rights that tends to privilege equality over liberty. I sometimes refer to WILL as the anti-ACLU, but that's not quite right, We agree on a variety of, in particular, First and Fourth Amendment issues.
In any event, some of the comments complained about the Journal Sentinel doing a "puff piece" on a liberal. The paper would never do that for a conservative.
It would be less than gracious for me not to point out that it has done at least one - of me. I think that's what Bill Glauber does; he tries to present people on their own terms. You can call these puff pieces but I think there's some value in that. It probably does conservatives good to see that, say, Chris Ahmuty is not a monster. It's good for liberals to see that I'm not either. (At least not all the time.)
In another article, liberal lawyer Lester Pines said that attorney general candidates who said that they would not defend laws that they thought were unconstitutional were wrong. An attorney general should decline to defend state law only if he or she thinks that the argument in favor of a law's constitutionality is frivolous.
I have debated Lester on a number of things and been on opposite sides of litigation a few times. I like him. I disagree with him a lot. Here - he's right.
Let's use an example to illustrate the difference. Say the state passed a law that eliminated the privilege against self incrimination or that allowed local district attorneys to bring actions to prohibit or punish "offensive" speech. No reasonable lawyer could conclude that these laws might be constitutional. An attorney general should not defend them.
But states rarely pass such laws. People should understand that an AG is not free to pick and choose which laws she'll defend. She will, from time to time, have to defend laws that she disagrees with.
In fact, refusing to defend a law can create unanticipated problems. Say you are in favor of extending civil marriage to same sex couples. You believe that the refusal to do so is unconstitutional. Don't you wish that the United Supreme Court had resolved that issue?
It might have resolved it a year ago in the challenge to California's ban of same sex marriage, but it could not. It could not because the California attorney general and Governor would not defend and the Court did not believe that anyone else had standing to do so. I think the latter decision was wrong but it is quite possible that the issue could have been resolved a year ago - perhaps in favor of same sex marriage - had the elected officials of California done their job.
Cross posted at Purple Wisconsin
Yesterday's Journal Sentinel had a profile on Chris Ahmuty of the ACLU. Have only met him once; seemed like a nice guy. I don't always disagree with the ACLU. i think that they have a left wing view of civil rights that tends to privilege equality over liberty. I sometimes refer to WILL as the anti-ACLU, but that's not quite right, We agree on a variety of, in particular, First and Fourth Amendment issues.
In any event, some of the comments complained about the Journal Sentinel doing a "puff piece" on a liberal. The paper would never do that for a conservative.
It would be less than gracious for me not to point out that it has done at least one - of me. I think that's what Bill Glauber does; he tries to present people on their own terms. You can call these puff pieces but I think there's some value in that. It probably does conservatives good to see that, say, Chris Ahmuty is not a monster. It's good for liberals to see that I'm not either. (At least not all the time.)
In another article, liberal lawyer Lester Pines said that attorney general candidates who said that they would not defend laws that they thought were unconstitutional were wrong. An attorney general should decline to defend state law only if he or she thinks that the argument in favor of a law's constitutionality is frivolous.
I have debated Lester on a number of things and been on opposite sides of litigation a few times. I like him. I disagree with him a lot. Here - he's right.
Let's use an example to illustrate the difference. Say the state passed a law that eliminated the privilege against self incrimination or that allowed local district attorneys to bring actions to prohibit or punish "offensive" speech. No reasonable lawyer could conclude that these laws might be constitutional. An attorney general should not defend them.
But states rarely pass such laws. People should understand that an AG is not free to pick and choose which laws she'll defend. She will, from time to time, have to defend laws that she disagrees with.
In fact, refusing to defend a law can create unanticipated problems. Say you are in favor of extending civil marriage to same sex couples. You believe that the refusal to do so is unconstitutional. Don't you wish that the United Supreme Court had resolved that issue?
It might have resolved it a year ago in the challenge to California's ban of same sex marriage, but it could not. It could not because the California attorney general and Governor would not defend and the Court did not believe that anyone else had standing to do so. I think the latter decision was wrong but it is quite possible that the issue could have been resolved a year ago - perhaps in favor of same sex marriage - had the elected officials of California done their job.
Cross posted at Purple Wisconsin
Thursday, June 12, 2014
Politifact misses again
I thought the recent Politifact on school choice was bad. The fact checkers concluded that, even though the only evidence that exists shows that participation in the choice program improves student learning, Mary Burke's statement that there was "no evidence" to that effect was "mostly true."
We can argue about whether the evidence of improvement is robust or whether the improvement that was found is "enough," but to say that there is "no evidence" is wrong.
One of last week's Politifacts tests the Paul Ryan's claim that Medicare is going broke and that its trust fund will run out in nine years.
The verdict: Mostly false.
The truth: He's right.
Let me explain. Of course, Ryan was not saying that the trust fund would file for bankruptcy protection. It could not so so. He's using the term in its general rather legal term.
A common definition of bankruptcy equates it with insolvency, i.e., a person is "bankrupt" when he or she will be unable to pay his or her debts as they come due. Note that this does not mean that a "bankrupt' person is "penniless" or unable to pay some of her debts.
Medicare is an entitlement program. Congress doesn't appropriate a limited amount for it to spend; it mandates that certain benefits be paid out. Thus, Medicare is obligated to provide specified benefits to eligible persons - no matter what the aggregate cost.
It is undisputed that, under current projections, the amount of revenue currently generated by Medicare taxes and premiums and held in trust for the program (actually nothing is really held in trust but that's another matter) will eventually be insufficient to meet the current legal obligations - the "debts" if you will - of Medicare in 2026.
In other words, Medicare will be unable to pay its bills as they come due. It will be "insolvent." It will, by a common dictionary definition, be bankrupt.
So how does Politifact get around this?
The first move is to say that current law provides for automatic transfers from general - non-Medicare - revenue to cover the program's part B obligations. I still think it's fair to say that Medicare Part B itself will become bankrupt and therefore will need a bailout. That the bailout is already written into the law is certainly a pertinent fact, but it does not change that.
But even that argument does not work for Medicare Part A. There is no automatic bailout there, so what does Politifact say?
First, it points out that - at least initially - Medicare will still be able to pay most of its bills. (As time goes on, the percentage that it will be able to cover will become less and less). But that doesn't mean that the program is not insolvent and, in common parlance, bankrupt. The YMCA just went into bankruptcy. It could pay most of its bills.
Second, it argues that Congress will certainly do something - either reduce coverage or increase taxes - so the program will continue. As a matter of political prediction, this is probably so. (As someone who will be eligible for Medicare in 2026, I certainly hope it is.)
But to say that someone or something that is going bankrupt - becoming insolvent - is likely to be bailed out either by an infusion of revenue or a reduction in obligations does not change the fact that that they are going bankrupt and will require such an intervention. Indeed, the whole point of Ryan's comment was to illustrate that just such an intervention is required, i.e., that something must be done.
Politifact is wrong, in any event, to assume that Congress will "certainly" reduce spending. In fact, Ryan proposed that. He got accused of wanting to roll Grandma off the cliff. Remember, guys?
At worst, Ryan has made a true statement that should be tempered by the recognition that we can fix the problem. It is, of course, silly to criticize him for that since he's been banging on about "fixing" the problem for his entire career. In other words, he has repeatedly recognized both the problem and the need for a fix.
Politifact Wisconsin takes cover in the fact that two other fact checkers have engaged in the same manuevers. In general, I have thought that the local Politifact writers have been better than the national crowd although it is incompletely inconsistent in its use of the silly Truth-O-Meter emoticon.
But this one is itself a whopper.
We can argue about whether the evidence of improvement is robust or whether the improvement that was found is "enough," but to say that there is "no evidence" is wrong.
One of last week's Politifacts tests the Paul Ryan's claim that Medicare is going broke and that its trust fund will run out in nine years.
The verdict: Mostly false.
The truth: He's right.
Let me explain. Of course, Ryan was not saying that the trust fund would file for bankruptcy protection. It could not so so. He's using the term in its general rather legal term.
A common definition of bankruptcy equates it with insolvency, i.e., a person is "bankrupt" when he or she will be unable to pay his or her debts as they come due. Note that this does not mean that a "bankrupt' person is "penniless" or unable to pay some of her debts.
Medicare is an entitlement program. Congress doesn't appropriate a limited amount for it to spend; it mandates that certain benefits be paid out. Thus, Medicare is obligated to provide specified benefits to eligible persons - no matter what the aggregate cost.
It is undisputed that, under current projections, the amount of revenue currently generated by Medicare taxes and premiums and held in trust for the program (actually nothing is really held in trust but that's another matter) will eventually be insufficient to meet the current legal obligations - the "debts" if you will - of Medicare in 2026.
In other words, Medicare will be unable to pay its bills as they come due. It will be "insolvent." It will, by a common dictionary definition, be bankrupt.
So how does Politifact get around this?
The first move is to say that current law provides for automatic transfers from general - non-Medicare - revenue to cover the program's part B obligations. I still think it's fair to say that Medicare Part B itself will become bankrupt and therefore will need a bailout. That the bailout is already written into the law is certainly a pertinent fact, but it does not change that.
But even that argument does not work for Medicare Part A. There is no automatic bailout there, so what does Politifact say?
First, it points out that - at least initially - Medicare will still be able to pay most of its bills. (As time goes on, the percentage that it will be able to cover will become less and less). But that doesn't mean that the program is not insolvent and, in common parlance, bankrupt. The YMCA just went into bankruptcy. It could pay most of its bills.
Second, it argues that Congress will certainly do something - either reduce coverage or increase taxes - so the program will continue. As a matter of political prediction, this is probably so. (As someone who will be eligible for Medicare in 2026, I certainly hope it is.)
But to say that someone or something that is going bankrupt - becoming insolvent - is likely to be bailed out either by an infusion of revenue or a reduction in obligations does not change the fact that that they are going bankrupt and will require such an intervention. Indeed, the whole point of Ryan's comment was to illustrate that just such an intervention is required, i.e., that something must be done.
Politifact is wrong, in any event, to assume that Congress will "certainly" reduce spending. In fact, Ryan proposed that. He got accused of wanting to roll Grandma off the cliff. Remember, guys?
At worst, Ryan has made a true statement that should be tempered by the recognition that we can fix the problem. It is, of course, silly to criticize him for that since he's been banging on about "fixing" the problem for his entire career. In other words, he has repeatedly recognized both the problem and the need for a fix.
Politifact Wisconsin takes cover in the fact that two other fact checkers have engaged in the same manuevers. In general, I have thought that the local Politifact writers have been better than the national crowd although it is incompletely inconsistent in its use of the silly Truth-O-Meter emoticon.
But this one is itself a whopper.
Wednesday, June 11, 2014
On Wolf v. Walker
I have an op-ed in this morning's Milwaukee Journal Sentinel on the merits of resolving the same sex marriage controversy through judicial means. This week - at Right Wisconsin - I have more extended commentary on the likelihood that Judge Crabb's decision will be upheld (no one can really know) and some observations about claiming that there is a fundamental right to have same sex unions included within civil marriage or that the failure to do so denies the equal protection of the laws.
Ironically, however, I wonder if judicial resolution of the matter does not help the Republican Party. If public opinion is moving to be in favor of extending civil marriage to gays and lesbians (polls suggest so) and if opposition hurts Republicans (not so clear), then removing the option to do something about it effectively removes it as an issue. Republicans can more or less forget about it (because there is nothing they can do) without upsetting the social conservative base (because there is nothing that they can do).
The comments to the op-ed aren't very persuasive. Yes, I understand that other judges have come out the same way. As I pointed out at Right Wisconsin, the decision in Windsor provides some support for that result. The fact remains that it seems like the Supreme Court is headed for a 5-4 decision one way or the other.
In any event, to say that some judges have ruled in a particular way does not mean that they got it right. One commenter points me to section 1 of the Fourteenth Amendment (but I referred to it as the potential basis for a constitutional mandate) and others say that the majority should not vote on the civil rights of the minority. That is true. I agree that the Constitution sometimes requires that judges strike down laws. I said exactly that and, in fact, I think there are some areas where judges have been far too deferential.
But that doesn't tell us what those civil rights are and, unlike the rights of, say, free speech and free religion, marriage or personal autonomy are not to be found in the Constitution.
To draw analogies to race is sloppy. First, it is clear that the Fourteenth Amendment was about anything, it was about race. Moving beyond that requires additional work. Second, deciding that sexual orientation is just like race for purposes of marriage depends on what you think marriage id for. If you believe that it is just about "love, then you may well find that they are analogous. If you think otherwise, then you may find the analogy inapt.
So if you have to answer the big questions first. You have to decide what marriage is for.
On the one hand: Is marriage a way to establish permanent and exclusive relationships as the norm for heterosexual couples ? Has it been structured to negotiate differences between the way in which men and women experience their sexuality in order to maximize the likelihood that children will be raised in intact homes headed by their biological mothers and fathers? Do we think that gender does not matter with respect to the needs, structure and purposes of intimate relationships? Do we believe that extending civil marriage to same sex couples who cannot procreate with each other will really have no effect on the legal contruct and culural understanding of marriage? Is it really the case that all forms of family are equal and we should not believe that children have a right, if possible, to be raised by their biological mothers and fathers?
