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)

Debunking Bogus Claims Made By Critics of Sotomayor

Karl Frisch of Media Matters takes on two of the bogus claims made by the right against nominating Judge Sonia Sotomayor to the Supreme Court:

By now you’ve no doubt heard Exhibit A — Sotomayor’s February 2005 comment at a Duke University School of Law forum that the “court of appeals is where policy is made.” This, they claim, proves that Sotomayor would be little more than an evil activist jurist on the bench. Her words — taken out of context time and again by conservative and mainstream media outlets — make clear that Sotomayor was simply explaining the difference between district courts and appeals courts. Her comments were in sync with the Oxford Companion to the Supreme Court of the United States‘ explanation of the federal appellate court’s “policy making” role. That’s a view even conservative legal god Antonin Scalia seems to share and even go beyond, having articulated the “policy making” role of the courts himself and noting that “the judges of inferior courts often ‘make law.’ “

For Exhibit B, we find media conservatives in a huff over not only Obama’s stated intention to nominate someone possessing “empathy” among other qualifications but also Sotomayor’s 2001 comment that a “wise Latina woman” might bring a little something extra to the bench in adjudicating race and sex discrimination cases. Conservatives in the media leapt at the president’s “empathy” comment, typically portraying it as proof of Obama’s intention to nominate a liberal activist to the Supreme Court rather than a jurist committed to the Constitution, even though the president said that his nominee would demonstrate both.

Conservatives on the Brown Decision

This is just ridiculous. In an ongoing series decrying U.S. Supreme Court decisions they do not like, Bench Memos, a conservative law blog run by the National Review, cited the Brown v. Board of Ed decision, which found that racial segreation violated “equal protection of the laws guaranteed by the Fourteenth Amendment,” as an instance of liberal judical activism.

And they did so on the 55th Anniversary of the court’s decision. 

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

For some reason I don’t people were scrambling to use “originalist justifications” to end segregation in the 50s. 

Interestingly enough, while Brown is rightly credited with dealing a huge blow to Jim Crow segregation few appreciate how it change the Senate’s posture toward the judiciary and Supreme Court nominees in particular. In a recent op-ed in the New York Times, Yale law professor Stephen Carter sums up the after effects this way: 

Before that 1954 case, it was virtually unheard of for a nominee to appear in person before the Senate. Only two had been called, each because of special circumstances surrounding the nomination. But there was always a sense that demanding testimony was somehow unseemly. The bar frowned on the practice, and the senators avoided it. Abraham Lincoln, questioned about his nomination of Salmon P. Chase as chief justice, responded, “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”

Brown changed everything. Infuriated by the Supreme Court’s temerity in striking down public school segregation, the Southern Democrats who in those days still largely ran the Senate began to require that all potential justices give testimony before the Judiciary Committee. When the nominees appeared, the Dixiecrat Senators grilled them on Brown. The first was John Marshall Harlan in 1955, who declined invitations to discuss either specific cases or judicial philosophy as “a matter of propriety.” One by one, later nominees followed his example.

Some of them suffered for it. Justice William Brennan was roughed up at his hearing by Senator Joseph McCarthy, not even a member of the committee, who was permitted to make a special appearance to torment Brennan about his views on Communism. In the 1960s, Thurgood Marshall was grilled on minutiae about the history of the Constitution, part of an effort by opponents to demonstrate that the man who had by that time won 29 out of 32 cases before the Supreme Court was intellectually not up to the job.

 

A Skeptical Court Hears Voting Rights Act Case

Yesterday, a skeptical U.S. Supreme Court heard oral arguments on the constitutionality of a key provision of the Voting Rights Act that requires certain states and localities with a history of voting discrimination submit changes in voting procedures, or gain “pre-clearance,” by the federal government for approval.

The case involves a municipal utility district in Texas that wants to sidestep needing to comply with the provision because it claims the kind of discrimination that it once deterred no longer exists. Board member elections in the utility district require pre-clearance since the entire state of Texas falls under the jurisdiction of Section 5.

The case is called Northwest Austin Municipal Utility District No. 1 v. Holder.

Adam Liptak’s summary in the NYT of yesterday’s oral argument was spot on, especially his description of Justice Kennedy’s hostile line of questioning. And if his questioning is any indication, which in this case I think it is, Kennedy will likely write the majority or controlling opinion as he did in the Section 2 case earlier this year and erode much of Section 5, while of course noting that racial discrimination “is not ancient history.”

Perhaps, the real question here is how badly the Court will gut Section 5 and if it will introduce or demand that Congress create a more precise and less far reaching standard in determining which states and jurisdictions should be covered and why, even if in 2006 it reauthorized the Voting Rights Act only after it held 19 hearings and reviewed thousands of pages of testimony and documents.

Plus, a very curious exchange between Justice Scalia and Debo Aegbile from LDF during yesterday’s oral arguments.

