R.I.P Ted Kennedy

Laughing Our Way Out of Confusion about Health Care

Donny Shaw at OpenCongress makes an excellent point about how the Daily Show with Jon Stewart often features segments with more probing discussion about issues than actual programs that purport to be news outlets.

Armed with the first 500 pages of the House health care bill (H.R. 3200) Betsy McCaughey, the first person to equate end-of-life planning with government-mandated euthanasia, went on the Daily Show with Jon Stewart last night to defend her position.

The show sort of underscores the anomaly of the health care debate in our country right now. This is comedy show where two people are having a fairly high-level discussion about actual legislative text, and the substance is compelling enough that it makes for good entertainment. There is a real desire to know what’s in the bill. Health care, obviously, is an especially important issue. But, also, I think the people that follow what happens in Congress are figuring out that there is a lot of misinformation standing in the way of having a smart debate of the bill, and they are trying to get the facts for themselves, which is fantastic.

I suppose its fantastic that the Daily Show decided to do such a segment, but its also an alarming indicator of how the disinformation out there is so pervasive that even after two months of ‘debate’ we are still remain confused about the substance of the proposal. And the fact that a comedian, even one as clever as Stewart, could provide a better 101 on the issue than many other programs should be considered an indictment of the failure of the television news media to inform and educate the public about a critical issue that could change the country for generations to come.

You can watch the segment here.

Fringe Form of Bipartisianship

Frank Rich’s column in today’s NYT echoes much of the liberal left’s criticism of Obama curious approach to bipartisanship, including reaching out to Republicans that have cozied up to the fringe right. Case in point Chuck Grassely of Iowa who is the designated point man on negotiating the health care bill for Senate Republicans, but has shamelessly propagated the death panel rumor.

Money quote:

Even now the radicals are taking a nonviolent toll on the Obama presidency. Obama complains, not without reason, that the news media, led by cable television, exaggerate the ruckus at health care events. But why does he exaggerate the legitimacy and clout of opposition members of Congress who, whether through silence or outright endorsement, are surrendering to the nuts? Even Charles Grassley, the supposedly adult Iowa Republican who is the Senate point man for his party on health care, has now capitulated to the armed fringe by publicly parroting their “pull the plug on grandma” fear-mongering.

Part of me wonders how much of this dynamic is a natural by product of a dwindling Republican party rapidly becoming a regional party with supporters who so successfully shifted the debate to the right that GOP elected officials feel as if they have no choice to not just keep up, but get out in front of the lunacy. After all, if you have a supposedly national party with no viable strategy to reach out to moderates and centrist voters and candidates, then those currently in office will constantly try to build up their street cred among the base.

Meanwhile, the political environment will continue suffer from an increase in political polarization.

Of course, Frank Rich is not alone in his frustration with the President’s approach, but there are a number of things that one has to remember about Capitol Hill. One is while Republicans during the Bush years were more than eager to move legislation with little regard to how many Democrats supported it, a handful of Democrats in the Senate today will not vote for a bill unless its a bipartisian measure.  Usually, these are redstate Democrats that are hyper sensitive about being painted as raving lefties such as Senators Ben Nelson of Nebraska, Kent Conrad of Montana, Byron Dorgan of North Dakota, and Mary Landrieu of Louisana.

Many of these Democrats joined forces with the likes of Senators Olympia Snowe and Susan Collins both from Maine, too pair down the one time $900 billion stimulus bill down to $787 billlion. In a chamber composed of 100 members you will only see these two women Republicans from Maine, who are already feeling intense pressure not to show any signs of capitulation, and maybe one more GOP Senator that will bargain with the Democrats on health care or confirming judges to the federal bench, or spending bills or a climate change and energy bill.

Dealing with Inconvenient Myths about Health Care

In his weekly address, President Barack Obama said while he is glad to see “a vigorous debate about health insurance reform” he is expressed frustration about it being “dominated by willful misrepresentations and outright distortions, spread by the very folks who would benefit the most by keeping things exactly as they are.”

He cited “some of the more outrageous myths circulating on the internet, on cable TV, and repeated at some town halls across this country” such as generous health coverage for undocumented workers, mandated payment for abortions, and the implementation of so-called death panels. None of which are actually in the bill.

This is not the first time the president felt the need to counter some of these myths. In his August 8th weekly address, Obama said criticized the spreading of “outlandish rumors that reform will promote euthanasia, cut Medicaid, or bring about a government takeover of health care. That’s simply not true.”

At an August 11th New Hampshire town hall gathering on health care the president also said, “The rumor that’s been circulating a lot lately is this idea that somehow the House of Representatives voted for “death panels” that will basically pull the plug on grandma because we’ve decided that we don’t — it’s too expensive to let her live anymore.”

