Loose Precedents

Professors Mary Ann Glendon and Douglas Kmiec give the Roberts Court "high marks", noting, among other things, its great "respect for precedent." While I am a big fan of Glendon, at least, this is a truly unbelievable statement.

Despite some ideological carping from those who lost cases that depended upon the extension of past decisions, Roberts and Alito have also shown themselves to be strongly respectful of precedent. Advocates this term urged overturning previous abortion decisions, a Warren Court ruling allowing taxpayers to sue in religion cases, and campaign spending limits. The new justices left those precedents in place, often resisting both their unwarranted extension to new facts and the urging of Justices Antonin Scalia and Clarence Thomas to overrule them.

This cannot fairly be dubbed faux deference. Tinker v. Des Moines Independent School District (1969) still meaningfully invites robust discussion of political and social views in school, as Alito and Kennedy strongly reaffirmed in Morse v. Frederick, even though Tinker did not protect advocacy of illegal drug use. Likewise, the allowance in Grutter v. Bollinger (2003) for race as one factor in pursuit of higher-education diversity was reaffirmed, notwithstanding the Court’s rebuff of outright racial balancing.

Okay, first of all, respect for precedent does not just mean refusing to overrule precedent. It also means actually going where precedent tells you to go in a given case. That Tinker and Grutter still have some theoretical application somewhere after Morse and Parents United does not negate the fact that those two rulings were contorted into nearly unrecognizable shapes through Roberts' "creative" efforts not to overrule them. All Roberts has done is recognize that unhelpful precedents can be isolated rather than overruled with much the same effects, and by operating that way he can still maintain his status as a "minimalist" among more credulous observers. Second, it is interesting that Glendon and Kmiec don't make an argument for how the two worst examples of this distinction-without-difference game was "respectful": The Hein case "not overturning" Flast v. Cohen, and Stenberg II "not overturning" Stenberg I. I believe the former is where Scalia did slam his colleagues for "faux restraint," so it might be worthwhile to tell us why that's not the case. In any event, it is difficult to see why taxpayer standing, insofar as it is accorded to legislative acts that violate the Establishment Clause, doesn't apply to executive acts that do the same (saying it applies to neither is at least consistent, as is saying it applies to both--one but not the other is absurdism). And the two Stenberg cases were nearly mirror images of each other. If a state law prohibiting "partial-birth" abortion needs to have a health exception, then a federal law likewise ought to need it.

The article concludes with lovely bromides about how law needs to be objective, and how people rely on it for guidance, and putting aside ideology, etc.. It's articles like these that make me ever more convinced that any result will be seen by its defenders as objective (especially conservative defenders who hang their hat on objectivity so heavily), and that those "constraining" forces like objectivity, precedent, stare decisis, and what have you, are no constraint at all. This is anti-persuasion--after reading this article, I'm further away from these author's positions than where I started.

Via Jonathan Adler

Yak Yak Yak

The Washington Post reports: "Stereotypes of Quiet Men, Chatty Women Not Sound Science." Two new studies have shown that men and women actually tend to speak roughly the same amount of words per day. The difference is that they tend be more or less chatty in particular contexts. But overall, it balances out.

So, what is the root of the stereotype? My intuition is it is a classic (if more literal) case of "mistaking the sound of one's own voice for silence." I've developed this theory in relation to majority reactions to minority counter-discourse--the all-too-common claim that minorities now "dominate" conversations, that they are the truly privileged in social spaces, that their opinions are given enhanced weight. The data rarely bears these complaints out--most decision-making in America, especially at high levels, is done by White people listening to the advice and perspectives of other White people. But because that norm has existed for so long, the sound of White people talking feels like silence, and the unfamiliar voice of color appears to be a thundering imposition no matter how marginal it may remain to the overall schema.

