Kegger '08

Best description of the Obama phenomenom ever:

Barack amazes me in this: he gives these policy wonk answers that I love because they respect the complexity of the question and show a great understanding of the systemic problems policy has to address. But what freaks me out is that the crowd goes rock star crazy for these wonky answers. It's as if I walked into a frat house and people were doing keg-stands to C-Span. I mean, I'm really excited that they're watching C-Span and all -- but can this really be happening? And can it last? And what am I missing?

I think a lot of the reason people like me love Obama is precisely that--it's not just that he's a wonk, he's a wonk people will listen to and in fact swoon over. I can't make people swoon over my wonky policy speeches. Sometimes, I can make them drool, but that's not the same thing.

Anyway, not even at Carleton (except possibly on our D.C. program) will you see keg stands done to C-Span. But it's a great image, nonetheless.

Pre-Biology Roundup

I have two finals due Monday, but one, a paper for Biology, is already almost done. I just need to put some finishing touches on it and send it in. It's very fortunate that's the case, because I know nothing about biology. Well, that's perhaps a bit harsh to me. I may not be the best bio student. But I'm at least better informed than Sam Brownback.

Other news that struck my eye....

Bill O'Reilly is worried about the longevity of the "white, Christian, male power structure." He thinks that the "far-left", like the "New York Times", wants to see it "break down" by letting lots of Latino immigrants into the country. This, we're led to believe, would be a calamity.

Personally, as a White (non-Christian, alas) male, if I am to be part of the American power structure, I'd actually prefer it if it were due to my personal merit, rather than the fact that I'm a White male. Also of note, most Latino immigrants are Christian, and a great many are male. They are, however, brown skinned. So really, O'Reilly is worried about the end of "white...power...." Hmmm....

Baghdad Bob has been replaced by Khartoum Karl. No Coke product will escape Sudan's wrath!

In sadder Darfur news, local expert Eric Reeves does not believe our new sanctions regime is anything beyond symbolism, and concludes "the sanctions simply continue the Bush administration's pattern of empty rhetoric and inconsequential actions."

Blogger opens Iranian/Israeli dialogue. The Iranian expatriate responsible for the site seems to be a bit of an odd fellow. But this instinct, at least, seems positive.

The ACLU is suing Boeing for its participation in the Bush administration's "extraordinary rendition" program. You know the one--its where we send terror suspects off to vicious regimes like Syria and have them brutally tortured.

Evangelical teens have sex earlier, have more partners, less likely to use protection. Good thing "true love waits."

Ruth Bader Ginsburg is a baller. Those two oral dissents she's given are a sign, and that sign is "I'm pissed the #!&% off."

The oral dissent has not been, until now, Justice Ginsburg's style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court's collegial norms. "What she is saying is that this is not law, it's politics," Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg's comment linking the outcome in the abortion case to the fact of the court's changed membership. "She is accusing the other side of making political claims, not legal claims."

Via Feministing.

Banned Venezuelan TV station takes its shop to YouTube. Nicely done.

Our asylum system is apparently effectively random. Yay.

Captain Ed answers my call for a conservative willing to admit that the interpretation of Title VII given by the Court in Ledbetter is terrible policy, even though he thinks its on solid legal ground. Great. Now put your money where your mouth is. I wrote my Congressman. But as I relayed to Ed in comments, its not going to be my side who will be the problem here. Balls in your court, righties.

Bizarro Brennan

Due to finals and other end-of-term stresses, my blogging hasn't been quite at the level I've wanted it to be. Nonetheless, I can't help but link to Scott Lemieux's flip-out regarding Justice Samuel Alito:

Yes, his strategy is to avoid Scalia's culture warrior posing and rather -- like a bizarro world William Brennan, gone over to the dark side -- to cobble together precedents while subtly pushing them towards his ideological preferences, with an extra soupcon of bad faith.

Fun!

To Congress!

Good news! In response to the aforementioned abysmal statute of limitations ruling by the Supreme Court on pay discrimination cases, Rep. George Miller (D-CA), chair of the House Education and Labor Committee, has announced he's going to begin trying to fix the problem.

