Friday, November 04, 2005

Only Game In Town

Judges are dropping like flies in the DeLay case. After the original judge, Bob Perkins, was removed due to his contributions to liberal groups, now the administrative judge in charge of selecting a new judge has withdrawn at the request of Ronnie Earle. The Texas Supreme Court Chief Justice (a Republican) will select a new judge.

Oh, the name of the administrative judge now removed? B.B. Schraub. There's no relation, but my father did at one point contact him by mail and try to establish any connections. Seemed like a nice guy. Still, I like being the most prominent Schraub on the net, and am glad that a potential threat to that position has been pushed aside.

Thursday, November 03, 2005

Race, Education, and Society

I got some interesting commentary on my Race LASIK article. To recap briefly, the argument is that our society isn't color-blind, that racism still exists, and that as a result efforts to remedy racial discrimination and disparities need to be color-conscious. My friend Mark Olsen seems a bit confused about what I'm advocating here though. He just says that governmental legislation won't fix the problem of racism. That may or may not be true--I really don't talk about governmental intervention at all. Certainly, I suspect that I would like government to take a more active role in this problem than he is (if for no other reason than that the free market is manifestly a failure in dealing with this issue), but the post itself is studiously neutral on specific remedy plans.

Mark also points me to a post by LaShawn Barber to buttress his point about the "structural" and "social" aspects of the question. Again, I'm a bit perplexed as to how this undermines what I say about race, as my post explicitly argues that racial disparities are the result of social forces. However, I think Barber is really far off the mark in her particular evaluations. Here's how she starts:
A few years ago, NAACP president Kweisi Mfume insisted that there should be more blacks on TV. Too few colored folks on the idiot box was hurting black kids' self-esteem.

Reasonable people, myself included, thought the man was out of his mind. Children of all colors should be watching less or no TV, not more, especially when a persisting achievement gap leaves black kids, on average, four years behind their white peers by the time they graduate from high school.

This is a gross distortion of Mr. Mfume's position. Nobody wants children watching more TV. Certainly, Mr. Mfume's request for more black persons on TV (aside from being presented as criminals, where they have a near-monopoly) doesn't make any judgment on whether children should see more TV or less. Furthermore, the way blacks are presented on TV has impacts that stretch well beyond self-esteem. I've previously cited UCLA Law Professor Jerry Kang's article "Trojan Horses of Race" on this topic. What he shows is that the way people (specifically, minorities) are presented in the mass media has empirical and statistically significant effects on how black people are viewed in society at large. He titles the article "Trojan Horses of Race" because he claims that the subtle priming effect of television presentations acts like the internet virus of the same time. It smuggles in negative effects that embed themselves deep within our psyches, without us knowing about it and under the auspices of innocuous material. Again, this isn't mere speculation on Professor Kang's part, but backed up by a literal mountain of empirical data that I have yet to see effectively countered. So unless Ms. Barber can tell us how to get America at large to stop watching TV, Mr. Mfume's point still holds.

Ms. Barber also says that black leaders should advocate more vociferously about issues like education. I've noted before that education advocacy has consistently been at the top of the NAACP's agenda. If we don't hear about it, perhaps that's because the right-wing media would rather present those pressing for racial progress as a bunch of whiny leftist radicals who hate white people, than actually engage with black leaders who make reasonable public policy proposals which might (gasp) have to be enacted. Regardless, something is getting lost in translation here, because black leaders are aggressive on education and yet conservative critics keep on saying they're not.

Barber continues with the specific problems she sees as barriers to black youth achievement:
Much has been and will continue to be written about why black children lag behind their peers academically. Is the "acting white" syndrome to blame? Perhaps it's family structure, or rather the lack of family structure. While too many people prefer to blame government for their ills, most of our troubles begin at home.

To the former "act white" claim, I point you over to Darren Hutchinson:
[C]onservatives love to point out the "acting white" stereotype that some blacks who achieve academic success have encountered. Does this mean that blacks view academic success as nonblack -- or is it a racialized way of calling smart kids "nerds" -- which seems to evaporate any distinction between blacks and other racial groups on this issue. The smart as "geek" stereotype seems to transcend racial boundaries, even as it manifests itself in racial terms (e.g., "acting white").

At a very basic level, youth in any society of any race don't like the smart kids (believe me, I know). The difference is that a white kid who goofs of, doesn't pay attention in school, and makes fun of all the "nerds" goes to the local state university (sob). The black kid who does all that ends up going to prison. Clearly, systematic youthful discrimination against smart people isn't enough to stop success (either by the discriminaters or the discriminated), so this explanation falls out.