I See Invisible People posits that people tend to over-estimate the amount of words spoken in conversations they are not interested in. I think that's true, but I'd go further. In this case, I suspect men see their own speech as important, meaningful, relevant, and significant, and so don't hear it as "speech" as much as necessary "activity." Women's speech, by contrast, is minimized as irrelevant, low-brow, gossipy, or idle, and thus extraneous. I believe what is actually being said via the stereotype that women talk more than men is that women talk more unnecessarily then men--the conversation stands out because it doesn't fit within the prevailing (male) paradigm of what counts as important speech. This, of course, is representative of gender hierarchy (i.e., patriarchy) more than anything else, and is thus interesting on that front, but there's not much there to be said that hasn't been already.

These conclusions are all just supposition. But just based on my observations and reading of related literature, I think there is more than an insignificant chance that it holds at least a grain of truth.

4.0

In his brilliant but chilling book, And We Are Not Saved, Derrick Bell writes a chapter entitled "The Unspoken Limit on Affirmative Action: The Chronicle of the DeVine Gift." Like all of Bell's chronicles, it is a hypothetical story, this one relating to the "small pool" argument for why there is not more minority representation at elite colleges and universities. A law school, thanks to the help of a well-connected businessman (DeVine Taylor), is able to find a virtually limitless supply of impeccably qualified minority scholars to hire onto its faculty. At first, it used the DeVine Gift to hire a flurry of new professors of color. But after the sixth minority scholar was hired and the faculty was approaching a quarter "of color", the hiring committee became uneasy. The school decided against hiring its seventh minority faculty member, despite his stellar credentials, as the heavy minority tint was starting to affect the image of the school. The dean explained to its first Black faculty member, who had spearheaded the DeVine Gift project, that "a law school of our caliber and tradition simply cannot look like a professional basketball team."

The story is a hypothetical, of course, and a cynical one at that. Bell uses it to illustrate the outward limit of affirmative action and speciousness of the "small pool" argument--even if the pool got larger, Bell suspects, the gatekeepers at colleges and universities would not willingly turn former bastions of White privilege into truly multi-cultural institutions

I always thought the story was a little overblown. The experience of California universities, which hang around a plurality of Asian-American students, would seem to cut against it (but see here for why Asians may be a special case). My intuition was that colleges would gleefully admit truly outstanding minority applicants--it's a cost-free way to increase diversity, proclaim commitment to meritocracy, and not resort to controversial affirmative action programs at the same time. Where minorities would lose out, I thought, was in cases where they were middle of the admissions pack and would consistently lose out due to a variety of "intangible" factors.

But then I read Charles Lawrence III's account of UC-Berkeley's admissions behavior after it was forbidden, by referendum, from using affirmative action. Specifically, this information:

Berkeley is the UC system's most selective school, and of the 25,796 applicants for the 1999 freshman class, 9,858 had GPAs of 4.0. n56 But a white applicant with a straight "A" average has a much better shot at getting into Berkeley than a black, Latino or Filipino applicant with the same grades. [Charles R. Lawrence, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 Colum. L. Rev. 928, 942-43 (2001)]

Lawrence draws this conclusion by simply looking at the rejection data. "Comparing applicants to the freshman class admitted for the fall of 1998 with GPAs of 4.0 or higher, African-American, Latino, and Filipino-American students were denied admission at far higher rates than white students. Berkeley admitted 48.2% of white applicants with GPAs of 4.0 or higher, but only 31.6% of Filipino-American, 38.5% of African-American, and 39.7% of Latino applicants with such GPAs."

The problem, of course, is that with AP classes and other such programs, it is possible to boost one's GPA far higher than 4.0--possibly up to a 5.0. Yet, since not all schools offer AP classes (and some offer far more than others), many students are at an intrinsic disadvantage simply from where the graduate. Should a student with a 4.0 average at a school with no APs (in other words, the very best score he could receive) be looked upon unfavorably compared to a student with a 4.2 average at a school with 20? I am an example of the latter student and even I don't think that, on that information alone at least, I am the superior candidate.

This is shocking data. It appears to verify Bell's chronicle. Impeccably qualified minority students, students who did everything right, are still being denied admission to elite colleges at a higher rate than their White peers. What more do we ask of these kids? What more do they need to do? Is the problem on their end, or on ours?