On the other: Is it really too late - after no fault divorce - to preserve this view of marriage? Would the extension of civil marriage to same sex couples have any incremental impact on the public understanding or marriage? Would same sex couples simply mimic the norms and expectations that have surrounded marriage as we know it? Do we even want to preserve marriage in that form? Even if we do, is it something that law can accomplish?
These are questions on which reasonable people can and do differ. They are not resolved by name calling or rhetoric. We haven't been doing a very good job of discussing them.
But I still don't believe that judges are in a position to resolve these questions. We have to do it.
Ironically, however, I wonder if judicial resolution of the matter does not help the Republican Party. If public opinion is moving to be in favor of extending civil marriage to gays and lesbians (polls suggest so) and if opposition hurts Republicans (not so clear), then removing the option to do something about it effectively removes it as an issue. Republicans can more or less forget about it (because there is nothing they can do) without upsetting the social conservative base (because there is nothing that they can do).
The comments to the op-ed aren't very persuasive. Yes, I understand that other judges have come out the same way. As I pointed out at Right Wisconsin, the decision in Windsor provides some support for that result. The fact remains that it seems like the Supreme Court is headed for a 5-4 decision one way or the other.
In any event, to say that some judges have ruled in a particular way does not mean that they got it right. One commenter points me to section 1 of the Fourteenth Amendment (but I referred to it as the potential basis for a constitutional mandate) and others say that the majority should not vote on the civil rights of the minority. That is true. I agree that the Constitution sometimes requires that judges strike down laws. I said exactly that and, in fact, I think there are some areas where judges have been far too deferential.
But that doesn't tell us what those civil rights are and, unlike the rights of, say, free speech and free religion, marriage or personal autonomy are not to be found in the Constitution.
To draw analogies to race is sloppy. First, it is clear that the Fourteenth Amendment was about anything, it was about race. Moving beyond that requires additional work. Second, deciding that sexual orientation is just like race for purposes of marriage depends on what you think marriage id for. If you believe that it is just about "love, then you may well find that they are analogous. If you think otherwise, then you may find the analogy inapt.
So if you have to answer the big questions first. You have to decide what marriage is for.
On the one hand: Is marriage a way to establish permanent and exclusive relationships as the norm for heterosexual couples ? Has it been structured to negotiate differences between the way in which men and women experience their sexuality in order to maximize the likelihood that children will be raised in intact homes headed by their biological mothers and fathers? Do we think that gender does not matter with respect to the needs, structure and purposes of intimate relationships? Do we believe that extending civil marriage to same sex couples who cannot procreate with each other will really have no effect on the legal contruct and culural understanding of marriage? Is it really the case that all forms of family are equal and we should not believe that children have a right, if possible, to be raised by their biological mothers and fathers?
On the other: Is it really too late - after no fault divorce - to preserve this view of marriage? Would the extension of civil marriage to same sex couples have any incremental impact on the public understanding or marriage? Would same sex couples simply mimic the norms and expectations that have surrounded marriage as we know it? Do we even want to preserve marriage in that form? Even if we do, is it something that law can accomplish?
These are questions on which reasonable people can and do differ. They are not resolved by name calling or rhetoric. We haven't been doing a very good job of discussing them.
But I still don't believe that judges are in a position to resolve these questions. We have to do it.
Saturday, June 07, 2014
Penzey's and prejudice
So here's a little story about public discourse in Milwaukee.
There's a fellow named Bill Penzey. He owns a spice business and is apparently given to putting his political opinions in cloying newsletters that he calls a "Note from Bill. A recent "Note" got a bit of attention because it seemed to attack most of the people in Waukesha County.
Penzey thinks that Waukesha's growth was fueled on racism - on "white flight" from "diversity" - and that this its current political preferences are a product of this. He suggests that the dominant view in Waukesha somehow represents a "different attitude" that is divorced from its historic commitment to abolitionism - as if there was some continuity between abolitionists and modern day liberals (who often have no problem with treating people based on the color of their skin).
Alex Runner - who hates him some Waukesha - wants to go to bat for this guy. He can't stand the fact that Purple Wisconsin blogger Ashley Schultz let Penzey have it.*
That surprises me. I would think that anyone who wants to start a thoughtful and unencumbered dialogue about the relationship with between the city and the suburbs would see Penzey's "Note" as a sophomoric equivalent of "go east of 124th Street and you'll die" view that I think is too prevalent on the other side of the debate.
But apparently I'm wrong, so let's review what's wrong with the Note from Bill.
Penzey begins by invoking a Milwaukee that never existed. He says that Milwaukee's government was "progressive" in the '50s and decided to" let diversity in." While it is true that there was a large influx of African Americans in the immediate post war period, it is hardly the case that Milwaukee's then-socialist government "embraced" them.
The new arrivals were restricted to the near North side. Now I think that there are lots of reasons to expect new arrivals to cluster - and over time - to stay together, but my friends on the left don't agree. For them, it is worth noting that this "progressive" city government never enacted a fair housing ordinance. That did not happen until 1968 - eight years after they left power. If someone "let diversity in," it wasn't Milwaukee's "progressive" socialists. (Nor did the socialists lay the groundwork for the "rediscovery" of Milwaukee sixty years later, but that's another topic.)
Penzey then goes on to suggest that people left Milwaukee because they did not like this "change" to greater diversity. Surely they would have stayed in their aging bungalows and duplexes and resisted the temptation of green space and newer homes if not for the presence of black people miles away from where most of them lived. No, these people who headed for Waukesha were "not ready" for Milwaukee's enlightenment and, sadly, most (but not all) of their children and grandchildren still aren't.
In response, Ms. Schultz suggested that maybe some of them really did want larger yards and a bit more quiet. Perhaps they wanted good schools and less crime.
Alex Runner is having none of that. He writes:
It's not amazing at all. We shouldn't be surprised that the post war period saw folks moving out of the city without regard to race. Your average American family couldn't have dreamed of a three to four bedroom house on a half to one acre plot of land in an area with good schools and little crime in 1945. Since then, there has been a substantial increase in household wealth with more families owning cars and larger houses. Expressways made it easier to move around the country than it was before. (I know, I know. Mobility is bad.)
In fact, the city had to use residency requirements to prohibit its own employees from decamping. Oh, this desire is ticky tacky, I know, but given a choice, many people - even many minorities - prefer a home of their own with lots of green around it. They want these things, moreover, without regard to the color of the person living next door. Indeed, when I was growing up at 70th and Forest Home, the saying was that Franklin was where you moved when your Dad made foreman.
Nor can the express desire to escape the "problems" of the city be reduced to concerns about race. I know lots of people who wanted to live in the city. They were on board with diversity and wanted to be urban pioneers. But, in the end, they simply couldn't abide crime and poor schools. They weren't willing to sacrifice their families for their politics. They each became the fabled liberal who has been mugged.
This is not to say that no right thinking person would ever want to stay in Milwaukee. It has many charms. But you don't have to be a racist to prefer the suburbs. (Indeed, it'd be interesting to know where Penzey lives. Is it in an area from which the middle class has fled ?)
Penzey then equates this rejection of diversity with a failure to embrace the platform of the Democratic party. In his view, "continued defunding of inner city schools, the congressman's talk of bell curves and lack of effort on the part of those who live in the city, and the legislature's talk of secession" is nothing more than a message that America is only for some and not for others. This, he said, could only be a way to get votes in Waukesha.
Maybe it would be if any of it had ever happened. Inner city schools have not been defunded. In fact, spending has steadily increased over the years. No "congressman" (he means Paul Ryan) spoke of bell curves or even, strictly speaking, lack of effort. Ryan spoke about disconnection from the world of work and the cultural disarray that frustrates policy. So do many black leaders.
Ryan did cite the work of Charles Murray (and liberals like Bill Putnam) in support of his views. Murray did write a misunderstood and misrepresented, albeit flawed, book called The Bell Curve. But Ryan was referring to his more recent work, Coming Apart, that tracks the relationship between cultural decline and poverty in white communities. The Wisconsin legislature hasn't "talked" of secession - other than to belittle the idea.
But even if Penzey had accurately described the world, failure to want to spend even more money on schools that have not improved as they have received more and more money is not be racist. Recognition that things like inner city crime and fatherless kids make it all but impossible for any intervention on the part of the government to succeed is not, as Penzey says, a claim that America exists only for some. It is a difference of opinion on what it will take to make its promise a reality for everyone.
There are more things in heaven and earth than are dreamt of in Bill Penzey's philosophy.
Indeed, Penzey seems to be ripe for the same unthinking criticism he levies at others. I note that his company's stores are all in ... the suburbs !
Has he drawn an iron ring around Milwaukee and refused to bring his coriander across it?
Mr. Penzey, bring your spices to the masses on the other side of the digital divide who cannot order them online. Mr. Penzey, tear down that wall! (I know that Penzey's wants to build a plant in Northridge. But that's a pretty good location for an industrial use given its relative proximity to the same evil expressway that facilitated white flight. Freeways also help fill those online sales of oregano.)
The point is not that Penzey is a closet racist. It is to remind him that perhaps he should extend to others the presumption of good faith that I am sure he expects for himself.
I wouldn't endorse a boycott of Penzey's and its owner has a right to his opinion. But here's the thing.
Bill Penzey chose to insult almost an entire county. That seems uninformed and ungenerous. In its own way, it is a failure to embrace diversity and reflects fear of "the other" - defined here as people that don't share his junior high liberalism. If people don't want to buy his spices, he shouldn't be surprised.
Cooks can change the world in more ways than one.
* Full disclosure: I was recently elected to the board of Ms. Schultz' employer, St. Anthony's School. I believe that I recently met her, but I don't know her.
There's a fellow named Bill Penzey. He owns a spice business and is apparently given to putting his political opinions in cloying newsletters that he calls a "Note from Bill. A recent "Note" got a bit of attention because it seemed to attack most of the people in Waukesha County.
Penzey thinks that Waukesha's growth was fueled on racism - on "white flight" from "diversity" - and that this its current political preferences are a product of this. He suggests that the dominant view in Waukesha somehow represents a "different attitude" that is divorced from its historic commitment to abolitionism - as if there was some continuity between abolitionists and modern day liberals (who often have no problem with treating people based on the color of their skin).
Alex Runner - who hates him some Waukesha - wants to go to bat for this guy. He can't stand the fact that Purple Wisconsin blogger Ashley Schultz let Penzey have it.*
That surprises me. I would think that anyone who wants to start a thoughtful and unencumbered dialogue about the relationship with between the city and the suburbs would see Penzey's "Note" as a sophomoric equivalent of "go east of 124th Street and you'll die" view that I think is too prevalent on the other side of the debate.
But apparently I'm wrong, so let's review what's wrong with the Note from Bill.
Penzey begins by invoking a Milwaukee that never existed. He says that Milwaukee's government was "progressive" in the '50s and decided to" let diversity in." While it is true that there was a large influx of African Americans in the immediate post war period, it is hardly the case that Milwaukee's then-socialist government "embraced" them.
The new arrivals were restricted to the near North side. Now I think that there are lots of reasons to expect new arrivals to cluster - and over time - to stay together, but my friends on the left don't agree. For them, it is worth noting that this "progressive" city government never enacted a fair housing ordinance. That did not happen until 1968 - eight years after they left power. If someone "let diversity in," it wasn't Milwaukee's "progressive" socialists. (Nor did the socialists lay the groundwork for the "rediscovery" of Milwaukee sixty years later, but that's another topic.)
Penzey then goes on to suggest that people left Milwaukee because they did not like this "change" to greater diversity. Surely they would have stayed in their aging bungalows and duplexes and resisted the temptation of green space and newer homes if not for the presence of black people miles away from where most of them lived. No, these people who headed for Waukesha were "not ready" for Milwaukee's enlightenment and, sadly, most (but not all) of their children and grandchildren still aren't.
In response, Ms. Schultz suggested that maybe some of them really did want larger yards and a bit more quiet. Perhaps they wanted good schools and less crime.
Alex Runner is having none of that. He writes:
Schultz admits that her parents partook in the flight from Milwaukee, saying that they simply wanted some "quiet" and "more land." In other words, it was just a coincidence that all the white people realized their yards were too small at the exact same time minorities started moving in. Amazing!
It's not amazing at all. We shouldn't be surprised that the post war period saw folks moving out of the city without regard to race. Your average American family couldn't have dreamed of a three to four bedroom house on a half to one acre plot of land in an area with good schools and little crime in 1945. Since then, there has been a substantial increase in household wealth with more families owning cars and larger houses. Expressways made it easier to move around the country than it was before. (I know, I know. Mobility is bad.)
In fact, the city had to use residency requirements to prohibit its own employees from decamping. Oh, this desire is ticky tacky, I know, but given a choice, many people - even many minorities - prefer a home of their own with lots of green around it. They want these things, moreover, without regard to the color of the person living next door. Indeed, when I was growing up at 70th and Forest Home, the saying was that Franklin was where you moved when your Dad made foreman.
Nor can the express desire to escape the "problems" of the city be reduced to concerns about race. I know lots of people who wanted to live in the city. They were on board with diversity and wanted to be urban pioneers. But, in the end, they simply couldn't abide crime and poor schools. They weren't willing to sacrifice their families for their politics. They each became the fabled liberal who has been mugged.
