Huckabee Is The Story

The Ames Straw Poll has concluded, and the results are in. Mitt Romney won, but that was to be expected. What took many people by surprise (all but the most insightful political observers) was a strong second place showing by former Arkansas Governor Mike Huckabee. With his "back against the wall", Huckabee received a healthy 18% of the vote, well behind Mitt Romney's total, but also comfortably ahead of third-place finisher and bitter rival Senator Sam Brownback (KS). More importantly, Huckabee achieved his total without the benefits of a huge Iowa operation, all the more impressive when his main competition for the social conservative bloc, Brownback, was heavily invested in Iowa and apparently had 60-100 buses shipping in volunteers from all across the state.

So what's the overall effect? Well, Huckabee is in a really strong position. I mean, really strong. The primary barrier to his campaign was a lack of money and the perception that he was getting no traction. Well, guess what: he just got the latter, and I suspect the former will follow. Once he's established as a real player, a whole mess of the support from the social conservative base of the party are natural targets to be poached by his campaign. Does anybody think they're seriously happy with Romney, Thompson, McCain, or (shudder) Giuliani? Huckabee is the evangelicals' choice candidate now, and I suspect he's ready to start converting folks.

The three, four, and five spots were rounded out by Brownback, Rep. Tom Tancredo (CO), and Rep. Ron Paul (TX), respectively (recall that Fred Thompson, John McCain, and Rudy Giuliani all declined to participate). Brownback is in a bit of a spot here, since he appeals to the same bloc of voters as Huckabee, had a better organization going in than Huckabee, and still lost. A third place finish for him isn't exactly bad, but it's difficult to see where he goes from here. Tancredo's finish impressed Publius, who notes that he had virtually no money and thus has something else driving his campaign. That something is the rabid anti-illegal immigration stance soaring through the Republican Party. It isn't enough to drive him to victory. But it is enough to make the eventual nominee take notice--which, honestly, is probably all Tancredo was hoping for anyway. Finally, Ron Paul's finish in the top half, while somewhat surprising in its own right, is far from high enough to really make him a legitimate candidate.

Former Wisconsin Governor Tommy Thompson's sixth place finish dooms his campaign, he said he needed a first or second place showing to continue.

And finally, we return to the winner, Mitt Romney. This post illustrates Romney's problem: despite having a perfectly fine, meets-expectations showing, the story is not about him. It really never could be about him: whoever finished second among the pack of dwarves trailing the main GOP pack was always going to be the subject of most of the media coverage, debating whether he should be added to the front-runner conversation. Unless Romney ran the table at the poll, there was no way that story could have been avoided. So, Romney will go into Iowa as the front-runner, but probably with a new pal to share the spotlight with. And, as I've remarked, Huckabee is in a great position to pose a serious danger to Romney's campaign.

The Future of the Nation

The Washington Post has a fascinating article on the so-called "Children's Parliament" of the Congo, an institution which makes my old Student Congress days seem like the mere extra-curricular that it was. Congo's civil service is in shambles, with untrained bureaucrats, a barely-existent infrastructure, no money to pay employees, and rampant corruption. So, in some areas of the country, local officials, in concert with the UN, have organized area teenagers into a "parliament" (really more of a quasi-judiciary) to help administer justice.

With government institutions, including the courts, hobbled by decades of corruption and neglect, one of the few bodies still reliably administering justice is a parliament run by, and mostly for, children.

Launched in 2002, the U.N. initiative has since taken on a life of its own, with 150 members and little day-to-day adult supervision.

One recent Friday, there were no adults in sight except those pleading for help from the children. The parliament's officers took a break from a busy schedule -- lobbying to free children from prison that morning, four cases in the afternoon -- to discuss their work.

"Mostly children bring cases here," said Arthur Omar Kayumba, 16, seated at a desk on which a folded piece of paper read "Vice-President."

"Sometimes they are accusing their parents of not taking care of them, or women are accusing their husbands of not supporting the children," he said. "Since January, we've had more than 105 cases."

The teenagers are elected by their peers, hear cases, negotiate with local officials, and issue decisions. The teenagers can't enforce laws on their own, but they can contact police forces, and even without formal authority they bring to bear a surprising amount of moral suasion. With access to resources and local radio stations, they host debates on a wide array of topics, such as gender discrimination. And many dream of a career in politics, to continue their work of rebuilding the strife-ridden nation.

The article notes that, in the Congo, children "grow up fast." Too many are forced to join militias, others are child laborers. In such a context, it is heartening that some children are "growing up", even if fast, by learning how to become civic leaders and statesman, not soldiers.

Gunfight

The Ames Iowa Straw Poll is today--a big event for the Republican Presidential field. Mitt Romney is the only top-tier candidate participating, which means two things: 1) He needs to win big unless he wants some serious questions to be asked about his campaign, and 2) the real excitement is on who places second and thus immediately moves into discussion about whether he should become part of the top-tier conversation.

Ron Paul, surprisingly enough, is one of the people who may very well make a splash at Ames. According to The Fix, he's got a fanatical base of supporters at the poll, and his speech apparently was very well-received. Here was my favorite part:

Paul urged that Roe v. Wade be overturned, proposed the elimination of the departments of Energy and Education and argued that the terrorist attacks of Sept. 11, 2001, "could have been prevented if we had had a lot more respect for the Second Amendment."

