Embarrassing Allies

This has to be pretty much the weirdest pro-immigration piece I've ever read. Short summary: only Hispanic Whites are having enough babies to provide the comfort levels elderly White Americans expect. Non-Hispanic Whites are too lazy to have children, and Blacks are "killing their babies." If we allow Hispanic immigrants into the country, we can avoid the horrifying fate of becoming...Europe:

The populations of all European countries are (a) dropping and (b) becoming Muslim. Within fifty years, we will be faced with a much smaller Europe that is much more Islamic and probably more militant. America answers this problem by creating enormous incentives for Hispanics to enter the country and have babies here instead of in Mexico. If the plan works, the elderly white baby boomers will all have their noses wiped at appropriate intervals by young Hispanic nurses and will therefore keep today's politicians in office. But there is more.

The white baby boomers will all be dead in fifty years, either via natural causes or euthanasia. But if the Hispanic replacement population is successfully purchased from Mexico (which will experience its own population replacement problems within the next decade), America’s population will (a) not drop and (b) still be Judeo-[sic] Christian.

Actually, becoming Europe would be a pretty awful fate--they have pretty much the paradigmatically wrong policy when it comes to immigration. But basically supporting immigration because it will keep America nice and White and Christian (spare me the "Judeo" part, what percentage of Latino immigrants are Jewish?) is kind of twisted. The frustrating thing is that this piece has close to the right policy on immigration by complete accident: letting in Latino immigrants will be good for the country economically and will pose no problems culturally. But he only is writing the piece as a foil against the evil Islamist horde that we need to fight against. And it is overwhelmingly obvious that he'd vastly prefer White women to get back in the bedroom and start cranking out babies.

H/T: Bitch.

A Log Cabin Dream

One of Dale Carpenter's course evaluations made me smile: "Coming in to this class, I thought all people with his 'lifestyle' were morally depraved. Now I recognize that Republicans aren't all bad."

It very much reminded me of the bill in Ohio that would prevent Republicans from adopting (a response to a similar bill that would prevent gays from adopting).

There is something intrinsically funny about linking the dignity of Republicans to the dignity of gay and lesbian Americans. Political jujitsu is fun!

Get Your Facts Straight

Over at The New Republic, John Friedman and Richard Holden have an interesting article up called "The Gerrymandering Myth". Title notwithstanding, it actually deals with a very narrow question: is gerrymandering the reason incumbent re-election rates are so high? And they answer that no, the culprit is actually increased media saturation and big money.

This is a tremendously silly article. For starters, I don't think anyone in the anti-gerrymandering crowd disputes that media penetration and big money have an large effect on incumbent re-election rates. We just think gerrymandering has an effect too. Second, they completely misunderstand the political calculus that goes into gerrymandering. It isn't just about keeping incumbents in office. It's about keeping your incumbents in office and kicking out the opposing party. Friedman and Holden claim that incumbent re-election rates actually go down in the years immediately after redistricting. But that just proves the point: gerrymandering targets vulnerable incumbents from the opposing party, they're kicked out, your new guys entrench (and your veterans re-entrench), and everything settles down by mid-decade. And third, since the authors admit gerrymandering is bad for other reasons, I don't understand the point. At best, they've shown me that we need broader based reforms than just on the redistricting issue, something which I really didn't need persuading on.

More disturbingly, the authors seem to have serious trouble with basic facts. When talking about the prevalence of gerrymandering (in the obligatory "both parties are at fault" section), they write that "in Massachusetts and Maryland...Republicans (who make up nearly 40 percent of both states' populations) account for just 1 of 19 House members."

The problem is that a) together, Maryland and Massachusetts have 18 representatives, not 19, b) two of them are Republicans, not one (specifically, Maryland has two Republicans out of its eight delegates), and c) Republican voter registration is 15% in Massachusetts and 30% in Maryland (with Democrats at 40% and 55%, respectively), which is significantly less than 40% of both state's populations.

I suppose there could be differences in measuring how many GOPers there are, but the former two errors are simply boneheaded. Take what you will.

Seeing Black

Meet the new chief White House domestic policy adviser. In an article for the American Enterprise Institute, Karl Zinsmeister argues against color-blindness--but only as it relates to Black-on-White crime. Now, I'm not color-blindness defender either, but not because the color-blind principle is unfair to White people. What does Zinsmeister have to say?

In my private and internal life I am, and must always remain, colorblind....But hard experience has taught me that colorblindness is an ineffective and even dangerous ruling principle. This is not something that I, or the vast majority of other Americans who share my view, learned from public policy conferences or books published by right-leaning theorists. It springs starkly from practical life....
[...]
The penalty for the person who, ignoring race, turns down the wrong street today can literally be death. It is unfair and unrealistic to demand that people "ignore race" so long as race has direct connections to troubles and dangers of this magnitude....

I have five immediate responses. The first relates to the public/private distinction. Though Zinsmeister says that we should be scrupulously color-blind in our private lives, he later references private decisions as the epitome of when race matters (turning down the wrong street is rarely something forced by the government). So if I'm to take him at his word, he thinks that we should be provisionally color-conscious both as a "ruling principle" and as a private concern, but only to the detriment of Blacks. What he's advocating, then, is frighteningly close to a race-based apartheid system. I use apartheid deliberately, because Zinsmeister's analysis appears to both advise socially exclusionary measures (avoid interacting with "dangerous" Blacks and their neighborhoods) backed up by governmental force (when such actions brush up against areas within the legal sphere, the law should approve the White actions).