This is not to say that no right thinking person would ever want to stay in Milwaukee. It has many charms. But you don't have to be a racist to prefer the suburbs. (Indeed, it'd be interesting to know where Penzey lives. Is it in an area from which the middle class has fled ?)
Penzey then equates this rejection of diversity with a failure to embrace the platform of the Democratic party. In his view, "continued defunding of inner city schools, the congressman's talk of bell curves and lack of effort on the part of those who live in the city, and the legislature's talk of secession" is nothing more than a message that America is only for some and not for others. This, he said, could only be a way to get votes in Waukesha.
Maybe it would be if any of it had ever happened. Inner city schools have not been defunded. In fact, spending has steadily increased over the years. No "congressman" (he means Paul Ryan) spoke of bell curves or even, strictly speaking, lack of effort. Ryan spoke about disconnection from the world of work and the cultural disarray that frustrates policy. So do many black leaders.
Ryan did cite the work of Charles Murray (and liberals like Bill Putnam) in support of his views. Murray did write a misunderstood and misrepresented, albeit flawed, book called The Bell Curve. But Ryan was referring to his more recent work, Coming Apart, that tracks the relationship between cultural decline and poverty in white communities. The Wisconsin legislature hasn't "talked" of secession - other than to belittle the idea.
But even if Penzey had accurately described the world, failure to want to spend even more money on schools that have not improved as they have received more and more money is not be racist. Recognition that things like inner city crime and fatherless kids make it all but impossible for any intervention on the part of the government to succeed is not, as Penzey says, a claim that America exists only for some. It is a difference of opinion on what it will take to make its promise a reality for everyone.
There are more things in heaven and earth than are dreamt of in Bill Penzey's philosophy.
Indeed, Penzey seems to be ripe for the same unthinking criticism he levies at others. I note that his company's stores are all in ... the suburbs !
Has he drawn an iron ring around Milwaukee and refused to bring his coriander across it?
Mr. Penzey, bring your spices to the masses on the other side of the digital divide who cannot order them online. Mr. Penzey, tear down that wall! (I know that Penzey's wants to build a plant in Northridge. But that's a pretty good location for an industrial use given its relative proximity to the same evil expressway that facilitated white flight. Freeways also help fill those online sales of oregano.)
The point is not that Penzey is a closet racist. It is to remind him that perhaps he should extend to others the presumption of good faith that I am sure he expects for himself.
I wouldn't endorse a boycott of Penzey's and its owner has a right to his opinion. But here's the thing.
Bill Penzey chose to insult almost an entire county. That seems uninformed and ungenerous. In its own way, it is a failure to embrace diversity and reflects fear of "the other" - defined here as people that don't share his junior high liberalism. If people don't want to buy his spices, he shouldn't be surprised.
Cooks can change the world in more ways than one.
* Full disclosure: I was recently elected to the board of Ms. Schultz' employer, St. Anthony's School. I believe that I recently met her, but I don't know her.
Friday, June 06, 2014
June 6, 1944
I have always been fascinated by the invasion of Normandy. What form of courage did it take to run into what must have seemed like certain death ? On certain beaches, it almost was. What made thousands of men press on into a charnel house ? Was it the lack of an alternative? A sense of duty? A commitment to their fellows?
I have always wondered if I could have done it. To be honest, I have a hard time imagining so. Perhaps it's one of those things that you can't do unless you have to.
Thankfully, I'll never know.
What type of national resolve was required to undertake an operation that was sure to result in thousands of deaths? We still read the names of the victims of 9-11. But we lost that many in one day on the beaches of Normandy. And it was only the beginning of only one part of unbelievably bloody crusade.
Could we do it today? The American military has performed bravely in the Persian Gulf and in Afghanistan, but this was a challenge of a different order. Perhaps it is enough to express gratitude that a new Operation Overlord has not been necessary.
Even as we marvel at what happened seventy years ago, we enjoy the knowledge that it worked; that the sacrifices it required were not in vain. But that was every much in doubt on June 6, 1944 and, had the Germans responded in different ways, we may very well have been pushed back into the sea. Indeed, Eisenhower wrote a note taking responsibility for the failure of the invasion. Just in case. Perhaps he thought he'd be unable to do it had the invasion actually failed.
I doubt that the greatest generation - now almost all gone - was really made of sterner stuff. But, from this distant vantage point, it certainly seems that way.
Cross posted at Purple Wisconsin.
I have always wondered if I could have done it. To be honest, I have a hard time imagining so. Perhaps it's one of those things that you can't do unless you have to.
Thankfully, I'll never know.
What type of national resolve was required to undertake an operation that was sure to result in thousands of deaths? We still read the names of the victims of 9-11. But we lost that many in one day on the beaches of Normandy. And it was only the beginning of only one part of unbelievably bloody crusade.
Could we do it today? The American military has performed bravely in the Persian Gulf and in Afghanistan, but this was a challenge of a different order. Perhaps it is enough to express gratitude that a new Operation Overlord has not been necessary.
Even as we marvel at what happened seventy years ago, we enjoy the knowledge that it worked; that the sacrifices it required were not in vain. But that was every much in doubt on June 6, 1944 and, had the Germans responded in different ways, we may very well have been pushed back into the sea. Indeed, Eisenhower wrote a note taking responsibility for the failure of the invasion. Just in case. Perhaps he thought he'd be unable to do it had the invasion actually failed.
I doubt that the greatest generation - now almost all gone - was really made of sterner stuff. But, from this distant vantage point, it certainly seems that way.
Cross posted at Purple Wisconsin.
Wednesday, June 04, 2014
More on school choice
My colleague CJ Szafir and I have a piece up on National Review regarding threats by the US Department of Justice against school choice.
Regarding my response to Politifact, let me extend my remarks.
I was interested in the weight that Politifact put on the fact that the increase in reading scores among choice students was in the fourth year when test scores became public. This doesn't strike me as a significant criticism of the results because both MPS and MPCP schools were subject to that requirement.
The idea that the increase in high school graduation rates can be dismissed because some students returned to an MPS school seems even an weaker criticism. Most choice students will not graduate from a private high school because, at least until recently (and still to a significant degree), the voucher amount was inadequate to cover the cost of high school education. Still, the fact that someone was a choice student significantly increased the likelihood that he or she would graduate from high school.
How that can be "no evidence" of improved student learning is beyond me.
I understand that, in attempting to defend their rating, Politifact has cited Patrick Wolf - one of the researchers involved in the Arkansas study (and who remains a passionate advocate for choice) - saying that to say there was no evidence of improvement is "a bit of a stretch." That's passingly odd. Something that is a stretch can hardly be "mostly true."
Again, much of the problem lies in the Truth-O-Meter emoticons which are not applied consistently and probably can't be. As I have written before, the series - at least by local writers - is worth having. I often learn things. The Truth-O-Meter is entertainment and not news. Here it obscured rather than illuminated.
Cross posted at Purple Wisconsin.
Regarding my response to Politifact, let me extend my remarks.
I was interested in the weight that Politifact put on the fact that the increase in reading scores among choice students was in the fourth year when test scores became public. This doesn't strike me as a significant criticism of the results because both MPS and MPCP schools were subject to that requirement.
The idea that the increase in high school graduation rates can be dismissed because some students returned to an MPS school seems even an weaker criticism. Most choice students will not graduate from a private high school because, at least until recently (and still to a significant degree), the voucher amount was inadequate to cover the cost of high school education. Still, the fact that someone was a choice student significantly increased the likelihood that he or she would graduate from high school.
How that can be "no evidence" of improved student learning is beyond me.
I understand that, in attempting to defend their rating, Politifact has cited Patrick Wolf - one of the researchers involved in the Arkansas study (and who remains a passionate advocate for choice) - saying that to say there was no evidence of improvement is "a bit of a stretch." That's passingly odd. Something that is a stretch can hardly be "mostly true."
Again, much of the problem lies in the Truth-O-Meter emoticons which are not applied consistently and probably can't be. As I have written before, the series - at least by local writers - is worth having. I often learn things. The Truth-O-Meter is entertainment and not news. Here it obscured rather than illuminated.
Cross posted at Purple Wisconsin.
Tuesday, June 03, 2014
Pants on Fire for Politifact
Every once in a while there is a Politifact whose little emoticon (true, mostly true, pants on fire, etc.) is so gobsmackingly wrong that it leaves you speechless. Here’s the latest.
The statement to be checked is an observation by gubernatorial candidate Mary Burke that Wisconsin’s school choice program “has no research that shows its going to improve student learning.” Writing for Politifact, Tim Kertscher rates that the statement “mostly true.”
He’s got it completely wrong. In fact, the only evidence that exists on whether the voucher program improves student learning says that it does.
In other words, the cute little emoticon (an obfuscatory bit of "entertainment" fluff which I desperately wish the paper would get rid of) is pretty much backward.
Here’s half the mistake. Because the average of all MPS scores (as reported by the Department of Public Instruction and essentially republished by the Public Policy Forum) is higher than the average of all voucher students, Politifact concludes that this “gives a clear edge to public school students over voucher students.”
No it doesn’t. Not even close.
Any researcher will tell you that in assessing student achievement as a result of some program or instructional strategy, one must control for the socioeconomic status and other relevant characteristics of the students being compared. In other words, it is essential to compare like to like; apples to apples, if you will.
Researchers also will tell you that, in assessing whether student learning has“improved,” some type of longitudinal study is required, i.e., you must determine whether the achievement of particular students who have been exposed to the innovation under study approved over a period of time. A snapshot of test scores doesn’t do that. Even a series of annual snapshots of large groups of students doesn’t do that because we can’t be sure that the groups we are comparing consist of the same students from year to year.
As Paul Peterson, Henry Lee Shattuck Professor of Government at Harvard, explains, simply reporting the “average math and reading scores of all students” “often [says] less about the quality of instruction at the school than about the students’ family backgrounds.” He also calls for a “growth-based measuring stick.”
The DPI and PPF reports don’t do either of these things. They compare all (or almost all) MPS students to voucher students who, until quite recently, were all low income (some working class families are now eligible) and likely to be children whose parent were dissatisfied with their performance in public school. Even if the percentage of disadvantaged and minority students are similar for both groups as a whole, one has to control for relevant factors and crunch the numbers to determine whether one group has "outperformed" the other.
Neither report attempts to measure whether the improvement of students who move to a choice school compared to comparable children who remain in a public school. (In fact, at least for PPF, there would be no way to do so with the data available to them.)
Neither report attempts to measure whether the improvement of students who move to a choice school compared to comparable children who remain in a public school.
We could go on. It is nonsense, for example, to compare the test scores of public and voucher students in Racine in 2014 because the choice program had only just begun in Racine and the voucher students had been in their new schools for only a few weeks.
I would add that it is meaningless to treat voucher schools as a group since they are not subject to common control and differ dramatically from one another. If, in fact, well-run choice schools improve student performance then it would also be wrong to say that there is “no evidence” the program works.
So the numbers that Politifact says give public school students a “clear edge” do no such thing.
There are, as far as I know, four studies that attempt to do what DPI and PPF do not. One very small study in the early years of the voucher program – when there was a lottery to participate in Milwaukee – showed that students who got into choice schools did better than those who lost the lottery. Two more recent studies, which Politifact cites but then ignores, shows that the presence of school choice is associated with improvement of test scores in MPS. That was an early rationale for school choice; it was hoped that competitive pressure would cause public schools to improve.
And then there’s the University of Arkansas School Choice Demonstration Project study – the only real study of whether the choice program“improved student learning.” The SCDP study found that Choice students were significantly more likely to graduate and go on to college. The study found that voucher students showed a greater increase in reading scores than MPS students. (That this happened in the last year of the study and the first year in which voucher schools had to, like MPS, publicize their scores doesn’t change that.) There were some other advantages for voucher students but there were not statistically significant, i.e., the researchers could not say that they were not a product of chance.
You can dismiss the statistically significant improvements as “too small” although they are at least as robust as the evidence for a variety of educational nostrums that are commonly touted. And these gains are accomplished at a bit over half the cost of a public school education. You can quibble over what caused the measured improvements. But the fact remains that they are “evidence”of improvement that Mary Burke falsely said does not exist.
How Burke’s statement can possibly be called “mostly true”is beyond me. The Politifact author regards the evidence for improvement as "thin." I'm not sure that statistically significant findings of improvement in the only properly designed study that exists can be so readily dismissed. But let's grant him this . Concerns about the extent of improvements or what really caused it are worth discussing.
But she said there was no evidence. That is false. It cannot be mostly true. This Politifact was not fact checking. It was an imposition of opinion.
Cross posted at Purple Wisconsin
Monday, June 02, 2014
All Doe all the time, part II
One of my colleagues raises an interesting question. Can the prosecutors even seek to overturn Judge Peterson's decision quashing the search warrants and subpoenas that were served in the course of the now-halted probe?The lead prosecutor asked for clarification on that. Here is what Judge Randa said in an order issued Friday afternoon:
The injunction bars any attempt by Schmitz (or any other
defendant) to obtain compliance with any order, subpoena, or other process
issued in furtherance of the investigation, but it does not extend to legal proceedings, including
these federal court proceedings, that do not seek to enforce such compliance. (Emphasis added.)