Reduced gun control could have stopped 9/11? Really? Is Ron Paul really fantasizing about a shootout on Flight 93? Because I can't think of another way that statement even makes a remote amount of sense. I do recall a Washington Post after the attacks examining how easy it would be for terrorists bearing certain types of arms (specifically, shoulder mounted surface-to-air missiles) to stake out terrain outside of an airport and shoot down an incoming or departing flight. But I don't think that's what Paul had in mind.

"Auditing" as Fundraising

This very well might be legal, but that doesn't make it any less creepy:

What 83 year-old William Sidwell of Queen City, Missouri found in his mailbox last week scared him. It was a letter from the Republican National Committee, but it seemed to bear grave news: "Our records show that you registered as a member of our Party in Schuyler County, MO," the letter said. "But a recent audit of your Party affiliation turned up some irregularities."

Audit? Irregularities? Was he in trouble? Were they threatening him?....

The letter, it turns out, is just a misleading pitch for a contribution to the RNC -- one of the "irregularities" cited in the letter is that "I cannot find a record of you taking a single action in support of the Republican Party -- not locally, not nationally!" A contribution, the letter suggests, would help set the record straight.

You can view the whole letter here. Again, the consensus seems to be that the letter is legal (if somewhat misleading), and most people reading the letter probably will see through it without much trouble. But still, there are undoubtedly some people (especially elderly people) who might be confused or scared, and its certainly a pretty underhanded tactic.

Fork in the Road

Consider the following statement: "In North Carolina a disproportionate share of the prosecutions for racial motivation prosecutions have been of Black people." [From Jerome McCristal Culp, Jr., The Michael Jackson Pill: Equality, Race, and Culture, 92 Mich. L. Rev. 2613, 2623 (1994)]. The reference is to "penalty enhancements" for having a racial motivation when committing a crime. This article is from 1994, so the fact is not necessarily accurate anymore, but it's useful for a thought experiment.

Now, imagine two separate deployments of this fact.

1) "Sure, we've added laws that protect against discrimination and racially-motivated crimes. But they are not actually enforced to protect minorities. In fact, in North Carolina, a large proportion of the racial motivation prosecutions have been filed against Black people!"

2) "You love to lecture us on how much racism there is against Black. But the truth is, White people have made loads of progress, while nobody talks about Black racism against Whites, which is now probably the bigger problem. Indeed, in North Carolina, where you'd expect there to be lots of anti-Black racism, its actually Blacks who are being charged with a disproportionate share of racially motivated crimes."

The same evidence can be used to support two opposite conclusions. The surplus of prosecutions against Black people for racially motivated crimes in North Carolina can be enlisted either to show that the laws aren't being enforced fairly or that Black racism against Whites is a bigger problem. It all depends on the assumptions you make. This is why throwing facts around without context is a fool's game in these sorts of debates. Facts only have meaning within the social contexts they swim in. How you perceive those waters will greatly influence how you perceive the facts.

Socialized Medicine?

Apparently, Hillary Clinton drilled a questioner at the National Association of Black Journalists Presidential Forum who accused her of supporting "socialized medicine."

Good for her. I like it when our candidates have some spunk and fight in them. And ending the charade that "social progress is socialism" (to paraphrase Earl Warren) is important generally, and in the health care debate specifically.

Maybe in Florida

Commenting on the incredibly strange case of Florida State Senator Bob Allen (R)--arrested for offering $20 to an undercover cop to give him a blowjob--Christopher Bracey accurately characterizes his defense as "I'm not gay, I'm a racist!" You see, Allen claims that he was intimidated by the officer, and stated that "This was a pretty stocky black guy, and there was nothing but other black guys around in the park." Allen then said he feared he "was about to be a statistic." So naturally, he offered oral sex, because as all of us know, even the biggest of Black men can be placated by the offer of a blow job.

Bracey finds it a bit odd that Allen would seem to prefer being labeled "racist" as opposed to gay. He speculates that Allen's support for a variety of anti-gay and "pro-family" legislation has made him particularly defensive on the issue. Even still, my intuition would be that American's are more likely to express distaste for racists than gay people. Maybe Allen is banking on the fact that the racist label never seems to stick to anybody for long.

In any event, a very weird story.

Boxing Blogging: 8/8/07

Tonight's Wednesday Night Fight card was absolutely wild, with all four televised fights making for excellent action (and a combined seven knockdowns). The network executives must be breathing a sigh of relief, because the original headliner, O'Neill Bell, dropped out unexpectedly, forcing a showcase fight for prospect "Mean" Joe Greene to the top billing.

Jose Hernandez (7-1, 2 KOs) UD6 Noe Bolanos (11-2, 6 KOs)
60-53, 60-53, 60-53

This was the last fight televised, but it gets mentioned first because it was the least interesting. That's not a knock--Hernandez scored a big knockdown in round one, and continued to land all throughout the fight with looping hooks and digging body shots. Even though he was over-matched against a taller, stronger opponent, Bolanos showed a big heart, landing some shots of his own, never not throwing back, and hanging around with a fighter who could beat him on the inside and outside. Both fighters were coming off their first career loss, but Hernandez was the one who bounced back. I'd also say he has deceptive power for someone with only two knockouts.