I'm about to write to my Congressman (and head of the DCCC), Chris Van Hollen (D-MD) to get on board. While I'm at it, I'm going to ask him to try and fix the statute that led to Jordan v. ARC, my original "labor law really screws people" case. I'm lucky in that I have a hook--Jordan came out of my district. But that shouldn't stop you! Both are cases in which employment discrimination law proved itself utterly incapable of remedying employment discrimination.

***

Here's the letter:

In the wake of the Supreme Court's disappointing decision in Ledbetter v. Goodyear, I was pleased to read that your colleague Congressman George Miller has announced he will be seeking to rewrite the law so as to close the loophole Ledbetter opened. I have been a proud supporter of you since volunteering for you in the 2002 Democratic primary, and I hope (and have no doubt) you will support him in that endeavor.

However, I wanted to make a plea for reviewing another aspect of Title VII that led to another hideous employment discrimination decision recently. Last summer, Jordan v. Alternative Resources Corporation was decided by the 4th Circuit (458 F.3d 332 (2006)). That case, which I regret to report stemmed from Montgomery County, was a retaliation case. When the D.C. snipers were arrested, Mr. Jordan (who is Black) overheard a White coworker say to the TV screen: "They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." After discussing the incident with colleagues who reported that this worker had a history of making similarly racist remarks, and pursuant to a company policy which mandated that he report any racial harassment, Jordan filed a complaint. In response, his supervisor retaliated by changing his work hours to less convenient times, making a derogatory gesture and comment towards him at an office party, and within a month firing him.

This is precisely the sort of retaliatory action Title VII is supposed to protect against. Yet the 4th Circuit held that Jordan’s claim was barred, because he could not have even “reasonably believed” that the actions of his coworker constituted racial harassment. To be clear, the ruling wasn’t that the actions of the coworker did not rise to the level of racial harassment. It’s that Jordan was could not have even reasonably believed that they did (Title VII bars retaliation in such cases even if the original action would not have been a violation). And thus, the company which demanded that Jordan report racial harassment was legally permitted to fire him for doing just that. Clearly, this Catch-22 is a perversion of the intent and purpose of Title VII.

Jordan’s case was not heard by the Supreme Court, so it has not gotten the same attention as Ledbetter. But it is an injustice in my and your backyard, and one that cannot be allowed to go unanswered. I do not know if Mr. Jordan is one of your constituents, or merely a man who worked in our great district. Either way, it is appalling that a company could treat him as they did, and get away with it. The narrow and narrow-minded decision by the 4th Circuit is a cousin of the wrongheaded view of Title VII that gave us Ledbetter. The outrage over Ledbetter gives us an opportunity to fix this injustice as well. In the process of remedying the Supreme Court’s recent ruling, I hope that you will also work with Representative Miller to clarify the language on retaliation in Title VII so that it provides meaningful protection to men and women like Mr. Jordan.

Sincerely,
David Schraub
Carleton College ‘08
The Debate Link: http:/dsadevil.blogspot.com

Everything You Ever Wanted To Know About Silence

The insightful Thinking Girl is guest-blogging at another favorite blog of mine, Slant Truth. Talk about a power couple! But something distressed me about her opening post, and I want to hash it out.

The post is about how White women ought to respond when women of color say they feel marginalized or suppressed by something they say.

I will always listen to and believe a woman of colour when she says that she feels marginalized by something a white feminist has said or written. When a woman of colour says something is silencing her, erasing her, marginalizing her, I will believe her, because who better than she to know? I will not invalidate her experience by saying she is overly sensitive and too emotional. I will not tell her to calm down, that she is blowing things out of proportion, that she is taking things to personally, that she needs to get some perspective. I will not wait until I have all the “facts” of the matter. I will not remain neutral. I will not try to define the terms and the tone of the discussion, and try to silence her dissent. I will not deny anything. I will not believe that white privilege is a defense.