To the latter "family structure" claim, I'll concede it is relevant (though not exclusive), but let's not get too far ahead of ourselves. Yes, many urban black families have no father figure. But we can't make that point without asking another question: where did all the father figures go? They didn't just disappear. Answer: they're disproportionately in jail because our criminal justice system seems to target young black men like heat-seeking missiles. Ms. Barber would come back by saying that this just shows black community dysfunction, but that doesn't explain all of it. Our society (again, empirically) sanctions crimes associated with blacks more than it does those associated with whites (even though--on both a per capita and gross level, "white" crimes are more damaging to society economically and body count-wise. See Richard Delgado, The Rodrigo Chronicles, 272-74). It is more likely to arrest black law-breakers than white law-breakers, more likely to prosecute black arrestees than white arrestees, more likely to convict black defendants than white defendants, and will punish black defendants more harshly than white defendants. This is controlling for variables such as repeat offenses, as well as the issue of proportion. To be frank, our society stacks the deck against young black males. Read this Reihan Salam article and tell me differently. To excerpt briefly:
I'm sympathetic to those who argue that we need to ban marijuana as a public health strategy. Otherwise, every shiftless American youth will spark up while watching the Cartoon Network in the wee hours, sending U.S. productivity spiraling down to levels not seen since the Bronze Age. I get the picture. Unfortunately, banning marijuana, and squandering our human resources by incarcerating 30 percent of black men under 40, is a "luxury" we can't afford.

He's right, and one cannot address the problems Ms. Barber herself claims are critical without also addressing this issue as well. Summary: We can't complain about the absence of black men from black families if we're throwing them all in prison.

Ms. Barber "wagers" that the majority of under-performing black students come from poor "welfare-dependent" families (whom she further asserts "definitionally" aren't hard-working. I'll admit some may not be--but definitionally seems an utterly unwarranted slap at the many Americans who try but can't break out of poverty because our system doesn't give them the means). Based on my reading of the literature, this isn't true--black students underperform white students even controlling for economic class. She should be a bit less certain of herself, perhaps she'd learn something.

In any event, the point of my previous article still stands. Racism exists, and more than that, is alive and well. It can't be ignored, minimized, or denied. It has to be addressed full on. Nobody, not Mark, not Ms. Barber, not any of the conservative bloggers I read, none of them has given any substantive refutation of the mountain of empirical data that exists and I've provided to warrant this point. While certainly there are factors in the black community that could be improved (like in any community), any response to racial disparities in America that ignores the continued effect of racism is blind and doomed to failure.

Wednesday, November 02, 2005

Alito, Conservatism, and the Judiciary

A bunch of good stuff floating around the blogosphere today regarding all of the above topics in all sorts of interesting combinations. Starting with Mark Olsen, who wants a "thoughtful liberal" opposition to Alito. To be honest, I'm not the ideal fit for this job, because I take the apparently unique position of not wanting to decide on Alito before actually witnessing the hearings. You know, actually hear what he has to say? However, I will say that there at least conceivable grounds for opposing Alito--at this early stage, who knows if they'll be borne out, but that at least have to be examined. Anyway, Mark thinks that the torrent of liberal opposition is purely ideological, and puts forth the following:
-Do they imagine that they might never see a future opportunity in which a party they support holds the Presidency but perhaps not a plurality in the Senate? Would they then encourage the opposition party to only approve of nominees which passes the oppositions ideological inspection?

-What perchance does "advise and consent" mean to them anyhow? Hamilton in Federalist #76 argues against politicizing the nomination process. If they cited that and the reasons why he's wrong that would be icing on the cake.

I've already made my response to the latter (Fed. 76) claim. To reprise it briefly, Hamilton came at the issue as a noted democracy-skeptic and a proponent of extreme executive power. This view may have its merits, but it really isn't our system, which is premised off of free-wheeling debate and deliberation. I'd rather the debate be more rational than it is, but I'm not willing to eliminate democratic checks just because the Senate isn't as cordial as we might like. For the full argument, see the link above.

The former position is interesting. My preference on the matter would be that President's nominate more moderate justices (especially for judges vacating swing seats). If that's the end result of this endeavor, then I'll be delighted--and to be honest, I think it is a plausible outcome. If President's learn that the minority party will fight tooth and nail against extreme judges, then maybe they'll stop nominating them. On the other hand, maybe it will cause a nuclear war between the parties.

I would further claim that saying the opposition is "ideological" is far too simplistic. Judges, for the most part, have judicial philosophies. Assuming we accept that there are several valid interpretative philosophies, the choice of any one of these philosophies is ideological. It's ideological for presidents to pick them on that ground, and it's ideological for senators to oppose them on that ground. We don't like to admit it, but the Supreme Court is an ideological institution--this is an inescapable trait of any judgmental body. If ideology is unavoidable, then balance becomes key so the courts don't become overweighted toward one side of the political spectrum. Again, as for me, I'd like a balance of forces. Say, a Crit, an Originalist, an "Active Liberty"-type, a Textualist, a Minimalist, a Democrat (not in terms of party, but in terms of deferring to democratic institutions), and three Pragmatists. But that not being the case, it is fair I think to decide that certain judges apply their interpretative philosophies in too extreme a manner. And the question is, does Alito fit into that category?