Scalia actually suggested that simply because the VRA was cleared both chambers of Congress by wide margins, even if both houses and the Oval Office were controlled by Republicans at the time, we should be skeptical of its validity. In other words, we should be skeptical of the law, which has been reauthorized repeatedly by Congress, because it got too much support. Huh?

If we applied that same line of thinking to other laws enacted by Congress such as the American Disabilities Amendments Act that passed this fall and signed by a Republican president, then I suppose we should consider them invalid too. Or maybe we should consider the unanimous opinions like in Brown v. Board of Ed invalid because they also had too much support.

What happened to judicial modesty and due deference to legislative bodies that conservatives love to spout?

Here’s the exchange:

JUSTICE SCALIA: Mr. Adegbile, what was — I read it in the briefs, and I forget what it was. What was the vote on this 2006 extension — 98 to nothing in the Senate, and what was it in the House? Was -

MR. ADEGBILE: It was — it was 33 to 390, I believe.

JUSTICE SCALIA: 33 to 390. You know, the — the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there. Do you ever expect — do you ever seriously expect Congress to vote against a reextension of the Voting Rights Act? Do you really think that any incumbent would — would vote to do that?

MR. ADEGBILE: Well -

JUSTICE SCALIA: Twenty-five years from now? Fifty years from now? When?

MR. ADEGBILE: Justice Scalia, I think some members of Congress did of course vote against the Act.

JUSTICE SCALIA: Thirty-three members of the House and nobody in the Senate.

MR. ADEGBILE: Thirty-three members of the House, indeed. But I think the — the reason that they voted for it is what’s more important. Congress did not assume that section 5 was necessary. It took a very careful examination to see how it was operating, and the determination was that in the absence of section 5, because of the repetitive violations, because of 620 objections — there was evidence that approximately 60 percent of those show some evidence of intentional discrimination.

If you take away the prophylaxis, the discrimination will return in a way that we don’t need to revisit. The history has been that voting discrimination manifests itself through repetitive efforts and…..

Besides Texas, eight other states are covered by the provision, including Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, and South Carolina. Most of Virginia and parts of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota are also covered.

Congress passed the Voting Rights Act of 1965 to eliminate discriminatory voting practices by state and local governments. The law has been renewed and amended several times since it was passed, most recently with a 25-year renewal in 2006 where it cleared the Senate by a 98-0 and the House 390-33.

Member States Reach Agreement on Anti-Racism Document

The anti-racism Durban Review Conference on 21 April adopted its final outcome document. It has its flaws particularly some questionable free speech paragraphs and its vulnerable to the charge that it did not need to include language regarding foreign occupation, though there is no mention of Israel by name. There are also a lot of NGO groups that are understandably frustrated at how language about the transatlantic slave trade was watered down in the final out come document.

But considering what the previous drafts looked like this final outcome document is a dramatic improvement. What’s more, the NYT has correctly framed this as a victory for the UN process and a loss for Ahmedinejad and those who wanted to use the Israeli-Palestinian question to either overshadow all other global racial discrimination issues or not participate in the conference at all.

The adoption of the resolution by the committee that coordinates the conference ended months of negotiation that removed contentious clauses referring to Israel and Palestine and trying to make defamation of religion an offense against human rights.

The conference will formally adopt the document here on Friday, but it is no longer open to debate or amendment, diplomats said.

Announcing the adoption of the resolution to warm applause from delegates, the conference president, Amos Wako, who is from Kenya said: “What we have decided shows the outcome when you remain engaged in the process. It shows that boycotts do not assist.”

“This is very good news indeed,” said Navi Pillay, the United Nations human rights commissioner, who hosted the conference. “It’s the culmination of months of deliberation.”

[snip]

Announcing the adoption of the resolution to warm applause from delegates, the conference president, Amos Wako, who is from Kenya said: “What we have decided shows the outcome when you remain engaged in the process. It shows that boycotts do not assist.”

I fully expect a lot of critics to focus on the language regarding foreign occupation and free expression. But in the meantime I think the administration has got to be reconsidering participating in the follow process, given how this turned out.

Plus, the outcome document is very progressive on a whole range of issues from calling for a aggressively punishing hate crimes to urging governments to embrace equal opportunity programs from establishing national human rights bodies to affirming the right to organize to calling for the humane treatment of migrant workers in addition to calling for the ratification of other U.N. social justice treaties.

Homeland Security Sees Uptick in Hate Group Recuritment

A Department of Homeland Security report on the rise of right wing hate groups and extremism was leaked this week. The DHS report is called “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.”

Unsurprisingly, the report found that the spike in undocumented immigration, the current economic downtown, and the election of the first African American president have spurred their efforts in winning new recruits.

Not exactly news to many of us, but its different when you see this documented by the government.

Of course, much of the controversy surrounding the report has focused on how these groups recruit disgruntled military veterans that find it difficult to readjust to civilian life, but that’s far from the report’s central focus. And anyone who takes time to read it would soon discover that himself.