If the president of the United States has to push back on these falsehoods so many times to get his message out one wonders if he might benefit from a different approach. I realize President Obama sees himself as a reconciler of sorts and a healer, a latter day Abraham Lincoln if you will.

“There are always those who oppose it, and those who use fear to block change,” he noted in his weekly address. “But what has always distinguished America is that when all the arguments have been heard, and all the concerns have been voiced, and the time comes to do what must be done, we rise above our differences, grasp each others’ hands, and march forward as one nation and one people, some of us Democrats, some of us Republicans, all of us Americans.”

But since the opposition is not looking for harmony, isn’t interested in civility, and won’t be satisfied with merely being listened to, perhaps he needs to deal with folks in the same way Massachusetts Congressman Barney Frank confronted a LaRouche supporter named Rachel Brown at one of his own town halls this week. Brown specifically said was like Adolf Hilter’s T4 policy in Nazi Germany where people who were deemed incurably ill because of a chronic aliment or a disability or mentally disturbed or otherwise considered undesirable to national socialists was somehow the same thing as a provision in one of the health care bills, H.R. 3200, regarding end of life care, i.e. the infamous dealth panels.

This myth has been thoroughly debunked by the press and other experts.  Read the WaPo’s editorial on this issue for more detail on this distortion.

Rep. Frank’s said to Brown, who managed to compare Obama to Hitler at a recent town hall meeting, “It is a tribute to the First Amendment that this kind of vile, contemptible nonsense is so freely propagated.” He also added “Trying to have a conversation with you would be like trying to argue with a dining room table, I have no interest in doing it.”

And at one point, Rep. Frank even rhetorically asked the LaRouche supporter “what planet do you live on?” As you may or may not know, the LaRouche group is a bunch of fringe lefties with socialist leanings with a peculiar penchant for conspiratorial thinking.

Watch the video:

Now I understand President Obama is under a different kind of pressure than Representative Frank has to contend with. Obama is a first year president trying not to fail and constantly mindful of his 2012 reelection bid. Frank, on the other hand, has a very secure Congressional seat, which he has held since 1981.

Whereas the president is still wrestling with how to be a principled uniter as he desperately tries to avoid alienating potential voters lest he himself be accused of being grossly intolerant and elitist, Frank often speaks his mind with little concern about who feigns offense. I understand that.

But at some point, the president has to be a lot more forceful in his condemnation of these baseless attacks otherwise they will continue to gain traction as the negotiations over the various bill become more involved. And the more that happens the easeir it will be for Republicans and conservative Democrats in the House and the Senate to push back against the president.

Paul Krugman’s Feigned Sense of Shock and Surprise

In his most recent column, Paul Krugman argues that the White House should not be “shocked and surprise” that the liberal base would be angered and feel betrayed by any signals that it would be less than fully committed to a public plan option in health care reform legislation. Like many on the left, the Princeton professor believes that the administration’s yearning to work with an intransigent group of Republicans will only spell defeat for any expansive health care bill.

But Krugman’s disappointment with President Obama goes beyond just health care reform. Behind the thinly veiled snark and condescension you can tell he was ready to write this column for some time.

Though he apparently saw no need to neither quote nor cite any one in particular when he claimed, “A backlash in the progressive base — which pushed President Obama over the top in the Democratic primary and played a major role in his general election victory — has been building for months,” Krugman felt confident that he was speaking on behalf of millions.

Of course, there are several people Krugman could point to that have been skeptical of Obama’s approach on issues ranging from health care to executive power to stemming the foreclosure crisis. Single-payer supporting liberals, thee ACLU, and a variety of consumer groups can easily provide the kind of ammunition for sharp criticism Krugman is alluding to, but honestly its not necessary about any of those specific policies for Krugman. He has a problem with President Obama’s approach to governing period.

“The fight over the public option involves real policy substance, but it’s also a proxy for broader questions about the president’s priorities and overall approach,” said Krugman in his column today. “It’s hard to avoid the sense that Mr. Obama has wasted months trying to appease people who can’t be appeased, and who take every concession as a sign that he can be rolled.”

As everyone observed during the campaign, Obama is much more communitarian politician who wants to persuade and cajole. He is not confrontational and populist figure. That does not sit well with Krugman who always wanted an candidate in the mold of President Franklin D. Roosevelt, that is someone who does not shy away from his own instincts for governmental intervention and eagerness to bend Congress to his will.