That brings me to interesting link #2. Publius of Legal Fiction articulates three ways a judge can be "too conservative."
In the legal context, I believe that a nominee can be "too conservative" in at least three different senses: (1) she subscribes to the king-in-wartime theory; (2) she's a bible thumper; or (3) she's hostile to the New Deal (which includes opposition to the administrative state and federal health/environmental/discrimination statutes). What's interesting is that these positions are, logically speaking, in tension with each other. For instance, #1 and #3 don't fit that well under the same conceptual tent. And #2 doesn't necessarily have a logical relation with either.

As far as which one is the worst, that's a tough call. I have a more visceral reaction to #2, but those conservatives are probably the least harmful given the politics of America (which are still, relatively speaking, secular). I think that #3 is the worst from a consequentialist point of view. While allowing or removing "under God" in a classroom doesn't really matter in the grand scheme of things, striking down the EPA or Social Security does. The #3 conservatives have the most potential to really screw up the country - and the global economy for that matter. But of them all, #1 is the most morally abhorrent, even if the consequences are more limited. Despite Herr Yoo's clever theories, the king-in-wartime theory contradicts the entire history and structure of Western law - not to mention every major religion as well. In fact, the history of Western law and legal thought has been rooted in the effort to restrain the executive peacefully.

So, when you hear that someone is "too conservative," the key question is determining what year that person wants to send America back to. For the #3 conservatives, it's 1932. For the #2 conservatives, it's pre-Enlightenment. For the #1 conservatives, it's pre-Magna Carta. So take your pick - 1932, 1600, or 1214.

I think that "building a bridge back to the 13th century" would qualify as a legitimate reason to oppose a nominee. Again, this isn't to say that Alito is a #1 conservative. But if he was, I think that legitimate opposition could be more than "ideological."

Moving on, over at VC the originalists are murmuring that Antonin Scalia has betrayed originalism. David Bernstein argues specifically that:
I expect that Scalia's problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible...But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of "faintheartedness."

...[B]egging off from the tough issues...just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism...

Kevin Drum argues that this may be accurate but is effectively meaningless:
This ["originalism" as cover for the Culture War] strikes me as a remarkably honest assessment of what originalism is really about for most of its supporters, but unfortunately Bernstein doesn't follow it up. Instead, he talks about whether or not genuine originalists should overturn New Deal opinions from the 40s, which strikes me as sort of like arguing over whether or not Superman could kick Green Lantern's butt: harmless, to be sure, but hardly part of the real world. If Federalist Society members are convinced that even Antonin Scalia is too liberal for their taste, and what's really needed is someone who will vote to repeal the Social Security Act, they're just fantasizing, not discussing real-life issues. What's the point?

One could argue then that Scalia is just a bad judge--brilliant, to be sure, but not sufficiently wedded to his proclaimed interpretive theory to keep his politics out of it. Judges having ideologies, as I noted above, is unavoidable. However, judges as politically partisan is a legitimate redline, I think, and this is another thing that has to be questioned with Alito. Or to be more fundamental, it may well be that Alito just isn't a very good judge (not to be redundant, but again I'm not making this claim. I'm just noting that this is a possibility that has to be examined).

For example, Eric Muller (who used to work with Alito when he was a New Jersey Prosecutor) says that Alito may have been too quick to disregard precedent while on the 3rd circuit. And while Republicans defend Alito's controversial Casey paternal notification laws by saying that it passes no judgment on the law as policy, his opinion is also suspect as a matter of law. Over at Amptoons, it is noted that the common phrase "spousal notification" is a misnomer, as without gay marriage it is always the wife notifying the husband. Seeing as this is the case, the question is whether or not this sexed burden is equally imposed on men in analogous situations. Garance Franke-Ruta provides excellent evidence showing that it isn't (credit to Kevin Drum for putting the pieces together):
The physical intimacy of marriage and other sexual relationships creates a fair number of situations in which each partner has a decided emotional and/or physical stake in what's going on with the other, and in which it could be argued (though not necessarily affirmed from a constitutional perspective) that the state has a legitimate interest to intervene on behalf of one partner or the other. The most obvious example in recent decades is the case of HIV infection.

And so it is worth noting that at the same time the state of Pennsylvania was arguing that the state had a legitimate interest in compelling a woman to inform her husband before she obtained an abortion, the state declined to make the conceptually similar demand that an HIV-infected man inform his wife that he carried a potentially deadly infectious disease that could be sexually transmitted.

Seeing as this is the case, the argument that these laws are illegitimate infringements on a woman's liberty becomes much stronger.