Luis Hernandez (8-0, 7 KOs) TKO2 Jesus Chabon (10-1, 7 KOs)

Jose Hernandez's brother opened up the evening, fighting for just the second time after taking a five year layoff to recover from a car accident. Facing fellow undefeated fighter Chabon, the two fighters went to war. After a non-descript opening round, round two was absolutely wild. Hernandez knocked down Chabon, and had him hurt enough so that he was forced to grab onto Hernandez, prompting a point deduction. But then Chabon caught Hernandez looking to finish the show, putting Hernandez down to the canvas himself. No matter. Hernandez rose to knock down Chabon for a second time, and though he made it to his feet, Chabon was wobbly and the ref called it off. I almost wanted him to get through the round just to see how you score it--I guess 10-7, Hernandez? In any event, Hernandez's power came through in his biggest test to date, and even with the five year lay off, he's only 24. He could be someone to watch.

Francisco Palacios (12-0, 6 KOs) TKO7 Louis Azille (19-4-2, 15 KOs)

Azille was originally scheduled to be in the main event against O'Neill Bell. But when Bell withdrew, Palacios was brought in on five days notice and the fight was moved to the undercard. Palacios is kind of a weird story--he has a stellar amateur background, but has fought only sporadically as pro--this was his 12th fight and he's already 30 years old. Azille, meanwhile, was a former title challenger whose only losses came against elite competition. Palacios, who had faced only mediocre competition in his career, was taking a major step up, and for the first six rounds, it didn't look good for him. Azille was pressuring him, taking away Palacios' huge height and reach advantage and beating him up on the inside. All Palacios was responding with were a few ineffective jabs, and he seemed to be doing just enough to lose. But Azille never really jumped on him, and in round seven it became clear that was a huge mistake. About thirty seconds into the round, Palacios unleashed a textbook uppercut-hook combination that floored Azille. Azille got up, but was dazed and a few more well-placed shots gave Palacios an upset TKO win in a fight I didn't have him winning a single round in.

Palacios has the pedigree that implies he could make a run, but this fight raises more questions than it answers. What was the fluke--his lackluster performance in rounds 1-6, or the huge knockout in round 7? Even though this was easily the biggest win of Palacios' career, I'd still like to see him against a few more solid fighters before he really takes the plunge into the division's deep waters. But with his career's slow start, he may not have that much time left to make his move.

Joe Greene (16-0, 12 KOs) KO1 Darryl Salmon (16-2, 4 KOs)

In my first post blogging boxing, I commented on Joe Greene's last fight, against veteran Jose Spearman. After that fight, I said that Greene certainly looked impressive, but Spearman is really the type of guy that a knockout artist like Greene should put away (he knocked up him down two times en route to a unanimous decision victory). Despite his glossy record, Salmon probably was a less difficult opponent than Spearman was. He had fought nobody--I mean nobody--of substance, and his last fight saw him losing to an 8-13-1 fighter. Greene absolutely needed a knockout in this fight if I were to take him seriously.

Boy, did he deliver. Salmon came out aggressive and firing--surprising, given that had not demonstrated much power even against his D-level opposition. But it paid off, with Salmon staggering Greene early and scoring a knockdown when Greene's glove touched the canvas. But he wasn't seriously hurt, and Greene came back to take control of the rest of the round. Finally, with about 20 seconds left, Greene unleashed a flurry, ending with two devastating headshots, that put Salmon on the mat for a full minute. It was a lethal KO, one that showed the finishing power Greene did not display against Spearman. Salmon, again, is not much more than a shiny record, but Greene's brutal knockout signaled that he is ready to take a step up in competition and fight some more established names.

Two Models of Color-Blindness

At his eponymous blog, Michael Dorf makes an interesting point about the ideology of "color-blindness":

Conservatives believe that GOVERNMENT decision-makers should always or almost always be color-blind in the sense that government should not make decisions that turn on race. Liberals believe that INDIVIDUALS should be color-blind but see ubiquitous evidence that they are not. In deciding where to live, with whom to socialize and all sorts of other matters, individuals make decisions based on race. The conservatives don't deny this, but they call the phenomenon "societal discrimination" or "voluntary segregation," and conclude that the government cannot take any race-conscious measures to remedy it. Liberals, by contrast, see the harms that result from numerous individual private race-based decisions as worse than the harms that result from race-based decisions by the government to remedy these private decisions. Meanwhile, the conservatives deny that such race-based government action is a "remedy" at all, because they deny that private race-based decision making is (at least constitutionally speaking) a harm.

Quickly adding the caveat that I'm not sure whether I want individuals to be "color blind" per se (my ideal world prefers that we can acknowledge difference without fear or degradation, rather than collapse as many "irrelevant" differences into each other so they have no meaning), I think there is a lot to this, and it raises an interesting to the call for color-blindness.

If Dorf is correct, then the color-blind ideology is necessarily a trade-off. We can make the government completely color-blind, thus effectively conceding a color-conscious "private" sphere. Or we can seek to make society more color-blind, but admit a color-conscious government to do it. Either way, we're conceding the existence of color-consciousness somewhere along the line. The only question is whether it is worse in the government or in the private sector.

When they are feeling particularly honest, conservatives have admitted this to be the trade-off. In his concurrence to the recent school desegregation cases, Justice Thomas stated outright that when "private" decisions like voluntary housing patterns cause "racial imbalance," there is no harm and no foul. And when introducing the "color-blind" principle itself in Plessy v. Ferguson, Justice Harlan assured his readers that:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.

For the most part, governmental color-blindness has never been argued to stand in opposition to a society that still breaks upon racially defined lines.

