Conservatives on the Brown Decision

19 05 2009

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.

 





Chatter about Bank Nationalization

22 02 2009

California Governor Arnold Schwarzenegger joined a growing minority of Republicans in support of the prospect of more aggressive federal intervention of the nation’s the banking system, an idea that has inspired stern opposition from members of his own party and deep anxiety among Wall Street investors and many taxpayers.

The Austrian born Hollywood actor turned politician, who immigrated to the U.S. in part due to his “hatred of socialism, of the whole socialist system”, denied any  change in his views concerning the merits of a centrally planned economy and simply asserted that there was real difference between the kind of intervention currently debated in U.S. and what actually exists in Europe.

“Well, I — first of all, I think that we have a really good system here in America. You don’t have to talk about nationalization. All it basically says is that if a bank doesn’t have the money to — to give their customers, so if it, you know, defaults in some way,” said Gov. Schwarzenegger in an interview on “This Week with George Stephanopoulos.”

” So the federal government always had that right to take over. So it’s not nationalizing anything. I don’t see it as such. There’s a difference of the way it is in Europe, where the — where the federal government owns some of those banks, whereas here only if there is a problem financially that the federal government comes in and takes over and helps out, ” added the California governor.

The notion of temporary intervention has also found support among GOP free market champions like former Chairman of Federal Reserve Alan Greenspan. “It may be necessary to temporarily nationalize some banks in order to facilitate a swift and orderly restructuring,” Greenspan told the Financial Times.

Citing the the proliferation of toxic assests rooted in the mortgage sector, South Carolina Republican Senator Lindsey Graham echoed the former chairman’s recommendation last Sunday. “To me, banking and housing are the root cause of this problem. I’m very much afraid any program to salvage the banks is going to require the government,” said on This Week.  “I would not take off the idea of nationalizing the banks.”

Even though there seems to be some sort of daylight between Gov. Schwarzenegger and some of his Republican brethren over the use of the word “nationalization” in substance they seem to be in agreement about the nature of the intervention, which would entail the federal government temporarily owning a majority of the the stake in at least a select number of banks to provide them enough capital to lend, invest and prevent more economic contraction. Other options include securing or outright buying a considerable amount of toxic assets tied to a dismally underperforming mortgage sector and coursing through the major arteries of our ailing credit system and leading to even greater bank undercapitalization.

Read the rest of this entry »





Intuitive Yet Still Fascinating

28 01 2009

The Center on Tax Policy provides the following assessment of the “Making Work Pay Tax Credit” provision in the House version of the stimulus plan.

This proposal gets high marks for timeliness, assuming it is implemented as an adjustment to tax withholding, and that mechanism would also maximize the chances that the credit would be spent rather than saved. As a refundable tax credit, the proposal would aid many low-income workers who are most likely to spend the money. However, the credit would also be available to many higher-income workers who are less likely to spend the additional income. Were the credit better targeted, it would have been graded an A.

CTP explains why:

Evidence from behavioral economics suggests that taxpayers view small increments to after-tax pay as income, to be spent, whereas they tend to view lump-sum payments as wealth, to be saved.

Well, its intuitive depending on where you fall on the political spectrum.





The Durban Review Conference and its Critics

12 01 2009

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.





John McCain Flip Flops on Fair Pay for Women

13 07 2008

With Obama beating McCain among women by as much as 15 points in the national polls, the Arizona Senator suddenly had a come to Jesus moment on fair pay issues while campaigning in Hudson, Wisconsin.

In fact, McCain seem to tap into his inner feminist when he told an audience of full of the conservative faithful that “Women in America not only take care of the children, manage the household budgets and balance the pressures of work and family, they also run the enterprises that keep our country running.” He also assured the women dominated audience that he was for “equal pay for equal work” and that he wanted to make sure “there is equal opportunity in every aspect of our society.”

And according to Fox News Embeds, Mr. Straight Talk Express told women that Obama’s policies “would make it harder for women to start news businesses, harder for women to create or find new jobs, harder for women to manage the family budget, and harder for women and their families to meet their tax burden.”