Finally, I'd just like to point to the just-released 9th Circuit ruling in Fields v. Palmdale School District. I originally was pointed to the opinion by an aghast email from one of James Dobson's flacks. First of all, it's a Stephen Reinhardt opinion. For those of you who don't know, Reinhardt may be the most reviled appellate court judge by the right today (he wrote the Pledge case opinion). And I can't help but think that the throwaway reference to Stephen Breyer's new book, "Active Liberty," was consciously (or at least knowingly) designed to annoy conservatives. But what was interesting about the case was that not only did it give lie to, well, pretty much everything the right ever has said about its judicial principles, but that Judge Reinhardt seemed to deliberately set out to expose their hypocrisy in the text of his ruling. I should also note that I was ambivalent about the proper resolution of this case until I read the opinion, it's very persuasive.

The bare-bones facts were that the school district was doing a survey meant to expose possible early-childhood trauma in its students. So it sent a consent form for parent's to sign, and then surveyed their 1st, 3rd, and 5th graders on a variety of questions, some which included sexual topics. When the parent's found out, they sued under (of all things for supposed conservatives) the right to privacy, which in this case included a supposed right to control what their children hear about sex.

The Court rather easily dismissed the claim. It pointed out that the school district had a valid reason to conduct the study, so it satisfied a rational basis test. Furthermore, it noted that no court in any jurisdiction had upheld a parental veto over the school curriculum. This included sex education classes. As Judge Reinhardt pointed out, the government cannot stop parent's from sending their children to private schools more aligned with their value system. But, once they've made the choice to enroll their children in public schools, they can't then claim an imposition in the specific topics taught inside the classroom. Their complaints, if valid, should be addressed to the school board, a democratically elected body (which indeed cancelled the program in 2002 after parental protests). Parents can, of course, teach their children whatever they want and however they want. But the acknowledgment of that right does not translate into a blanket right to shield them from any contrasting information.

What was most entertaining was how Reinhardt worked in the "judicial restraint" point, the same one Republicans claim as a trump when discussing cases like Casey: "[W]e reiterate that we express no view on the wisdom of posing some of the particular questions asked or of conducting an inquiry into some of
the particular areas surveyed by the School District. That determination is properly left to the school authorities."

Deferral to democratic decision-making bodies? Check. Not wildly extending the "right to privacy" (something conservatives purport to despise anyway)? Check. In accordance with past precedent and the views of other circuits? Check. Basically, the case met every threshold requirement for conservative support but one: it didn't give the conservatives a political victory. And thus, it is tarred "activist."


I'm attending a lecture tonight on Judaism and Feminism, so I don't really have to time for bona fide blogging. Instead, I'll reprint the article I submitted to the Carleton Observer's (one of our political journals) symposium on race. It's titled "Race Lasik."

* * *

You probably heard it first in elementary school. Race doesn't matter. Don't think about race. Don't judge someone by their race. Don't distribute benefits on account of race.

Be Color-Blind.

I bought into the myth once. That if we were color-blind, then all the troubles of racism would just go away. And today, when you ask conservatives what we should do about racism and racial inequality, that's their answer: be color-blind.

It is a weird metaphor though, isn't it? Color-blind. Normally, we think of color-blindness as something bad, a disorder to be cured or overcome. Few of us actually wish to be literally color-blind. And even if we do, we aren't. We don't have a lever that can switch from our current rainbow state of affairs into monochromatic bliss. The metaphor of color-blindness doesn't represent an actual state of being but a supposed ideal. Yet the vast majority of white Americans profess to have moved "beyond race," in a word, they claim to be "color-blind." The question is whether or not that ideal is possible or even makes sense. If it isn't or doesn't, the color-blindness as a racial strategy is likely to be as damaging as color-blindness as an optical condition, and should be treated accordingly.

To some extent, the theory of color-blindness is based off a lie. As Neil Gotanda notes, when making a race interaction, a "color-blind" person would first see the person's race, then pretend not to. We can't actually not see race (except, of course, those of us who actually are medically color-blind), so what is being done is a type of cognitive shift by which we fiat race to be an irrelevant characteristic. Because we say it's irrelevant, it is. But with all due respect to our individual agency, saying something has been stripped of meaning doesn't make it so.

Since color-blindness doesn't eliminate the presence of race but only pushes it from the conscious mind, any sub-conscious meanings, tropes, or valences triggered by race will remain untouched. These beliefs-beneath-the-surface operate subtly, but still have tremendous impacts on our social interactions. Color-blindness prevents us from overtly using race as a factor, but it does nothing to prevent race being used sub-consciously under the outward facade of other justifications. A study by Samuel L. Gaertner and John F. Dovidio illustrates this point nicely. White test subject shown persons in distress aided both white and black victims the vast majority of the time (81% for white victims, 94% for black victims) if there was no ostensible justification for them not help. However, when led to believe that other rescuers were available, the rate of aid to black victims plummeted to 38% even as the rate of aid to white victims remained mostly constant (75%). Race-based cues that skirt the surface of consciousness become extremely important when there are a variety of justifiable decisions within a value-laden scenario. In most complex cases, it is almost always possible to "substitute" a non-racial warrant for a racial one. But the fact that these ostensibly neutral explanations nearly universally result in wide-spread racial disparities should be a clue that the explanations aren't neutral at all, or at the very least, there is something more lurking beneath the surface.