To be sure, Krugman does raise an interesting question about how one should deal with an implacable opposition whose sole purpose is to obstruct any plan the president endorses. It also does seem odd that the president would single out Senator Chuck Grassely of Iowa when he is one of the main culprits out there propagating this myth that a House bill floating in Congress contains a provision that will pull the plug on grandma. At the same time, however, Krugman conveniently sides steps the other question about how one should deal with conservative Democrats and implacable Republicans in a fiercely divided Congress.

Consider the following: The stimulus passed with little support from Republicans in the Senate and a not insignificant amount of Democrats voting against it in the House. The House cleared a climate change bill by a measly 7 votes even though Democrats have a 78 member majority in that chamber. Congress also neither appropriated funding for shutting down Gitmo and adamantly rejected any proposal that invovled housing detainees at any of the supermax prisons on the mainland.

Even passing legislation that would have granted bankruptcy judges the mere discretion – not mandate, but the option  – of reducing the principal and interest on certain mortgage loans that need to be restructured  proved to be a challenging feat. The measure – which could have prevented nearly one million Americans from losing their homes – got a pitiful 45 votes which is far short of the 60 need to overcome a procedural motion known as cloture and send it to the floor for a final vote.

In other words, Congress a body has been terriby unhelpful to the president at the very moment when we need them the most. But somehow its all Obama’s fault. I am not saying the administration is or should be  immune from criticism nor am I suggesting the push for health care could not have been handeled differently. After all, the president did urge all of us to hold him accountable. But that does not mean we should not lose sight of the wider political context and environoment that has contributed to frustrating the president’s agenda.

Muddying the Health Care Message

From Marc Ambinder at the Altantic:

As usual, in a pattern that the left patented during the Bush administration, the organized right lost control of its message. Lawmakers, Republicans and Democrats, were being asked to respond to non-sequiturs (would you support a health care reform plan that grows the deficit?  Health care grows the deficit right now, so it’s a nonsense question, one that is easy for politicians to answer); they found their meetings full of engorged spleens.  Unrestrained, these town hall meetings are going to turn off the type of voters Republicans most need to pressure Blue Dog Democrats — independents who don’t have red genes or blue genes.  Both Fox and MSNBC televised Sen. Arlen Specter’s raucous town hall meeting live. It was full of confrontation and protest. There were boos when Specter reaffirmed his president’s Americanness.

I have not made up my mind about whether Ambinder is truly onto something here. Sure, I agree that Republicans have lost control of their message given how few people are really discussing patient choice and controlling deficits anymore and are now on shouting about death panels and taxpayer funded abortion. Sure, I agree that the activist right has courted extremist who have turned this fight into a partisian drama with deafening decibel levels. But I am not so sure that even if the Republicans damage themselves and their brand in the process in these astroturfed inspired protests that they won’t be able to sucessfuly defeat health care reform.

These tea bagers turned birthers turned health care opponents turned Obama haters are shifting much of the skepticism of the president’s plan so far to the right, it will take probably until the end of September to get the country to focus on the problem in more sober terms. That’s assuming the White House and health care reform advocates can regain the bully pulpit within a week or so.

For months, the White House has been telling the public that “the key to our nation’s fiscal future – and there are substantial efficiency improvements that are possible to deliver better results at lower costs in the health system.” We are now in the middle of the August recess and four bills have survived committee votes with a critical bill yet to emerge from the Senate Finance Committee. Conservatives, however, have managed to distort Obama’s message on fiscal responsibility with great zeal. Its gotten to the point where we are far more likely to hear people ‘debate’ whether or not the president is a socialist than see people argue about the merits of the what he and the Congress are proposing.

While the Obama White House went wonky, conservatives went visceral and populist.  To their credit, the administration in recent days has tried to reframe this health care battle as you the patient and the American citizen, as opposed to a mere consumer, against the health care insurance industry. At Portsmouth, New Hampshire earlier this week, President Obama reminded his supporters about what’s really at stake:

Now, health insurance reform is one of those pillars that we need to build up that new foundation. I don’t have to explain to you that nearly 46 million Americans don’t have health insurance coverage today. In the wealthiest nation on Earth, 46 million of our fellow citizens have no coverage. They are just vulnerable. If something happens, they go bankrupt, or they don’t get the care they need.

But it’s just as important that we accomplish health insurance reform for the Americans who do have health insurance — (applause) — because right now we have a health care system that too often works better for the insurance industry than it does for the American people. And we’ve got to change that. (Applause.)

Oh yeah change. I have not hear that word in a while. We need to hear more of that. But more importantly we need to hear who the change is for and why. It does not matter that we heard it during the campaign. People need to hear it again.