Of course, conservatives could argue that without government reifying the existence of racial categories and their salience, color-conscious will wither away in the private sphere as well. The problem with this claim is that, for starters, it seems to be empirically denied by the French experience. More importantly, it's not clear how well that describes even the American experience. As Michael J. Klarman noted in his definitive work on the Jim Crow era:

Most Jim Crow laws merely described white supremacy; they did not produce it. Legal disfranchisement measures and de jure railroad segregation played relatively minor roles in disfranchising and segregating southern blacks. Entrenched social mores, reinforced by economic power and the threat and reality of physical violence, were primarily responsible for bolstering the South’s racial hierarchy. Legal instantiation of these norms was often more symbolic than functional. Thus, more favorable Court rulings, even if enforceable, would not have appreciably alleviated the oppression of southern blacks. [Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford UP, 2004), 59-60]

So we get back to the original question. Once again, I believe that anyone seriously defending governmental color-blindness has to concede that, for the foreseeable future, social discrimination will remain present, salient, and extremely damaging to vulnerable classes in American society with little possibility of remedy. The people remain color-conscious--and more importantly, they remain color-conscious in the "classic" sense of privileging certain races and subordinating others. The governmental color-consciousness proposed by liberals would seek to be color-conscious in a progressive sense--attempting to break down those mentalities of privilege and the effects of subordination. Which color-consciousness is more dangerous? That is the question. Because color-blindness has, for the foreseeable future, already sailed.

Nothing Can Stop The US Air Force

A few weeks ago, I wrote a post explaining why someone who had a crime committed against them, or was discriminated against in some way, might elect not to report it. Reporting crimes and mistreatment has costs--not the least of which is that there is often a risk of retaliation. And via Feministing, we have a textbook (and outrageous) case of just that happening in the US Air Force, which is trying a woman with "committing indecent acts" after she refused to testify after making a rape complaint against three men. The woman reported the rape, but after being harshly interrogated by a defense attorney without her own representation present (a violation of military policy), she decided not to testify in the case.

So the Air Force turned around and decided to charge her instead. And here is the unbelievable part (you thought I hadn't gotten there yet)--the Air Force granted immunity to the three men from sexual assault prosecution to secure their testimony against her.

The Air Force has, for a long time, been battling allegations that it has a culture of sexual assault that, in practice if not in word, effectively condones. These actions tell us that this culture remains alive and well.

UPDATE: The Washington Post has picked up the story.

Mikulski? MIKULSKI!?!?!

Daily Kos has a round-up of the Democrats who voted to drastically expand President Bush's surveillance powers, reportedly because they feared being tarred as "weak on security." With a President whose approvals are in the mid-20s, I'm not particularly sympathetic to "fearing" anything he might say. But nonetheless, there are some red-state Dems who do have to be wary about bills like these, and while I'm still disappointed in their votes, I can't say I'm too surprised.

That being said, there are some names here that scream out for explanation. Such as my home state Senator, Barbara Mikulski of Maryland. Maryland, of course, is one of the bluest states in the country, and Mikulski is normally a consistent liberal vote. So what on earth made her flip here? I have no idea. It's appalling.

Other Democratic Senators and Representatives who don't have the "it was my state/district" excuse:

Sen. Tom Carper (DE)
Sen. Dianne Feinstein (CA)
Sen. Daniel Inouye (HI)
Sen. Amy Klobuchar (MN)

Rep. Jim Costa (20th California)
Rep. Artur Davis (7th Alabama)
Rep. Brian Higgins (27th New York)
Rep. Daniel Lipinski (3rd Illinois)

Can Huckabee Make a Move?

Commenting on the recent Republican candidate's debate in Iowa, Steve Benen said of Arkansas Governor Mike Huckabee that he "continues to show impressive qualities. If he had any money and Republicans liked this guy, I might even worry about him." Indeed, a constant theme I've heard in the chatter about Huckabee is that a) Democrats think he'd be a strong foe in the general but b) he has been able to get absolutely no traction or momentum in his campaign.

But a recent Washington Post/ABC poll could show an opening. Taken July 31st in Iowa, it has Huckabee tied for fourth with John McCain, behind Romney, Giuliani, and Thompson (in that order). Romney is way out in front with 26%, Giuliani has 14, Thompson 13, and Huckabee and McCain 8%. If Huckabee beats McCain and takes fourth outright, could that give him the boost he needs to start getting some second looks from disaffected GOP supporters? Possibly. It's hard to get too excited about fourth place, except that it would mean that he beat the once-front-runner, John McCain to get there. If Thompson underperforms, part of the story could be Huckabee's better than expected performance--especially if he breaks into double-digits.

I've heard murmurings that Huckabee doesn't appeal to the right-wing base of the party--perhaps because he hasn't exactly drunk the anti-tax Kool Aid? But conservative majordomo Captain Ed is seeing the same pattern I am. So maybe the right is realizing that--faced with potential apostasy on abortion from Romney and Giuliani (and, with his lobbying background, Thompson)--a few votes to increase taxes isn't the worst thing in the world. In the early primaries, a lot of the story is not who won and who lost, but who did better than expected and who did worse. If Huckabee gets that "better-than-expected" story, he could see a big bounce. The question then becomes, in our accelerated primary schedule, can he capitalize on the momentum fast enough to catch up with the front-runners?

Playing Both Sides

This article on how more Black women are dating White men is quite interesting. I have no problem with interracial dating whatsoever, but in the Black community there has been noticeable tension from Black women that successful Black men are marrying White women. Black women, by contrast, have faced a variety of internal and external pressures to stay within the race. This asymmetry was deeply unfair, and I approve of social barriers being lifted so that our dating standards are equitably distributed among the sexes.