But even if some civil libertarians and conservatives raising concerns about whether or not the government should be monitoring political beliefs, I think this presents many civil and human rights advocates with an opportunity to to promote greater awareness about the rise of hate crimes and their clear, though often overlooked, relationship to hate speech. That’s not to say we should go out of our way to criminalize intolerant speech, but being vigilante about countering intolerant speech can be critical to reducing hate crimes.

The Local Law Enforcement Hate Crime Prevention Act, which seems like it will be introduced this session of Congress, would provide local authorities with more resources to combat hate crimes and give federal government jurisdiction over processing hate crimes in states where the current law is inadequate.

In my opinion, I think the key findings in the report include:

• Over the past five years, various rightwing extremists, including militias and white supremacists, have adopted the immigration issue as a call to action, and recruiting tool. Debates over appropriate immigration levels and enforcement policy generally fall within the realm of protected political speech under the First Amendment, but in some cases, anti-immigration or strident pro-enforcement fervor has been directed against specific groups and has the potential to turn violent.

• In contrast to the early 90s, the advent of the Internet and other information age technologies s has given domestic extremists greater access to information related to bomb-making, weapons training, and tactics, as well as targeting of individuals, organizations, and facilities, potentially making extremist individuals and groups more dangerous and the consequences of their violence more severe.

• Lone wolves and small terrorist cells embracing violent rightwing extremist ideology are the most dangerous domestic terrorism threat in the United States. Information from law enforcement and nongovernmental organizations indicates lone wolves and small terrorist cells have shown intent—and, in some cases, the capability—to commit violent acts.

• Most statements by rightwing extremists have been rhetorical, expressing concerns about the election of the first African American president, but stopping short of calls for violent action.

• Historically, domestic rightwing extremists have feared, predicted, and anticipated a cataclysmic economic collapse in the United States. Conspiracy theories involving declarations of martial law, impending civil strife or racial conflict, suspension of the U.S. Constitution, and the creation of citizen detention camps often incorporate aspects of a failed economy.

Also, see Department of Homeland Secretary Janet Napolitano’s statement on the report here.

U.S. Runs for Human Rts Council Seat But Durban II Still a No Go

Last week, the  Obama administration announced it would run for a seat on the U.N. Human Rights Council in the next round of elections, a body that President Bush avoided and ignored.

In a press statement, U.S. Ambassador to the United Nations Susan Rice referred to a need “for the Council to be balanced and credible” an explained that the U.S. is running for a the open seat because “we believe that working from within, we can make the council a more effective forum to promote and protect human rights. We hope to work in partnership with many countries to achieve a more effective Council.”

Throughout the Bush years, U.N.-U.S. relations were always frosty to put it mildly.  Bush hardly felt comfortable around liberal internationalists of the American variety much less those from other countries steeped in global affairs. But his hostility toward the U.N. only hardened in the run up to the Iraq war where he failed to amass support for the March 2003 invasion. As early as the August 2003, President Bush alienated potential U.N. involvement in the creation of an Iraqi central government.

Of course, Dubya and company soon changed their minds once the Iraqi insurgency got going and the U.S. military found itself lacking the knowledge and skills for diffusing a post-conflict situation already cultivated by the U.N. peacekeeping and diplomatic corp.

But such a change of heart even if it was for out of desperation never extended to the Council, given how it was populated by some of the worse human rights abusers such as Sudan, Libya, and Cuba, who were eager to pass resolutions condemning Israel while also blocking scrutiny of treatment of their own citizens. To be fair, this is a problem that has vexed some of the most clear-eyed supporters of the U.N.

The legacy of that sort of politicization of the Council’s mission remains a huge problem even after the round of reforms in 2006, which dissolved the Human Rights Commission that was established in 1946.  The 06 reforms also nearly assured representation from some of the most repressive governments by allotting seats seats to countries based on regional blocs as opposed to a record of improvement.

That’s enough for critics of the Council, particularly Rice’s neoconservative predecessor John Bolton, believe the rights body is too fatally flawed and ineffective to warrant participation from the U.S. Never one to mince words former Ambassador Bolton reportedly told the New York Times, “You don’t show up at every ragtag little organization that comes into existence”.

Sigh.

Though its easy to dismiss Bolton’s criticism as shortsighted and irascible, it does evince a certain view of American power that still persists today in some quarters. The prestige of American power should not be diminished by engaging flawed institutions that provide cover to our adversaries. The world is against the U.S. and we must assert our influence whenever possible to ensure its power is preserved at worst and extended at best.

But hasn’t Bolton been paying attention? Our standing in the world has diminished as a result of human rights abuses during the Bush era. Torturing prisoners at Abu Ghraib and at Gitmo has done more to aid America’s detractors looking to deflect attention from their own human rights record as their criticize the U.S. and do so effectively.  One of the ways to counter these charges is to join the Human Rights Council and make sure that a proper comparison is made between the U.S and other countries on the Council, including the Sudans, Cubas, and Libyas of the world.