Big Daddy Kane on the Meaning of the November Election

Before a crowd of thousands of mainly 30-somethings at a Celebrate Brooklyn  Festival concert in Prospect Park, the legendary Bedford Stuyvesant born and raised rapper Big Daddy Kane adorned in an immaculate white suit minus the flat decided to expound on the meaning of President Barack Obama’s victory in the November 2008 election.

“We now have a black man as president, something that some people thought would never happen” Kane informed a sympathetic crowd that applauded approvingly. “That means no more excuses…I don’t wanna hear all this about the white man is keeping me down.”

I doubt that this signals Kane is poised to join the chorus of conservatives and a minority of liberals who have interpreted the results of the November election as evidence of death of racism or watershed moment finally ushering a new era post-racial of bliss in the U.S. But on that Saturday night many people in the audience probably agreed with him in knowing that Obama’s win meant that at least some things we otherwise suspected and that the country has become less racist than it was maybe 20 years ago.

I of course, wondered how do you square this with other facts of American life. Blacks and Latinos are more than twice as likely to be stopped, searched, or arrested by law enforcement officers as are whites. Or the fact that even when they had similar credit scores blacks and Latinos were more than likely to be pushed into higher cost home loans than whites. Or how children of color attend poorer perfoming schools than do white children that are also chronically underresourced and underfunded.

I struggled to make sense of it all as Kane was sermonizing.

But by the time he got into “Ain’t No Half Steppin‘” I was onto another thought.

On Excerpts of The Battle for America 2008

I have never been much of consumer of campaign books. I tend to think they more or less rehash everything that has already been dissected in contemporaneous reporting even if they do offer juicy tidbits about campaign infighting, portraits of a frustrated candidate, and a loads of humorous anecdotes. Couldn’t I get much of that on YouTube spoofs anytime I want? Aside from a peculiar variety of political junkies, I often wonder to myself who actually purchases such books.

But after reading the an excerpt of “The Battle for America 2008: The Story of an Extraordinary Election” by Dan Balz and Haynes Johnson in the Washington Post today, I think I’m beginning to understand the appeal of that genre of books. Of course, the 2008 presidential contest from primary to the end of the general election is an unusual serious of events featuring an unlikely stew of characters giving life to grand themes. Somehow the white guy from the South, former Senator John Edwards, became the underdog and a white woman from a northern blue state and black guy with a Muslim name became the main competitors on the Democratic side. And even in that struggle contained hues of David versus Goliath storyline that the media found easy to sell to a eager public.

Meanwhile, the Republican corp had a number of cartoon characters from the adamantly anti-immigrant then-Congressman Tom Tancredo to the jolly aw shucks evangelism of former Arkansas Mike Huckabee. A more disciplined Senator John McCain had to emerge from the ashes before taking the lead. And that only happened after his big win in New Hampshire.

The media’s appetite for sideshow personalities like Rev. Jeremiah Wright, Joe the Plumber, and Bill Ayers made the long campaign easy fodder for water cooler talk for those who wanted a little gossip go with wonky debates on the minutiae of preconditions, the importance of a employer mandates in a health care plan, and the intricacies of the delegate and Superdelegate count.

Historians will have fun with that moment in American politics for generations to decades to come – maybe even longer than that.

But everything revolved around the eventual victor Barack Obama. Compared to his competitors, his campaign was heralded a marvel of near pitch perfect management with few dips in morale matching the posture of its intrepid leader. And the public, particularly his supporters, were very impressed with his cool demeanor, keen intellect and soaring rhetoric.

Balz and Johnson, however, seized on the moments in which those notions did not hold up.

Aides worried that Obama’s low morale might infect others in the campaign and spoke to him about it. They tried to buck him up, but at points in the spring and early summer of 2007, he was deeply frustrated — with his own performance and with that of much of his campaign. On July 15, he met with his senior staff at the home of Valerie Jarrett, a close friend and confidante to both Obama and his wife, Michelle. One adviser recalled it as the moment Obama began to take a more direct role in the operations of his campaign. He was blunt in his critique, and the exchanges among some of his advisers became testy. Beyond fundraising and the operation overseeing the Internet and new media, the campaign was not performing well, Obama said. The message still wasn’t where it should be. The political operation wasn’t up to speed. The campaign lacked crispness and good execution. He believed it was becoming too insular and wanted new people added to the inner circle. He told his team members they were all doing B work. If they continued on that course, they would come in a respectable second.

“Second is not good enough,” he said.

Perhaps the most intriguing part of the excerpt so far, however, was then-chief campaign strategist and now White House senior adviser David Axelrod’s candid and prescient assessment of the big O’s potential weaknesses in a 2006 memo.