I will listen and hear. I will believe her. I will calm down and stop being overly sensitive. I will not blow things out of proportion and take things personally. I will try to see things from her perspective. I will try to silence my dissent. I will give her space and opportunity to speak for herself. I will support her. PERIOD. NO QUESTIONS. Why? Because she knows by now what marginalizes her, what hurts her, what silences her, what erases her. Because my whiteness blinds me sometimes, and when that happens I can’t trust myself. And because, that’s what allies do.

Again, I find something about this very disconcerting, and I want to develop on this theme a little bit.

Now, it may be that TG is only making the relatively stock argument that White people need to stop and listen to minority claims of marginalization, rather than immediately going into shell mode. That I have no qualms with whatsoever--that's just true. But TG seems to be stepping beyond that. The underlying assumption here is that, no matter what we do, somebody has to be silent. TG is saying that, rather than try and silence women of color when they proclaim hurt, "I will try to silence my dissent." It's either/or. It's zero-sum. There is no room for conversation. The feelings TG has--of dissent, of sensitivity, her "reactions" that she wants to stifle--all need to be silenced. They cannot and should not be aired out.

Now, if coerced silence is an inevitable part of the reality we live in, then I guess I agree. If somebody has to be silenced, it should be White women rather than women of color, if for no other reason than distributional justice issues. And on the level of pure reaction (as opposed to action), I want to say that I don't disagree with her at all--if someone says that a given statement or position marginalizes them, that's entirely unfalsifiable. Nobody has more authority than the speaker to say what hurts them, and thus, I too will believe when people say a stance or statement erases them.

But I don't like the reality TG is drawing. And I don't think it's inevitable. And I think that TG's formulation here starts to fall apart as we move deeper into progressivism--the part that demands action and change and reform.

Before I go further though, I should state a bias. As a Jew, I feel acutely marginalized by a lot of the discourse on Israel stemming from the left. And when I try and point this out, I am quite often (not always, but often) shot down as being over-sensitive, trying to "play the anti-semitism card", and other such rhetorical moves. My concerns are not taken seriously, and the perpetrators express little to no interest in examining how they may be operating within anti-Semitic paradigms or worldviews that do real damage to me and mine. In other words, I don't see this same commitment by the left in letting the marginalized define what erases them when the subject is Jews. Undoubtedly, this influences my thinking, because it damages my perception of the good-faithness of the argument. I'm hurt here because it seems, to me, that the left cares only about the pain of some groups, but is quite willing to lapse right back into the same damaging modes of discourse when it's my body the line. And when it comes to global anti-Semitic violence, my body is on the line in a very literal way. If I'm reading TG too harshly because of that, I apologize.

But back to the main.

First of all, I should note that TG's formulation, on face, only works in dialogue between groups whose relative position in social hierarchies is unambiguous. White women are clearly higher than Black women. But the formulation does not give any guidance on how to mediate conflicts between two groups whose relative social position is not clear--whose oppressions are on different axes. Blacks and Jews, or Black men and White women. For these groups, TG's position would seem to imply that discussion is impossible. As TG seems to recognize, in many of the situations we're talking about, both sides feel in some way marginalized or suppressed. If TG is right, though, then one of those sentiments has to give (be silenced). Her standard for deciding who has to stay silent is based on relative social position, which doesn't apply in these cases--giving us a situation where groups simply won't be able to converse at all. The only way to break the stalemate would be to engage in an endless (and, I believe, futile) duel over who is lower on the social chain. I reject that grim position--I don't believe that respect for my friend's narrative requires the silencing of my own. We can and must hear both.

Second, TG's formulation might ironically serve as an excuse for political passivity. Her stance, she says, "is what allies do." Perhaps. But allies do more than that. We have to press for changes in policy. In attitudes, in outlooks, in behaviors. This isn't just about raising consciousness--it's about enacting real change in the real world. And here, TG's position could be paralyzing, for two reasons.

1) It offers no guidance on how to mediate between conflicting narratives of marginalization from within the same group. I've talked with Black friends who have told me that people who oppose affirmative action make them feel marked, like their qualifications and worth are being questioned. I believe them--why wouldn't I? Who is better to tell me what makes them feel marginalized than they? But then, I've also had Black friends who have said that supporting affirmative action makes them feel marginalized, like they're tokens, like I'm implying they couldn't make it here on merit alone. And I believe them too--who is better to tell me what makes them feel marginalized than they?

