Saturday, October 08, 2005

0/5 Compromise

According to Spencer Overton, many states include prison populations for purposes of redistricting--even though as (mostly) convicted felons, they are (mostly) not allowed to vote. What's more, they're counted as residing in the district where they are incarcerated, rather than where they lived prior to incarceration.

The net effect is dilute voting strength in (mostly black) inner-city neighborhoods, and transfer that strength to white representatives in the rural counties which hold the prisons. One rural Nevada district includes a county where 95% of the black "residents" are in prison.

I concur with Alex Coolman--I am struck by parallels to the 3/5 compromise. For those of you lacking knowledge of this ignoble constitutional clause, the 3/5 compromise was the answer by the North and the South to the nagging question: How should slaves be counted in the federal census? The North wanted them counted for taxation but not representation. The South wanted them counted for representation but not taxation. And after much debate and discussion, they hit on the solution: Count them as 3/5 of a person both ways! And everybody was happy (except, of course, the slaves, but they're weren't really persons anyway--or at most 3/5 of one).

At least on face, however, this arrangement is worse than the 3/5 compromise (contextually, it isn't as bad since it isn't tied up with the slave system). It basically represents the Southern position--black prisoners are completely present for purposes of representation, even though they themselves are not allowed to choose their representatives. And, like in the "old days," these persons are placed inside their districts not by where they have chosen to live, but by where the powers-that-be have decided it most convenient for them to be placed. And wouldn't you know it? The arrangement just happens to be that black voter strength is sapped away by disenfranchised black persons, and transferred, vampire-like, to predominantly white districts electing white representatives who then (predictably) pass laws to put more black persons ("voters"?) into their prisons--thus strengthening their hand yet more. What a horrifically vicious cycle.

This may be a strained analogy, but I see parallels to the ID/Evolution debate here. You look at this system and how it so perfectly suppresses black people and elevates white power, while at the same time cloaking itself in the impenetrable armor of justice and righteousness, and you think: This must be designed. There is no way that such an incredibly complex, subtle, and effective method of preserving racial hierarchy could have come about naturally. But, good evolutionist that I am, I am ultimately swayed by the--in my view--scarier position. That these systems come into being not by a conscious design to keep black people in their place, but because our system is proactively racist when left on auto-pilot. If left to its own devices, without a conscious effort to correct, steer, and guide it away, our society will naturally and inevitably gravitate toward racist results. That's the way we, in our glorious color-blindness, work.

Personally, I oppose felon-disenfranchisement laws (especially for such bogus felonies as non-violent drug possession). But if we do have them, then prisoners should be counted as residents of where they lived as civilians--where their interests as citizens remain. The status quo completely strips prisoners of their personhood--which may, by itself, be a necessary incarceratory tool (I'm skeptical)--and then turns the dehumanized husk into slaves to the whims of the legislature; political pawns to be pushed around as line-drawing demands. You can't do both. You can't say that prisoners are no longer persons, and then re-create their identity into nothing more than a demographic tool. That is an unprecedented expansion of governmental authority to declare by fiat a polar shift in reality, a veritable deconstruction and reconstruction of what is to suit what the politicians want it to be. The state's power cannot justly extend that far.

Thursday, October 06, 2005

The Students Have Become The Masters

Apparently, Iraq is failing in its quest to become a democracy because of parliamentary tricks like this:
On Sunday, the Shia- and Kurdish-dominated Iraqi parliament decreed that the threshold for rejecting the constitution would be raised from two-thirds of the voters in three provinces to two-thirds of registered voters in three provinces, while the approval of a simple majority of those who turn out to vote for the constitution would be sufficient for ratification. Yesterday, under extreme international pressure, the parliament abandoned the change. But most significant is the fact that the ruling factions in the parliament felt unconstrained by any law in the pursuit of their sectarian advantage. The U.S.-brokered interim constitution establishes a daunting parliamentary super-majority to amend its provisions. But instead of embarking upon such a daunting course, the parliament ignored what counts for law: The referendum decree was merely a "clarification," according to its parliamentary advocates. Moreover, after the decree was scrapped, Shia leaders threatened to challenge any rejection of the constitution; and Sunni leaders remained embittered and defiant by the scheme. As a result, all that the constitution represents is the triumph of a zero-sum sectarianism that the Bush administration is desperately portraying as the march of freedom.

Cheap parliamentary tactics in the pursuit of partisan advantage, only bowing to severe outside pressure, all ending in the complete embitterment of the minority party? Sounds like they may be learning too well.