Doesn't this suggest that it does apply to legal proceedings
that do seek to enforce compliance? Wouldn't seeking to overturn Judge
Peterson's order quashing subpoenas and "other process" be exactly
that? Ordinarily I'd be reluctant to read it that way, except that's the way it reads. The reasonng, I suppose, is that forcing someone to litigate state law issues presented by an unconstitutional litigation itself comprises constitutional harm.
Cross posted at Purple Wisconsin.
Sunday, June 01, 2014
Public housing by any other name
We all know how affirmative action became diversity and global warming morphed into climate change. Environmental restrictions became sustainability and the gatekeepers of racial and sexual propriety have decreed, cancelled and reformulated a vast etiquette of how to refer to a racial and other minorities.
Here's the latest. Last week's Journal Sentinel featured the following headline:
$ 10 million complex bolsters Milwaukee's supportive housing
What is "supportive housing?"
Here's the latest. Last week's Journal Sentinel featured the following headline:
$ 10 million complex bolsters Milwaukee's supportive housing
What is "supportive housing?"
According to the article, it turns out to be mean that the building's "units will be subsidized and that no resident will be paying more than 30% of his or her income for rent."
We used to call that public housing. Why the change in terminology?
I suspect it is because the old term has come to have negative connotations. Public housing concentrates very low income people who, for a variety of reasons, neighbors will fear aremore likely to engage in anti-social behavior or who, in fact, may actually engage in such behavior having an adverse impact on the surrounding area.
We can argue about whether this really happens or whether the fears are reasonable. We can think of ways to respond to this real or exaggerated problem. But changing the name won't accomplish anything.
Cross posted at Purple Wisconsin.
Cross posted at Purple Wisconsin.
Saturday, May 31, 2014
Where do zombies come from?
So here's a new one - the problem of "zombie properties" - a name that seems to designed to obscure rather than illuminate. An entire front page article in this week in the Journal Sentinel yielded almost no information. Why are there 400 houses in foreclosure that no one wants? The article treats this as a mystery. But that can't be.
Here's the problem. Banks lend money to people to buy houses and they do not repay the loan. The houses go into foreclosure but the process takes forever and in the meantime the properties are left to deteriorate and this causes problems in the neighborhood.
One can imagine two contending explanations. The first is that the whole lending process became too complicated. A bunch of hubristic whiz kids thought they could eliminate risk through algorithms rather than traditional tools like underwriting and requiring down payments. This involved creating a complicated ownership structure for packaged loans - so no one would be exposed to excessive risk - that is hard to unravel. For these inner city properties, where the homeowners have the least to lose by walking away and the economics of rehabilitation and resale are the toughest, this leads to homes where not only the owner but the very project of foreclosure, rehabilitation and resale is underwater. At some point, it is literally in no one's interest to reclaim the house and it is razed.
My guess is that there is some truth in this, but it is a second order explanation. How did it happen in the first place?
Here's a possible answer. We don't need concepts like the living dead to explain this. Indeed, there is a sense in which the metaphor is exactly wrong. The problem is not that these properties refuse to die but that there are truly and completely dead, yet maintained on life support. They are victims of the fiction that they still belong to the people that bought them. Legally, they do. Economically, they don't and may never have.
On this view, the problem is that there are no real property interests in these homes. The owners don't have one because they probably paid little down and, in any event, have no equity interests in the property. In a misguided attempt to promote home ownership, people were encouraged to buy properties that they not only couldn't afford but in which they had nothing to lose. This was not home ownership in the real sense; it was speculation for those who could least afford it.
The lenders don't have a property interest because they required almost nothing down and lent to people who couldn't really afford the home. As a result, they can't hope to get their money back through foreclosure and resale. Although you might expect the bank to move to cut its losses, the cumbersome nature of the foreclosure process - full of procedural requirements to protect the consumer - raise the transactional costs of recovering the property. It doesn't take long - foreclosed properties are notoriously abused by "owners" with no real interest to them - before many of these properties may not be worth reclaiming. While the city's Department of Neighborhood Services may not understand why the lenders don't figure out how to move faster to recover the properties, it's really not that hard to figure out.
I understand that we are supposed to chalk this all up to greed, but there are problems with that. It is not a good strategy - if you want to accumulate wealth beyond the dreams of avarice - to lend money to people who can't pay it back. While the desire to make money in a booming market can cloud one's judgment about the creditworthiness of a debtor, that's not all that was going on here.
Part of the problem is the government encouraged this type of lending. It threatened lenders with enforcement actions if they were "too strict" and imposed obligations to affirmatively further affordable housing. (Remember Barney Frank's infamous inclination to "roll the dice" on affordable housing?) Even when there was no legal requirement to provide affordable housing a lot of lenders found it expedient to accommodate organized pressure to make such loans - just as it is ofter easier today to pay tribute to activists for "sustainability" and "diversity."
To be sure, unscrupulous originators took advantage but there had to be something - a willingness to make subprime loans with insufficient collateral - for them to take advantage of in the first place. And, while the housing collapse was limited to this segment of the market, it is in this segment of the market that a collapse in values is most likely to lead to houses that not literally no one wants. Perhaps there are zombie homes being razed in Mequon and Brookfield, but I haven't yet heard of them.
If this second hypothesis is true, we have quite the irony.
These were policies that left-wing community organizers organizations and liberal politicians supported. Like Mary Shelley's Frankenstein was a product of scientific hubris gone wrong, the zombie properties are of their own making. "Organizing" does not make what won't work viable.
My guess is that the preferred solution of the left wing organizations like Common Ground would be to try to somehow - through litigation or legislation or negotiation - get the banks to throw good money after bad. Some form of reinvestment in these properties - perhaps subsidized - may be warranted but you have to understand the cost of doing so. Making the banks responsible for neighborhood decline is likely to keep the banks out of the neighborhood from now on. Once bitten, twice shy. Selling homes to people who still can't afford them and who will still be required to put little or no money down will work no better this time than it did before. There needs to be another model - one that requires homeowners to have more of a stake in a neighborhood. That will require demanding more.
But before you get there, someone has to reacquire the properties. It seems like the city and banks are playing a game of chicken. I think I know who'll win that.
Cross posted at Purple Wisconsin.
Here's the problem. Banks lend money to people to buy houses and they do not repay the loan. The houses go into foreclosure but the process takes forever and in the meantime the properties are left to deteriorate and this causes problems in the neighborhood.
One can imagine two contending explanations. The first is that the whole lending process became too complicated. A bunch of hubristic whiz kids thought they could eliminate risk through algorithms rather than traditional tools like underwriting and requiring down payments. This involved creating a complicated ownership structure for packaged loans - so no one would be exposed to excessive risk - that is hard to unravel. For these inner city properties, where the homeowners have the least to lose by walking away and the economics of rehabilitation and resale are the toughest, this leads to homes where not only the owner but the very project of foreclosure, rehabilitation and resale is underwater. At some point, it is literally in no one's interest to reclaim the house and it is razed.
My guess is that there is some truth in this, but it is a second order explanation. How did it happen in the first place?
Here's a possible answer. We don't need concepts like the living dead to explain this. Indeed, there is a sense in which the metaphor is exactly wrong. The problem is not that these properties refuse to die but that there are truly and completely dead, yet maintained on life support. They are victims of the fiction that they still belong to the people that bought them. Legally, they do. Economically, they don't and may never have.
On this view, the problem is that there are no real property interests in these homes. The owners don't have one because they probably paid little down and, in any event, have no equity interests in the property. In a misguided attempt to promote home ownership, people were encouraged to buy properties that they not only couldn't afford but in which they had nothing to lose. This was not home ownership in the real sense; it was speculation for those who could least afford it.
The lenders don't have a property interest because they required almost nothing down and lent to people who couldn't really afford the home. As a result, they can't hope to get their money back through foreclosure and resale. Although you might expect the bank to move to cut its losses, the cumbersome nature of the foreclosure process - full of procedural requirements to protect the consumer - raise the transactional costs of recovering the property. It doesn't take long - foreclosed properties are notoriously abused by "owners" with no real interest to them - before many of these properties may not be worth reclaiming. While the city's Department of Neighborhood Services may not understand why the lenders don't figure out how to move faster to recover the properties, it's really not that hard to figure out.
I understand that we are supposed to chalk this all up to greed, but there are problems with that. It is not a good strategy - if you want to accumulate wealth beyond the dreams of avarice - to lend money to people who can't pay it back. While the desire to make money in a booming market can cloud one's judgment about the creditworthiness of a debtor, that's not all that was going on here.
Part of the problem is the government encouraged this type of lending. It threatened lenders with enforcement actions if they were "too strict" and imposed obligations to affirmatively further affordable housing. (Remember Barney Frank's infamous inclination to "roll the dice" on affordable housing?) Even when there was no legal requirement to provide affordable housing a lot of lenders found it expedient to accommodate organized pressure to make such loans - just as it is ofter easier today to pay tribute to activists for "sustainability" and "diversity."
To be sure, unscrupulous originators took advantage but there had to be something - a willingness to make subprime loans with insufficient collateral - for them to take advantage of in the first place. And, while the housing collapse was limited to this segment of the market, it is in this segment of the market that a collapse in values is most likely to lead to houses that not literally no one wants. Perhaps there are zombie homes being razed in Mequon and Brookfield, but I haven't yet heard of them.
If this second hypothesis is true, we have quite the irony.
These were policies that left-wing community organizers organizations and liberal politicians supported. Like Mary Shelley's Frankenstein was a product of scientific hubris gone wrong, the zombie properties are of their own making. "Organizing" does not make what won't work viable.
My guess is that the preferred solution of the left wing organizations like Common Ground would be to try to somehow - through litigation or legislation or negotiation - get the banks to throw good money after bad. Some form of reinvestment in these properties - perhaps subsidized - may be warranted but you have to understand the cost of doing so. Making the banks responsible for neighborhood decline is likely to keep the banks out of the neighborhood from now on. Once bitten, twice shy. Selling homes to people who still can't afford them and who will still be required to put little or no money down will work no better this time than it did before. There needs to be another model - one that requires homeowners to have more of a stake in a neighborhood. That will require demanding more.
But before you get there, someone has to reacquire the properties. It seems like the city and banks are playing a game of chicken. I think I know who'll win that.
Cross posted at Purple Wisconsin.
Friday, May 30, 2014
All Doe all the time, part one
My op-ed in Sunday's Crossroads on the current sorry state of the permanent John Doe investigation into one side of our political divide can be found here. I elaborated on the rumors of settlement negotiations here. More on that later.
A few responses to points made in the comments to the op-ed.
First, I am taking no position on whether anyone has or has not acted unethically. Not everything can be reduced to a morality play. I am saying that the decision to pursue this reflected an insufficient regard for First Amendment values and poor judgment about what can and cannot be accomplished in this way. Whether it was accompanied by unethical behavior or was partisan is something I'll leave to others.
Second, I am not overly impressed that the investigation was purportedly blessed by the GAB. To get approval of a superintending agency of retired and (very) part time judges does not overcome the glaring problems with the investigation. An appeal to authority can't trump what is right before our eyes. (The same thing applies to the formal cooperation of other DAs.)
In any event, it may be that the Doe was not initiated but joined by the GAB and at least in a departure from - if not in violation of - its statutorily mandated procedures.
By way of counterpoint (an appropriate thing to do), the Journal Sentinel ran a column by Bill Lueders which had originally appeared online. He begins by referring to Sen. Mike Ellis' recent lubricated soliloquy - caught on tape by an investigative journalist - to create an outside group to attack his opponent.
Lueders suggests that everyone assumed that Ellis' plan - which he never carried out - would be illegal. He argues that Judge Randa's decision shutting down the John Doe because the state cannot constitutionally restrict issue advocacy changes that - that it "alters the campaign landscape" in some fundamental way.
I do think the decision is an important doctrinal clarification, but it may not mean that what Ellis talked about would be legal.
What Randa said is that the state may only restrict express advocacy. As defined by the United States Supreme Court, this is speech that is susceptible of no interpretation other than as a call to elect or defeat a candidate.
It is unclear whether Ellis' cocktail hour disquisition referred to express advocacy. Issue advocacy can be - and usually is - critical of a candidate but does so only in the context of taking a position on some issue. While some people think of this as a distinction without a difference, robust protection of freedom of speech requires that people - and organizations of people - have the right to speak freely about issues at election time - even if that means highlighting the position of elected officials and candidates.
The rest of the horribles paraded by Lueders are just wrong. For example, the claim of Paul S. Ryan of the Campaign Legal Center that outside groups could pay for a candidate's campaign staff, rent and food bills is ridiculous. Randa's decision does not say that express advocacy is the only form of in-kind campaign contribution that can be made by an outside group. It says that issue advocacy is - unlike paying rent or salaries - constitutionally protected and cannot become less protected because of some degree of coordination with a candidate.
Cross posted at Purple Wisconsin.
A few responses to points made in the comments to the op-ed.
First, I am taking no position on whether anyone has or has not acted unethically. Not everything can be reduced to a morality play. I am saying that the decision to pursue this reflected an insufficient regard for First Amendment values and poor judgment about what can and cannot be accomplished in this way. Whether it was accompanied by unethical behavior or was partisan is something I'll leave to others.