Second, there is no parity. What about Blacks who have legitimate fear of Whites? If Black people think that Whites are more likely to discriminate against them in hiring decisions (and have the statistical evidence to back it up), how do we respond to their claim? Where are they present in Zinsmeister's analysis? If one is going to be color-conscious in remedying persistent social problems (and I agree we should), the very least one has to do if we aren't to collapse into naked racism is to not restrict the inquiry only to when Whites feel threatened.

Third, there is almost no critical analysis of the statistics which purport to show how much Whites have to fear from Black criminality (presumably Blacks have it even worse, but who cares about what happens to them--they're Black). It is intellectually sloppy, to say the least, to take such statistics at face value. As Angela J. Davis has noted, the issue of prosecutorial discretion and the disparate treatment of alleged Black and White offenders can severely impact who goes to prison and who stays free [Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 Fordham L. Rev. 13 (1998)]. How much of this is race, and how much is poverty, and how much of this is Blacks being arrested more often than Whites because of their race (disproportionate to the relative rates of criminal activity)?

Fourth, the parameterization slants the issue dramatically. If one looks at certain types of crimes and actions, then Blacks will look worse than Whites. Change the parameters, and Whites look worse than Blacks. As Richard Delgado has noted, if one compares the costs of "street crime" (what Zinsmeister is talking about and associated with Blacks) versus "White-collar crime" (associated with Whites), the monetary cost of White collar crimes dwarfs that of street crime, the former ranging from an annual cost of $328-519 billion, the latter costing only around $9 million a year. And in lives, the disparity is similar. In 1991, 24,703 people were killed in murders and non-negligent manslaughters. Deaths caused by corporate actions in that same year was approximately 1,486,000 [Richard Delgado, The Rodrigo Chronicles (New York: NYU Press, 1995): 272-75]. Who really poses the danger here?

Fifth, even granting the legitimacy of White fears, there is not even a hint of weighing out the harms Zinsmeister's policies would have on Blacks. Jody Armour, in his book "Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America", gives solid analysis of how to deal with so-called "reasonable racists" (who are essentially embodiments of what Zinsmeister advocates--those who base their anti-Black actions on statistics and "reasonable" beliefs that they pose higher risk of criminal activity), and how such beliefs can result in real and acute violations of the rights of law-abiding, innocent Black citizens. Professor Armour ultimately concludes that these harms outweigh the "reasonable racist" argument, but regardless of whether one agrees with him, we at least have to recognize that such an analysis is necessary in discussing these issues.

This lack of analysis is the crucial and revealing shortcoming. It's not that White people who exhibit a fear of Black criminality are completely irrational nutcases who need to be locked away. It's that Zinsmeister, probably without realizing it, only examines the White perspective. The logical counterpoise of how such anti-Black policies would impact real Black bodies is not just dismissed, it is never brought up in the first place. That lack of concern, from a man who will be crafting domestic policies which effect millions of Americans, should trouble us all.

The Shadow of Equality Looms

In the Chicago Tribune, Pepperdine Law Professor Douglas Kmiec warns that allowing gay marriage will eventually expand into forcing churches to perform them, under pain of legal sanction. He provides two supporting examples: the backlash against the Boy Scouts, and the marginalization of racists in American society:

With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex marriage will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.

While it may be inconceivable for many to imagine America treating churches that oppose gay marriage the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.

Now, whenever I hear this "we'll be treated just like racists!" argument, my first inclination is that the complaining party might reflect as to why the comparison to racism is so easy to make. I think a little humility in the face of that accusation may be in order. But let that slide for now. There are some points to be had here, but even if Kmiec's worst-case scenario occurs (and I doubt it will), he's overstating his case.

Commenting on Kmiec's article, Dominico Bettinelli claims that this is about legally mandating that churches perform gay marriage. But while it's clear that this is the impression Kmiec wants to give, his argument doesn't actually show that (for good reason, there is no way that would pass free exercise muster). What it does show is that there is some risk that Churches which don't perform gay marriages will lose their tax-exempt status. That's definitely coercive (although no more so than what anti-gay advocates celebrated in the FAIR v. Rumsfeld decision), but it's not the same as compulsory.

But I'll agree that losing tax-exempt status is not exactly a neutral pose, so what about it? Well, first of all, contrary to what Bettinelli says, it is virtually impossible to imagine that it would be a judge who made this decision, as tax decisions are nearly always kept to the legislature. Even Kmiec concedes that it would take a State Attorney General to issue an opinion leading to a revocation of tax-exempt status. Gay equality advocates have enough trouble securing their own rights in the democratic forum, what are the odds that they'll be able to attack others with any success? Incidentally, I want to pre-empt a response to this that is sure to piss me off: saying that judges will do it because judges don't care about the law. I think that the really sloppy legal analysis by Bettinelli (not Kmiec) comes out of a misguided belief that law does not matter to (liberal) judges, so they'll just do whatever their (evil) hearts desire. This just isn't true. To be sure, liberal judges have different interpretive techniques, ones that conservatives find to be illegitimate. But they are still constrained and are not free to do whatever they want. Duncan Kennedy, perhaps the most prominent member of the Critical Legal Studies movement (and thus far less likely to feel constrained by conventional legal restrictions that probably any judge on the federal bench) still ticks off several factors that would prevent him from just doing whatever he likes on the bench:

First, I see myself as having promised some diffuse public that I will "decide according to law," and it is clear to me that a minimum meaning of this pledge is that I won't do things for which I don't have a good legal argument....

Second, various people in my community will sanction me severely if I do not offer a good legal argument for my action....