If McCain decided that he wants to genuinely adopt a more progressive stance on women’s issues, that’s fine with me. We need more politicians to do so. But first he needs to account for why he did not support fair pay legislation when it came to a vote earlier this year.

The legislation in question is called the Lilly Ledbetter Fair Pay Act. The legislation was named after an Alabama women who was a victim of pay discrimination for more than 19 years at the Gadsen, Alabama Goodyear plant, and sued her employer as soon as she found out she was being discriminated against.

Initially, she won her claim at the federal trial court level where was awarded back pay and other damages. But Goodyear appealed the decision all the way to the U.S. Supreme Court, where under a cramped interpretation of the 1964 Civil Rights Act, a narrow majority ruled that Ms. Ledbetter filed her claim too late.

The 1964 Civil Rights Act says a plaintiff must file a complaint within the 180 days “after the alleged unlawful employment practice occurred.” The law prohibits discrimination on the basis of race, sex, creed, disability, age, and national origin. For decades, the Supreme Court and lower courts understood this provision to mean that employees could sue within 180 of receiving a discriminatory paycheck since each check represented a related yet distinct instance of discrimination in a series of discriminatory acts.

Justice Alito, however, had a different interpretation. Writing for the majority, Justice Alito found Ms. Ledbetter should have filed her suit with the EEOC within 180 days of the original decision to pay her differently. “Current effects alone cannot breathe life into prior, uncharged discrimination,” declared the Justice.

I suppose it did not matter much to the five Justices that Ms. Ledbetter only found out that she was a victim of pay discrimination through an anonymous note from a fellow co-worker and thus impossible for her file the charge within the time Alito recommended given the secrecy surrounding salary pay in the workplace.

But in April of this year, Democrats tried to rectify this by passing a fair pay bill that will among other things rectify this seemingly small ambiguity in the law. Now most reasonable people would consider this a nonpartisian issue worth solving. But not everyone saw it that way.

Apparently, some lawmakers are worried that allowing workers to take their employers to court would be bad for big business and designed to enrich trial lawyers. Republican Senator Mitch McConnell at the time said, “We think that this bill is primarily designed to create a massive amount of new litigation in our country, and I think that is the reason for the resistance to its passage on our side”

And the presumptive Republican nominee Senator John McCain also concurred:

I am all in favor of pay equity for women, but this kind of legislation, as is typical of what’s being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems…This is government playing a much, much greater role in the business of a private enterprise system

So in April he was against voting for a bill that would help combat pay discrimination, but now in July he is all for “equal pay for equal work.” That’s definitely not straight talk, thats flip flop and pander for more votes talk.

For the record, both Senators Barack Obama and Hillary Clinton took time from campaigning to vote for the bill and enthusiastically supported it.

Watch Lilly Ledbetter tell her story.

(H/T: Fox News Embeds)

Note: According to a 2006 U.S. Census Bureau report, median annual income earnings for men were greater than women in every single state. And in 2005, men’s median annual earnings amounted to $41,965 compared to $32,168 for women. In other words, women earned, 76.7 percent of what men made. The same study also found that the wage gap persisted across gender and racial lines.

  • Asian American women made 80.7 percent of what white men earned.
  • African American men made 73.5 percent of what white men earned.
  • African American women made 63.2 percent of what white men earned.
  • Hispanic men earned 58.4 percent of what white men earned.
  • Hispanic women made 52.2 percent of what white men earned.
  • Native American men made 71.6 percent of what white men earned.
  • Native American women made 59.7 percent of what white men earned.
  • White women made 73 percent of what white men earned.

The only outlier here are Asian men who tend to be over represented among high wage earners as a group in the U.S. and earned $1.04 for every dollar made by white men. This is in no small part is due to how our immigration laws favor high skilled and highly educated workers. For example, another 2006 study, found that 69 percent of all Asians are foreign born, and 44 percent of all Asians, compared to just 24 percent of the general U.S. population, had a Bachelor’s degree or better.

Source: U.S. Census Bureau and Ameredia.