Conservatives love to respond that the majority of inequities are a result of class and not race. The argument runs as follows: black people were discriminated against in the past, which accounts for their disproportionate presence amongst the poor and impoverished. Now that we've made racial discrimination against the law and have moved to race-neutral thinking, these barriers will be removed and blacks will be able to compete on a fair playing field. Today we're in a transition period, but once giving a fair shot, the racial disparities will disappear and merit will win the day.

This argument is very comforting. It is also very wrong. What the argument misses is that even today, black social disadvantage transcends class. University of Pittsburgh Professor Richard Delgado notes that whereas white poverty tends to be temporary, lasting only a generation or two, black poverty tends to perpetual. Black middle-class children are at a far higher risk than whites to be downwardly mobile--one drug conviction and the fall from grace can be quite swift. Empirically, a white child from a family making $20,000 a year has better life prospects than a black child from a family making $50,000 a year. Studies have shown that black defendants are punished more harshly than white ones, that crimes with white victims are punished more harshly than those with black victims, and that crimes popularly associated with young black men are tagged with harsher sentences than those for virtually any other group (the wild disparity between how crack and powder cocaine are treated in the criminal justice system can almost definitely be attributed to the fact that crack is far more likely to be used by blacks than is powder cocaine). Black defendants are also apt to be charged at far higher rates than white defendants--even though 2/3 of crack users are white or Hispanic, 84% of those criminally prosecuted for simple possession are black (simple possession of crack cocaine carries a 5 year mandatory minimum sentence for first use. Powder cocaine carries a maximum sentence of 1 year, but is more likely to be met with probation for a first time convict). Finally, Marianne Bertrand and Sendhill Mullainathan conducted a study showing that a "black-sounding" name (e.g., "Jamal" or "Lakisha") negatively affected the chances of job applicants vis a vis those with "white-sounding" names (e.g., "Paul" or "Emily")--even when both the "white-sounding" and "black-sounding" applicants have equal qualifications. In the face of such overwhelming evidence, to insist that it is class to blame for racial disparities is a case of willful, well, blindness. Something more is at work here. And that something is unquestionably race.

Can the color-blind framework solve these forms of (mostly unconscious) racism? I submit that it cannot. There are two reasons for this. First, the state of being "color-blind" requires one to assume race doesn't matter. Since the way unconscious racism works in an egalitarian society is to "latch" onto facially neutral policies and decisions, persons who proclaim to be color-blind will always be able to deny they have a problem by pointing to the "neutral" explanations for their acts. Second, the methodologies by which we might "find" sub-conscious bias are themselves indicted by the color-blind principle. Color-blindness is inextricably tied up within the rhetoric of individualism and anti-identity politics. However, it is impossible to find patterns of sub-conscious bias without looking at groups as groups. Recall the aid-to-victims study I cited earlier. The decision of any one person not to aid an individual black victim when others are available to do it proves nothing; it shows neither that the individual himself is racist, much less that society at large is. What makes a seemingly benign moral decision become racially loaded is how it plays out over the group at large. Though any one person may be able to justify her decision on non-racial grounds, it is impossible to explain the statistical disparity without seeing race as a contributing factor. But of course, color-blindness mandates that we not see race and, in doing so, can only explain such situations as a statistical anomaly, results of non-racial forces, or (worst of all) by dark mutterings that it's their fault.

The fact of pervasive race-based inequities even in the face of a color-blind world is a very real problem for opponents of race-conscious thinking. Were the problem confined to one aspect of life, then perhaps it could be dismissed as a fluke or quirk. But gaping racial disparities manifest themselves in nearly every facet of society (even controlling for economic class). From crime and punishment, to housing, to social interactions, to education, racial disparities have stubbornly persisted even in the face of our firm protestations of race neutrality. Something more is going on here besides the inexorable mandate of capitalism (an aside: Am I the only one amused by conservatives--always quick to defend the justice of the free market--being the first to assure us that economic deprivation is responsible for what liberals claim to be racism? But if capitalism is to blame for race-based inequities, then isn't that reason to regulate the market so that it no longer causes these problems? No, we're told, the free market is the way to go, and to interfere is unfair and immoral. It's a beautiful, if self-affirming, circle of logical inerrancy and moral bankruptcy). Color-blindness is not fixing these problems. And squeezing our eyes yet tighter will make them worse, not better. What America needs is not a purer form of color-blindness. Racism still exists even when our eyes are shut. What America needs some race LASIK surgery, to eliminate color-blindness and let us see the very real problems in front of us. After all, to quote James Baldwin: "Not everything that is faced can be changed, but nothing can be changed until it is faced."