Second, I am not overly impressed that the investigation was purportedly blessed by the GAB. To get approval of a superintending agency of retired and (very) part time judges does not overcome the glaring problems with the investigation. An appeal to authority can't trump what is right before our eyes. (The same thing applies to the formal cooperation of other DAs.)
In any event, it may be that the Doe was not initiated but joined by the GAB and at least in a departure from - if not in violation of - its statutorily mandated procedures.
By way of counterpoint (an appropriate thing to do), the Journal Sentinel ran a column by Bill Lueders which had originally appeared online. He begins by referring to Sen. Mike Ellis' recent lubricated soliloquy - caught on tape by an investigative journalist - to create an outside group to attack his opponent.
Lueders suggests that everyone assumed that Ellis' plan - which he never carried out - would be illegal. He argues that Judge Randa's decision shutting down the John Doe because the state cannot constitutionally restrict issue advocacy changes that - that it "alters the campaign landscape" in some fundamental way.
I do think the decision is an important doctrinal clarification, but it may not mean that what Ellis talked about would be legal.
What Randa said is that the state may only restrict express advocacy. As defined by the United States Supreme Court, this is speech that is susceptible of no interpretation other than as a call to elect or defeat a candidate.
It is unclear whether Ellis' cocktail hour disquisition referred to express advocacy. Issue advocacy can be - and usually is - critical of a candidate but does so only in the context of taking a position on some issue. While some people think of this as a distinction without a difference, robust protection of freedom of speech requires that people - and organizations of people - have the right to speak freely about issues at election time - even if that means highlighting the position of elected officials and candidates.
The rest of the horribles paraded by Lueders are just wrong. For example, the claim of Paul S. Ryan of the Campaign Legal Center that outside groups could pay for a candidate's campaign staff, rent and food bills is ridiculous. Randa's decision does not say that express advocacy is the only form of in-kind campaign contribution that can be made by an outside group. It says that issue advocacy is - unlike paying rent or salaries - constitutionally protected and cannot become less protected because of some degree of coordination with a candidate.
Cross posted at Purple Wisconsin.
Monday, May 26, 2014
More reflections on Brown and the "Iron Ring"
As I noticed in my last post here, back to the future seems to be a norm in politics.
Last weekend, the local left pretended it was 1954 on questions of racial balance in school. My Purple Wisconsin colleague Jim Rowen chose to genuflect before a time honored relic of the American left - the so called "iron ring" thrown around Milwaukee in the 1950s.
The "iron ring" amounted to this. The state prevented the city from forcing proximate local communities from joining the city against their will. In this, it did anticipate much of our current controversy over regionalism. Advocates of the city seem to believe that support for the city means forcing others to pay for whatever stupidity city politicians want to promote. It's never going to happen.
But the larger point is that the "iron ring" was drawn too late. As Russell Knetzger pointed out in last Sunday's Crossroads, Milwaukee nevertheless managed to annex huge amounts of real estate. For its population and age, the city has a huge geographic footprint. I'm not sure if there are still farms within the city limits, but - as recently as thirty years ago (over a period in which city population has been more or less stable) - there were.
In my last point, I wrote about the second generation school desegregation litigation in the 80s. One of the points that the defense made in that case was Knetzger's. The city managed to annex huge swaths of real estate to the north and west of the city center. Indeed, we introduced piles of materials from the 50s and 60s that Milwaukee promoted this area as "the suburb in the city." Indeed, an earlier use of the term "iron ring" was to say the the city would not provide services such as water (as if Milwaukee owns the lake; an odd position for public trust zealots) to suburban communities.
The African American population moved into this area - in a pie shaped pattern emanating from the city center. This is not unique to Milwaukee. We introduced evidence that showed the exact same pattern of black outmigration patterns in every other midwest industrial city. People who live an area of initial settlement do not disperse randomly. They tend to remain in proximity to friends and families. Indeed, that type of outmigration is not limited to African Americans. Other ethnic groups have followed a similar -albeit less pronounced - pattern and there is evidence of Hispanic migration to the southwest.
That this population remained in the city is evidence of how much the city was permitted to expand - generally over the opposition of those brought within its borders.
I understand that it is doctrine among the local left that this opposition can be dismissed as racist, This is reductive and lazy. People moved to the suburbs because they wanted a new house and a yard. They did not wish to remain in the city because they wanted self-determination for their new communities.
I understand that, for folks like Jim, self-determination that allows people to avoid paying for his policy preferences is anathema. Maybe he's right. But folks who take exception are not racist for them.
Cross posted at Purple Wisconsin.
Last weekend, the local left pretended it was 1954 on questions of racial balance in school. My Purple Wisconsin colleague Jim Rowen chose to genuflect before a time honored relic of the American left - the so called "iron ring" thrown around Milwaukee in the 1950s.
The "iron ring" amounted to this. The state prevented the city from forcing proximate local communities from joining the city against their will. In this, it did anticipate much of our current controversy over regionalism. Advocates of the city seem to believe that support for the city means forcing others to pay for whatever stupidity city politicians want to promote. It's never going to happen.
But the larger point is that the "iron ring" was drawn too late. As Russell Knetzger pointed out in last Sunday's Crossroads, Milwaukee nevertheless managed to annex huge amounts of real estate. For its population and age, the city has a huge geographic footprint. I'm not sure if there are still farms within the city limits, but - as recently as thirty years ago (over a period in which city population has been more or less stable) - there were.
In my last point, I wrote about the second generation school desegregation litigation in the 80s. One of the points that the defense made in that case was Knetzger's. The city managed to annex huge swaths of real estate to the north and west of the city center. Indeed, we introduced piles of materials from the 50s and 60s that Milwaukee promoted this area as "the suburb in the city." Indeed, an earlier use of the term "iron ring" was to say the the city would not provide services such as water (as if Milwaukee owns the lake; an odd position for public trust zealots) to suburban communities.
The African American population moved into this area - in a pie shaped pattern emanating from the city center. This is not unique to Milwaukee. We introduced evidence that showed the exact same pattern of black outmigration patterns in every other midwest industrial city. People who live an area of initial settlement do not disperse randomly. They tend to remain in proximity to friends and families. Indeed, that type of outmigration is not limited to African Americans. Other ethnic groups have followed a similar -albeit less pronounced - pattern and there is evidence of Hispanic migration to the southwest.
That this population remained in the city is evidence of how much the city was permitted to expand - generally over the opposition of those brought within its borders.
I understand that it is doctrine among the local left that this opposition can be dismissed as racist, This is reductive and lazy. People moved to the suburbs because they wanted a new house and a yard. They did not wish to remain in the city because they wanted self-determination for their new communities.
I understand that, for folks like Jim, self-determination that allows people to avoid paying for his policy preferences is anathema. Maybe he's right. But folks who take exception are not racist for them.
Cross posted at Purple Wisconsin.
Monday, May 19, 2014
Here are some more reflections on Brown
If you wait long enough, just about every debate will be repeated.
Sunday's Journal Sentinel was themed around "resegregation" on the 60th anniversary of Brown v. Board of Education a story. The most interesting of several articles on the subject was a treatment of the increased lack of racial balance in MPS and the idea that this is sometime of "boomerang" effect of recent or sinister provenance.
In fact, the recognition that MPS would be unable to keep counting noses by their color was raised thirty years ago. As a rookie lawyer. I became involved in the "second generation" school desegregation litigation. It followed a rather contrived and result oriended decision by Judge John Reynolds holding that there had been intentional racial segregation by MPS that justified racial balancing in the city's schools.
Reynolds meant well - he was a creature of his age - but that decision destroyed, at least for awhile, the neighborhood school in Milwaukee and almost certainly hastened the exodus of the middle class from Milwaukee. You might condemn what followed as "racist" white flight but the eventual rejection of busing for racial balance by minority parents should call such a simplistic view into question. Because. among other things, the burden of busing fell more heavily on African Americans (at least, in part, to prevent white families from leaving the system), support dwindled among blacks as well.
In any event, the effort to racially balance Milwaukee schools quickly ran into a dearth of white students. In 1984, MPS realized that it would be unable to avoid predominantly minority schools unless it could move students across city lines. Thus it initiated litigation to create a metropolitan-wide busing plan. I was a member of the team defending 24 suburban school districts who were named as defendants.
The case was weak and, if you want to believe me, we beat the pants off of the district in court. (One of my earliest victories as a trial lawyer was getting MPS' expert to admit, under oath, that he had told his research assistants not to collect data that "went the wrong way." While this may have been the product of luck more than skill, it has rarely gotten better than that.) In any event, MPS caved, settling for an agreement by the suburban districts to expand their participation in the existing chapter 220 voluntary transfer program as long as they had space and as long as the state would pay them for doing so. (The unacknowledged fact was that many of these suburban districts saw transfers from the city as a source of revenue.)
In the end, the 220 program did not materially change the composition of city or suburban schools because there wasn't much demand for it. (Although, ironically, my son spent a semester as a 220 student at the Milwaukee High School for the Arts.) The idea that racial balance was an important element of improving educational outcomes had lost favor. In the meantime, MPS lost white students to the point that it has become almost impossible not to have what the article calls "intensely segregated" schools. This is not a new development. It was predicted as long as 30 years ago.
The thing that did not bring this about is school choice. It didn't exist in 1984 and is not a vehicle for white "flight." Choice students are overwhelmingly minority. The movement of white students out of MPS is largely due to the failure of the city to remain attractive to middle class parents or of MPS to remain a viable alternative for middle class families who remain in the city. There are many wonderful neighborhoods in Milwaukee in which relatively few of the kids go to public school.
This reflects a theme in Milwaukee politics. Urban "champions" in this city have too often thought that the answer to the city's problems is to get someone else to foot the bill or to coerce others to participate in their preferred solutions. It is to fight expressways that allow people to move freely between the city and the suburbs. It is to trap municipal workers within the city through residency requirements. It was once the desire to impose metropolitan busing on students and is now hostility to the ability of low income families to choose their children's schools. It is to "expand" the state base so that the city retains local control but avoids local responsibility.
While I agree that a fair amount of the angst about crime in Milwaukee is overblown, the fact remains that there are parts of the city - including some very attractive neighborhoods - in which the crime rate is just too high to attract middle class families and create communities that are as strong as they might otherwise be. Milwaukee will never attract and maintain families as long as MPS is viewed as a wasteland. Telling people that they are "wrong" or "racist" to be concerned about crime or poor schools is a fool's errand.
Making people offers they "can't refuse" or dressing up coercion as "regionalism" hasn't worked and never will. Milwaukee will not be a successful city unless people choose to work and attend school in the city. There may be an example of a city that accomplished that through high taxes, the politics of racial spoils and hostility toward business, but I am not aware of it.
Cross posted at Purple Wisconsin.
Sunday's Journal Sentinel was themed around "resegregation" on the 60th anniversary of Brown v. Board of Education a story. The most interesting of several articles on the subject was a treatment of the increased lack of racial balance in MPS and the idea that this is sometime of "boomerang" effect of recent or sinister provenance.
In fact, the recognition that MPS would be unable to keep counting noses by their color was raised thirty years ago. As a rookie lawyer. I became involved in the "second generation" school desegregation litigation. It followed a rather contrived and result oriended decision by Judge John Reynolds holding that there had been intentional racial segregation by MPS that justified racial balancing in the city's schools.
Reynolds meant well - he was a creature of his age - but that decision destroyed, at least for awhile, the neighborhood school in Milwaukee and almost certainly hastened the exodus of the middle class from Milwaukee. You might condemn what followed as "racist" white flight but the eventual rejection of busing for racial balance by minority parents should call such a simplistic view into question. Because. among other things, the burden of busing fell more heavily on African Americans (at least, in part, to prevent white families from leaving the system), support dwindled among blacks as well.
In any event, the effort to racially balance Milwaukee schools quickly ran into a dearth of white students. In 1984, MPS realized that it would be unable to avoid predominantly minority schools unless it could move students across city lines. Thus it initiated litigation to create a metropolitan-wide busing plan. I was a member of the team defending 24 suburban school districts who were named as defendants.
The case was weak and, if you want to believe me, we beat the pants off of the district in court. (One of my earliest victories as a trial lawyer was getting MPS' expert to admit, under oath, that he had told his research assistants not to collect data that "went the wrong way." While this may have been the product of luck more than skill, it has rarely gotten better than that.) In any event, MPS caved, settling for an agreement by the suburban districts to expand their participation in the existing chapter 220 voluntary transfer program as long as they had space and as long as the state would pay them for doing so. (The unacknowledged fact was that many of these suburban districts saw transfers from the city as a source of revenue.)
In the end, the 220 program did not materially change the composition of city or suburban schools because there wasn't much demand for it. (Although, ironically, my son spent a semester as a 220 student at the Milwaukee High School for the Arts.) The idea that racial balance was an important element of improving educational outcomes had lost favor. In the meantime, MPS lost white students to the point that it has become almost impossible not to have what the article calls "intensely segregated" schools. This is not a new development. It was predicted as long as 30 years ago.
The thing that did not bring this about is school choice. It didn't exist in 1984 and is not a vehicle for white "flight." Choice students are overwhelmingly minority. The movement of white students out of MPS is largely due to the failure of the city to remain attractive to middle class parents or of MPS to remain a viable alternative for middle class families who remain in the city. There are many wonderful neighborhoods in Milwaukee in which relatively few of the kids go to public school.