Third, I want my position to stick....

Fourth, by engaging in legal argument I can shape the outcomes of future cases and influence popular consciousness about what kinds of action are legitimate....

Fifth, every case is part of my life-project of being a liberal activist judge. What I do in this case will affect my ability to do things in other cases, enhancing or diminishing my legal and political credibility as well as my technical reputation with the various constituencies that will notice....

Sixth, since I see legal argument as a branch of ethical argument, I would like to know for my own purposes how my position looks translated into this particular ethical medium. [Duncan Kennedy, Imagining a Judge's Reasoning Process, in ANALYTIC JURISPRUDENCE ANTHOLOGY 208-209 (Anthony D'Amato ed., 1996)]

To reiterate, there is not a single judge on the federal bench that would take even this radical a view. Most others feel bound to some extent by precedent, by prevailing legal norms, by constitutional traditions, and by a commitment to protecting rights (which in this case includes the right of religious majorities to practice their belief system as it sees fit).

But I digress. Okay, let's assume that a state attorney general or legislature does pass such a restriction. What then? Well, I probably would not vote for such a law. And as a judge, I'd probably strike it down as unconstitutionally impinging on the free exercise clause. But since I am neither a legislator nor a judge, that isn't a huge barrier to hurdle. What would the upshot of such a law be? It would merely hold that organizations who discriminate against free and equal members of the polity can not lay claim to the succor of a state committed to the equal status of its citizenry. I really have a hard time getting riled up about that. Bettinelli complains that:

As we have seen it is not enough, according to liberal activists, to have an absence of active persecution or oppression. Anything less than full-fledged love and admiration for their particular lifestyle choice will be seen as hate-speech, racism, or whatever other disparagement can be thrown our way. What they want is approval and acceptance.

Okay, so what? Not giving acceptance to homosexuality is not racism, but it is homophobia, and hateful toward homosexual[s/ity]. There really is not any dodging that, and the fact that Bettinelli feels compelled to try means he's already lost his argument. Blacks shouldn't have to settle for not being actively persecuted, they have the right to demand full and equal acceptance in the American community. When this is denied (even in the absence of legal barriers), we rightfully call it racism. There is no reason this shouldn't be true of homosexuality. And if the Christian right wishes to hitch itself to that train, then it is going to have to admit forthrightly that it is discriminating, that in that respect it is breaching one of America's core values, and that it feels sufficiently strong about this commitment that it is willing to accept the consequences.

Ultimately, the argument being presented here is one that likely never will come into being, would probably not survive court muster even if it did, and would not be particularly onerous even if it survived. Spare me the apocalyptic rhetoric, please.

Ultimate Heads Up: Southern Appeal.

The Patriot Game

There is something quite stirring, to my ears at least, about this Spencer Overton post about Patriotism. A taste:

Black folk have a complex relationship with patriotism. I've always been somewhat suspicious of flag-wavers, but in the last couple of years I'll have to admit that my relationship to patriotism has evolved. First, my cousin Larry gave me the military flag from the funeral of my grandfather's brother, Uncle Harry. Second, by visiting Gettysburg and the White House of the Confederacy, and researching and writing about the Civil War and Reconstruction in my new book Stealing Democracy, I've come to appreciate some of the more noble values embraced by the Union during the Civil War (I also appreciate that many were not noble--which contributes to the complexity of the patriotism of Black folk). Third, I invest much of my time into working to protect and expand voting rights in the United States. These three factors have brought me to the conclusion that I've got as much right as most to articulate the normative values to which America should aspire.

When one thinks about it, the fact that so many Blacks volunteered to serve for a country that was systematically and brutally oppressing them is nothing short of amazing (same for Japanese-Americans in WWII). They made what in some cases was the ultimate sacrifice for a country that would spit in their eye when they came home. And yet still, they rose.

This Memorial Day, I ask that we remember all of our veterans, especially those who were fighting for all Americans.

Frist Has It Right

Let's just say it. Bill Frist has the right line on the FBI's raid of Congressman William Jefferson's office. Congressmen are not above the law, and while I think that context is critical, I see no real plausible way that this act in these circumstances breached either the separation of powers, or the speech and debate clause.

Hastert (and Pelosi too) is egomaniacal to the extreme by protesting this. As a great anonymous wit put it, for congress, "WARRANTS: Not good enough for us, too good for you."

The Feedback Loop

As my second blog birthday approaches (this is one of the few institutions where being two years old makes you a veteran), I figure now is a good time to take stock of where the blog is, where I want it to be, and what you, the precious readers, want out of it.

Basically, my blog is an intellectual exercise. I use it to explore some of my pet issues (liberal interventionism, anti-racism, etc.). I prefer deep argumentation to armchair punditry, and I try to really think through the posts I write. Hopefully, this cuts down on the bonehead moments. I know I write lengthier and don't post as frequently as most blogs. That both fits my schedule better, and is more in line with my desire to actually engage an issue rather than throw a few lines of snarky commentary at it (of course, that can be fun too). I'm happy with my 200-300 readers a day (or at least, per day that I post), and I wouldn't say no to a larger readership, but I have no desire to become one of the top of the pile blogs. I feel like I have a niche here, with patrons who want to read what I have to say, and I like that. I hope you do too.

I like my blog, and I'm pretty satisfied with it. However, I'm interested in what you feel. I've said before how blessed I am to have such wonderful readers (with such few trolls), and I'm sure you have some advice to offer. Any pet peeves that drive you crazy? Topics I spend too much time on? Too little? Writing quirks that make you want to gouge your eyeballs out?