Tuesday, November 01, 2005

Judge Removed in DeLay Case

The judge originally slated to preside over Tom DeLay's corruption trial has been removed. The DeLay defense team sought the move on the grounds that Judge Bob Perkins had contributed to and thus would be seen as biased. DeLay lawyer Dick DeGuerin argued thusly:
"The public perception of judge Perkins' activities shows him to be on opposite sides of the political fence than Tom DeLay." DeGuerin said no one contends Perkins did anything wrong, but "to protect the integrity" of the judicial system, he should not preside over a trial for someone to whom he is opposed politically."

I'm curious as to the fallout of this case. I should note I'm unclear on at least two very important facts. One, whether this can be cited as precedent (IE, is it a one-shot deal, or will this case actually influence how future similar cases play out). And two, can the prosecution also move to recuse a judge on the same grounds (IE, a judge who contributed to Republican organizations?). Will the rule set here play both ways? The answers to both, obviously, are critical in evaluating the case at hand.

I will say at the start that I think this ruling sets a dangerous precedent. Republicans have been relentless about portraying a politicized judiciary, and this ruling is a judicial seppuku that basically says judges can't be trusted to deal with their own political predispositions. All judges are political to some degree, some just flaunt it more than others. The presumption, though, is that judges can push aside their politics when hearing cases. If that presumption is damaged, there will be incalculable harm to the image of the judiciary as fair and impartial. Unfortunately, that very project has been on the agenda of the Republican Party for some time now, and as I support the impartiality of the courts I oppose Republican efforts to demonize judges for political points.

That's a broad question. The narrower question is whether this judge was the type to prioritize his politics over his judicial duties. And I have no idea whether that is true or not. I do think that DeLay should have won this motion if this judge reasonably could have been expected to subordinate law to politics. To prevent forum shopping (which is basically what DeLay wants to do here--see his related request for a venue change), that's a bar that should be set rather high. However, although I can't find the actual order itself, I've read nothing in DeLay's arguments that suggest a warrant for this claim. It's all about appearances and the presumption that someone who supports Democrats inherently will detest DeLay too much to judge fairly.

That, of course, raises the second of my unknown questions: does the rule being set here apply in reverse? The only way this decision can be justified is if the judge who replaces Perkins is scrupulously non-partisan. If it turns out the new judge is enmeshed in the Texas Republican machine, then that judge should be removed too. There is no reason to believe that Republicans enamored with DeLay's electoral victories will be anymore likely to be able to put aside party for the law, than a Democrat aghast over DeLay's ethical bankruptcy. However, if the outcome turns out to be replacing Perkins with a universally respected judge with unvarnished moderate credentials, then I'll say this all went for the best. But I'm not sure there's anyway to guarantee that will happen. And if it doesn't (and especially if the venue change goes through), then I think this motion will have radically subverted the chances of seeing justice done in DeLay's trial.

On Civility (Part 2)

A long while back, I posted a defense of civility from attacks by Brian Leiter. It was labeled "part 1?", and I never did get around to writing a second post (well, techically it was the second post. But details, details). I won't claim that this post is breaking any shocking ground, but I would like to contrast Professor Eugene Volokh's standard on civility to Professor Leiter's. Leiter argues as follows:
As we have remarked previously, civility is the greatest gift one can bestow on the creationist conmen, the right-wing liars, and the religious bigots--not to mention the hordes of ignorant blowhards in the blogosphere. To treat their positions with civility is to already legitimate them. The consequence of doing so is now available for all the world to see: the intellectually and morally depraved state of public culture in America today.

Volokh, by contrast, advocates the following standard:
[A]ll arguments -- good or bad, bigoted or saintly -- should be framed without the use of personal insults or invective, since such devices are not only offensive and likely to lead to a worsening of the discussion, but also unnecessary. Offensive ideas, fine; offensive modes of expressing those ideas, unnecessary and thus not fine. Cohen v. California is a good guide for constraining government repression of speech. I don't think it's a necessary or wise rule for editorial decisions in publications such as this one.
Finally, as I've noted before, let me preemptively respond to the near certain response: "But would you let commenters advocate the Holocaust? Slavery? Mass rape?" Well, though I support same-sex marriage, we need to have some sense of perspective: The denial of equal rights here ain't the Holocaust. There may well be a pale that certain things are beyond. Yet the pale should be pretty far out, and the fact that advocacy of mass murder is beyond it doesn't tell us much about condemnation of homosexuality.

Incidentally, my position is almost identical to Volokh's. I too conceded an exception for genocide, and as predicted, Leiter pounced. And I basically made the same response as Volokh--there is a qualitative difference between opinions we disagree with, even detest, and advocating mass murder.