That's fine as far as it goes--my empathy is not bounded, and I am quite willing to allow both sides to define the facets of their own existence. But at the level of policy, I'm forced to make a choice. I have to do something. I can't both support and oppose affirmative action at the same time. If I'm to do something to try and remedy said marginalization, I'm going to have to dive deeper into this discussion than merely nodding my head to both sides of it.

2) Making a policy commitment requires me to make an autonomous choice. I can't dodge out of my responsibility to engage in my own cognitive faculties in the endeavor. I'm willing to grant other people's views persuasive authority--sometimes very persuasive. But I'm not comfortable with completely off-shoring my own decision-making obligations. If I have a concern about a given position held by a friend of color, that concern needs to enter into the discussion. That doesn't mean I have deny their narrative of hurt or marginalization. Their experience is, as TG has said and I affirm, their own, and nobody has the right to take it from them. But political decisions have consequences that extend beyond individual experiences. On me, or on my friends or loved ones. These have the right to be heard as well. I see no reason why, if their bodies are implicated in a debate, their voices need silencing. Their feelings of marginalization are their own as well. Their interests, concerns, hopes, and fears all have value in our discourse, and need to be aired.

Democratic justice requires the voices of all its participants--and I don't believe a radical feminist or anti-racist position needs us to permanently "silence our dissent" in any case. Defer it, maybe, condition it, perhaps, show respect for the narrative we are conflicting with, definitely. But silence it? That disturbs me in a very serious way. Fundamentally, I reject the very idea that discourse is a zero-sum game. I believe we can affirm the legitimacy of all experiences. We can--and must--respect what the majority is feeling without reifying White supremacy. We can--and must--respect what the minority is feeling without simply inverting the hierarchy of silence.

Put simply: If I'm talking to a Black friend of mine, and she tells me that affirmative action stigmatizes her, I have no right to tell her otherwise. Her life and experience is her own. But the corollary to that is not--cannot be--that I am bound to oppose affirmative action. Democratic justice requires a more searching inquiry than that--one in which all voices, dominant or subordinated, majority or minority, can contribute and in which all concerns have weight.

Opinion Watch

In the wake of the Ledbetter decision, I can't really stand more bad Supreme Court news. But it always does seem to find me.

With yesterday's ruling, Supreme Court observer Aaron Streett relays the following information about the remaining decisions to be handed down this term: "With [Alito's] majority opinion in Ledbetter, only the racial-integration cases remain from December, with only the Chief left to write. Unless he lost his majority, this will likely be the most important opinion of [Roberts'] young career."

The cases, which I described as threatening the very heart of Brown v. Board itself, are likely to be razor-thin, and I have very little faith that Roberts will be on the right side of them. If Roberts' decides to use these opinions to craft some sort of conservative legacy for himself, we may be on the verge of witnessing the greatest legal setback for civil rights in the past 50 years.

I'm keeping my fingers crossed, but I'm not optimistic.

It's The Thought That Counts

The Supreme Court's decision in Ledbetter v. Goodyear is a bit weird to me. And by "a bit", I mean very, and by "weird", I also mean "appalling."

In a 5-4 decision along partisan lines (Alito for the majority, Ginsburg dissenting), the Court held that a women who was suing due to sex discrimination in payment missed the 180-day deadline for filing the claim. Lilly Ledbetter started working at Goodyear in 1979, at similar pay to the men at her position. She was the only woman. By 1998, when she retired, her pay was the lowest of any worker in her position, including male managers at significantly lower levels of seniority and experience. She sued alleging sex discrimination just before she retired. However, the Supreme Court held that the 180-day statutory clock started upon the first instance of discrimination. Scott Lemieux comments:

The Court--in an opinion, natch, written by its arch-reactionary newest member--argued that Ledbetter failed to challenge the initial discriminatory pay decision within the required 180 days, and the ongoing pay discrimination did not constitute an "unlawful employment practice." As Ginsburg points out, this reading of the statute makes little sense; unlike with a firing, both because an employee may not be aware of the discriminatory nature of their pay until much later, and moreover it is illogical to hold that only an initial decision to discriminate but not the discriminatory pay itself constitutes an unlawful practice. The effect of the case is to insulate employers from wage discrimination claims as long as they can hid[e] the evidence from the employee being discriminated against for 180 days, a result contrary to the purpose of the statute that is in no way compelled by its language.