This reflects a theme in Milwaukee politics. Urban "champions" in this city have too often thought that the answer to the city's problems is to get someone else to foot the bill or to coerce others to participate in their preferred solutions. It is to fight expressways that allow people to move freely between the city and the suburbs. It is to trap municipal workers within the city through residency requirements. It was once the desire to impose metropolitan busing on students and is now hostility to the ability of low income families to choose their children's schools. It is to "expand" the state base so that the city retains local control but avoids local responsibility.
While I agree that a fair amount of the angst about crime in Milwaukee is overblown, the fact remains that there are parts of the city - including some very attractive neighborhoods - in which the crime rate is just too high to attract middle class families and create communities that are as strong as they might otherwise be. Milwaukee will never attract and maintain families as long as MPS is viewed as a wasteland. Telling people that they are "wrong" or "racist" to be concerned about crime or poor schools is a fool's errand.
Making people offers they "can't refuse" or dressing up coercion as "regionalism" hasn't worked and never will. Milwaukee will not be a successful city unless people choose to work and attend school in the city. There may be an example of a city that accomplished that through high taxes, the politics of racial spoils and hostility toward business, but I am not aware of it.
Cross posted at Purple Wisconsin.
Monday, May 12, 2014
Sterling and affirmative action
James Causey writes that Donald Sterling's comments "prove" the need for affirmative action. In fact, if the Sterling episode proves anything about affirmative action, it is precisely the opposite.
One rationale for affirmative action is that it is supposed to compensate for difficult to detect discrimination. The idea is that racial discrimination is so pervasive yet so subtle that one needs not only to ban it legally, but engage in compensatory "counter-balancing discrimination.
Let's put aside the tension between simultaneously believing that something is so reviled as to have become hidden away so completely that it rarely be directly observed, yet so widespread and pervasive that we can safely assume it is always at work
Let's forget, for a moment, the old adage that two wrongs do not make a right. Let's put aside the possibility that excusing "benign" discrimination invariably leads to resentment and, in fact, encourages "hostile" discrimination by leveling the moral high ground that was once held by proponents of civil rights.
Let's ignore the increasingly persuasive evidence that affirmative action does not help its beneficiaries.
Let's just focus on what the Sterling story tells us. Sterling appears to be a straight-up racist. How did he run the Clippers?
Here's how. He hires black players. He hired a black general manager. He employs a black coach.
Does this mean he's not really racist? Not at all. It does mean he's a capitalist. Let me explain.
At the beginning of this month, Nobel Laureate Gary Becker, an economist at the University of Chicago, died. One of Becker's great accomplishments was to demonstrate how competitive markets may be the most effective anti-discrimination tool available. If participants in the market - say a basketball team - indulge a taste for discrimination and refuse to hire the most talented employees or to sell to willing customers on the basis of race, the market will make them pay. That is because there will be someone - think Branch Rickey - who does not share their bias (or chooses not to indulge it) and will be able to hire better talent and tap into profitable markets that the racist firm will abjure. Ultimately, racist firms must choose between their taste for prejudice and survival.
So Sterling came to understand that, if he wanted to win, he needed African American players. He needed the best coach he could get, so he hired former Marquette great Doc Rivers. He didn't have to become a better person to understand that he could not indulge his prejudices. He only needed to value his survival.
Now, of course, this won't always work. One can imagine circumstances in which the absence of prejudice will carry its own cost. For example, when racial hostility really is pervasive (think of Alabama in 1960), then hiring the best, say, plumbers won't help when a large of customers don't want African Americans in their homes. But the irony is that, in such situations, anti-discrimination laws (much less affirmative action) are unlikely to be passed or enforced.
The other argument for affirmative action is that it promotes understanding. Maybe if Donald Sterling had to go to school with African Americans, he wouldn't feel this way today. Perhaps.
But Sterling's problem is not that he has not been exposed to African Americans. He's owned an NBA team for over 30 years. He had a black mistress. He just seems to be inextricably bound to his own attitudes.
In any event, if the increasingly strong evidence for "mismatch" effects of affirmative action is correct, then it is just as likely that affirmative action will reinforce stereotypes. It is tempting to think that a committee of elites can fine tune the world. It is almost always wrong.
Cross posted at Purple Wisconsin.
One rationale for affirmative action is that it is supposed to compensate for difficult to detect discrimination. The idea is that racial discrimination is so pervasive yet so subtle that one needs not only to ban it legally, but engage in compensatory "counter-balancing discrimination.
Let's put aside the tension between simultaneously believing that something is so reviled as to have become hidden away so completely that it rarely be directly observed, yet so widespread and pervasive that we can safely assume it is always at work
Let's forget, for a moment, the old adage that two wrongs do not make a right. Let's put aside the possibility that excusing "benign" discrimination invariably leads to resentment and, in fact, encourages "hostile" discrimination by leveling the moral high ground that was once held by proponents of civil rights.
Let's ignore the increasingly persuasive evidence that affirmative action does not help its beneficiaries.
Let's just focus on what the Sterling story tells us. Sterling appears to be a straight-up racist. How did he run the Clippers?
Here's how. He hires black players. He hired a black general manager. He employs a black coach.
Does this mean he's not really racist? Not at all. It does mean he's a capitalist. Let me explain.
At the beginning of this month, Nobel Laureate Gary Becker, an economist at the University of Chicago, died. One of Becker's great accomplishments was to demonstrate how competitive markets may be the most effective anti-discrimination tool available. If participants in the market - say a basketball team - indulge a taste for discrimination and refuse to hire the most talented employees or to sell to willing customers on the basis of race, the market will make them pay. That is because there will be someone - think Branch Rickey - who does not share their bias (or chooses not to indulge it) and will be able to hire better talent and tap into profitable markets that the racist firm will abjure. Ultimately, racist firms must choose between their taste for prejudice and survival.
So Sterling came to understand that, if he wanted to win, he needed African American players. He needed the best coach he could get, so he hired former Marquette great Doc Rivers. He didn't have to become a better person to understand that he could not indulge his prejudices. He only needed to value his survival.
Now, of course, this won't always work. One can imagine circumstances in which the absence of prejudice will carry its own cost. For example, when racial hostility really is pervasive (think of Alabama in 1960), then hiring the best, say, plumbers won't help when a large of customers don't want African Americans in their homes. But the irony is that, in such situations, anti-discrimination laws (much less affirmative action) are unlikely to be passed or enforced.
The other argument for affirmative action is that it promotes understanding. Maybe if Donald Sterling had to go to school with African Americans, he wouldn't feel this way today. Perhaps.
But Sterling's problem is not that he has not been exposed to African Americans. He's owned an NBA team for over 30 years. He had a black mistress. He just seems to be inextricably bound to his own attitudes.
In any event, if the increasingly strong evidence for "mismatch" effects of affirmative action is correct, then it is just as likely that affirmative action will reinforce stereotypes. It is tempting to think that a committee of elites can fine tune the world. It is almost always wrong.
Cross posted at Purple Wisconsin.
Monday, May 05, 2014
Judicial recusal again
So we are now supposed to be interested in judicial recusal again. The idea is that, if interested parties - even independent organizations - spend a lot of money in a judicial election, then a justice who benefited from that spending ought to step aside.
Back when I worked as a full time legal academic and did such things, I wrote about judicial recusal. While the Journal Sentinel has turned to academic experts on the subject (generally representing a spectrum of opinion from A to A flat), the analysis that they offer is, in this context, insufficiently developed.
I wrote on the subject recently here. Let me revise and extend my remarks.
The idea between recusal based on campaign support is that it might cause a judge to improperly prefer the interests of a party. A judge in that sense might depart from the need to be impartial toward all parties; to apply the law - as she sees it - to all parties equally.
This was the reasoning behind the United States Supreme court's decision in Caperton v. A.T. Massey Coal Co. In that case, the CEO of Massey spent millions of dollars in support of a candidate for the West Virginia Supreme Court. At the time, Massey was in the process of appealing a $ 50 million verdict against it. When the beneficiary of this campaign support was elected and refused to recuse himself in the appeal, the U.S. Supreme Court found that the Caperton plaintiffs (who had won the large verdict) were denied their due process rights.
Now, there are problems with Caperton, but, even if we accept its reasoning, there are serious difficulties when one attempts to apply it to instances when campaign support has come from an ideological advocacy group such as Wisconsin Club for Growth or the Greater Wisconsin Committee. (In Caperton, an organization was used to spend most of the campaign money, but it was largely funded by Massey's CEO.)
These organizations really have no independent existence other than as an association of like-minded persons who want to speak in an election. Their are driven by ideological and policy preferences and their identity shifts from election to election. The organization is a vehicle for their association, but, as an institution, adds little to it. They might unite under the banner of the Club for Growth today and form a new organization tomorrow.
Significantly, these groups tend to support candidates who already share the perspective that their donors support. The Greater Wisconsin Committee looks for liberal candidates. It does not support candidates who do not share their outlook in the hope that he or she will "come around" after the election. Advocacy groups don't seek to influence candidates, as much as they seek to influence the electorate to support candidates who already have the views that the group seeks to advance.
So to be "biased" in favor of Club for Growth or the Greater Wisconsin Committee is to be biased in favor of the ideology they promote. It is, moreover, likely a "bias" that the candidate already has. It constitutes his or her deeply held convictions about the way in which the world works.
That's not impermissible bias. It does not raise due process concerns. In a case called White v. Republican Party, a majority of the United States Supreme Court held that bias in favor of a philosophical perspective - to have a position on disputed legal and political issues - is not bias at all.
Now, to be sure, there are times when a judge needs to put aside those preferences because the law requires that they be ignored. For example, I oppose the death penalty, but, by the traditional tools of legal analysis, I can't say it is unconstitutional. I might think that a state income tax is poor public policy, but, were I a judge, I'd certainly have to enforce it. (It is not, however, always the case that a judge's political or philosophical perspective will have no role in deciding a case; judges routinely rely on their philosophical and political beliefs to resolve uncertain questions of law. That's why we care so much about who is on the Supreme Court.)
But the fact that one has been supported by like-minded individuals does not make it appreciably less likely that a judge will be able to set aside biases that do not arise from that support, but from his or her own ideology.
Now, to be sure, a few caveats in order. Advocacy groups may be more ideological than candidates and drive them to more extreme positions than they otherwise would take. They may dissuade a judge from expressing a sincerely felt position that is more "nuanced" or idiosyncratic than his or her ideological cohorts would prefer. But it's not clear to me that monetary support makes this significantly more problematic than does the bare fact of judicial elections.
Of course, some donors support ideological groups for private purposes and, while their donors may not be disclosed, a judicial candidate will come to know who they are. But sorting that out - should a judge who accepts support from the plaintiffs' bar recuse herself in cases raising important questions of tort law - would seem to rest uneasily with the notion that we want the public, with all its conflicting interests, to elect judges.
Some people reject the premise of White v. Republican Party. They want judges to be selected without ideology. This is so, even though I am aware of no serious student of the law who does not believe that ideology matters in deciding certain cases in which the law is unclear. But this is really an argument against judicial elections more than it is an argument against recusal.
Here's why. Judicial elections - particularly for law developing courts like our state supreme court - will almost always involve contests of competing ideologies. If the support of one "side" or the other is a basis for recusal, there is always be basis for recusal in cases with political or ideological import.
In fact, the problem runs even deeper than is commonly supposed. The most recent Journal Sentinel article draws a distinction between campaigns in which a great deal of money has been spent and those in which it has not - generally because the latter races were not competitive.
On one level, that makes sense. But, if we are really worried about the impact of ideology and the groups that advance ideologies in judicial elections, it stops short of efficacy - at least in the context of a multi-member court. Even if a justice is not running, he or she may care deeply about the campaigns involving other members of the Court. Those races can affect whether a justice will have a like-minded majority in the ideologically driven cases about which the justices may care the most.
It is well known within the legal community that members of the state supreme court recruit or support (generally silently) candidates to oppose their colleagues. (In fact, a recent proposal by the state bar association to limit justices to one sixteen year term is, in part, driven by the potentially corrosive impact of justices being involved in their colleagues' re-election campaigns.) It is also the case that a justice who is contemplating re-election will be aware that certain groups will spend for or against them when the time comes. Thus, if we think ideological support is a problem, combating it will require more than simply seeking the recusal of justices who have had contested races in which these advocacy groups have been players.
It is no answer to this problem to say that limiting recusal to candidates who have enjoyed the support or weathered the opposition of these groups is better than nothing. Stopping halfway can affect the ideological composition of the court and frustrate the political choices that the public, in electing these judges, has made.
So my view has been that an aggressive view of recusal - requiring it in the wake of lawful campaign support particularly from advocacy groups - is at odds with our decision to elect judges and, quite frankly, is a vehicle for mischief - of attempts to change the composition of a court that the public has elected - than it is a way to ensure impartiality.
Cross posted at Purple Wisconsin.
Back when I worked as a full time legal academic and did such things, I wrote about judicial recusal. While the Journal Sentinel has turned to academic experts on the subject (generally representing a spectrum of opinion from A to A flat), the analysis that they offer is, in this context, insufficiently developed.
I wrote on the subject recently here. Let me revise and extend my remarks.