“It goes to your willingness and ability to put up with something you have never experienced on a sustained basis: criticism. At the risk of triggering the very reaction that concerns me, I don’t know if you are Muhammad Ali or Floyd Patterson when it comes to taking a punch. You care far too much what is written and said about you. You don’t relish combat when it becomes personal and nasty. When the largely irrelevant Alan Keyes attacked you, you flinched,” he said of Obama’s 2004 Senate opponent.

Many in the blogosphere and beyond often wondered if Obama was in fact the happy warrior beneath all that cool even if he could seduced legions of voters with great speechifying. The sheer force of the machinery of the campaign helped quell, thought not silence, many of those lingering doubts. And Obama knew it telling Balz and Haynes:

As he reviewed the campaign from his transition headquarters in mid-December, Obama offered a frank assessment of his two main competitors: Clinton and John McCain. “I was sure that my toughest race was Hillary,” he said. “Hillary was just a terrific candidate, and she really found her voice in the last part of the campaign. After Texas and Ohio she just became less cautious and was out there and was working hard and I think connecting with voters really well. She was just a terrific candidate. And [the Clinton campaign] operation was not as good as ours and not as tight as ours, but they were still plenty tough. Their rapid response, how they messaged in the media was really good. So we just always thought they were our most formidable challenge. That isn’t to say that we underestimated John McCain; it’s just that we didn’t think that their campaign operation was as good.

I cannot help but note the irony here that the campaign that was often dubbed as personality driven and almost free of doubt was in fact the very same tightly organized campaign that achieved success in no small part due to a healthy fear of losing. Its not news, but still a tidbit worth chewing. And maybe with enough of these kinds of insights it might even form a book worth reading.

Can’t Begrudge Him

Ta-Nehisi Coates on the President’s more tempered remarks on Friday afteroon:

I really can’t begrudge him–his priority is health-care. Me, on the other hand, I’m pretty exhausted. What follows is the raw. Not much logic. Just some thoughts on how it feels.

I feel pretty stupid for going hard on this, and stupider for defending what Obama won’t really defend himself. I should have left it at one post. Evidently Obama, Crowley and Gates are talking about getting a beer together. I hope they have a grand old time.

The rest of us are left with a country where, by all appearances, officers are well within their rights to arrest you for sassing them. Which is where we started. I can’t explain why, but this is the sort of thing that makes you reflect on your own precarious citizenship. I mean, the end of all of this scares the hell out of me.

I agree.

Obama Tries to Quell Criticism of Gates Arrest

President Barack Obama attempted to quell criticism of his remarks concerning the arrest of Harvard law professor Henry “Skip” Louis Gates by Sgt. James Crowley of the Cambridge, Massachusetts police force during a cameo appearance at a White House press briefing on Friday. The president expressed regret that “my choice of words didn’t illuminate, but rather contributed to more media frenzy.” He also said he phoned Sgt. Crowley to apologize for conveying the false impression that he intended to malign him and his department.

At his press conference on Wednesday he said “that the Cambridge police acted stupidly in arresting somebody when there was already proof that they [sic] were in their own home.”

Seeing how his words of condemnation inadvertently led to much of the inane fodder in the blogosphere, talk radio, and cable television chatter and consequently distracting the public from his broader legislative agenda, he urged us to step “back for a moment,”  recognize that “these are two decent people, not extrapolate too much from the facts,”  but “be mindful of the fact that because of our history, because of the difficulties of the past, you know, African-Americans are sensitive to these issues.”

He also said he invited Professor Gates and Sgt. Crowley to the White House for a beer as a gesture of good will and hopes of reconciling differences and putting this controversy to rest.

His comments were meant to be conciliatory and to prevent the controversy over his initial set of remarks from competing with his message of the urgency of passing a health care reform bill through a slow moving Congress. On August 7th, the Congress breaks for a month long recess, and the White House is determined to keep the pressure on lawmakers to continue to work on the bill even during the break if need be. I could see how some of his advisers may think wading into racial politics at this juncture would not be helpful.

By the same token, the president attempt to rein back his statements were not helpful in enriching our already impoverished discussion of racial justice. Whether he knew it or not, the president’s remarks on Friday gave us the impression that the gray haired professor who walks with a cane is just a fault for his own arrest in his own home even if he produced an ID showing as the imposing and armed police officer is for cuffing him, since its all one big misunderstanding.

To imply there is some kind of moral equivalency here given the power relationship is wrong. Even if Professor Gates was belligerent is not clear that he was wanted to fight, threaten, initiate violent behavior, or was a danger to public safety or became annoyance, any one of which would have justified the arrest for disorderly conduct under Massachusetts law. In this instance, a mere heated exchange eventuated in a mug shot.