Any comments, be they complimentary or complaints, are appreciated. And I thank all of you for reading The Debate Link!

VI Is No VII

Alright, so I'm starting to feel better, but it's the start of final season (horrific timing on my part), so I've fallen way behind. Blogging is, alas, one of the first things to go. And to make things worse, I've found myself enmeshed in a massive time-waster (see below).

About a million of my friends told me I had to play Final Fantasy VI (aka, Final Fantasy III). Now, I love the FF series, so it didn't take much persuading, but what really sold me is the claim that VI was better than VII, which, to my eyes is the highlight of the series. So I downloaded an emulator and started it up. And, in the spirit of what Ann Althouse might call Mixed Blogging, I give you my preliminary thoughts (from what I surmise to be about a third of the way through the game (in the cave to the sealed gate).

Okay, let's get the first thing out of the way: it's amazing. I love it. That said, it isn't quite up to VII or even IX (which I seem to have a disproportionate love for compared to other FF fans). A couple of my gripes are pure technological. The graphics are obviously much better in VII, but that I don't care about as much (though it is amazing to think that VII came out just 3 years after VI). What I really miss is the 3-dimensional movement. That is frustrating and can really slow you down, especially where diagonal movement is necessary. The gameplay feels slightly less intuitive than the other games (which is partially--but only partially--because I don't have a manual): I shouldn't have to look up an FAQ to figure out how to change Espers. But by far the most infuriating thing is how you can't run without "sprint boots" equipped. So I either have to waste a relic slot, or I crawl across the game like I'm a dinosaur in a tar pit? Spare me.

The plot is stellar, as all FF games are (though it does not outstrip any of the other games). The characters are strong, but I feel like none stands out and truly pulls me in. There is no equivilant of, say, a Vivi here (I prefer VII to IX, but Vivi is simply the baddest character around. He rocks out.), someone who rules both in and out of the battlefield. It also suffers from the recurring flaws of the FF series: getting lost is very easy (and in a tough dungeon, nearly fatal), if you zone out when the dialogue tells you were to go next, you can be in serious trouble (there has been more than one occassion where I've stopped playing an FF game entirely because I left for a week and forgot where I was supposed to be going), and if you accidently exit a zone, you can miss a heap of important dialogue. This last problem seems even worse in VI, because they skimp on the warnings ("Are you sure you want to leave? (Yes) (No)"). On at least one occassion, I talked to characters out of order and missed what seemed to be a crucial plot twist.

This is all focusing on the negative, but the game really is awesome. Just not quite as awesome as its successors.

That's Rich (Unless You're Poor)

Awhile back, I wrote a piece discussing the GOP's obsessive loyalty to tax cuts and how it is virtually the only thing holding an otherwise fractured Republican coalition together. So they cut and they cut, and consequences be damned (This is about justice! Except when it isn't). Today, with the GOP's hold on power faltering, I felt this snippet from Bloomberg was worth noting:

The courts' involvement may deliver a victory to tax-cutting Republicans in Washington who are running out of taxes to cut and are facing a projected $300 billion budget deficit for this year.

Whatever shall they do? They've cut so much, there is nothing left to bribe rich Americans with! Hahahaha...heh...[sob].

H/T: Kevin Drum.

Sick Again

I feel like this term has not been my most healthy. I'm feeling abysmal. It's too bad, because there is lots of good bloggable material, but I just don't have the energy. Anyway, I finally got an appointment to go to the doctors, for 5:45 today. Hopefully those miracle-workers will get me back on my feet by the start of the weekend.

Indirect Assistance

The Washington Post gave front-page billing to the investigation of Louisiana Congressman William Jefferson (D). Long and short of it, things are not looking good for the Cajun State's reputation for political integrity (snark).

Republicans are trying to use Jefferson as proof that the culture of corruption is a bipartisan affliction. Paradoxically, though, Noam Scheiber argues that even if Jefferson does go down in flames, it still might hurt Republicans more. He predicts that either that voters won't read the story deep enough to get to Jefferson's party affiliation, or if they do, the effect will be to make corruption a bigger election issue, which can't help Republicans (as Scheiber notes, it is virtually impossible to imagine someone casting a GOP vote to show how fed up they are with Capitol Hill scandal). I'd add that Democrats have shown no inclination to protect Jefferson, providing an excellent contrast to the GOP leadership, which virtually fell over itself to shield Tom DeLay from the blowback of his illicit endeavors.

As to the scandal itself, I'll say this. Jefferson looks like he's guilty, and if he is, I say throw him to the wolves. But the point of the "culture of corruption" attack isn't to say there are no corrupt Democrats. That would be absurd. What's particularly appalling about the type of corruption we've seen in the GOP leadership is how it's been institutionalized. It's not just isolated hacks out for their own gain. It was ingrained in the very mechanics of how politics has been operating on the Hill for the last few years. That's what distinguishes a lone schmuck like Jefferson, and the immense machine of the K Street project.

You Can't Do That!

Palestinian President Mahmoud Abbas on the prospect of civil war:

"Civil war is the red line that nobody dares cross, no matter which side they are on ... Civil war is forbidden," Abbas said.

I love that rhetoric...it's forbidden. Preventing civil war, fiated into existence by pure force of will. I wish it were that easy. Terrorism? Forbidden! Poverty? Forbidden!

Seriously, if Abbas has that sort of power, I wish he'd exercise it more often.

Why Is The 4th Circuit Evil?