The idea between recusal based on campaign support is that it might cause a judge to improperly prefer the interests of a party. A judge in that sense might depart from the need to be impartial toward all parties; to apply the law - as she sees it - to all parties equally.
This was the reasoning behind the United States Supreme court's decision in Caperton v. A.T. Massey Coal Co. In that case, the CEO of Massey spent millions of dollars in support of a candidate for the West Virginia Supreme Court. At the time, Massey was in the process of appealing a $ 50 million verdict against it. When the beneficiary of this campaign support was elected and refused to recuse himself in the appeal, the U.S. Supreme Court found that the Caperton plaintiffs (who had won the large verdict) were denied their due process rights.
Now, there are problems with Caperton, but, even if we accept its reasoning, there are serious difficulties when one attempts to apply it to instances when campaign support has come from an ideological advocacy group such as Wisconsin Club for Growth or the Greater Wisconsin Committee. (In Caperton, an organization was used to spend most of the campaign money, but it was largely funded by Massey's CEO.)
These organizations really have no independent existence other than as an association of like-minded persons who want to speak in an election. Their are driven by ideological and policy preferences and their identity shifts from election to election. The organization is a vehicle for their association, but, as an institution, adds little to it. They might unite under the banner of the Club for Growth today and form a new organization tomorrow.
Significantly, these groups tend to support candidates who already share the perspective that their donors support. The Greater Wisconsin Committee looks for liberal candidates. It does not support candidates who do not share their outlook in the hope that he or she will "come around" after the election. Advocacy groups don't seek to influence candidates, as much as they seek to influence the electorate to support candidates who already have the views that the group seeks to advance.
So to be "biased" in favor of Club for Growth or the Greater Wisconsin Committee is to be biased in favor of the ideology they promote. It is, moreover, likely a "bias" that the candidate already has. It constitutes his or her deeply held convictions about the way in which the world works.
That's not impermissible bias. It does not raise due process concerns. In a case called White v. Republican Party, a majority of the United States Supreme Court held that bias in favor of a philosophical perspective - to have a position on disputed legal and political issues - is not bias at all.
Now, to be sure, there are times when a judge needs to put aside those preferences because the law requires that they be ignored. For example, I oppose the death penalty, but, by the traditional tools of legal analysis, I can't say it is unconstitutional. I might think that a state income tax is poor public policy, but, were I a judge, I'd certainly have to enforce it. (It is not, however, always the case that a judge's political or philosophical perspective will have no role in deciding a case; judges routinely rely on their philosophical and political beliefs to resolve uncertain questions of law. That's why we care so much about who is on the Supreme Court.)
But the fact that one has been supported by like-minded individuals does not make it appreciably less likely that a judge will be able to set aside biases that do not arise from that support, but from his or her own ideology.
Now, to be sure, a few caveats in order. Advocacy groups may be more ideological than candidates and drive them to more extreme positions than they otherwise would take. They may dissuade a judge from expressing a sincerely felt position that is more "nuanced" or idiosyncratic than his or her ideological cohorts would prefer. But it's not clear to me that monetary support makes this significantly more problematic than does the bare fact of judicial elections.
Of course, some donors support ideological groups for private purposes and, while their donors may not be disclosed, a judicial candidate will come to know who they are. But sorting that out - should a judge who accepts support from the plaintiffs' bar recuse herself in cases raising important questions of tort law - would seem to rest uneasily with the notion that we want the public, with all its conflicting interests, to elect judges.
Some people reject the premise of White v. Republican Party. They want judges to be selected without ideology. This is so, even though I am aware of no serious student of the law who does not believe that ideology matters in deciding certain cases in which the law is unclear. But this is really an argument against judicial elections more than it is an argument against recusal.
Here's why. Judicial elections - particularly for law developing courts like our state supreme court - will almost always involve contests of competing ideologies. If the support of one "side" or the other is a basis for recusal, there is always be basis for recusal in cases with political or ideological import.
In fact, the problem runs even deeper than is commonly supposed. The most recent Journal Sentinel article draws a distinction between campaigns in which a great deal of money has been spent and those in which it has not - generally because the latter races were not competitive.
On one level, that makes sense. But, if we are really worried about the impact of ideology and the groups that advance ideologies in judicial elections, it stops short of efficacy - at least in the context of a multi-member court. Even if a justice is not running, he or she may care deeply about the campaigns involving other members of the Court. Those races can affect whether a justice will have a like-minded majority in the ideologically driven cases about which the justices may care the most.
It is well known within the legal community that members of the state supreme court recruit or support (generally silently) candidates to oppose their colleagues. (In fact, a recent proposal by the state bar association to limit justices to one sixteen year term is, in part, driven by the potentially corrosive impact of justices being involved in their colleagues' re-election campaigns.) It is also the case that a justice who is contemplating re-election will be aware that certain groups will spend for or against them when the time comes. Thus, if we think ideological support is a problem, combating it will require more than simply seeking the recusal of justices who have had contested races in which these advocacy groups have been players.
It is no answer to this problem to say that limiting recusal to candidates who have enjoyed the support or weathered the opposition of these groups is better than nothing. Stopping halfway can affect the ideological composition of the court and frustrate the political choices that the public, in electing these judges, has made.
So my view has been that an aggressive view of recusal - requiring it in the wake of lawful campaign support particularly from advocacy groups - is at odds with our decision to elect judges and, quite frankly, is a vehicle for mischief - of attempts to change the composition of a court that the public has elected - than it is a way to ensure impartiality.
Cross posted at Purple Wisconsin.
Friday, May 02, 2014
Of city and suburbs
Milwaukee's city-suburban wars have been going on for longer than I can remember. The one constant has been a failure of each side to understand the legitimate concerns of the other and to dismiss either the "'burbs" or the "city" with unwarranted caricatures.
A case in point: the recent contretemps between my Purple Wisconsin colleague Alex Runner and Waukesha blogger Nate Sass. Both seem to be decent enough blokes but something about this particular fault line seems to generate more heat than light.
Sass goes first, suggesting that a new arena ought to be built in Waukesha or at least not downtown. These, it seems to me, are at least tenable suggestions; certainly nothing that should earn the author contempt. If you want regional funding for a new building, you need to take into account regional perspectives. Putting aside whether there ought to be public funding, I tend to think that downtown or Menomonee Valley are the best locations. But if you want to ask the suburbs for money, you ought not dismiss the suggestion that the playground be built in the suburbs as beyond the pale.
Sass points out that the BMO Harris Center did not lead to the economic development that was once hoped for. This too strikes me as a legitimate point. The sluggish performance of the Bradley Center neighborhood does not mean that a new arena in that area can't do better, but it would be foolish not to ask why things didn't turn out better.
In my mind, Sass goes off the rails in suggesting that downtown Milwaukee is a wasteland that no one wants to visit. That is demonstrably false. Crime is not a problem in downtown Milwaukee and parking is quite manageable. If he doesn't think so, he should leave Waukesha and head down there this summer.
I agree that Milwaukee is not Manhattan or Chicago. Only a handful of cities in the world are. I also agree that it is not Madison. It makes Madison look like Fargo.
In response to this, Alex loses his last nerve, calling Sass' piece a "hack job." But Sass makes a couple of points that urban advocates should not lose sight of.
The first is that the suburbs are no longer dependent on - and do not live off - the city. To be sure, Brookfield and Mequon came to be because Milwaukee was there first. But so were Grosse Pointe and Southfield a product of Detroit. That they don't need Detroit anymore is evident from a drive the length of Woodward Avenue.
This is more true today than ever. Three years ago, when I founded the Wisconsin Institute for Law & Liberty, I put it in downtown Milwaukee for no reason other than my subjective preference to be there. There was absolutely no business reason to do so.
The implication of that point is that the city is not in a position to demand that the suburbs pay for whatever it wants however it wants it. One cannot build a great city by expecting outsiders to fund things that John Lindsay thought were good ideas in 1966. Milwaukee will not rise on the power of government. If you want prosperity, you need to earn it. It won't come by politics.
I appreciate that many people believe this is unfair. It is no less true for that.
The second is that, when public money from the outside is properly spent, it must come with political participation. Sass is correct to point out that the MMSD is a prime example of a "regional" approach that one side has attempted to dominate at the expense of the other. That's one reason it hasn't worked very well.
It is risible for Milwaukee to say that is just wants to be "left alone." That's the last thing it wants. Being left alone - to truly exercise "local control" - would mean ceasing to be a supplicant. The city would have to announce that it no longer wants to receive tax dollars generated outside its borders.
Indeed, conservative that I am, I don't believe that Milwaukee should be "left alone" in this way, although I believe that many of the preferred nostrums of Milwaukee politicians are ill conceived and counterproductive. I am not anti-urban. I am anti-urban "progressivism."
But Milwaukee can't expect to be inveterately hostile to the interests of the larger region - yes, I'm talking freeways, streetcars and taxes - and not expect to reap hostility in turn.
Cross posted at Purple Wisconsin.
A case in point: the recent contretemps between my Purple Wisconsin colleague Alex Runner and Waukesha blogger Nate Sass. Both seem to be decent enough blokes but something about this particular fault line seems to generate more heat than light.
Sass goes first, suggesting that a new arena ought to be built in Waukesha or at least not downtown. These, it seems to me, are at least tenable suggestions; certainly nothing that should earn the author contempt. If you want regional funding for a new building, you need to take into account regional perspectives. Putting aside whether there ought to be public funding, I tend to think that downtown or Menomonee Valley are the best locations. But if you want to ask the suburbs for money, you ought not dismiss the suggestion that the playground be built in the suburbs as beyond the pale.
Sass points out that the BMO Harris Center did not lead to the economic development that was once hoped for. This too strikes me as a legitimate point. The sluggish performance of the Bradley Center neighborhood does not mean that a new arena in that area can't do better, but it would be foolish not to ask why things didn't turn out better.
In my mind, Sass goes off the rails in suggesting that downtown Milwaukee is a wasteland that no one wants to visit. That is demonstrably false. Crime is not a problem in downtown Milwaukee and parking is quite manageable. If he doesn't think so, he should leave Waukesha and head down there this summer.
I agree that Milwaukee is not Manhattan or Chicago. Only a handful of cities in the world are. I also agree that it is not Madison. It makes Madison look like Fargo.
In response to this, Alex loses his last nerve, calling Sass' piece a "hack job." But Sass makes a couple of points that urban advocates should not lose sight of.
The first is that the suburbs are no longer dependent on - and do not live off - the city. To be sure, Brookfield and Mequon came to be because Milwaukee was there first. But so were Grosse Pointe and Southfield a product of Detroit. That they don't need Detroit anymore is evident from a drive the length of Woodward Avenue.
This is more true today than ever. Three years ago, when I founded the Wisconsin Institute for Law & Liberty, I put it in downtown Milwaukee for no reason other than my subjective preference to be there. There was absolutely no business reason to do so.
The implication of that point is that the city is not in a position to demand that the suburbs pay for whatever it wants however it wants it. One cannot build a great city by expecting outsiders to fund things that John Lindsay thought were good ideas in 1966. Milwaukee will not rise on the power of government. If you want prosperity, you need to earn it. It won't come by politics.
I appreciate that many people believe this is unfair. It is no less true for that.
The second is that, when public money from the outside is properly spent, it must come with political participation. Sass is correct to point out that the MMSD is a prime example of a "regional" approach that one side has attempted to dominate at the expense of the other. That's one reason it hasn't worked very well.
It is risible for Milwaukee to say that is just wants to be "left alone." That's the last thing it wants. Being left alone - to truly exercise "local control" - would mean ceasing to be a supplicant. The city would have to announce that it no longer wants to receive tax dollars generated outside its borders.
Indeed, conservative that I am, I don't believe that Milwaukee should be "left alone" in this way, although I believe that many of the preferred nostrums of Milwaukee politicians are ill conceived and counterproductive. I am not anti-urban. I am anti-urban "progressivism."
But Milwaukee can't expect to be inveterately hostile to the interests of the larger region - yes, I'm talking freeways, streetcars and taxes - and not expect to reap hostility in turn.
Cross posted at Purple Wisconsin.
Thursday, May 01, 2014
Nullification on the left and right
I wrote an earlier post about secession. Now I should address nullification.
It's not constitutional. The United States Constitution makes clear that federal law has supremacy over conflicting state law. Resolutions calling for acts of nullification are, at best, wastes of time and, at worst, bad politics. They give fodder to your enemies.
But I do think that three observations are in order.
First, I don't mind that Dan Bice keeps writing about this, but I would think - if he is looking for crackpots to box around - that he might point out to his readers that Shorewood and a number of other communities around the state recently voted to repeal the First Amendment rights of the newspaper works for - as well as every other newspaper and broadcast station in the country.
Second, while we ought to respect the Supremacy Clause in our constitution, we should also respect constitutional limitations on the power of the federal government. Over the past eighty years, those limitation, with the acquiescence of the Supreme Court, have been largely ignored through a combination of lawyerly sophistry and indifference. Legal sophisticates try to avoid a debate about this by presenting this a a fait accompli - something that it makes no sense to question and is, in any event, an inevitable outcome of the centralizing tendencies of the twentieth century. That's not so and a resolution addressing that would be appropriate.