Who Could Excite the Right?

The fact that Republican primary voters are being presented with an unbelievably weak field is nothing that hasn't already been said. Every conservative I've talked to, outside a few moderates, is unhappy with their selection. And why wouldn't they? Giuliani is a thrice-married social liberal who dressed in drag, McCain is a party heretic, Thompson is an empty suit, and "multiple choice" Mitt--aside from being a Mormon--has twisted and turned on a few too many issues to really have gained the trust of the base.

So I got to thinking: Who's on the Republican bench that could get the party excited? Some of them might not have a prayer of running, for any number of reasons (one of which is the probability that the Republicans will get thrashed in 2008). But who are some folks who could genuinely get the party excited, in terms of both policy and electability?

Here's a list of five people I think could fit the bill, either as saviors for this cycle, or more likely, as rising stars who will jump in the next time around.

1) Sen. Richard Lugar (R-IN): This was the only name that sprung immediately to mind. He's a mid-westerner, so he can run well in Rust Belt states like Ohio. Lugar ran for President in 1996, though he didn't make much headway--still, you have to think he looks significantly better to the base now than he did back then. He's also well-respected by people on both sides of the aisle, known to be substantive on policy issues, and considered a deacon on foreign policy specifically in the Senate. The only question is whether or not he's been too wobbly on Iraq for Republican voter's tastes. However, he's probably got the highest national profile of any of the bunch, right now.

2) Gov. Charlie Crist (R-FL): Like Jeb Bush but without the "Bush"! Crist easily won the governorship of Florida in a bad Republican year. Since then, he's displayed a surprising maverick streak, but done so while maintaining his connections with the base. His surprise move to work for felon re-enfranchisement could help him gather some support in the Black community--something the GOP has been desperate for for years. And while Attorney General of Florida, he largely stayed out of the Schiavo mess, which might still raise some hackles on the far right, but at this point probably will be a net boon.

3) Sen. Saxby Chambliss (R-GA): He's a conservative hell-raiser, but that isn't necessarily a stroke against him nowadays. He knocked off then-Senator Max Cleland (D-GA) in 2002, an upset stoked by one of the nastiest campaigns in recent memory. If Republicans want to come off the ropes swinging, this could be their guy.

4) Gov. Tim Pawlenty (R-MN): For whatever reason, I still feel like the two-term governor from Minnesota requires more seasoning before he hits the national stage. Nonetheless, he was probably the most vulnerable incumbent GOP governor in 2006 to keep his seat, and he did so against a strong candidate with flying in colors in a state that is trending blue. He's been floated for a VP slot this cycle, but regardless of whether he gets it, I already feel like his hat is in the ring for 2012.

5) Sen. Lamar Alexander (R-TN): He's run for President before, twice, albeit not very successfully. Those two campaigns seemed to turn him off on politics, but he was able to be persuaded to run for Senate in 2002, and since then has steadily risen in the GOP party hierarchy. He's solid, he's loyal, and he's paid his dues. It wouldn't drive anybody wild, but he'd be someone the party could unite behind.

Pace Yourself

I tend to write in spurts. I'll spend long periods of time doing absolutely nothing, but if I hit a rhythm I can have tremendous bursts of productivity. However, right now I'm working on an article that I really like, and I'm having a lot of trouble getting words on the page. The problem is that whenever I have one of those flashes of inspiration, I get really excited and can't focus on actually writing it. Instead, I just pace around the house talking myself through it, and I don't actually write anything down. By the time I've calmed down enough to sit back in front of the computer, the moment is gone, and I still can't write.

Does this (or something similar) happen to anyone else?

Whip Feinstein

How is it that John Boehner can keep virtually his entire caucus from voting for Child's Healthcare, but Harry Reid can't keep Dianne Feinstein from moving Leslie Southwick's nomination to the Senate floor?

The Congressional Black Caucus (CBC) is furious, and it's easy to see why. Southwick, you see, joined an opinion while on the Mississippi Court of Appeals holding that calling someone a "good ole nigger" was not a racial slur, and that the offending employee could not be fired--or indeed, punished in any way whatsoever--for making it. This decision was unanimously reversed by the Mississippi Supreme Court, which held that, while the employee should not have been fired, she probably should face some form of disciplinary action (umm, duh!). Personally, I think that when the Mississippi Supreme Court tells you "Slow down, cowboy. You're not adequately respecting the rights of Black people," that's a flag that we might have a problem.

Here, I want to quickly dispatch an argument made by my friend Paul Mirengoff that Southwick's ruling here was "consistent with well-established federal law under which one instance of using a racial or sexual epithet generally does not create a hostile work environment and thus does not constitute racial or sexual harassment." That both misapplies the rule and misunderstands its purpose. The reason why isolated incidents of racial epithets or mistreatment do not create legal liability for a "hostile work environment" is to give a company or institution the opportunity to resolve these problems internally. If BigCorp employee A uses a racial slur to refer to employee B, but the company immediately responds by disciplining or firing A to show that BigCorp will not tolerate such actions, should the company be liable? I say no. I may be an anti-racism crusader, but I'm not vindictive--a company cannot control every utterance of its employees, and so long as it makes a genuine effort to insure such events do not happen (and offenders are disciplined when they do), I think they should be generally shielded from liability. However, in this case, the agency was not being sued for creating a hostile work environment--it was in court trying to take the actions that would prevent a hostile work environment from developing. In other words, it was doing precisely what the rule cited by Mr. Mirengoff anticipates they should be doing.