Note II: Even when you account for education, profession, and hours work, etc., the pay gap among men and women still persists. For example, a report by the American Association of University Women found that even among recent grads:

In education, a female-dominated major, women earn 95 percent as much as their male colleagues earn. In biological sciences, a mixed-gender major, women earn only 75 percent as much as men earn. Likewise in mathematics—a male dominated major—women earn only 76 percent as much as men earn.





Take Care of Lupita, Lou

30 06 2008





Federal Courts Stitch Conservatives Together

22 03 2008

In the coming months, expect John McCain to discuss a topic so dear to many conservatives: nominations to the federal bench.

Inexplicably, many Democratic leaning voters fail to understand the role judicial nominations play in the Republican politics. But make no mistake, whenever a candidate for national office says his role model for judges are Thomas and Scalia as then-governor George W. Bush did during his 2000 presidential run and Rudy Guiliani did during his ill-fated campaign, he is signaling his support for certain conservative vision of the federal bench. No other issue among conservatives brings together so-called values voters, pro-business conservatives, limited government types, federalists, national security minded and pro-executive power conservatives quite like judicial nominations. Its not an issue that’s equally important to each of these groups, but its an issue that John McCain will likely use on the stump to keep the Reagan coalition stitched together.

In fact, according to ABC News Coorespondent John Tapper, McCain told a packed rally in Georgia that:

“I want to assure you that one of the great accomplishments of President Bush is we now have judges on the United States Supreme Court and judges who strictly interpret the Constitution of the United States of America,” he said at Cobb Energy Performing Arts Centre. “Two of the best of those are Judges Alito and Roberts. You can be very proud of them. My friends, I want to tell you, I will try to find clones of Alito and Roberts. I will try to find people just like them.”

Progressives who may be at a lost as to why the federal courts are such an import issue to the right need to consider recent history. LA Times National Legal Corespondent David Savage captured the conservative fervor over the federal bench quite well.

“This issue unites the base,” said Curt Levey, executive director of the Committee for Justice, a group that lobbies for Bush’s judicial nominees. “It serves as a stand-in for the culture wars: religion, abortion, gay marriage and the coddling of criminals.”

Nothing irritates conservatives more, he said, than having unelected judges decide politically charged issues that some believe should be left to voters and legislators. “Conservatives tend to blame judges for the left’s success in the culture war,” Levey said.

Thus, its not hard to see how the label “activist judges” took hold so quickly and firmly in the minds of so many conservative and even moderate voters. At root, this coalition is really a bunch of anti-New Dealers that joined the backlash against the civil rights and women’s movement and who believe the U.S. Constitution’s essential meaning was frozen in time circa the late 18th Century.

While its true that there is no such thing as a biased-free judge, its still unacceptable to appoint immoderate judges push their own ideological agenda in the courts. Through their decisions such judges often set poor precedent for other courts to follow or are at odds with the spirit laws enacted by Congress. How judges interpret the law actually does matter because for most people the court system is the last resort.

Nominations to the federal bench have a real impact on people’s lives. Judges, including justices on the Supreme Court, can opt to weaken or undermine your right to sue your employer for pay discrimination, the right to a quality education, your right to not have the government listen in on your phone calls, or regulate an industries indifferent to the environmental impact of their operations.

Alliance for Justice, a progressive advocacy group, has put together a series of videos illustrating the influence the conservative right has had on federal courts during the last two decades.

The first video summarizes how certain conservative activists have used the judiciary to diminish federal authority to help ensure we have a responsibly regulated economy and that even our right to privacy is protected.

The second video is about two cases Ledbetter v. Goodyear Tire and Rubber and Parents Involved in Community Schools v. Seattle School District, a classic pay discrimination case and a school integration case not unlike Brown v. Board of Ed, respectively. The majority opinion in the Ledbetter case was written by Justice Alito and the Parents Involved majority opinion was written by Justice Roberts, the very same justices that Sen. McCain claims he wants to “clone.” Both of whom were George W. Bush appointees.

Watch it.

[Youtube=http://youtube.com/watch?v=TTqqq69JbLA]

Watch it.

[Youtube=http://www.youtube.com/watch?v=m96VMu82q48&eur]

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