It's mind-boggling to me that the original instinct (however it came up) to discriminate is the only discrimination actionable under Title VII--while the actual, material, measurable, noticeable, empirical disparity in pay that--we should remember--is why the women is suing in the first place, isn't.

This is really not that complex. Deborah Brake and Joanna Grossman wrote on this case on the eve of oral arguments:

Discriminatory pay disparities must be susceptible to correction not just when they are first made, but as long as they are being implemented. Otherwise, unless an intervening decision corrects the disparity, a decision to discriminate against a woman early in her career can legally continue to affect every paycheck for the rest of her life, once a brief period of time following the initial decision has passed.

This should be blindingly obvious. Every pay check a women receives that is the result of gender discrimination is itself an instance of discrimination. In discrimination, it's not just the thought that counts. How the Court expects women to be able to build a colorable case of discrimination within 180 days of the original decision--a decision they might not even know resulted from discrimination and the material evidence of which, it needs to be re-emphasized, will only show up across the course of months or years of pay checks--remains elusive to me. How are women supposed to know that they're pay is lower than men in their position? Do most companies publicly post their salaries? Is there a norm in favor of discussing earnings and raises in the American corporate world that I don't know about? It's an unreachable burden, and the effect is to nearly immunize companies from suit for pay discrimination.

But there is some good news. The Goodyear case--like my last example of an evil discrimination decision--rests upon statutory law. In other words, Congress can change it whenever it wants. So even though I suspect the legal rationale behind this decision is, er, less than solid, that's not the point. If this is the burden the law places upon discrimination litigants, then the law needs to be changed. And thus, I reiterate my request to all my conservative friends who probably think this case is a prime example of the Courts not making law--if you really think this is the legislature's role, great. But I want to hear you pressing as hard as I am to get this law changed. Because this status quo is ridiculous and untenable.

Round-up of views:

Talk Left: "A disgraceful decision."

Blog of the Moderate Left: "Wow. So the two new pro-life justices have come out strongly against the rights of women to equal pay. Why, it’s almost like the anti-choice set is also anti-woman to its core."

On the Virg: "Supremes tell Women and Minorities to Eat Cake."

Via Workplace Prof, I find the one (and so far only) blogger who thinks the decision was right.

Paul Secunda gives his expert legal opinion--he, too, think Ginsburg got the better of the argument.

Any commentary by conservative blogs, especially those treating this decision with the outrage it deserves, would be appreciated in comments.

Support Gay Rights? You May Be Supporting....TERRORISM

Well isn't this special. Via The Carpetbagger Report, it turns out that Alabama has a rather odd set of groups on its list of suspected terrorist (or terrorist harboring) organizations:

The Alabama Department of Homeland Security has taken down a website it operated that included gay-rights and antiwar organizations in a list of groups that could include terrorists.

The website identified different types of terrorists and included a list of groups it suggested could spawn terrorists. The list also included environmentalists, animal rights advocates and abortion opponents.

The director of the department, Jim Walker, said his agency received calls and e-mails from people who said they felt the site unfairly targeted certain people because of their beliefs. He said he planned to reinstate the website but would no longer identify specific types of groups.

I'm curious: When is the last time a pro-choice group tried to bomb Operation Rescue? Does Alabama has intelligence on bands of rogue homosexuals, stepping into bars to beat up any God-fearing straight American they find?

Or maybe, just maybe, this is a political witch hunt.

Congrats to Publius!

Congratulations to Publius of Obsidian Wings (nee Legal Fiction) for leaving the world of evil law firms and joining the squadrons of light in academia!