As such, Southwick's ruling turns the standard on its head. The liability shield Mr. Mirengoff is talking about only makes sense if the company is permitted to discipline employees who engage in the "isolated" act. If they choose not to, then they are building a record that shows they are not committed to handling these matters in-house. And in Southwick's case, he went further--his ruling stated that the agency was not permitted to discipline the employee, thus forcing them to assume the risk of creating a hostile environment. As Justice Banks noted in his concurring opinion reversing the Court of Appeals, "it is clear that DHS had an interest in terminating [the employee] because not to have taken some sort of action regarding the comment made by her, could possibly have subjected the agency to a claim of a racially hostile environment claim under federal law, and therefore retaining Bonnie Richmond could constitute negligence." This decision should be eliciting howls from the right too--aren't they the ones that want to give businesses latitude for managing these problems for themselves?

Sadly, this is not the only eyebrow-raising aspect of Southwick's tenure. The American Constitution Society has other cases of concern, perhaps the most egregious of which was the case of S.B. v. L.W.. In that case, Southwick joined a majority opinion which held that child custody could be denied to a mother simply because she was lesbian. Southwick was the only judge to join a concurring opinion which was essentially dedicated to bashing gay people, and argued that while the mother has the "choice" to engage in such "conduct," that choice comes with "consequences," one of which is "that her rights to custody of her child may be significantly impacted."

Should Southwick's nomination have been bottled up? No. It should have been rejected outright, in committee, then never seen again. There is absolutely no justification--none--for Feinstein to vote in favor of such a radical conservative activist to a lifetime appointment to the federal bench. Now, Harry Reid needs to get his caucus in line, give Southwick the "up-or-down vote" the right is bleating about, and reject him--50-49 if necessary. The message must be sent that these radical right, out of the mainstream judges will not make it onto the bench so long as there is a Democratic Congress. That takes a scalp, and there is no nominee that deserves to go down in heavier flames than Leslie Southwick.

Cracking the Party

Today, Steve Benen noted that House Minority Leader John Boehner (R-OH) has done a surprisingly good job keeping his caucus in line. In three relatively popular bills that recently came to a vote on the House floor (Pay Equity, Child Healthcare, and Troop Readiness), Boehner managed to keep Republican defections to 2, 5, and 6, respectively. Democrats can't get that level of uniformity even when they're in the majority, and when they were in the minority half the time the party broke more often than Humpty-Dumpty. So it's an impressive display by Boehner (though whether it is wise to have his whole party on record against these issues is something else entirely).

But on the presidential side, things are looking less sanguine. Mike Huckabee strongly hinted today that he would consider an independent, third party run if the GOP nominated a pro-choice or pro-gay rights candidate. It's clearly a reference to Giuliani (and Romney?), who are now the front-runners for the nomination. The Christianist wing of the Republican Party is not happy with either of those two folk, does not trust the institutional branch of its party, and I can see a serious flight to a third party candidate if they nominate someone who is even perceived to be moderate on social issues.

And if the GOP doesn't nominate a moderate? Well, I don't think that Michael Bloomberg is running, but if he does, it will because the Republican Party nominated a winger. And once again, if that happens, you'll see a GOP split that can only help Democrats.

There are a few candidates I think might be able to thread the needle (McCain, Thompson). And it's far from clear that Huckabee's threat is genuine. But it did raise my eyebrows. A GOP crackup is something I've been predicting for years. The day of reckoning may be close.

The Legions of Hell Storm Detroit

Yet another victory for the forces of Darkness: Cerberus Takes Control of Chrysler.

It's especially good because reading out loud, it almost sounds like "Cerberus takes control of Christ."

Satan, 1, Holy Spirit, 0. Game on!

The Blue Devil You Know....

As the Duke rape case receded into the background, I wrote a post noting that most people wrongly accused of crimes fare much worse than the Duke defendants. Indeed, in at least some sense, the justice system behaved exactly as it should have in this sort of situation. Certainly, we all agree that the Duke players should have never been charged. But ideally, the justice system has fail-safes to account for that situation, and they kicked in beautifully. At the end of the day, the case never went to trial, the innocent men were exonerated in the public eye, and the prosecutor whose ethical breaches were what caused the problem in the first place was harshly disciplined.

Sadly, this is very atypical. While men and women are wrongfully accused of crimes every day, few end up with even the modestly "happy" ending the Duke players received. Most cases at least go to trial, often times they are convicted, and even once they are exonerated, only in the rarest of cases is the prosecutor even admonished, let alone disciplined, for any ethical violations they may have committed in the course of pursuing the all-important conviction. By and large, the conduct that provoked the calls for Mike Nifong's head is conduct that we are all too willing to condone. In other words, for all the gross injustices Nifong perpetuated in his prosecution of the Duke case, his real mistake, as CUNY Law Professor Victor Goode argues, was "treating three middle class white defendants as if they were poor and Black."