Monday, October 31, 2005

Blogospheric Norms and Judicial Nominations

So Sam Alito is Bush's "take two" judicial nominee. And the blogosphere, predictably, is abuzz. Everybody has an opinion--and unlike the Miers nomination, in which the primary reaction seemed to be confusion, people seem quite sure of themselves on this one.

BullMoose, for example, says that Bush "gave the right a treat," and argues further that:
The Alito nomination is evidence that Mr. Rove is once again riding high in the saddle. The Rovian solution to all of the Administration woes is a to give a hot-button treat to the base and attempt to trick the Democrats into alienating swing traditionalist values voters. Meanwhile, folks will ask, "Scooter who?".

The politics of polarization has been the governing philosophy of the Bushies. It got them re-elected and it is the only way they know to govern. With this understanding, the Alito nomination makes complete sense.

Paul Horwitz also posts in this vein--snidely remarking that this represents an affirmation of Bush's pledge to be a "uniter, not a divider": both Democrats and Republicans will reunite within their own parties to demonize their opponents again, rather than each other (again, contra Miers).

Eric Muller's personal experience lends him to positive thoughts, but he's still disappointed that the nominee isn't a woman.

Adrien Wing has no such personal experience with Judge Alito and thus no positive thoughts to balance her Muller-esque disappointment.

Eugene Volokh, by contrast, does not think any group is entitled to specific representation on the high court, noting that at the moment Protestants are under-represented and both Catholics and Jews are wildly over-represented.

Daily Kos thinks that this is the apocalyptic battle that both the right and left have been waiting for, while Orin Kerr thinks Alito is being caricatured and that after a few weeks of hearings he'll sail through. On the other hand, I got an email from James Dobson's outfit (God knows how I made that mailing list) saying he's overjoyed--and I can't imagine Dobson being overjoyed by anyone he thinks will garner significant Democratic support. Certainly, Professor Bainbridge is expecting a fight.

Obviously one could find more reactions easily--anyone who's anyone has weighed in. I kind of wonder whether or not there are negative implications to the feeding frenzy though. Bloggers are expected to have immediate reactions to the pressing issues of our time. That's why we like them--it accelerates the process by which analysis becomes available and also democratizes it--most issues of substance will find coverage on some blog, somewhere. Furthermore, to be read, a blogger reaction has to be somewhat interesting. "I don't know yet" is not interesting. Fortunately, since most political events either a) unfold slowly or b) are unpredictable, blog coverage of an issue either a) has a chance to build itself up and think itself through or b) is acknowledgely "off the cuff" and will be modified as further information becomes available. In either case, the tendency for quick, punchy posts does little harm. Judicial nominations are different. The arguments can be stored up in advance, but the "event" explodes over one Presidential announcement. Everybody was locked and loaded for this nomination--hell, most of the posts I read today could have been written advance with several other names filling in the blank. Unlike posts on slow-moving issues (say, a bill moving through congress), the full fury of blogosphere hits all at once on a judicial nomination. And unlike other "sudden" events (like Katrina), few are phrasing their comments as "first thoughts" or other such things that suggest they're open to persuasion on the matter. Since bloggers have to post fast and post partisan, blogospheric norms encourage hyper-condensed and polarized framing. I fear this will immediately become the dominant lens for the Alito nomination. And so, Republicans in the Senate will go to the mat for him, and Democrats will filibuster, no matter what Alito says and no matter what his views actually turn out to be.

Miers proved that blogs heavily influence the judicial confirmation game. But in a way, her nomination was a breath of fresh air--not in terms the nomination itself but how it was covered. Miers was such a curveball that the pre-set arguments didn't really work. So bloggers had to take a step back and re-evaluate the terrain. This didn't take too long (we are, after all, bloggers). But it took long enough for calmer (and also, non-blogger) voices to enter the conversation and make us actually think about what Justice Miers would be like. However, with someone like Alito who can fit our stock narratives, there is no time for deliberation. If the media plays on the theme being heard in the blogosphere (conservatives overjoyed, liberals apoplectic), then we'll all look at the confirmation process in that manner. And assuming Kerr's position, that Alito is a caricatured as a hyper-conservative activist when he really isn't, is true, we may have just shut the door on a fair evaluation of Alito's nomination.

My first thoughts on Alito are of cautious neutrality. I want to wait for more information. How exactly did Alito phrase his infamous Casey dissent? Would he really uphold a federal ban on machine guns if the government shows that their use has harms on inter-state commerce? These questions are critical in evaluating whether he will be a radical, or a cautious conservative, and we don't have the answers to them yet. Worse, I fear we may never get around to asking them. Basically, the question I have is this: Does the accelerated and hyperbolic nature of the blogosphere prevent cautious, deliberative debate on judicial nominations? What are the implications for bloggers if it does?