I wonder if we can extradite Tom DeLay to run the Iraqi parliament? He is well-suited...though he'd probably make the civil war go nuclear.

Victory! (Priorities?)

The Senate has voted in favor of the McCain Amendment banning torture, 90-9. My position on this was rather clear, so I'm of course thrilled, and very happy at the lop-sided nature of the vote--it gives me hope that we'll prevail in what promises to be an uphill battle in the House. However, the fact that we won big today shouldn't stop us from shaming those who voted pro-torture:
Wayne Allard (R-CO)
Christopher Bond (R-MO)
Tom Coburn (R-OK)
Thad Cochran (R-MS)
John Cornyn (R-TX)
James ["outraged by the outrage"] Inhofe (R-OK)
Pat Roberts (R-KS)
Jeff Sessions (R-AL)
Ted Stevens (R-AK)

War and Piece by way of Kevin Drum. Though many of those folks are big names, few are prone to political pressure, being from rock-solid red states (Allard and Bond may be the exceptions to that). However, I believe that John Cornyn is contemplating a presidential run--this should be hung on his neck like a 100 pound weight.

Most people seem to be supportive. Andrew Sullivan is of course thrilled--as he should be. He worked harder than anybody to publicize the abuse, we all owe him a debt of gratitude. Instapundit is maybe less gung-ho, but still terms White House resistance to the bill "a mistake." Maybe the closest things to negative reactions I've seen are at Belgravia Dispatch (which is just sick of discussing torture period--a misguided position, in my view) and Outside the Beltway, which expects a veto because torture is apparently "considered a fundamental part of presidential authority." Gosh, I hope not. The latter doesn't have much to say on the subject, but the post at Belgravia is very interesting. I think, though, that it falls into the trap of assuming anti-torture advocates are just representative of the loony anti-war left and/or that the vote was designed to placate them. This, I think is misguided--myself and Mr. Sullivan are two pro-war voices that have come out strongly in favor of this bill, and of the 90 senators who voted "yea" there are plenty of them who continue to support the war as well. As for trying to buy off anti-war dissenters, I agree this will have little effect, but I couldn't care less. It was the right thing to do. And by showing the US won't tolerate torture, we take out one arrow in Al-Qaeda's propaganda arsenal (I should be clear that based on my reading of BD's post, he is also supportive of this measure. He's just in a slightly reduced state of ecstasy than I am).

Finally, perhaps the oddest reaction comes from John Cole at Balloon Juice. He writes:
That is spectacular news. Our troops should never have been put in this position, and I am still unable to believe that no one has been held accountable for pas transgressions. Well, they did get criminal mastermind Lyddie England.

I will never vote for John McCain for his participation in creating McCain/Feingold, but he deserves the lions share of the credit for this. Thank you, Sen. McCain.

Now, I too was an opponent of McCain/Feingold when it came out (though I'm slowly moving to other side on it, right now I'm on the fence). But a little bit of prioritization, please? McCain managed to almost single-handedly get an issue of critical moral importance onto the Senate floor when it was presumed to be old, dead news, convinced the leadership to hold a vote, and won a landslide victory that will galvanize supporters and put pressure on the House to vote likewise. In comparison, a dispute over how far we can go in trying to reduce the influence of special interests on elections is chump change. Even if McCain/Feingold was ever important enough to me for me to vote off of (which it wasn't), passing this amendment makes me forgive him.

Wednesday, October 05, 2005

To Be American

The Senate is gearing up for a long-overdue debate regarding (among other things) the torture of detainees. Amendments by Senators McCain and Graham are both expected to be voted on shortly. The gist:
McCain's amendment would ban the use of "cruel, inhuman or degrading treatment or punishment" against anyone in U.S. custody and require all U.S. troops to follow procedures in the Army Field Manual when they detain and interrogate suspects. Graham's amendment would define "enemy combatant" and put into law procedures for prosecuting detainees at Guantanamo Bay.

The Bush administration has issued a veto threat if the amendments are passed. If that came to pass, it would represent the first veto Bush has issue during his tenure of office. How twisted that the only thing apparently beyond pale for President Bush is forbidding Americans to torture people. That would be an awful reflection of this administration's (lack of) values.

Obsidian Wings asks everyone to write to their senator, and I wrote to Sen. Norm Coleman (R-MN), focusing on the McCain amendment. Here is what I sent:
Sen. Coleman,

I am writing to you to ask your support for the McCain amendment regarding American detainee policy. Simply put, America should never, under no circumstances, tolerate torture. This is not a "trust the President" issue. This is not a "trust the military issue." This issue cuts to the very heart and soul of what it means to be an American. That we are not thugs and lawless brutes. Our mission in the war in terror is not just to kill evildoers. It is also and equally to create the conditions where young men and women are not driven to terror in the first place. They may "hate us for our freedoms," but that does not make the responsible choice the elimination of our most cherished values and principles.