Yesterday, I penned a post which argued that Court's should extend anti-harassment protection to White employees alleging racial harassment by Black co-workers. In doing so, I supported part of a New Jersey Superior Court decision, in spite of the fact that the other part was clearly wrong, the part that was under dispute was in my words "a close call," and that the plaintiff in this case was an incredibly unsympathetic figure. But I believed that it was important for Whites to know that racial discrimination remedies were available to them as well, so as to counteract the feeling that anti-racism law and practice is "Blacks versus Whites." I even submitted it to the "erase racism" carnival, being hosted at Ally Work.

Now the 4th Circuit Court of Appeals (the most conservative in the nation) comes down with a 2-1 ruling in Jordan v. Alternative Resources Corp. (H/T: Alliance for Justice). The 4th Circuit has jurisdiction over Maryland, Delaware, Virginia, West Virginia, and the Carolinas, and I regret to say this particular case came out of my home turf of Montgomery County, Maryland.

The facts in this case are twisted. Jordan worked for IBM. As many of you know, the "DC Sniper" was operating in our area, causing much fear and tension. The two snipers (both of whom were Black) were caught while Jordan was at work. One of his fellow employees, seeing the news, proclaimed: "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." Jordan consulted with several of his other coworkers, who confirmed that this particular employee had made comparable comments many times in the past. Pursuant to IBM policy, which mandated that employees report racial harassment, Jordan filed a complaint. His supervisor responded by changing his work hours to less convenient times, making a derogatory gesture and comment towards him at an office party, and within a month firing him. It does not appear that anyone is seriously arguing that these actions were not retaliatory. Incredibly, the Court found that this did not constitute a retaliatory action in violation of Title VII, because Jordan could not even have reasonably believed that his coworkers action could have created a hostile work environment. To be clear, the protection against retaliation does not only kick in if the conduct would have breached Title VII; all Jordan had to prove was that it was reasonable for him to believed it would have.

The majority placed a lot of emphasis on the supposed "isolated" nature of the remarks, almost seeming to forget that Jordan was told his coworker had made similar remarks on many other occasions. The majority dismisses this by saying that Jordan did not verify times and dates of these "vague" other remarks (which is not pertinent, as the 4th circuit has held that the complaining party has only the duty to report, not launch an independent investigation), and also by saying that these remarks were never reported to management (good thing too, apparently doing that gets you fired!). It said that for Jordan to prevail, he'd have to show that a plan to create a racially discriminatory environment was planned or in motion. The citation was to a case called EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005). In that case, there was literally an elaborate scheme to create a paper trail of negative performance reviews for a Black employee who had been making complaints regarding discrimination, so she could fired. The Court basically said because Jordan's situation had no comparable plan or plan-in-motion, his claim must be rejected. But Navy Federal is obviously an extreme situation, as the dissent noted, bigots can hardly be expected in most cases to announce their plans for discrimination in advance.

The truly perverse thing about this case is, again, that IBM requires its employees to report potentially discriminatory conduct. It does this because, by Supreme Court precedent, having these mechanisms in place means the company has an affirmative defense against any discrimination claims that do come up that went unreported through that system. Basically, if the procedures are in place and an employee does not use those procedures to complain about the alleged conduct, he can't later go to court and sue for the same breaches. But now the 4th circuit has created a catch-22--if an employee complains of discrimination, he can be fired. If he doesn't complain, then he can do nothing.

There are two points to be made off of this case. First, it appears to be wrong as a matter of law. I found the majority wholly unconvincing, and the (rather blistering) dissent to be quite compelling. But assuming for the moment that the ruling was right, that just means the law is wrong. If our anti-discrimination laws can permit this sort of egregious injustice, then our laws are wrong. Wrong in a very visceral, horrifying sense: they're providing the shield and cover by which discrimination occurs. Conservatives love to say how they're only interpreting the law, and they can't write it. Well fine. But all that means is that the legislators who wrote the law are either malicious or incompetent. I expect every conservative who apologizes for this ruling as "what the law required" to be vociferous in demanding that the law change.

Dan Filler predicts that the 4th Circuit rehears en banc and reverses, primarily because he does not believe the two White judges who made this ruling, and the other judges on the circuit, will be able to look their two Black colleagues in the eye and say that Jordan was not just wrong, but unreasonable in thinking that his coworker's comments could have constituted a Title VII violation. I hope he's right, but I do wonder. In his "Space Traders" story, Derrick Bell has a Black character who is fiercely protective of his position of power so that, when its really necessary, he can save his people from egregious acts of racism. But when the day of reckoning comes, he finds that his position is worthless, his White colleagues simply brush him aside (all the while telling him that the event in consideration has nothing to do with race at all!). This will be an excellent opportunity to test Bell's hypothesis. As is so often with the case, I hope Bell is wrong. But I wouldn't count on it.

Further commentary: Feminist Law Profs, Belle Lettre, Workplace Prof Blog.

Legislation and Nullification

One of the favorite epithets conservatives love to hurl at the American court system is that they "legislate from the bench." It's a term related to that amorphous blob of a protest, "Judicial Activism." While at least "judicial activism" is so void as to be substantively meaningless (and thus might theoretically encompass whatever it is conservatives are complaining about), "legislating from the bench" seems to be misapplied almost on its own terms. Jonathan Rowe elucidates, responding to Thomas Sowell. Sowell argues that one of the primary harms of "legislating from the bench" is that one does not know in advance if one has broken a law--presumably because the Court is announcing the law in the context of deciding whether you violated it.

The problem with Sowell's analysis is that much of what is called "judicial activism" looks nothing like what he's just described. In particular his assertion that "[w]hen legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on." This is one of the most laughable statements I think I've seen in a long time....