The president could have at least reaffirmed his statement on Wednesday that racial profiling remains a national problem and that something should be done about it.  For starters, we could pass the End Racial Profiling Act, which would ban the practice of racial profiling by federal law enforcement agencies and provide federal funding to state and local police departments if they adopt policies to prohibit the practice. ERPA has yet to be introduced this Congress, but criminal justice reform advocates have been clamoring for its passage for years.

Instead, we are told that tempers flared unnecessarily on both sides and that we should all calm down and have a brewski. I doubt that the next person of color who gets pulled over in the Boston area will derive much solace from that recommendation.

President Obama called this a “teachable moment” for all us but that presumes that someone has to do the teaching or at least lead the discussion. Many people, perhaps unjustifiably, expected our first black president to do just that, but it seems he really does not appetite for it and quite frankly is rather busy with salvaging two failed wars he inherited from his predecessor in addition to trying to capture terrorists, reforming our financial regulatory system, stimulate job creation, overhauling our education system and, of course, passing a health care reform bill.

Political observers have wondered whether or not President Obama’s ascendancy not only means that we live in a post-racist America, but also if we need an activist class of black leaders anymore. Some have provocatively asked if Obama signifies the “End of Black Politics?” But the President Obama needs a counterweight on these issues, someone to contrast his own views with on racial justice issues and who can forcefully communicate the concerns of black America to everyone else. The president still has to worry about managing the perception that he’s inclined to favor some groups over others.

Of course, scores of black intellectuals and civic leaders have commented on the Gates affair, but no one with the kind of stature necessary to become President Obama’s gadfly on racial issues writ large in the same way President Lydon B. Johnson had to contend with Dr. Martin Luther King and the civil rights movement in the 60’s.

Even the most gifted and talented among us need to be pushed in the right direction to realize their potential.

Check out the president’s remarks on Friday here:

“Doing that Crack Cocaine Thing”

In a moment of unexpected yet welcome levity during the Judge Sonia Sotomayor’s confirmation hearings for to replace retiring Supreme Court Justice David Souter, Senator Jeff Sessions made an unprompted comment about correcting one of Congress biggest blunders: enacting a law creating a 100 to 1 disparity in cocaine and crack sentencing.

In an exchange with a noted civil rights advocate he said, ” Senator Leahy and I are talking during these hearings. We’re going to do that crack cocaine thing that you and I have talked about before.” The comment immediately drew laughs and prompted Sessions to explain, “We’re going to reduce the burden of penalties in some of the crack cocaine cases and make them fair.”

All jokes aside this is undoubtedly a good sign. Sen. Sessions was addressing Wade Henderson a noted civil rights advocate, who has been urging Congress to reform the crack cocaine sentencing including mandatory minimums for years. Under federal law, a dealer with 5 grams of crack cocaine on him, which is the size of two sugar packets can get a five year mandatory minimum sentence. By contrast, a cocaine dealer would have to have 500 grams of cocaine, which is more a little more than a pound, to trigger a five year mandatory minimum.  That creates a 100 to 1 disparity in the sentencing for crack and cocaine.

“Equalization of the sentencing ratio for crack and powder cocaine offenses from 100 to 1 to a ratio of 1 to 1 at the current powder cocaine level is the only fair solution,” Henderson told the Senate subcommittee on Crime and Drugs in April of this year. “The time has come to rationalize drug sentencing laws and practices.  The civil rights impact of these criminal justice reforms can no longer be ignored.”

Those sentiments were later echoed by U.S. Attorney General Eric Holder last month. “ This Administration firmly believes that the disparity in crack and powder cocaine sentences is unwarranted, creates a perception of unfairness, and must be eliminated. This change should be addressed in Congress,” Holder said.

According to the Sentencing Project, a criminal justice reform group, the median drug quantity for a crack cocaine street level seller charged in federal court (comprising two-thirds of federal crack defendants) in 2000 was 52 grams, enough to trigger a 10-year mandatory sentence. For powder cocaine, the median quantity for a street level dealer was 340 grams, not enough even to trigger the 5-year sentence, and often a mere slap on the wrist for first time offenders.

But crack and powder cocaine are pharmacological identical substances. In fact, crack is just a hardened form of  powder cocaine often mixed with baking power. But with cocaine users being disproportionately white compared to crack users who are disproportionately black the law with its penalty structures has a huge unfair impact on who goes to prison and who doesn’t and for how long.

Why did Congress do this? And continue to tolerate it? Interestingly enough, it was the reaction to the story of Len Bias‘ death that led to the passage of the Anti-Drug Abuse Act of 1986, which is the law that contains all the stiff penalties. Bias’ death from a cocaine overdose after experimenting it for the first time the night he was drafted by the Boston Celtics shocked Congress into action and really prompted the war on drugs as we know it.