I've always thought that being American is not about a nationality, ethnicity, or location. It's about a commitment to certain ideals. That some policies are beyond the pale of what a respectable society will tolerate. That there are some lines we will refuse to cross, no matter how evil our enemy is, no matter what atrocities they commit, no matter how just our vengence may be. It is that commitment to a higher set of values that makes us different from them.

I attend Carleton College, but I am a registered Minnesota voter, and rest assured this vote will be instrumental in how I evaluate your character when you come up for re-election. I understand that it is difficult to break from the party line, especially when the administration is whispering in your ear that to oppose any tactic he may choose in the war on terror is to support the terrorists themselves. However, you and I both know that the motivation behind this amendment is not to weaken our fight against evil but to strengthen the moral foundation upon which we stand. The ethical foundation. The American foundation.

I look forward to seeing your "yea" vote on the McCain amendment.

David Schraub
Carleton College '08
The Debate Link:

Monday, October 03, 2005


I don't think it's fair that law professors don't have groupies. I mean, I understand they might be smaller than those for rock stars or actors, because the fan base is smaller. But still, law geeks should also have the experience of being smitten with absolute adulation for a particular professor.

For me, that Professor (or more accurately, those professors) are Richard Delgado and Jean Stefancic--two of the most prolific and accessible authors in the field of Critical Race Theory. I can honestly say that their books and articles have changed the way I think about the world, about politics, about philosophy, and about race. I can't count the number of blog posts that have been inspired by what they had to say, but here is a brief list:
Speaking Double

Eyes on the Prize

The Internal Critic and Intersectionality: Who's Looking Out for the Minority Right?

Standpoint Theory, The "Voice of Color", and Uncle Toms: Positioning Conservative Minorities

They're Boycotting WHAT? And Other Thoughts on Reparations

Recasting "The Lorax"; Or, The Triumph of the Crits

I don't expect the two Profs to agree with all I write--especially my effort to apply Critical Theories to non-leftist groups. But the point is that they've expanded my horizons at a time when I thought my politics had reached a dead end. At the end of high school, I was in the midst of a slow spiral into libertarianism, and I hated myself for it. Then, I stumbled across "Critical Race Theory: An Introduction," which they co-wrote, and I saw there was another way that was both philosophically coherent and responded to the gaping injustices I saw in the world around me. In my opinion, they are two of the most important social thinkers and legal minds in America today, and I wish that more people--of all political persuasions--were exposed to their trechant criticisms of American life and society.


You can color me excited.

Oh, and on the subject of neat professors blogging, the Chicago Law Blog is up, with a neat post by Cass R. Sunstein on how we evaluate Supreme Court nominees. Sunstein also is a uber-cool law professor--just not quite on the hallowed terrain of a Delgado or Stefancic.

I look forward to what all of them have to offer the blogosphere.

The Miers Miscalculation

So, the nominee is Harriet Miers, who is without a doubt very qualified--just not for this job. As so often is the case, my views parallel Legal Fiction: I'll listen to what she has to say--but this sounds remarkably like a judicial version of Michael Brown.

So, whereas my summary judgment on Roberts was "Could Be Worse", on Miers it's "Can't be a Crony." I don't like cronies, especially Bush cronies, and Miers fits that bill a bit too neatly.

But if you think I'm upset, you should hear what they're saying on the right. Orin Kerr has a round-up, and they are livid. I think there is a lot of pent up anger pouring out here.

Southern Appeal in general is apoplectic, but this post by Steve Dillard is maybe the best of the lot:
I am done with President Bush: Harriet Miers? Are you freakin' kidding me?!

Can someone--anyone--make the case for Justice Miers on the merits? Seriously, this is the best the president could do?

And what really sticks in my craw is the president's unwillingness to have a national debate about the proper method of interpreting the Constitution. I suppose I should have seen this coming when White House staffers freaked out over Chief Justice Roberts's ties to the Federalist Society.

Thanks for nothing, Mr. President. You had better pray that Justice Miers is a staunch judicial conservative, because if she turns out to be another O'Connor then the Republican Party is in for a world of hurt.


Oh, and if any of you RNC staffers are reading, you can take my name off the mailing list. I am not giving the national Republican Party another dime.