That said, the Obama administration is not going to participate in any U.N. forum even if it is human rights related. Consider U.N.’s upcoming conference on racism otherwise known as Durban II. The administration still won’t participate in it even though the latest agenda, or the outcome document, has been purged of nearly all of the things that it said it could not accept namely, references to reparations, strong criticisms of Israel, and severe limitations on freedom of expression.

Perhaps some may think that the U.S. sought to run for the Council seat as a way to placate critics for not participating in Durban II, but that’s a cynical misreading of the situation. As early as late January the administration was pondering joining the Human Rights Council.

The administration really fears that the whole affair will deteriorate into an anti-Israeli and anti-Western hate fest led by certain countries within the Organization of Islamic Conference. Its not an altogether irrational fear, but a very compelling one nonetheless.

Joining the Human Rights Council is a step in the right direction in overcoming that fear.

Obama Reaffirms Support for Comprehensive Immigration Reform

At a town hall meeting in Mesa County, California this week, Obama reaffirmed many of the same principles of comprehensive immigration reform that he campaigned on in the 2008 presidential election. Those guiding ideas include a path to legalization, securing the border, and employer verification. But at the same time he said he did not want to create a system that would discriminate against someone “just because you’ve got a Hispanic last name or your last name is Obama.” He also reiterated his support for a comprehensive approach to immigration rather than tackling the problem in a piecemeal fashion.

Until now, Obama choose to only discuss immigration issues when engaging Spanish only media. This time, however, he is voicing the same message while on CNN, which is somewhat of a big step and could be an indication that it might be on the agenda this coming fall or late summer.

Money quote:

Now, it only works though if you do all the pieces. I think the American people, they appreciate and believe in immigration. But they can’t have a situation where you just have half a million people pouring over the border without any kind of mechanism to control it.

So we’ve got to deal with that at the same time as we deal in a humane fashion with folks who are putting down roots here, have become our neighbors, have become our friends, they may have children who are U.S. citizens. (Applause.) That’s the kind of comprehensive approach that we have to take. All right. Okay. (Applause.)

(H/T: America’s Voice)

U.S. Ditches Durban Review Conference

Citing language referring to reparations for slavery and “repeated and unbalanced criticisms of Israel,” the United States announced it would not participate in the Durban Review Conference this Friday, also known as Durban II, after spending about a week trying to cleanse the document of what it found objectionable. The goal of the conference is to review the progress made since the last gathering in 2001 and take stock of “contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance.”

The reasons for pulling out are consistent with what the U.S. State Department claimed said were its redlines prior to engaging in the preparatory talks.  In a February 20th press release the U.S. said it held strong “reservations about the direction of the conference” because the “draft document singles out Israel for criticism, places unacceptable restrictions on freedom of expression under the guise of defaming religion, and calls for payment of reparations for slavery.”

We are left to believe that since the U.S. could not achieve sufficient progress on all fronts that the document was unsalvageable and therefore the prospect of participation impossible.

Even to engage in the preparatory talks seemed like a big step at the time, but abandoning the process so soon after doing so gives the human rights and international community the impression that admininstration always intended to offer a token presence only to make a quick exit.

Fierce critics of the Durban II such are using this opportunity to say I told you so. ” …the Obama administration has recognized that indeed, the racism conference is an exercise in Israel-bashing, and not worth attending,” so saith the National Review.

Others are weary of what Obama has in store since he the administration did not announce an outright boycott and has stated it will participate in the next Human Rights Council session where many of the resolutions condemning Israel are usually hatched. “Whether Obama actually stays away from Durban II is most likely to depend on his cost-benefit analysis of sacrificing Israel vs. heeding the siren’s call to engage,” declared Anne Bayesfsky in Fortue Magazine.

This is typical of those who believe that the UN itself is an unsalvageable institution, but offer no solutions as to how to prevent the usual suspects from targeting Israel or undermining the mission of the UN. Its as if they think that if the United States is not leading the effort to promote human rights or controlling the direction of UN, America should abandon any hope of working within it. Its ultimately defeatist and limits the ability of the U.S. to reach out to other countries in an imperfect world.

By the same token, however, the Obama admininstration set themselves up for this kind of criticism by invoking the criteria it did given the tight time frame it had to work with. It set a number of ambitious goals it knew it could not accomplish to rationalize its eventual departure and had little to show for engaging in the excercise. Its unclear, for instance, whether or not this has helped the U.S. in its attempt to win a seat on the Human Rights Council or achieve any other strategic objective.

Observers are also left wondering what the Obama administration will do to advance racial justice in its attempt to promote human rights.  Given the unique standing of the U.S., especially with its new president and because of its national experience, it can effectively promote racial justice as part of its larger human rights agenda in the same way it has promoted open societies and free expression as a way of spreading democracy around the world during the cold war. If the U.S. showed leadership in this regard other countries will follow, provided we invest the time and resources. Durban II even with all its pitfalls could have served as a stepping stone to a more livable world by making racial equality part of the criteria in which the community of nations should be judged.