In fact, the law’s mandatory penalties for crack cocaine offenses were the harshest ever adopted for low level drug offenses and established the drastically different penalty structures for crack and powder cocaine. Lawmakers, however, had a poor understanding of the differences between the drug substances and figured that the disparity would lead to jailing actual drug king pins.

Of course, thanks to the Wire and countless other studies, we now know that it the law affects more low level drug dealers, who are easily replaceable as they come in and out of jail, than it does so called king pins, who often rarely see extensive jail time. This has led to an explosion of incarceration rates with notable racial disparities. Between 1994 and 2003, the average time served by African Americans for drug offenses increased by 62 percent, compared to an increase of 17 percent for white drug offenders, says the Sentencing Project.

An independent federal body called the Sentencing Commission, has called for reforming the sentencing structure for more than a decade now, and the Obama administration supports doing so, but its hard to underestimate the fear of being branded as soft on crime for Republican and Democratic elected officials alike, especially for redstate Dems.

That said, the tide does seem to be turning because with increasing support for a 1 to 1 bill in both the House and Senate. And even Sen. Jeff Sessions, a former federal prosecutor in Alabama with less than enlightened views on racial equality, supported a 20 to 1 bill back in 2007.

To be sure, that’s not exactly where the ratio should be, but its certainly an improvement. This is significant because whatever reform bill comes out the Senate will have to go through the Senate committee where Sessions is currently the top Republican. So, when the Alabama Senator said he wants to work with Senate Judiciary Chairman Sen Patrick Leahy about a “doing that crack cocaine thing” its definitely a good sign.

Lindsey Graham’s Majoritarianism

On day 2 of the Judge Sonia Sotomayor’s nomination, Senator Lindsey Graham asked a fairly peculiar question. “What’s the best way for society to change, generally speaking? What’s the most legitimate way for a society to change?” At first, Judge Sotomayor was stumped by that question because it seemed academic at best.

He then asks “Do you think judges — do you think judges have changed society by some of the landmark decisions in the last 40 years?” Now it is plainly true that the high court’s decisions on everything from campaign finance reform to the death penalty to gay rights to bilingual education to voting rights to employment discrimination and much more has undoubtedly changed society.  But Judge Sotomayor wisely demured from responding until he revealed his real reason for engaging in that line of questioning.

And in a very patronizing Senator Graham noted “… a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that’s disturbing. Can you understand how people may feel that way?”

Of course, this seems sensible on its face, but it Sen. Graham is ignoring how the courts as an institution differ from legislative bodies. Part of the reason judges to federal courts are unelected and have lifetime tenure is to make sure that political pressures do not override larger concerns about constitutional rights, including making unpopular rulings if necessary, to protect the rights of women and people of color.

Of course, the ballot box is important and is obviously a tranformative vehicle for change in its own right, but the courts can provide a check against the other two branches of government when both are two preocuppied with the popular will. Democracy is more than simple majority rule. It also has to consider the rights of minorities and the individual.

But Sen. Graham also noted:

I think, for a long time, a lot of talented women were asked, can you type? And were trying to get beyond that and improve as a nation. So when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in.

But your speeches don’t really say that to me.

They — along the lines of what Senator Kyl was saying — they kind of represent the idea, there’s a day coming when there’ll be more of us — women and minorities — and we’re going to change the law.

And what I hope we’ll take away from this hearing is there need to be more women and minorities in the law to make a better America. And the law needs to be there for all of us, if and when we need it.
And the one thing that I’ve tried to impress upon you through jokes and being serious, is the consequences of these words in the world in which we live in. You know, we’re talking about putting you on the Supreme Court and judging your fellow citizens.

And one of the things that I need to be assured of is that you understand the world as it pretty much really is. And we’ve got a long way to go in this country…

This statement is the clearest expression of the anxiety white males feel about living in a society with more Judge Sonia Sotomayors and fewer Joe the Plumbers.

Watch the exchange here:

The Irony of Sen. Jeff Sessions

Supreme Court confirmation hearings have been advertised as a study in contrasts between what our nation’s two parties envision the role of the courts in our society and highlight competing ideas on grand Constitutional questions. Of course, in more recent decades they have fertile ground to perpetuate our ongoing culture wars in some form or another. Unlike years past, Judge Sonia Sotomayor nomination has not inspired fury of either side in the abortion debate, which I don’t lament at all, with greater questions of racial and gender gaining more attention.

But today’s hearing had its fair share of pettiness and narrow minded questioning.