Third, I sure hope that we are going to see as much emphasis on the crackpottery of the Democratic Party resolutions committee. It is not clear to me, for example, that support for nullification or secession in "extreme" circumstances is any worse than support for abortion until, literally, the moment of delivery or, as noted above, repealing the First Amendment rights of newspapers and other legal associations of persons.
It's not constitutional. The United States Constitution makes clear that federal law has supremacy over conflicting state law. Resolutions calling for acts of nullification are, at best, wastes of time and, at worst, bad politics. They give fodder to your enemies.
But I do think that three observations are in order.
First, I don't mind that Dan Bice keeps writing about this, but I would think - if he is looking for crackpots to box around - that he might point out to his readers that Shorewood and a number of other communities around the state recently voted to repeal the First Amendment rights of the newspaper works for - as well as every other newspaper and broadcast station in the country.
Second, while we ought to respect the Supremacy Clause in our constitution, we should also respect constitutional limitations on the power of the federal government. Over the past eighty years, those limitation, with the acquiescence of the Supreme Court, have been largely ignored through a combination of lawyerly sophistry and indifference. Legal sophisticates try to avoid a debate about this by presenting this a a fait accompli - something that it makes no sense to question and is, in any event, an inevitable outcome of the centralizing tendencies of the twentieth century. That's not so and a resolution addressing that would be appropriate.
Third, I sure hope that we are going to see as much emphasis on the crackpottery of the Democratic Party resolutions committee. It is not clear to me, for example, that support for nullification or secession in "extreme" circumstances is any worse than support for abortion until, literally, the moment of delivery or, as noted above, repealing the First Amendment rights of newspapers and other legal associations of persons.
Tuesday, April 29, 2014
A few thoughts on the cranky old racist
Donald Sterling has long been, for good reason, a pariah among owners of professional sports teams. Not only were his Clippers among the worst run franchises in sports, he seemed to mix his incompetence with multiple layers of distastefulness such as that recently on display.
So there's really no point in commenting on his philosophy of race and the single girl. It's too weird. Here's a guy carrying on with a woman who is young enough to be his granddaughter. (He has obviously forgotten the controversial - but time honored and scientifically validated - rule for these things.)
Although she is apparently of black parentage, he doesn't want her to be seen with black people (who he, nevertheless, says are "wonderful") because ... well, I don't know. Apparently because he "has to live in" some kind of "culture" that doesn't .... what ... want black people at NBA games? Or maybe "the culture" just doesn't want black people at NBA games with a woman that Donald Sterling is trying to pretend isn't black - one who, he says, is supposed to be a "delicate white or Latina"?
You figure it out. I can't. This is serious psycho-scrapple. But panic over African American men being around white women is an historic and ugly manifestation of racism. I suspect that had somehing to do with it.
But it's also a no-brainer to condemn, so let's consider four additional points.
First, Christian Schneider thinks we should quit excusing old people from being racists. I hadn't noticed that we did. But let me endorse the sentiment and add an observation or two.
The March on Washington took place over 50 years ago. Donald Sterling, according to the authorities at Wikipedia, was 30 years old then. The civil rights movement was not something that happened after he was a crusty old fart set in his ways. Maybe we could excuse those people - say Strom Thurmond or George Wallace - who were "too old" to adjust (and, actually, Thurmond and Wallace did change; at least a little), but those old people are mostly dead now.
More fundamentally, you don't get to be a crusty old fart set in your ways. You can think that older ways of thinking were better - often they were (albeit not on this issue) - but you have to keep making the case for the good old days. Getting older doesn't mean you get to stop thinking. In fact, doing that will make it harder for you to keep getting older.
So, just as I wouldn't excuse Henry Aaron for not understanding the modern world, Sterling gets no pass. (And, no, the fact that I won't allow either to use the "stuck in the past" excuse does not "equate" their remarks.)
Besides, if he wants to run with a 21st century hottie, he needs to act his pretend age. Suck in your gut and let Lolita bring Magic Johnson into the luxury box.
Second, what should the NBA do? As I write this, he has been fined and banned for life. Adam Silver, Commissioner of the NBA, intends to try to force him to sell the team. This seems about right to me -although I'm a little unclear as to how you ban him from the league and still collect the fine.
I am not suggesting that everyone with views we disapprove of or that are unpopular should be driven from public life. I am very critical of Mozilla for firing its CEO because he differs with Silicon Valley's regnant view on the purpose and meaning of marriage. Civility requires that we learn to live, do business and sometimes even play with people we disagree with.
But all disagreements aren't the same. Saying that you don't want black people at your games - or don't want them there with certain kinds of people - is a delusion too far.
I detest our contemporary habit of condemning people based on an isolated remark. But this was an entire and rather belabored conversation. More fundamentally, it is consistent with some of Sterling's behavior in the past.
It is certainly true that publicizing private conversations is icky. In some states and under some circumstances, it is even illegal. But that's a different issue for another day.
Third, we shouldn't try to make this into a proxy for something that it isn't. In the wake of Sterling's comments, some conservatives inappropriately tried to make hay of his donations to Democratic candidates. Liberals tried to spike the football over the fact that he is a registered Republicans. In a truly silly column, Jeffrey Toobin seems to think that the remarks of this addle-brained and long standing creep (along with those of the crank Cliven Bundy) mean that we can't really ban discrimination on the basis of race. (More on that later.)
Donald Sterling's racism and his odd panic over his black and Hispanic girlfriend are about Donald Sterling.
Finally, what does this mean for us? Before a whole slew of new baseball palaces were built in the late nineties and oughts, MLB used Florida as a threat to get cities with existing franchises to come over with public money. Don't want to build a stadium? Tampa would love to have your team. (Ironically, when Florida did get baseball, it turned out that it wasn't a great location.)
The NFL uses Los Angeles in he same way. The NBA uses Seattle. If, as I suspect, the Clippers get sold, it's not clear to me that someone paying a market price would want to keep it as a second LA team. It may well be that the Clippers go to Seattle. I don't think that means the Bucks can stay in the Bradley Center, but it might change the dynamic.
Cross posted at Purple Wisconsin.
So there's really no point in commenting on his philosophy of race and the single girl. It's too weird. Here's a guy carrying on with a woman who is young enough to be his granddaughter. (He has obviously forgotten the controversial - but time honored and scientifically validated - rule for these things.)
Although she is apparently of black parentage, he doesn't want her to be seen with black people (who he, nevertheless, says are "wonderful") because ... well, I don't know. Apparently because he "has to live in" some kind of "culture" that doesn't .... what ... want black people at NBA games? Or maybe "the culture" just doesn't want black people at NBA games with a woman that Donald Sterling is trying to pretend isn't black - one who, he says, is supposed to be a "delicate white or Latina"?
You figure it out. I can't. This is serious psycho-scrapple. But panic over African American men being around white women is an historic and ugly manifestation of racism. I suspect that had somehing to do with it.
But it's also a no-brainer to condemn, so let's consider four additional points.
First, Christian Schneider thinks we should quit excusing old people from being racists. I hadn't noticed that we did. But let me endorse the sentiment and add an observation or two.
The March on Washington took place over 50 years ago. Donald Sterling, according to the authorities at Wikipedia, was 30 years old then. The civil rights movement was not something that happened after he was a crusty old fart set in his ways. Maybe we could excuse those people - say Strom Thurmond or George Wallace - who were "too old" to adjust (and, actually, Thurmond and Wallace did change; at least a little), but those old people are mostly dead now.
More fundamentally, you don't get to be a crusty old fart set in your ways. You can think that older ways of thinking were better - often they were (albeit not on this issue) - but you have to keep making the case for the good old days. Getting older doesn't mean you get to stop thinking. In fact, doing that will make it harder for you to keep getting older.
So, just as I wouldn't excuse Henry Aaron for not understanding the modern world, Sterling gets no pass. (And, no, the fact that I won't allow either to use the "stuck in the past" excuse does not "equate" their remarks.)
Besides, if he wants to run with a 21st century hottie, he needs to act his pretend age. Suck in your gut and let Lolita bring Magic Johnson into the luxury box.
Second, what should the NBA do? As I write this, he has been fined and banned for life. Adam Silver, Commissioner of the NBA, intends to try to force him to sell the team. This seems about right to me -although I'm a little unclear as to how you ban him from the league and still collect the fine.
I am not suggesting that everyone with views we disapprove of or that are unpopular should be driven from public life. I am very critical of Mozilla for firing its CEO because he differs with Silicon Valley's regnant view on the purpose and meaning of marriage. Civility requires that we learn to live, do business and sometimes even play with people we disagree with.
But all disagreements aren't the same. Saying that you don't want black people at your games - or don't want them there with certain kinds of people - is a delusion too far.
I detest our contemporary habit of condemning people based on an isolated remark. But this was an entire and rather belabored conversation. More fundamentally, it is consistent with some of Sterling's behavior in the past.
It is certainly true that publicizing private conversations is icky. In some states and under some circumstances, it is even illegal. But that's a different issue for another day.
Third, we shouldn't try to make this into a proxy for something that it isn't. In the wake of Sterling's comments, some conservatives inappropriately tried to make hay of his donations to Democratic candidates. Liberals tried to spike the football over the fact that he is a registered Republicans. In a truly silly column, Jeffrey Toobin seems to think that the remarks of this addle-brained and long standing creep (along with those of the crank Cliven Bundy) mean that we can't really ban discrimination on the basis of race. (More on that later.)
Donald Sterling's racism and his odd panic over his black and Hispanic girlfriend are about Donald Sterling.
Finally, what does this mean for us? Before a whole slew of new baseball palaces were built in the late nineties and oughts, MLB used Florida as a threat to get cities with existing franchises to come over with public money. Don't want to build a stadium? Tampa would love to have your team. (Ironically, when Florida did get baseball, it turned out that it wasn't a great location.)
The NFL uses Los Angeles in he same way. The NBA uses Seattle. If, as I suspect, the Clippers get sold, it's not clear to me that someone paying a market price would want to keep it as a second LA team. It may well be that the Clippers go to Seattle. I don't think that means the Bucks can stay in the Bradley Center, but it might change the dynamic.
Cross posted at Purple Wisconsin.
Friday, April 25, 2014
Let's succeed and not secede
Both political parties have to deal with purists whose enthusiasm overcomes their common sense. Political activists have more passion than most and passion is not always well informed.
So let me say it. The resolution passed by one of the state Republican Congressional District conventions asserting Wisconsin's right to secede from the Union was dumb. It was dumb from a political perspective and on the merits. We fought a civil war to resolve that question. While I suppose, given the breadth of human evil, that you can imagine circumstances in which a state would justifiably wish to secede - say Nazi or Communist totalitarians established a police state in Washington - that remote and theoretical possibility does not warrant revisiting the nature of the United States.
On the other hand, my friends on the left - and on the editorial board of this paper - might want to be careful about treating this as a Republican or "right wing" issue. After George Bush was re-elected, it was fringe Democrats who discussed the secession of the blue states
There has been a left wing secessionist movement in Vermont that has attracted the support of as much as 13% of the population there. Back in the sixties, radicals, including the widow of Malcolm X, proposed creating a black majority Republic of New Afrika in the deep South.
There has even been prior movements for secession involving Wisconsin. Some proposals to create a new state called Superior have included the northern counties of Wisconsin. Less seriously, Winneconne seceded from Wisconsin for one day in 1967 and still celebrates the event.
Nor is it right - and this is why the Sixth Congressional District action really frosts me - to use the support of a few extremists to tar legitimate concerns about federalism. The Tenth Amendment does matter. Our framers did envision a limited role for the federal government and the states do have rights - although secession is not, under almost all circumstances, one of them.
I spend a lot time fighting for federalism and I don't appreciate it when people who are supposed to be on my side run down the brand.
Cross posted at Purple Wisconsin
So let me say it. The resolution passed by one of the state Republican Congressional District conventions asserting Wisconsin's right to secede from the Union was dumb. It was dumb from a political perspective and on the merits. We fought a civil war to resolve that question. While I suppose, given the breadth of human evil, that you can imagine circumstances in which a state would justifiably wish to secede - say Nazi or Communist totalitarians established a police state in Washington - that remote and theoretical possibility does not warrant revisiting the nature of the United States.
On the other hand, my friends on the left - and on the editorial board of this paper - might want to be careful about treating this as a Republican or "right wing" issue. After George Bush was re-elected, it was fringe Democrats who discussed the secession of the blue states
There has been a left wing secessionist movement in Vermont that has attracted the support of as much as 13% of the population there. Back in the sixties, radicals, including the widow of Malcolm X, proposed creating a black majority Republic of New Afrika in the deep South.
There has even been prior movements for secession involving Wisconsin. Some proposals to create a new state called Superior have included the northern counties of Wisconsin. Less seriously, Winneconne seceded from Wisconsin for one day in 1967 and still celebrates the event.
Nor is it right - and this is why the Sixth Congressional District action really frosts me - to use the support of a few extremists to tar legitimate concerns about federalism. The Tenth Amendment does matter. Our framers did envision a limited role for the federal government and the states do have rights - although secession is not, under almost all circumstances, one of them.
I spend a lot time fighting for federalism and I don't appreciate it when people who are supposed to be on my side run down the brand.
Cross posted at Purple Wisconsin
Subscribe to:
Posts (Atom)