I suppose we will have to wait and see how the Obama admininstration will pivot from this episode and reposition themselves to usher in a new era of U.S.-U.N relations.

U.S. Considers Participating in Durban II

Talk about trying to fly under the radar. Less than 24 hours after Congress passed the biggest spending bill in U.S. history, the State Department issues a press release announcing its considering participating in the controversial Durban II conference in April 2009.

The State Department will send a delegation to the February 16-19 consultations for the World Conference Against Racism as a means of evaluating the current direction of Conference preparations and whether U.S. participation in the Conference itself is warranted.

This will be the first opportunity the Administration has had to engage in the negotiations for the Durban Review, and – in line with our commitment to diplomacy – the U.S. has decided to send a delegation to engage in the negotiations on the text of the conference document.

The intent of our participation is to work to try to change the direction in which the Review Conference is heading. We hope to work with other countries that want the Conference to responsibly and productively address racism around the world.

Our participation in these informal negotiations does not indicate – and should not be misconstrued to indicate – that the United States will participate in April in the World Conference Against Racism itself. Nor does it indicate that we will necessarily participate in future preparations for the Conference. These decisions will be taken at a later date, depending on the results that we see from the negotiating process.

Perhaps, emphasizing the fact that “informal negotiations” are not meant to be “construed” as a final decision concerning participation sounds way too noncommital for most people. But that should  come as no surprise to those who follow State Department pronouncements. Additionally, this is indeed a step up in clarity from just a few weeks ago. “I’ll have to take a look and see. I don’t think the new Administration has spoken to that issue yet, but I’ll take a look and see if we have any more we want to say on that,” said State Department spokesman Robert Wood when asked about pariticipating in Durban II.

Arizona Sheriff Puts Immigrants in Tent City

On February 4th, Arizona Sheriff Joe Arpaio of reality TV fame began removing 200 undocumented immigrants from inside Maricopa County’s Durango Jail to a segregated area outside of it the widely known as “Tent City,” where they will be surrounded by an electrified fence. The star of Fox network’s “Smile … You’re Under Arrest!” invited members of the media to witness undocumented immigrants marched off chained together to what’s been described as a military camp in the desert where temperatures can reach as high as 100 degrees.

Sheriff Arpaio claims the move was necessary to accommodate burgeoning inmate population and save taxpayer money, despite providing no explanation of how that will happen. “We have expanded the tents to be able to house as many as 2500 inmates out of the 10,000 currently incarcerated in the jails,” he explained in a press release. Undocumented immigrants detained in tent city will remain there until they complete their sentences or deported to their home countries.

But critics charge Sheriff Arpaio treatment of prisoners warrant legal scrutiny. ACORN called the move a “blatant disregard for civil rights.” According to the Phoenix New Times, Arpaio has been the target of 50 times as many prisoner related lawsuits than the jail systems of New York, Los Angeles, Chicago, and Houston combined from about 2004-2007.

Last year, Phoenix Mayor Phil Gordon has also urged the Federal Bureau of Investigation and the Civil Rights Division of the Justice Department to investigate Sheriff Arpaio for a “pattern and practice of conduct that includes discriminatory harassment improper stops, searches, and arrests.”

Now it seems some calls for investigating the sheriff is starting to get some traction. Chairman of the Judiciary Committee in the U.S. House of Representatives Congressman John Conyers recently sent a letter to Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano asking for both of them to investigate Sheriff Arpaio for violating the rights of immigrants. Neither official has responded just yet.

But in the mean time check out this video from Democracy Now! on Sheriff Arpario and his immigration enforcement efforts.

The Durban Review Conference and its Critics

This week Secretary of State designate Hillary Clinton and US Ambassador to the UN designate Dr. Susan Rice will have their confirmation hearings this week before the Senate Foreign Relations Committee, on Tuesday and Thursday.

To be sure, their respective views on humanitarian intervention to nuclear non-proliferation, from devising an exit strategy for Iraq and how to appropriately engage Iran or addressing energy security problems and climate change, among other issues will be thoroughly probed and debated.

Another serious issue that has not received national attention thus far, but merits serious consideration,  is whether or not the United States should participate in the next World Conference Against Racism, Xenophobia, and Related Intolerance (WCAR), otherwise known as Durban II, scheduled to take place April 20-24, 2009.

The chief aim of the last WCAR conference in 2001 was to provide a global framework that national governments could build upon to enact or improve racial anti-discrimination laws and initiatives.

Yet unlike many other United Nations member states, the U.S. has not been involved in the Durban process since 2001 when then-Secretary of State Colin Powell withdrew the U.S. delegation from the conference in Durban, South Africa. Powell said the U.S. could not support the the conference’s collective statement by governments, the Durban Declaration of Programme of Action (DDPA), because it contained language that singled out Israel for criticism.  A handful of countries within the 57 member Organization of Islamic Conference – Iran, Syria, Egypt, Libya, and Pakistan – led the effort to insert language about foreign occupation and other statements designed to inject the visceral politics of the Palestinian-Israeli peace process. Ethnic and racial strife in Darfur, Kashmir, Tibet or elsewhere in the world were conspicuously ignored.