UPDATE: The Moderate Republican sounds the same themes. Ann Althouse thinks that Alito will be a Church/State accomodationist, which I consider positive news (so long as it doesn't coincide with the obliteration of separationist principles).

Sunday, October 30, 2005

Scooter and the Law

Publius of Legal Fiction gives an overview of the Espionage Act as it may (or as Publius argues, may not) apply to Scooter Libby. Borrowing from Mark Kleiman, he lays out the following elements as necessary for a conviction:
(1) possession [legally or illegally] of (2) information (3) relating to the national defense (4) which the person possessing it has reason to believe could be used to damage the United States or aid a foreign nation and (5) willful communication of that information to (6) a person not entitled to receive it.

Publius argues that in the context of the statute, Libby's act didn't violate elements two and four. This isn't to say that one could not plausibly construe the statute in such a way that Libby did violate--just that Publius thinks that the most reasonable construction won't bear such an interpretation. I disagree, as I'll explain below. To the former clause, he argues:
The obstacles to indictment and prosecution are elements #2 and #4. Let's start with #2 - "information." The problem is that the second element isn't limited only to the vague word "information." That's just the only applicable word in a long list of words. Here is the complete text of that element:
document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense

The problem is that "information" is surrounded by a lot of specific words listing tangible items. As you law dawgs probably know, there's a principle of statutory interpretation called ejusdem generis, which literally means "of the same kind." The idea is that when you have a bunch of specific terms followed by a vague general term, the meaning or scope of the general term should be limited to the same types of things listed by the specific terms. For instance, let's say that a statute prohibited "cars, motorcycles, trucks, motor-scooters, and other vehicles" from entering the park. Under this canon of interpretation, "vehicle" probably would not refer to an airplane flying overhead (although such a reading would be plausible - especially to those who really hated, say, Delta).

Same deal here. The specific words ("sketch," "photograph," etc.) likely limit the scope of the general term ("information") to more tangible items. Under this view, leaking the State Department memo would be a better fit for the Espionage Act than would leaking Plame's identity.

I just disagree with how Publius is reading the statute here. I think that "information" is written so that it is specifically separated from the tangible items that precede it. This is true for two reasons. First, the way the first clause of the sentence ends: "or note relating to the national defense." The "or" would be redundant if the purpose was to link as "of the same kind" both the tangible items and "information." That leads one to the second problem in Publius' interpretation--the lack of "other" before information. In his example, he lists a bunch of items and then ends it with "and other vehicles." This implies that these vehicles are to be "of the same kind" as the ones that came before it. Had the clause instead read "and vehicles," it would imply that vehicles is distinct from what came before. Essentially, if the framer's wished the statute to mean what Publius wants it to mean, then it would make more sense for it to read like this:
document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note relating to the national defense, or other information relating to the national defense.

Subtle, but critical distinction.

To the latter element, Publius forwards the following claim:
But the real problem is element #4 - "reason to believe [the information] could be used to damage the United States or aid a foreign nation." Again, I concede that it's at least plausible to read the statute in a way that covers Libby, but that reading would not be the best one. When you read the entire statute, you get the clear sense that this statute was meant to criminalize the act of disclosing information to people potentially hostile to America or to those who wanted to harm or damage our national security. Remember that the act was passed in 1917 at the height of the Red Scare. To me, when you read all the sections of the Espionage Act together, the Plame leak doesn't quite fit.

Again, I disagree on Publius' notation of the most reasonable interpretation. Basically, the dispute we have runs as follows. He reads the clause as saying "reason to believe the information could be used [by the receiver] to damage the United States or aid a foreign nation," and I read it as "reason to believe the information [contains content that] could be used to damage the United States or aid a foreign nation." Obviously, I believe my interpretation is superior. I believe the purpose of the statute is the very reasonable goal of trying to minimize the spread of information which could damage American security. It doesn't matter who receives it--the promulgation of classified information is a security risk in of itself. If Scooter Libby had told me our nuclear launch codes, I think that would fall within the statute even though I don't mean harm to America. That's because I read element four to be characterizing the information itself, not the person receiving it. The act is designed to prevent the revealing of dangerous information, and it doesn't by its terms limit itself to "dangerous persons." The statute specifically mentions what "type" of person needs to receive the information in order for the law to kick in, in element six: "a person not entitled to receive it." That's a far broader set of persons than what Publius is talking about--again, had the statute drafter's meant what Publius says they mean, then they would have noted threat level as a determining factor in who the information was revealed to, not what the information was. The fact that element six exists independent of element four should suggest that they are meant to be evaluated separately. I can see where he's coming from in his interpretation, but to me it's less reasonable than one in which element four is a constraint on information, not receivers.

So basically, I do think that the Espionage Act could apply to Libby. Publius forwards the Intelligence Identities Protection Act as an alternative method for nailing Libby--but I think Kevin Drum's take down of it is pretty compelling.