Much of what is termed "judicial activism" is simply the Court exercising its judicial review power to nullify a piece of legislation, usually a piece of legislation which impinges on liberty. Is that really "legislating"? In my eyes, judicial review is the very opposite of legislating. Legislatures, by their very nature, pass laws. Nullification is negating, or taking away, legislation. It's reverse legislating.
[...]
Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. Again, legislating, in my mind, is passing a command and control like rule which binds the people like "you can't drive over 55 mph." If, for instance, you were driving 60 in a 65mph zone and some court, after the fact, found you guilty of breaking the 55mph speed limit, then Sowell's argument would make sense.

Let's actually see what goes on with judicial nullification, using Lawrence as an example. A court says, perhaps after the fact, "sorry government, you can't do that." Government may respond, "well that's unfair, we were relying on our ability to make laws which forbid the sexual conduct of consenting adults behind closed doors, and now, after the fact you say we can't do this?" To which I respond with a big "BOO HOO." That's not the kind of reliance -- the reliance of majoritarian mob-rule to use the legislative process to tyrannize other segments of the population -- about which we should be concerned. Certainly not in a nation where liberty in its broad and general sense is an unalienable right that individuals possess prior to majority rule. This is why our Founders refused to enumerate the rights of man; because the rights of man are so numerous that they are unenumerable.

The principle of reliance is important, but for citizens obeying the laws, not governments enforcing them (or at least, not as much).

Nullifying legislation that improperly criminalizes protected activity is not a problem. Where there would be a problem is if the Courts made something into a crime that had not been legislated one (i.e., Lawrence v. Texas in reverse: holding that Sodomy must be illegal even in states where it is currently permissible because it violates God's law or whatever). That never happens though. The closest thing is a Court broadly interpreting an ambiguous criminal statute to encompass an act that seems to border between legal and illegal (for example, a law which punishes ex-felons for possessing ammunition being applied when the police found a single bullet in a man's house, which he claimed to not know was there). That's obviously troublesome, but a) that type of judgment call is unavoidable in statutory interpretation (which everyone agrees is the court's job--"interpret the law, don't make it") and b) the same people who attack courts for being too "activist" also blast them for being "too soft on crime" and letting criminals off on technicalities. So in the one case where judges might arguably be "legislating from the bench," it tends to be conservatives who would support them.

Unfortunately, Rowe starts to make some very odd claims as he progresses. Like this one:

Judicial supremacy is when the court exercises a command and control power, ordering other branches to government, or the people, to affirmative enact a particular policy or otherwise behave in a particular way. Cass Sunstein, as I understand, desires courts to behave in this manner by constitutionalizing the New Deal.

And this one:

There may be some kind of relation between the principle of equality and Judicial Supremacy (whereas there clearly is a relation between judicial nullification and liberty). Although I find Equality to be a laudable and foundational ideal (along with Liberty, a twin pillar of classical liberalism), keep in mind that egalitarianism or "leveling" can result (because it has resulted) in tyranny. Therefore, Liberty must come before Equality and Property rights must also be part of the liberal ideal.

To the first, Rowe is a libertarian, so I understand that he dislikes the New Deal. But I fail to see how the court exercised "command and control power" in its new deal decisions. It did not "order" any other branch of government to do anything. It certainly permitted the legislative and executive branches to take certain actions--improperly, in Rowe's view. But permitting a government agency to act according to the laws it freely chose to pass is the precise opposite of "commanding" them to do something. In fact, the cases that had to be overturned to validate the New Deal, such as Lochner and Adkins, that traditionally have been seen as the first instances of "judicial activism" ("Judicial restraint," now a conservative buzzword, came into the vogue due to the efforts of liberals like Felix Frankfurter who wanted to sanction FDR's new deal). There have been "command and control" decisions by the federal court system (the school busing decisions would be the obvious ones), but the New Deal was promulgated by the legislative and executive branches, with which the Supreme Court only went reluctantly along.

As for the second statement, that has to be the most bizarre syllogism I've seen in a long time. Going after egalitarianism has (at times) caused tyranny, so liberty must be prioritized over egalitarianism. First of all, if "liberty" is presumed to be the antonym of "tyranny," then the statement borders on being tautological. Second, it's an abysmal argument--virtually every principle (including liberty) has been used to justify bad things. I could just as easily argue "liberty has (at times) caused grinding economic inequality and despair, therefore egalitarianism must be privileged over liberty." Or "liberty has justified economic discrimination against racial minorities, so we must privilege egalitarianism over liberty." And that would be stupid too. The proper lesson to draw from communism (extreme privileging of egalitarianism) and the gilded age or Southern private segregation (extreme privileging of liberty) is not that another ultimate value is better. It's that every value taken to an extreme and not subject to countervailing pressures will result in bad things happening. What's needed isn't a better ultimate principle, what's needed is a thick web of values that can all support and counterbalance each other. So at times a liberty interest will outweigh an equality interest, and at times an equality interest will outweigh a liberty interest.

Heads up: Randy Barnett

History Repeats Itself

For a nation whose leader believes the Holocaust is a "myth," Iran sure seems eager to learn from its lessons. The National Post of Canada (via Volokh) reports:

Human rights groups are raising alarms over a new law passed by the Iranian parliament that would require the country's Jews and Christians to wear coloured badges to identify them and other religious minorities as non-Muslims.

"This is reminiscent of the Holocaust," said Rabbi Marvin Hier, the dean of the Simon Wiesenthal Center in Los Angeles. "Iran is moving closer and closer to the ideology of the Nazis."