Things were worse in the non-governmental forum where a small yet vocal minority of organizations high-jacked the gathering by not only disseminated anti-Semitic and anti-Israel literature and cartoons, but also drafted a document that neither reflected the true the spirit of the conference nor the views of the majority of the forum’s participants.

In the end, the Israel obsession only served to diminish the legitimacy of the conference and subvert its central mission of combating racism and overshadowed some of its more enduring achievements. Instead many choose to focus on it’s failures.

“I know that you do not combat racism by conferences that produce declarations containing hateful language, some of which is a throwback to the days of ‘Zionism equals racism,” Powell said in frustration on September 4th as he stormed out of the conference before a final draft was of the document produced.

Five days later, the 9/11 attacks occurred and in the remaining years of the Bush presidency U.N.- U.S. relations soured along with American standing in Muslim majority countries.

Wrestling with the Legacy of Durban I

Fearing a repeat of the 2001 conference, Israel and Canada have already said they will boycott Durban II. The respective U.S. out-going and in-coming presidential administrations have remained silent on whether or not the America will participate in April. Most UN member states, however, are not so quick to abandon the process.

Despite the efforts of certain OIC governments seeking to undermine the process in the 2001, the document, which was endorsed by a majority of a 134 countries in the UN General Assembly, managed to have a positive impact on other UN member nations striving to achieve some measure of racial justice. For  example, the DDPA recognized the Dalits, or the 160 million “untouchables” in India as victims of caste based discrimination elsewhere and that they should be treated as  a protected class in international human rights law.

In 2003, the Brazilian government created the Secretariat for the Promotion of Racial Equality to implement affirmative action programs for people of African and indigenous descent in entering universities and in finding government jobs. This was done in response to the DDPA’s recommendation governments used equal opportunity programs be used to deter racial discrimination and promote integration.

The 2001 document also recognized slavery, including the transatlantic slave trade, as a crime against humanity. Nearly seven years later, the U.S. House of Representatives overwhelming passed a resolution apologizing for slavery and Jim Crow segregation. Thus, while its difficult to draw a cause and effect relationship here, its clear that some of the recommendations coming out of the Durban process helped set standards or even nudge governments in the right direction on racial justice issues.

But many UN observers also see a revival of the same campaign OIC countries to not only derail the process by making Israel a central focus, but also introducing anti-blasphemy measures to limit free expression. This has as much to do with the neglect of the so-called Middle-East process as it does with the controversy spawned by the Danish cartoons.

This has lead some critics of Durban II to believe the U.S. should boycott the conference. “Durban II, planned for April in Geneva, promises to be an encore of the same old Israel-bashing” argues a Wall Street Journal Editorial. “If the Durban II drafters have their way, any challenge of Islamic teachings, including teachings used to justify violence, would be taboo.”

Of course, the document is called a draft for a reason, and an active effort by the U.S. in negotiating the final text of the Durban II document could change things significantly.

Changing the Face of U.S. and U.N. Relations

Not everyone thinks the U.S. should be content to it on the sidelines. In 2008, the U.S. House of Representatives passed a resolution sponsored (H.R.1361) by Rep. Howard Berman, urging the Secretary of State to “lead a high-level diplomatic effort” in order “to defeat any effort by states to use the forum to promote anti-Semitism or hatred against members of any group or to call into question the legitimacy of any state.”

Other UN observers have been more direct. “Unfortunately, plugging our ears to this kind of dreck neither makes it any less likely to occur, nor deprives it of a forum. The only way to counter speech we don’t like, as the constitutional adage goes, is with more speech” argued John Boonstra at UN Dispatch, a blog that covers UN issues.

Even the America Israel Public Affairs Committee, a staunchly pro-Israel group, urged the United States “to use the preparatory process to halt the further demonization of Israel, ” as opposed to prematurely abandoning the process entirely.

But even if Israel was not central obsession of a few yet influential countries at the U.N., the U.S.  should at least strongly consider participating in the process if it wants to improve its image in the world, which is something Obama aims to do. Choosing to boycott Durban II, the first UN human rights gathering the in-coming Obama administration would have a chance to attend, may after all send the wrong message to the world -  something that the first black president could ill afford to do given the nature of the conference.

The question of race in 21st will only get more complicated with increased immigration from the global south to the global north, and as various countries including the U.S. try to grapple with rapidly changing demographics. Also, Barack Obama needs to demonstrate that he wants to move beyond the excesses of the Bush’s war on terror policies, which has been seen by many as an excuse to target Arabs and Muslims. In other words, the civil strife associated with racism could present diplomatic obstacles and create more instability in the world.

At the same time, however, he should impress on certain countries that terrorism is as real threat to U.S. as it is to countries anywhere else in the world and satirical depictions of religious figures, while offensive, should not be used as an excuse to place limits on freedom of expression, as some OIC countries want to do.