That's Just The Scotch Talking

Kevin Andre Elliot of Slant Truth has given me a "Thinking Blogger" award--simply put, a list of five blogs that make him think. The five people then give their own list of five blogs, and so the meme progresses. How I made it on Kevin's list remains somewhat of a mystery, though I think the scotch he admits to imbibing plays a large role. In any event, I am most flattered and honored, and am pleased to push the meme forward to a new generation.

First off, the rules:

1. If, and only if, you get tagged, write a post with links to 5 blogs that make you think,
2. Link to this post so that people can easily find the exact origin of the meme,
3. Optional: Proudly display the ‘Thinking Blogger Award’ with a link to the post that you wrote (There is an alternative silver version if gold doesn’t fit your blog).

Okay, now, the blogs.

1) Let's start with the newest edition to my blogroll: Harry's Place. Normally, I'd wait a bit longer and read a bit more before bestowing such an honor--but then, few blogs have by themselves inspired an entire mood swing in me. For that, I thank them.

2) Obsidian Wings. I'm fortunate that Publius has moved here from his old haunt, otherwise I'd have to use two spots instead of one. He, Hilzoy, and all the rest are unfailingly brilliant (and have a great mascot).

3) Half the Sins of Mankind is the home-base of the prolific PG, someone who I've previously admitted an intellectual crush on. And the comment she writes, oh, the comments she writes! PG is one of the few bloggers who I consider to be more than just someone I read and who reads me. She is a genuine (if virtual) friend.

4) There are a cluster of feminist bloggers I read who all occupy a similar "niche" in my head, and it is well-nigh impossible to decide between them. But I will represent them with the great Feministe, which was probably the earliest I found and the one which has impacted my own thinking the most.

5) I was really wavering on the last one. But Lawyers, Guns, and Money has me consistently nodding along with nearly whatever they write. That's gotta be worth something.

This is obviously a truncated list of the many, many blogs I love and who deserve love. On a different day, and in a different hour, I'd probably write an entirely different list of five. All of these, however, rank to my mind as top-notch members of the blogosphere. And I am happy to give them my own minor seal of approval.

Happy 4th!

It's the 4th of July, and I'm having a party. Hope y'all are doing likewise.

Disqualified

The AP reports that Los Angeles mayor Antonio Villaraigosa, who is in the process of divorcing his wife, "is in a relationship with a Spanish-language television reporter." Steve Benen snarkily remarks that "if he were a Republican, he’d still be well positioned to run for president," presumably referring to the marital history of the front-running Republicans, who also have had their fair share of divorces and affairs.

But Benen is far too loose with the standards of Republican voters. They would never vote for someone like Villaraigosa. I mean seriously, a Spanish-language television reporter? What would Tancredo say?

Irrational Exuberance

I don't know why, but over the last couple of days, I've been feeling awash in a wave of unsupported optimism about the state of Jews in the world--especially global views towards Israel. There's no particular reason for this to be so--certainly, most of my recent posts give me no grounds for it, nor is there a shortage of contemporary news that normally would send me into a heap of depression. And yet, here I am.

Some of it stems from having heard of a growing segment of the Muslim community that is expressing, openly, its view that Israel is a legitimate state that deserves respect and equal standing in the international community. Such a view, of course, does not negate the stance that Palestinians deserve a state as well--nor should it. But it seems to me a possible signal of a broader fatigue with spending infinite time and energy to trying to dislodge the Jewish state from its tiny perch on the Mediterranean. Am Yisrael Chai, as the Jewish saying goes, and the sooner everyone accepts that reality, the faster we can progress. The years since the second intifada began have been dark ones for supporters of the Jewish State. But they have likewise shown the Palestinian people that spending seven years throwing themselves in blind fury at the Jewish State does nothing except sap resources (and lives) that could better be spent coming to a long-term consensus. The (belated) recognition by many Palestinians that Hamas is perfectly willing to plunge their nation into anarchic civil war for no perceptible gain is the straw that might finally break this camel's incredibly resilient back.