Iranian expatriates living in Canada yesterday confirmed reports that the Iranian parliament, called the Islamic Majlis, passed a law this week setting a dress code for all Iranians, requiring them to wear almost identical "standard Islamic garments."

The law, which must still be approved by Iran's "Supreme Guide" Ali Khamenehi before being put into effect, also establishes special insignia to be worn by non-Muslims.

Iran's roughly 25,000 Jews would have to sew a yellow strip of cloth on the front of their clothes, while Christians would wear red badges and Zoroastrians would be forced to wear blue cloth.
[...]
The new law was drafted two years ago, but was stuck in the Iranian parliament until recently when it was revived at the behest of President Mahmoud Ahmadinejad.

Jews being forced to wear yellow identifying badges? Where do I remember that from?

The Iranian embassy in Canada refused comment:

A spokesman for the Iranian Embassy in Ottawa refused to comment on the measures. "This is nothing to do with anything here," said a press secretary who identified himself as Mr. Gharmani.

Oh I beg to differ. This has a whole lot to do with people here, in Canada, and around the world. And I pray that you'll be hearing from them in the near future, if this abomination becomes law.

UPDATE: There is dispute over whether or not this account is true. I don't like being suckered by bad sources, but I much rather prefer that this was the Post making a mistake, and Iran is not actually contemplating this proposal.

UPDATE 2x: Via Volokh, I feel comfortable saying that this story likely is not true. Also, who knew that there was a Jewish legislator in Tehran? Talk about life peculiarities.

Inversion and Reversion

Eugene Volokh points to a rather odd harassment claim currently working its way through the New Jersey Courts. At first glance, it doesn't seem out of sort. A woman quits her job and sues, claiming that coworker A with the tacit consent of Supervisor B made racially disparaging remarks, expressed personal hostility towards her, and generally created a hostile environment for someone of her race. The catch? The plaintiff, Candy Bredt, is White, and "Coworker A" is Black. Ms. Bredt made three claims:

1) "[Regina] Johnson[, a coworker,] told plaintiff that she had a 'black butt' and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to 'kick her white ass.'"

2) Johnson also made some much more political statements. "Johnson routinely spoke about how white state troopers always harassed her and her husband. In her deposition plaintiff testified that because the office was small and crowded, she was forced to listen to Johnson's contentious discussions with others, including her supervisor defendant Will[ia]ms, about how white people got all of the jobs and that there were not enough black doctors and nurses at CINJ. Plaintiff testified that she recalled on one occasion that defendant Williams distributed a flier that depicted photographs of newly graduated doctors. Johnson and Williams looked at the photos to see 'how many black doctors graduated because it's all white people and Indians.' They then said, 'Look at that. Disgusting.'"

3) This was listed on par with the first category, under the rubric of "[P]laintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of 'black vs. white' and 'us vs. them.'"

"In addition to the racially charged comments, plaintiff testified that Johnson told her that she hated her, called plaintiff stupid, also called her 'asshole' once a week, and on one occasion took her finger and pushed it against plaintiff's breast."

The New Jersey Court reversed a summary judgment in favor of the employer, holding that the aforementioned acts could be construed by the jury as being legally liable.

I disagree with those who would categorically deny Whites the right to sue under anti-discrimination laws. As Frank H. Wu has written, "an approach that categorically denies the possibility that in some instances a white male plaintiff may have a valid claim is rightly repudiated as unfair," and "It is unclear that anything would be gained, or that the result would be especially principled, if white ethnic minority individuals were denied the ability to sue for straightforward discrimination by an institutional actor (i.e., the case was not a collateral challenge to affirmative action.)." The question is, do the acts depicted in numbers one and three meet that criteria (two is a whole separate animal, I'll get to that later)?

I think the answer is a close-call yes, at least with regards to having it heard before a jury (at trial, both sides will get a chance to share their perspectives, which could change the way the case looks dramatically. But an evaluation of a summary judgment ruling is made by interpreting contested facts in the manner most favorable to the responding party, which is how I'm analyzing here). It doesn't happen very often, but if a coworker or group of employees creates a pervasively hostile environment for a White employee as a result of her race, it seems unfair to the extreme to place that beyond legal remedies.

The obvious wrinkle is the labeling of a White person by a Black person as having a "Black butt". Obviously, this flips both the normal speaker (White to Black) and recipient (Black to White). How should the court interpret that? On the one hand, it's important not to revert back into old patterns of thinking, in which calling a White person Black (or something associated with Blackness) was a legal wrong in of itself. On the other hand, it seems though the context surrounding this remark was designed to disparage Ms. Bredt, due to hostility toward her race. That should be legally actionable.

But the second part of the complaint is where things get ridiculous. Professor Volokh makes a strong argument that such speech (which, effectively, is criticizing racial inequalities in America) is constitutionally protected and thus cannot be considered in a harassment case. But this speech is not just protected, it's essential. Bredt is essentially complaining here because she did want to here the uncomfortable truths of a Black colleagues life. If a Black person is being pervasively harassed by the police, then the person we should be protesting against is the perpetrator, not the victim. Similarly, the pervasive underrepresentation of Black men and women in the ranks of new doctors is appalling. Mentioning that fact should be seen as a valuable social service. Ms. Bredt is an utterly unsympathetic plaintiff to me, because she seems to believe that being made aware of continued racial hierarchy is akin to racial harassment. If there ever was a stereotype of how Whites want to bury race dialogue and silence protests of racism, this is it.