Additionally, Durban II could serve as a stepping stone for an Obama administration looking to reedefine the U.N.-U.S. relations in the post-Bush era. Making sure the conference maintains its central focus on the combating racial discrimination, instead of a proxy battle over Arab-Israeli relations will be a difficult task. But it is still achievable with an energetic and committed team of diplomats. UN Ambassador Dr. Susan Rice is certain capable of leading such an effort on her own and is familiar with the sort of entanglements awaiting her in Geneva.

In a November 2002 speech before a an audience at the University of Delaware, she made the following remarks:

Against this dismal back-drop, we also encounter an international community increasingly skeptical of U.S. intentions and resentful of our power. How did we get here? In large part, we did so by almost reflexively spurning collective instruments – from international treaties such as the ABM treaty, the Bioweapons Convention and the International Criminal Court to multilateral gatherings such as the UN Conference on Racism.

Of course, that was more than six years ago. Dr. Rice may have a different opinion today. But note Dr. Rice’s insistence on the connection between the exercise of American power and blacklash toward retreating from organizations within the U.N. system.

But Secretary of State-designate Hillary Clinton’s is less likely to support U.S. participation, assuming her statements on the campaign trail are any indication.  “I will never forget how the world’s first conference against racism became a mockery of itself when it descended into anti-Semitism and hatred,” she said in a June 2008 speech at an AIPAC conference.  “The debacle at Durban must never be repeated. We should take very strong action to ensure anti-Semitism is kept off the agenda at Durban II and if those efforts fail, I believe that the United States should boycott that conference.

With Obama’s decision to elevate the U.S. Ambassadorship to the UN to a cabinet level post, Dr. Rice will report directly to the president without the filter of the State Department, though the Secretary of State will likely to be consulted as well. But even in that scenario its difficult to say whose opinion will be given more weight. After all, Dr. Susan Rice is more of the UN expert than Clinton is even if the Secretary of State is regarded as the nation’s top diplomat.

Their statements on Durban II will surely be scrutinized during their respective confirmation hearings, particularly by Senators seeking to pin the in-coming administration down on a definitive ye or nay position on the issue.

Further complicating this issue is Israel’s war in Gaza and the U.S. kneejerk response to support it. Now while Israel’s current bombardment campaign is a separate matter, it will undoubtedly influence what Obama decides.  In his letter, to the outgoing Ambassador to the UN, Obama affirmed his support for Israel in its war in Gaza even as its unpopularity grows exponentially with each passing day and the Palestianian death toll rises.

Hopefully, President-elect Obama will not allow accusations that he is not a “friend” to Israel affect how he determines how to recast U.S.-U.N. relations. Whatever course he decides on this issue should be consistent with his promise to “to renew the trust and faith of our people — and all people — in an America that battles immediate evils, promotes an ultimate good, and leads the world once more” as he said in his Foreign Affairs essay.

That kind of bold leadership requires a break from the past and the political will to create your own opportunities even if they initially present themselves as crises.

Note:  I have changed the title of this post from “The World Conference on Racism and its Critics”  to the “Durban Review Conference and its Critics.” since the former refers to the gathering in that took place in 2001 in Durban, South Africa, and the latter actually refers to the upcoming meeting in April 2009, which is a follow up to the first one.

Reforming the Prison System

Senator Jim Webb will introduce legislation aimed at reforming the prison system during upcoming session of Congress. According to the Washington Post, Webb wants to reform law enforcement’s efforts targeting low-level drug actors instead of more influential players in the drug trade, policies incarcerating ex-convicts for technical parole violations, and laws depriving or curtailing the voting rights of ex-offenders.

The effects of the proliferation of failed criminal justice policies and enforcement strategies have been well documented. Despite having only five percent of the world’s population, the U.S. has a quarter of the world’s prison population. The 2.3 million behind bars are not only disproportionately black and Latino, but also amounts to one percent of the U.S. adult population, according to the Pew Center on the States.

In 2004, Latinos and African Americans  inmates made up 19.4  and 43.4 percent of those population state penitentiaries, respectively. Yet the 2006 U.S. Census Bureau estimates that Latinos and African American only 14.8 and 12.8 percent of the U.S. population.

Approximately, one in 106 white men aged 18 or older are in prison, compared to one in 36 Hispanic men and one in 15 for black men in the same age group. More strikingly, one in 9 black men between 20 and 34 are in prison, according to Pew.

(Source: Hamilton Project)

For some, Webb seems an unlikely figure champion of progressive criminal justice, since his biography has all the makings of a law and order conservative. But the one time Republican and highly decorated Marine captain, Vietnam war veteran and former Reagan Naval Secretary, had what he described as an “eye opening” experience as a journalist reporting on how the Japanese prison were run.

In a speech at the National Press Club, Senator Webb said he was struck by how Japan in the early 1980’s managed to have only 40,000 people in prison in a society with more than 100 million. By contrast, the U.S. incarcerated about 780,000 people in a society of more than 200 million at that time, according to Webb in his speech.