But I think a significant part of my feeling of optimism stems from blogging at Harry's Place, a (I believe) British-based site that talks about Israel from a position that, to my ears, seems to a) be unabashedly progressive and b) take seriously issues of anti-Semitism that inform contemporary anti-Israel and anti-Zionist discourse around the world. I first linked to Harry's Place at this post, where I explored how a progressive view of democratic nationalism requires all on the left to support both an Israeli (Jewish) and Palestinian state. This has been my position for some time, but for much of it I've felt quite lonely--I haven't felt like there has been the development of a left-wing theory of anti-Semitism that would buttress such a stance, hence, the normal pillars of theoretical and philosophical support I depend on were missing. Harry's Place has helped fill that gap, and told me that I am not alone in my instincts on this matter. It has also pointed me to the Engage Website, currently working against the boycott Israel movement in the UK, which is exploring similar themes.

I firmly believe that the only way to solve the Israeli-Palestinian conflict is via a progressive stance that adequately takes into account the positions, interests, lives, and aspirations of both Jews and Palestinians. Until now, I've felt like I've had very few comrades in this endeavor. But now I know I have at least a few fellow travelers. And that makes all the difference.

The Dawn of a New Era

I start my LSAT prep course today. Wish me luck!

...Well, that was a delightful exercise in terrifying. For the record, I did great on everything, except the logic games, which, well, let's just say I haven't gotten spanked that hard since I last roomed with Paddington on a debate trip was a toddler. Well, that's what the prep course is for, I guess.

Still, the sooner the forces of post-modernism overthrow the hegemony of logocentrism, the happier I'll be.

The Dawn of a New Era

I start my LSAT prep course today. Wish me luck!

Double Instinct

With the ruling by a three-judge panel that Scooter Libby cannot defer his jail sentence pending appeals, the pressure on President Bush to pardon his VP's former Chief of Staff is about to increase astronomically. The panel was majority Republican (as was the prosecutor and the trial judge), so it will be difficult to label this a partisan move (though I have no doubt people will try).

So, will Bush pardon Libby? I think so.

Two instincts, I think, are in play here. The first is loyalty. Many of Libby's prominent defenders have tried to impress upon Bush's reputed sense of loyalty to his subordinates to press for a pardon:

“I hope it puts pressure on the president. He’s a man of pronounced loyalties and he should have loyalty to Scooter Libby,” said former Ambassador Richard Carlson, a member of Libby’s defense fund. “It would be a travesty for him to go off to prison. The president will take some heat for it. So what? He takes heat for everything.”

Bush's famous loyalty is not unlimited--while he expects unconditional support from his underlings, he has been willing to throw some of his people to the wolves if it would help him with his base (e.g., Harriet Miers). But nonetheless, the President has stood by many of his appointees and associates long after most administration's would have given them the heave-ho. Alberto Gonzalez and Donald Rumsfeld would be the most prominent names here, but there are others.

The second instinct, which I think conditions the first, is the President's vindicative attitude towards Democrats. If there is one governing principle of this administration, it is that he loves to stick it to the Democratic Party at every possible opportunity. It overrides his national security interest (e.g., Department of Homeland Security), it overrides his political interests (his targeting of friendly, moderate Democrats in the 2002 election)--whatever the situation, Bush loves to cause pain to the left. And with his poll numbers in the low 20s with no hope of resurrection, I believe this bitterness will only increase his lashing out.

That's what makes the pardon more likely than not. Bush cuts loose his subordinates only when they draw anger from his right flank. Libby's crimes are being trumpeted by the left. But Bush doesn't care about what the left thinks. Hell, at this point, he doesn't care what anybody thinks--the dead-end 25 percent who still supports him probably would still stand by him if al-Qaeda occupied New York. So what's to stop him? Bush revels in seeing impotent liberal rage. Now that the Democrats control Congress, that rage is not so impotent anymore. But a pardon is something they can't do anything about. Pardoning Libby gives Bush one last hit of the heady, early days. And that's why he'll do it.