Richard Moran, a Sociology Professor at Mt. Holyoke College, found that two-thirds of wrongful death penalty convictions are the result, not of "innocent" mistakes or errors, of "intentional, willful, malicious prosecutions by criminal justice personnel." Moran continues:

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.
[...]
Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

Alexandra Lahav comments:

Moran suggests that we change our rhetoric (calling these “unlawful” instead of “wrongful convictions”) and establish more specific standards for overturning convictions. These suggestions are too weak. The real problem, as he points out, is “the hearts and souls of those whose job it is to uphold the law.” I am not sure whether law or ethics rules can change hearts and minds, but setting that philosophical debate aside the law surely can put fear into the hearts and minds of prosecutors by actually punishing them for misconduct. All prosecutors who engage in such conduct should be fired and disbarred.

For a long time now, my impression of the mentality many prosecutors seem to hold is that their job is to pursue convictions, not justice. There are a variety of reasons this might have developed, from a natural outgrowth of having an adversarial system to a political desire to seem "tough on crime." Nonetheless, too often the lust to put someone, anyone, behind bars leads to illegal activity that needs to be punished. The integrity of our entire criminal justice system is jeopardizes when its agents can freely get away with illegal and unethical conduct that comprise everyone's right to a fair trial. If we are to do justice to what happened to the Duke players, we need to state a firm commitment to never tolerating this sort of behavior--even where the defendants don't have the resources to make it onto our TV screens.

The Chronicle of Madison's Tomb: Why "Roe Rage" Has Nothing To Do With Legal Theory

Matt Yglesias points me to a new article by Yale Law Professors Reva Siegel and Robert Post, entitled "Roe Rage: Democratic Constitutionalism and Popular Backlash." It makes a lot of points, but one of them is that the significance of the anti-Roe backlash has been wildly over-stated.

Law professors like to feel important. We spend a lot of time mulling over legal issues, whether an argument or case is legally sound, what is the "right" answer to legal questions. And so, on the rare occasion that a legal case animates a good chunk of the American people, as Roe has, we like to delude ourselves into thinking that the broader population is thinking about the case the same way we are--as law, not policy. We talk about whether kicking the issue to legislatures will or will not accord their decision greater popular legitimacy. Fans of strict constructionism or originalism deploy those legal arguments as to why the decision was wrong, and argue that the opinion's lack of grounding in these concrete principles of law explain and justify the popular resistance to it. Above all else, we frame the debate as not being "results-oriented" (indeed, one of the critiques levied at Roe is that it was "results-oriented"). The entire discourse helps persuade ourselves that the legal theory debates that normally stay internal to the academy have real world significance.

To put it bluntly: this wildly overestimates the background the average person has in legal theory. People simply aren't that wedded to particular models of judicial interpretation. People are results oriented. The people who want to see abortion legal will support Roe because it insures that legality. The people who want abortion outlawed oppose Roe because it prevents that outcome. Some people might enlist these theoretical battles as support for their preferred side, but any honest observer knows that the tail is wagging the dog. Outside a select few, the questions of whether or not Roe fits a certain legal theory or principle is simply not the controlling issue. Ultimately, Roe is controversial solely because abortion is controversial, and the legal particulars of the ruling have very little to do with it.

To illustrate this point, I give you, for the first time, the Chronicle of Madison's Tomb:

*****

It was a stunning find. Buried away in a Richmond museum's storage warehouse, a curator stumbled across a box containing hitherto unknown letters, essays, correspondences, and other personal effects of James Madison. It was a veritable treasure trove of information. Much of the material was useful only to flesh out the details of Madison's personal life and that of his contemporaries. But far and away the most exciting item was documentation of a previously unknown series of debates held by the framers over the drafting of the Ninth Amendment.

The Ninth Amendment reads as follows: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It was introduced to allay the concerns that listing a specified set of rights would imply that any right not listed would be left at the mercy of the government. But which rights are so protected? For generations, it has been perhaps the most cryptic and mysterious element of the bill of rights. Robert Bork once referred to it as an “inkblot.” Though few have been quite so disparaging, it has never been entirely clear what activity, if any, was covered by the amendment.

The new documents shed shocking new light on the original intent of the Ninth Amendment. At the urging of Abigail Adams, Rufus King of Massachusetts had questioned whether or not the use of herbal or physical abortifacients would be included among the liberties protected by the amendment. Madison recalled that the question was entirely unexpected by the chamber, but provoked a surprisingly vigorous debate. Caught unawares, Madison assured King that the amendment was meant to be read more narrowly than that, and would not include abortion. But he had miscalculated. The anti-federalist delegates to the convention, for whom the broad protections of the Bill of Rights were critical to guaranteeing their support, immediately expressed their opposition to any “narrow” reading of the amendments. John Dickinson of Delaware protested “if the private, personal decisions of fathers as to whether to bear children is within the province of the state, then the liberties Mr. Madison assures us will be protected [by the amendment] are meaningless.” Several other delegates argued that controlling family size was important to their landed constituents, who did not want their large estates to be broken up among many heirs. Surprisingly, several southern representatives also weighed in support of protecting abortion. “Our economy,” Charles Pinckney argued, “is dependent on being able to predict and utilize the labor of our slaves. We need to be able to control when our women give birth, lest a significant portion of our workforce be render incapacitated at inconvenient times.” Several abolitionist delegates responded with their discontent at any further perpetuation of the slave system, and the ailing Ben Franklin archly replied “or perhaps, Mr. Pinckney, you need to bury proof of some of your fellows’ ‘indiscretions’?” Pinckney began to respond furiously, but Madison, seeing the consensus on the slave issue that had so painstakingly been crafted over the course of the negotiations wavering, interjected.