He was also impressed with how the Japanese, unlike the their U.S. counterparts, separated offenders in prison by the type of offense they committed instead of lumping together violent felons with non-violent ones. And he also took notice of the overall focus on the readmission of inmates in the greater society with marketable skills. In other words, the Japanese authorities actually invested in rehabilitating people in their correctional facilities.

As a freshman Senator, Webb joined a growing number of policy experts and lawmakers advocating for alternatives to incarceration. Webb co-sponsored the Second Chance Act in the U.S. Senate, which Illinois Congressman Danny Davis helped conceive, and signed into law by President Bush in April 2008. The measure provides more than $360 million in federal funding to help ex-0ffenders reintegrate into society by providing substance abuse treatment for those who need it, assistance in obtaining identification cards, which is critical to landing a job, job training, and financial incentives for employers willing to hire ex-felons.

The goal of the bill was to reduce the recidivism rate, which has skyrocketed in recent years along with state spending supporting incarceration policies. According to the Wall Street Journal, “Annual criminal-justice expenditures for police, prisons, probation and courts have risen to more than $200 billion from $36 billion in 1982.”

Meanwhile, state correctional spending is gradually edging out other priorities such as higher education, as evidenced by the graph below. States such as Vermont, Connecticut, Delaware, Michigan and Oregon spend just as much on corrections as they do on higher education.

But in addition to reentry programs lawmakers should reconsider the variety of policies supporting the failed war on drugs too. For starters, Congress should direct its attention to correcting the disparities in sentencing guidelines for crack and power cocaine. Despite the fact that we now know that they pharmacologically induce the same effects, 5 grams of crack – less than two sugar cubes, carries a mandatory minimum of five years in prison. The same penalty applies to those with power cocaine if they are caught with 500 grams. That’s a 100 to 1 disparity. Interestingly enough, about 75 percent of crack cocaine defendants are only low level offenders, not the major king pings and traffickers that are truly profiting from the drug trade.

During the last 25 years or so, drug arrests have tripled, thereby creating a 1100% increase in drug offenders in prisons and jails since 1980. The U.S. went from imprisoning 41,100 in 1980 to nearly half a million on drug charges alone according to the Sentencing Project, a criminal justice reform advocacy group.

The same organization also found that while African Americans constitute 14 percent of regular drug users and yet they are still 37 percent of arrested for a drug offense in state prison.

On the change.gov website, Obama’s agenda includes not only eliminating the crack-cocaine disparity, but also the expansion of drug courts, since they are more effective at reducing recidivism, drug use and other forms of criminal activity.

States and the federal government should also reconsider jailing and imprisoning ex-convicts for mere technical violations of their parole, since they are nonviolent offenses. It needlessly enlarges the prison population and impedes the reintegration of people who deemed threats to public safety simply because he missed an appointment, failed a drug test, or lost a job. Such routine violations indicate a greater need for counseling and other forms of intervention rather than incarceration.

Lastly, felons should be allowed to vote after completing their sentence and parole.  Felon disenfranchisement laws date back to the Jim Crow era and were engineered to suppress minority voting. Today, the ACLU estimates about 5.3 million people are affected by laws barring those with criminal records from voting.

Webb seems to understand the importance of it all when he said, “If you have paid the price that your community, through its government, has decided you should pay for the crime that you have done, then you should be made whole. I don’t think that’s a difficult concept.”

Hopefully, the new administration and new Congress will move forward with these reforms while they have they still have the political momentum on their back rather fear the next campaign attack ad calling them soft on crime because they were smart on policy.

A History Lesson Gone Terribly Wrong

From the Associated Press:

A white social studies teacher attempted to enliven a seventh-grade discussion of slavery by binding the hands and feet of two black girls, prompting outrage from one girl’s mother and the local chapter of the NAACP.

After the mother complained to Haverstraw Middle School, the superintendent said he was having “conversations with our staff on how to deliver effective lessons.”

“If a student was upset, then it was a bad idea,” said Superintendent Brian Monahan of the North Rockland School District in New York City’s northern suburbs.

The teacher apologized to the mother who complained and her 13-year-old daughter during a meeting Thursday that also included a representative of the local NAACP. But the mother, Christine Shand of Haverstraw, said yesterday that she thinks the teacher should be removed from the class.

Perhaps, I am missing something here, but I tend to think that this would be a bad idea even if the student simply played along. Its not as if there aren’t any pictures or other documents of enslaved people  out there for teachers to use.

Could you imagine someone saying, “To liven our discussion of the Holocaust we are going to push some of your fellow students into some of these fictional ovens to simulate the experience for you.”  For some reason, I could not see this particular teacher, Eileen Bernstein, agreeing to go ahead it. Such a suggestion would be rejected on its face as a bad idea, and rightfully so.

But somehow she thought this was a good idea for her class.

On another note, this whole affair does make me wonder what this social studies teacher does in her spare time for fun.