Ms. Bredt is a bad plaintiff, and the second part of the complaint should be thrown out. But in principle, Whites with legitimate claims of race harassment should be able to count on the full support from the anti-racist community. Aside from the fact that it's the right thing to do, there are at least two reasons why this is tactically wise:

1) Supporting remedy in the few rare cases where Whites are being discriminated against shows that ending racism is not a "White versus Black" issue, but rather an issue of justice for all races. Having these cases is a powerful rejoinder to those who'd argue that anti-racist discourse is all about hating whitey.

2) If courts are more prone to be sympathetic to the claims of White plaintiffs, then they will likely construct broader rules and less-stringent standards to accommodate their claims. These precedents can then be countermanded by other aggrieved parties (most of whom will be Black), and used for their struggle as well.

In all, one of the most valuable things the anti-racism movement can do is recast its image in the public eye away from a "war against Whites" and towards a "struggle for justice." While for the vast majority of anti-racism activists this already is the primary motivator, they should look carefully for opportunities to present this face forward to the public.

UPDATE: Of course, with the 4th Circuit making awful decisions like this, it's important to qualify that anti-discrimination law is barely working for Blacks either.

Up or Down Votes

Scott Moss penned a letter to a NY Times movie reviewer, which included the following observation:

OK, I get it: you don't like any movies other than indie and foreign flicks like the one about The Girl Who Was Sad Because Her Village Burned Down In A Brush Fire, which won second prize at the Snooty-Toot-Toot Film Festival hosted by Robert DeNiro and Sean Penn. Of course, at times it's hard to tell if you like a movie, given that you don't use the bourgeois "four-star" or "two-thumb" system -- or any other system, come to think of it -- to say if the movie actually was good or not. I can't tell you how many reviews of yours I've read that focus on the star's "rangy" performance (whatever that means), or pontificate about the cinematography (whatever that means), but leave me, at the end, thinking, "wait a minute -- is he saying this is a good movie or not?" And I did pretty well on the "reading comp" section of the LSAT.

At some point, A.O. Snottypants, when you have such disdain for 99% of the movies that your readers actually go see, shouldn't you just stop being a movie reviewer?

One of his commenters responded:

So when are law professors going to start rating cases on a five point or two thumbs scale? I am tired of reading casebook after casebook, and attending class after class, in which the professor refuses simply to say whether a case is good or not. And to listen to these professors snort at the perfectly sound questions offered by the Senate Judiciary Committee ("Roe v. Wade: thumbs up or thumbs down?"), one cannot help but wonder why professors persist in commenting on the law when they obviously have such disdain for how 99% of Americans who use the law actually view the law.

Touche.

Individualism as Racism?

Eugene Volokh links to the Seattle Public School's definition of racism, which includes the following:

Cultural Racism:
Those aspects of society that overtly and covertly attribute value and normality to white people and Whiteness, and devalue, stereotype, and label people of color as "other", different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers.

I understand why Volokh would be upset: being a libertarian, he probably would identify as an individualist, and does not like that being equated to "racist." As for Critical-Race-Theory-Hack me, I think this definition oversteps itself.

The last stop on my intellectual voyage prior to landing on Critical Race Theory was non-interventionist liberalism that was slowly spiraling into libertarianism. I didn't actually like libertarianism that much, and was glad to be rescued from what had seemed logically infallible but morally intolerable. However, this doesn't mean I condemn individualism. On the contrary, enough John Stuart Mill runs in my veins that I'd be very hard pressed to express hostility toward individualism on the whole. What Critical Race Theory taught me was that an individualist paradigm cannot "see" all forms of racism. So remaining excessively committed to individualism means consenting to the preservation of racial hierarchy.

But one can concede that and still "emphasize" (Seattle's words) individualism over collective ideologies. Collectivist mentalities, after all, can miss racism too--an "all for the corporation" mentality might explain the firing of a Black worker on the grounds that his productivity was sub-par, not noticing that he had a racist manager who was constantly harassing him (even while putting in great work of his own). Or a viewpoint that examines racism solely through groups can overlook individual acts of prejudice that fall outside "normal" structures, institutions, or cultural memes, but still exert significant negative impacts on their targets.

Within this paradigm, people will disagree about where the line should be drawn between collective and individualist ideologies. But merely deciding to "emphasize" individualism is not so clearly beyond the bounds as to be unquestionably deserving of the tag "racism."

Volokh also registers at least a theoretical opposition to Seattle's claim that listing only Whites as the greatest composers or writers is racist. This seems a bit tougher to defend. There is no objective way of determining who the "best" writer is. And I have a lot of trouble conceptualizing a criteria choice that a) excludes all minorities, b) has no racial component at least implicit, and c) falls within a sensible definition of the term "greatest." For example, saying "the greatest writers are those with the greatest impact on the world," and including only Whites, seems difficult to justify without denying the historical, political, and cultural importance of the non-Western world. I suppose stretching to the limits of abstractness, I can imagine a list that includes only Whites that has no racial element to it whatsoever. But pragmatically, I'd ascribe only a minimal probability to that being the case for any given list that excluded all minorities, and my default assumption would be that any such list is tainted by some manifestation of racial hierarchy..

Missing In Action

With the Iraq war still slogging along, and President Bush calling for National Guard troops to patrol the US/Mexico border (remember: his administration was against it before they were for it), I think it's worth mentioning how many troops could be helping secure our borders and stabilize Iraq, were it not for the abomination known as "Don't Ask, Don't Tell."

Via Scott Moss, the number of troops discharged is nearly 10,000, at a cost of over $350 million.

Money well spent.