Recognizing the dishonest acrimonious shout fest that has ensued in the last few weeks, Senate Judiciary Chairman Patrick Leahy cautioned his Republican collegues against yeilding to “outside pressure groups that sought to create a caricature of Judge Sotomayor while belittling her record and achievements, her intelligence.” In his opening statement yesterday, Sen. Leahy suggested that history will not look kindly upon Senators who will try to embarass Judge Sotomayor as that chamber once did during Justice Thurgood Marshall’s confirmation hearings, the first African American on the high court, by asking “questions designed to embarrass him, questions such as are you prejudice against the white people in the South.”

Sen. Leahy cited another low point of when Justice Louis Brandies had to beat back anti-Semitic charges of him being a radical jurist. “I hope that’s a time of our past” said the Senator from Vermont.

Apparently not. Republican Senator Jeff Sessions in particular led the charge in criticizing Judge Sonia Sotomayor by questioning her impartiality even in the face of all the statiscal evidence of her rulings underscoring that she is not some left wing judge that implusively sides with victims in discrimination cases or with plantiffs suing the employers or promoting some other lefty cause. Predictably, during is questioning period he spent an inordinate amount of time on the wise Latina remark as a reliable indication that she will somehow be biased against those who are not people of color or women, i.e., white men.

Sen. Sessions understood Judge Sotomayor’s admission that like any judge her life experiences shape her judicial thinking and that impariality is an aspirational goal rarely if ever achieved, as reason to suspect that she has a hidden agenda. “So how can you reconcile your speeches which repeatedly assert that impartiality is a near aspiration which may not be possible in all or even most cases with your oath that you’ve taken twice which requires impartiality?” asked Sen. Sessions. One has to wonder who are these genuinely imparitial people that Sessions seems to believe exist.

For her part Judge Sotomayor said, “That’s why we have appellate judges that are more than one judge because each of us, from our life experiences, will more easily see different perspectives argued by parties.” As a lay person, this strikes me as a fairly obvious observation.

At one point, the Senator from Alabama inexplicably thought it was necessary to state that a fellow Puerto Rican Judge Jose Cabranes disagreed with Judge Sotomayor’s finding in the Ricci decision. The Ricci case involved a group of white firefighters and one Hispanic who sued for racial discrimination when the city of New Haven, CT when it decided to throw out a promotional examine after not enough African Americans scored high enough to be considered for a promotion. Judge Sotomayor sided with New Haven in finding that the test had a disparate impact on African Americans under Title VII of the Civil Rights Act of 1964. Her decision was overturned by the U.S. Supreme Court a few weeks ago by a vote of 5-4.

“Had you voted with Judge Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could’ve changed that case,” Sessions said. With that remark, Senator Sessions ironically he appeared to be promoting the same kind of group loyalty that he thought that Judge Sotomayor could not avoid.

Interestingly enough, Sen. Sessions used Judge Sotomayor’s association with the Puerto Rican Legal Defense Fund to try to portray her as an activist judge even though Judge Cabranes, a Republican appointee, is a founder of the famed civil rights group.

In sum, we learned more about the prejudices of a particular Republican Senator than we did of the nominee.

Sessions: “Empathy for one party is always prejudice against another”

Senator Jeff Sessions’ statement at today’s hearings for Judge Sonia Sotomayor’s nomination to the U.S. Supreme Court:

Justice Sotomayor has said she accepts that her opinions, sympathies and prejudices will affect her rulings. Could it be that her time as a leader in the Puerto Rican Legal Defense and Education Fund, a fine organization, provides a clue to her decision against the firefighters?

While the nominee was chair of that fund’s litigation committee, the organization aggressively pursued racial quotas in city hiring and in numerous cases fought to overturn the results of promotion exams. It seems to me that in Ricci, Judge Sotomayor’s empathy for one group of firefighters turned out to be prejudice against another.

That is, of course, the logical flaw in the empathy standard. Empathy for one party is always prejudice against another.

This is an odd argument to make considering how SCOTUSblog found that in race discrimination cases Judge Sotomayor’s record is strikingly similar to those of her other colleagues on the Second Circuit, which include members of both parties and is overwhelmingly white.

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Secondly, it seems rather awkward for Senator Jeff Sessions to accuse a person of color of racism considering his own checkered past.

Limbaugh: “You See How this Race thing Works”

Right wing radio talk show host Rush Limbaugh instructs the public on how racial prejudice works in the United States. Somehow he stunningly concludes that Judge Sonia Sotomayor’s “wise Latina” statement is somehow worse that former Virginia George Allen using the term Macaca to refer to a South Asian volunteer for the now Senator Jim Webb Virgina.

(H/T:  Media Matters)