“Gentleman, the slave issue has already been addressed in the most careful and meticulous fashion in the convention, and we would be wise not to resurrect it now, lest we threaten all the progress we have made thus far. Mr. Franklin, the constitution we have all agreed to here has already conceded that slavery will remain for the foreseeable future. Hopefully, it will begin to abolish itself soon enough. But in the meantime, it has been established that it is up to the slave owners how to treat their property. This, however, is a point wholly separate from the scope of the amendment under consideration.”

“That may be, Mr. Madison,” Alexander Hamilton intervened, “but the remarks by Mr. Dickinson and his esteemed colleagues are not without warrant. How would the government go about barring abortions? Would we seize our pregnant wives and keep them under lock and key until birth? Or would we quarter soldiers in our bedchambers, to insure that nothing untoward occurred?” The reference to the recently approved Third Amendment caused a stir in the chamber, and Madison recounted that between the southern delegation, the considerable number of wealthy representatives who worried about what uncontrolled birthrates would mean for their estates, and the sizable contingent of delegates who were opposed to any significant reduction in the protections of the Ninth Amendment, “nearly every one of my fellows signaled their approval in one way or another.”

“I was honored and privileged to serve in the medical division of the Continental Army,” North Carolina’s Hugh Williamson commented, “but I did not intend for the army to remain on my medical practice’s doorstep for all the nation’s history.”

Trying to prevent the meeting from getting entirely derailed, Madison spoke again “it seems we are all in agreement that the Amendment would protect the choice to abort. But this very discussion, friends, shows the vigor of the proposal. By careful deliberation and discussion amongst our learned fellows, we were able to ascertain the status of this issue and insure its protection. We should be so confident that our successors will be as wise as ourselves, able to make similar determinations so as to protect and defend the rights of the people, enumerated and not.”

* * *

The discovery sent shockwaves through the political establishment. Several conservative politicians immediately labeled it a hoax, but after a dozen historical experts were taken to examine the documents, they unanimously vouched for their authenticity. Pro-choice advocates immediately pounced, using Madison’s notes as proof that the original intent of the bill of rights included protecting the right to abortion. They launched a new wave of litigation to clarify and expand the right, and demanded that their conservative peers, who for so long had insisted that constitutional clauses be interpreted by the original meaning, apply their commitments by publicly affirming Roe v. Wade.

A few conservative law professors, who had staked their professional reputations on promulgating the doctrine of originalism, did just that. But most right-wing politicians and academics balked. Their opposition to abortion, after all, was premised primarily on their belief that it was murder—an absolute moral wrong. Signing on to a constitutional abortion right was simply unconscionable. Several said as much, arguing that any government which allows the murder of unborn children is complicit in monstrous human rights atrocities, and no longer commands the allegiance of its people.

Most anti-abortion activists, however, did not publicly take such an extreme stance. But after a proposed amendment “granting the states the exclusive power to enact any regulation or law governing abortion,” failed to pass Congress, they realized the needed to create new constitutional arguments that would legitimize their preferred policy positions.

Some repudiated originalism entirely. Louisiana’s Republican Senator derided the new-found liberal commitment to originalism, observing that “for decades we were lectured about ‘evolving standards of decency,’ and the ‘living constitution.’ Now we dig up one artifact that affirms the liberal position, and suddenly they’re all about original intent? It’s simply disingenuous, and we should not accept this slight of hand.” A prominent Black Republican seized on the slavery link, arguing that “this acceptance of abortion was done on the backs of my fathers and mothers, designed to control them for master. Who knew the Democratic Party would so enthusiastically embrace the fruits of the slave system?” A few self-described “pro-life feminists” made similar arguments, noting that the prevailing motivation for the delegates was so that husband’s could further control their wives.

Others sought to modify but preserve the originalist doctrine, while still arguing for why it would permit abortion restrictions. Defending its “spousal consent” law against a constitutional challenge, Missouri seized on Dickinson’s reference to a “father’s” choice as to whether to have children as proof that, as originally understood, it was not the women who had the right to choose an abortion, but the father. More abstractly, one professor remarked that “Congress passed the Alien & Sedition Act in the immediate wake of the First Amendment, and today we recognize that as the paradigmatic example of what the First Amendment forbids. Similarly, just because the founders didn’t recognize the way in which they were sacrificing their ideals at the time, doesn’t mean that we are bound to repeat their fallacy.”

Ultimately, very little changed. Liberals won a few victories increasing abortion rights at the margin. But by and large, anti-abortion forces simply re-entrenched elsewhere, finding new legal theories and arguments to justify their old positions. Now, it was liberals pronouncing that the original intent was controlling, and conservatives arguing just as vociferously that a more holistic, evolved outlook was necessary.

******

The point of this parable is not to argue that such a debate ever happened, or that this would be its result if it did. The point is to show just how unimportant the "legal" part of the argument is to the anti-Roe crowd. It’s almost purely a handmaiden for policy preferences. Roe could be the most tightly reasoned opinion ever written, a masterful example of every conservative maxim of jurisprudence, and it'd be every bit as controversial as it is today. People don’t pick their legal positions to match their legal theory, they pick their legal theory to match their positions. Certainly, we’re willing to sometimes follow a theory to undesirable outcomes in order to stay consistent. But that moral flexibility has limits, and for most people, those limits aren’t very far out. If adhering to legal principle will lead to genuinely unacceptable outcomes, the principle is what’s going to give. And the underlying factor that sparks most serious public debates about law isn't disputes over legal theory, but disagreements about morality and policy.