That about sums up the right-wing response. They are pissed. And they'll be more so now that Democrats are playing the happy-dance. For example, DKos says this is a victory for the left, and drops the hint that she'll become another Souter--the right's worst nightmare.

But I'd tread softly if I were them. In a way, Miers is a very smart pick (in the "pure political motivation" sense that defines this administration). For one, I don't think she will become a Souter or Kennedy? Why? Because she'll want to prove herself to all of her "allies" who attacked her. If many justices drift left to please the Times and Post, then this one may tack right to please Powerline and Malkin.

Second, there will be the temptation to oppose her on qualification grounds--indeed, Paul Horwitz advises Democrats to take precisely this option. It certainly does mesh well with the Michael Brown/Julie Myers story line floating about (and croynism has a mental link to corruption too!). But I'm inclined to agree with Hillel Levin on this. Suppose Democrats team up with disaffected Republicans and say "no, Miers is not qualified for this job." Then Bush comes back and nominates a hyper-conservative with impeccable credentials. Democrats would be caught--I don't think they'd be able to make the shift from "credentials are key" to "ideology is key" convincingly. This wouldn't be bad if the nominee was someone like Michael W. McConnell, but if it's a Janice Brown Rogers then we got trouble (Charging RINO also offers up this scenario). Of course, confirming Miers legitimizes the whole notion of appointing poorly qualified cronies to high offices. It's lose-lose.

So to be honest, I'm not thrilled at all. I think conservative anger will fade once she starts voting with the Scalia bloc (they say they'll still be upset, because this was a missed opportunity to break from the "stealth nominee" trend, but since when does the right care about strong qualifications from the evil liberal universities, academy, and judiciary anyway?). Liberals are going to depressed once they realize they've been played, and put a pure hack on the Court. And if by some miracle Senate Republicans grow a backbone, oppose the President, and reject her--we'll just get a bona fide right wing ideologue rather than one in disguise.

Woohoo. (And as always, TMV has a stellar round-up. Woohoo!).

MORE: James Joyner at Outside the Beltway has a terse but tremendous take-down of Hugh Hewiit (one of the very few bloggers defending the Miers pick). Hewitt argues that she's a good choice because she's been inside the administratio and thus knows the true nature of the war on terror:
Consider that none of the Justices, not even the new Chief, has seen the battlefield in the GWOT from the perspective or with the depth of knowledge as has the soon to be Justice Miers. The Counsel to the President has seen it all, and knows what the President knows, the Secretaries of State and Defense, the Joint Chiefs and the Attorney General.

I suspect that the President thinks first and foremost about the GWOT each morning, and that this choice for SCOTUS brings to that bench another Article II inclined justice with the sort of experience that no one inside the Court will have.

Joyner responds:
Of course, Article III judges are supposed to have an independent perspective. I prefer a judge who will read and apply the Constitution, not factor in their career experience.

Spot on.

YET AGAIN: Protein Wisdom has some shocking info, if true. Did Miers really recommend that we stop discriminating against homosexuals in adoption decisions? Shouldn't be that controversial, but it does conflict with the 10th Circuit precedent on the matter--and probably won't thrill social conservatives. And TalkLeft says that Miers actually is an okay gal:
didn't get to know her well, but we sat next to each other for several hours at the last meeting she attended and I liked her. We only talked law, not politics, but she won me over - and I was pre-disposed not to like her, that being the year that Bush was running for President and knowing she was his personal lawyer.

The other members of that Board at that time, at least four of whom are former ABA Presidents (including Martha Barnett who is quite progressive on women's and social issues)know Ms. Miers from her ABA work and spoke very highly of her.

My opinion could change should additional information surface that she is a Thomas or Scalia, but I don't think that will be the case. Compared to some of those under consideration he might have chosen, like the ultra-conservative 4th Circuit judges or Priscilla Owen or Janice Rogers Brown, Ms. Miers is a far better choice.

Very interesting....

Sunday, October 02, 2005

Speaking Double

Maybe it's just me, but I found this post at Southern Appeal, regarding Bush's upcoming choice for the next Supreme Court Justice, to be a mite disturbing. Most of it was just standard conservative pining for conservative Supreme Court nominees. I don't care about that (well, I do, but it's nothing newsworthy). However, when the author, "Rice Grad," started talking about gender and ethnicity, things got a bit odd:
2. Hopefully NOT be a woman.
I'd like President Bush to resist -- as he did in originally nominating Judge Roberts to O'Connor's seat -- establishing SCOTUS seats as "female," "black," or "Hispanic" seats. The Supreme Court belongs to the nation, not to particular demographic or interest groups.

However, I think it's great to have another woman on the court. When abortion is restricted in any way (eg, overturning Stenberg, which allowed partial birth abortions), it would be nice politically to have another woman on the court. That's a pretty big concern.

Therefore, I lean slightly against picking a woman, partly in the hope that Bush will have the opportunity for another Supreme Court nomination. Then, he could and should nominate a woman.

3. The nominee ought be Hispanic.
I believe strongly that the greatest challenge to our nation is assimilating Hispanic immigrants. The US has always succeeded in assimilating ethnic groups, with forced African immigrants being the lone exception.

As a Republican, I likewise think the greatest long-term challenge is to ensure that Hispanics vote for Republicans in growing numbers. If we lose Hispanics in Texas, we lose Texas, which means that Democrats win the presidency for the forseeable future.

Nominating a Hispanic like Estrada furthers both goals. If Democrats fight Estrada, then that will be a very high-profile slap in the face to what used to be a reliable constituency for the Democrats.

Furthermore, Estrada is an immigrant, which speaks to how dynamic American society is.

This just seems to suffer from a bad version of cognitive dissonance to me. He doesn't want a woman because doing so would make this seat into a "woman's seat," and the Supreme Court is supposed to represent the entire nation (apparently, eight of nine residents of "the nation" are male. No wonder finding a date is so difficult). At the same time, he demurs slightly--it would be nice to have a woman on the court to deflect negative press on abortion decisions. And these political considerations carry the day for Hispanic nominees. Apparently, we are told, Bush should pick his Supreme Court justice with an eye on keeping Texas in the GOP column for the foreseeable future. And the way to do this is, as it turns out, is inextricably connected to having a guy with a name like "Estrada" on the Court.

We are thus led to believe several interesting premises. The first is that in selecting a member for a (nominally) non-partisan post, one in which we are told again and again that the nominees should look past their personal ideologies and to what the constitution "says," it is undesirable to select a candidate on racial or sexual grounds, but perfectly just to pick one on purely political grounds that happen to mirror racial or sexual ones. Second, Rice is willing to recognize identity politics only as far as he can exploit them. The idea that women or Hispanics might vote in an easily manipulable hoard (wave Estrada in front of them, and they'll follow) flows just fine, but the idea that they might have something useful to say or add to our judicial perspective is summarily dismissed (again, except insofar as a woman could be used as a human shield on abortion cases). Third, Rice seems genuinely torn about putting another woman on the Supreme Court. Ultimately, he concludes that the worst scenario would be to put a woman on the Court to put a woman on the Court (or, to be more charitable, to put a woman's perspective on). The ideal scenario is to put a woman on the Supreme Court, but to be absolutely clear that it's not because she's valuable as a woman, no sir-ee Bob. Of course, it's not because she's valuable as an intelligent jurist either--Rice justifies it on her being a useful political tool. The upshot of the entire thing is basically "we should pay attention to race and ethnicity only and as far as where we can reap political rewards for it." Is it any wonder that this "occasionally" devolves into race-baiting? I am at a loss about why what Rice is doing could even be justified as "equivalent" to liberal calls for equal representation (hell, representation, period)--let alone "better than."

This is a rather twisted form of color-blindness. It isn't actually color-blind, it is very cognizant of race (and gender). However, it "notices" these factors not to benefit their beholders (or to marginalize them), but to benefit US and marginalize THEM (in this case, defined politically). It is a complete, utter, and overt objectification. There's no agency or autonomy. Indeed, the implicit argument being made in Rice's piece is that we should actively seek a white male candidate (he puts it in the reverse, that we should avoid pandering to minority "interest groups", but effect is the same), but for the political benefits that we can gain by using the minority group properly. That's what the dilemma for Rice comes down to--between doing something good for the non-dominant races/gender (bad), and doing something good for the dominant (mostly white, mostly male) party (good). And if we remember that, in this case, not doing something good for minorities = doing something good for the majority, then the conflict becomes even starker: how do we best enhance the interests of white males? Woman and minorities are just a prop in the play--the only they're recognized as potentially independent actors, it's portrayed as some sort of threat ("Texas might go Democrat!").

It is posts like this which give credence to assaults on color-blindness. Color-blindness is impossible because it can always be recast into something else, especially something statistical: people more likely to vote Democrat or Republican, people more likely to commit crimes, people more likely to be pro-choice. At the point where these things can as nakedly be used as proxies for race, it's fair to say that race remains relevant.