Saturday, October 05, 2002


DISCRIMINATIONS is joining the crowd moving to a Sekimori-designed Movable Type blog, hosted on HostingMatters. Please make note of our new address:

Yes, that is a .us extention.

The new site is up and running now, and I encourage you to visit. For the next several days, until we feel comfortable in our new home, we (Jessie promises to start posting again soon) will be posting to both old and new sites. After that a splash screen will appear directing visitors to the new site.

Another Democrat Demands a Do-Over! - Reader Fredrik Nyman has written to report a mind-boggling article on reporting that five supporters of everyone's favorite Democrat, Cynthia McKinney, asked the U.S. District Court in Atlanta on Friday to reverse the results of her primary and declare McKinney the winner.

The state of Georgia does not require voters to register by party and allows them to vote in the primary of their choice. Nevertheless, McKinney, who is black, is blaming Republicans for jumping the political aisle in droves to help her Democratic opponent, who is also black, to oust her.

The suit claims that black Democratic voters in the 4th District had their voting rights violated and interfered with by the crossover votes. It asks that those crossover votes be declared unconstitutional and invalid and that McKinney be declared the winner of the Democratic primary.

"The issue is that black Democratic voters in the 4th District had their voting rights interfered with and violated," said Atlanta lawyer J.M. Raffauf, who represents the five black plaintiffs.

"Malicious crossover voting occurs when one party invades another party's primary to sabotage that party's choice of its own nominee for political office," the lawsuit reads. "The Republican Party voters crossed over and affected the outcome" of the Democratic primary.

I can't wait to learn something about the legal theory under which malicious Republican crossovers interfered with the rights of "black Democratic voters" for McKinney but not black Democratic voters for Majette or white Democratic voters for McKinney. (Maybe there were no white Democratic voters for McKinney.)

State officials pointed to the law Friday and said it was clear that Georgia voters can vote for whomever they want in the primaries; there are no restrictions on preferred political party affiliation.

"I am simply unaware of any provision of law that prohibits voters from making a choice as to which party primary they will participate in," said Chris Riggall, a spokesman for the secretary of state.

Hah! Wait'll he sees what happens if that "clear" law is "liberally construed."

Friday, October 04, 2002

Construing Liberal Construing, Or: Construe You - I'm still fascinated by the ongoing discussion of "construing liberally," also known as "reading loosely" (WaPo editorial: "The Supreme Court of New Jersey read quite loosely state election law....").

Linda Greenhouse, the New York Times Supreme Court reporter who is usually quite balanced and reliable (and with whom I once served on a panel so long ago that she will have forgotten the panel, much less me), writes today of the NJ Supremes' decision to allow the substitution of Lautenberg's name on the ballot "after the formal deadline for a ballot substitution had expired." Excuse me, Linda, formal deadline? Do New Jersey statutes have degrees of deadlines? If so, I missed that. In any event, are formal deadlines less binding than informal ones? Did the august justices sit around and say, "Oh, the 51 day cutoff is not a real deadline, it's only a formal deadline"?

Greenhouse also quoted an "expert," Prof. Richard Hasen of the Loyola College of Law in Los Angeles, who said the injury to the Republicans had not been established. "The worst that can happen is that their guy has to run in a competitive election," he said. That's a rather partisan way of putting it, which might be explained by something left unmentioned in Greenhouse's story that was mentioned in todays Associated Press story: that Hasen has been a consultant to the Gore campaign.

Similaly, the WaPo also turned to an expert who is well-known as a consultant to Democrats, Pam Karlan of Stanford (She's currently advising Gov. Mark Warner of Virginia on a gerrymander case), and she also minimized the seriousness of the injury as a way to distinguish New Jersey from Florida. "Here, there's no constitutional train wreck coming," she said.

Now, if I were the polemical type I would say, "Well, yes, but it's equally true that 'the worst that can happen' is that the Democrats get stuck with the name on the ballot that they, in their wisdom, chose because the Constitution assigns the rule (not recommendation)-making power to the legislature, and the legislature adopted a rule making it too late to substitute a newer, more attractive name. If they now don't like their choice, they could always write in Lautenberg's name." But I would say that only if I were being polemical.

If I were being partisan, I would say that the Democrats have handed Forrester a solid gold campaign issue: the politics of judicial selection. It is the perfect combination of an ideal issue, and one that he could not avoid even if it weren't. "My friends," he could say,

our Democratic opponents are right about one thing: this election will indeed have a significant impact on the direction of our country. The one-vote Democratic majority in the U.S. Senate has been blocking the nomination of judges who will apply the law as written. They prefer judges who will ignore plain text and "liberally construe" statutes when it suits their own partisan purposes. If you want judges who will "liberally construe" a 51 day deadline so that it is no deadline at all, then by all means vote for my opponent, who benefited from their liberal construing. If you want judges who will be bound by law rather than who feel free to create it, then vote for me." etc.

Wednesday, October 02, 2002

"Construed" Once Again... - The NJ Supremes, holding (Link via Eugene Volokh) that "the election statutes should be liberally construed," have proved they were up to the task. (Not surprisingly, liberals are very, very good at liberally construing.)

They have "construed" the statutory authorization (Link via Dave Kopel) to replace a candidate's name on a ballot "[i]n the event of a vacancy, ... which vacancy shall occur not later than the 51st day before the general election" in such a manner that the words "not later than the 51st day" don't really mean "not later than the 51st day." How did they manage that? By observing that the language "does not preclude the possibility of a vacancy occurring within fifty-one days of the general election."

True enough. All it did was say that you could fill the vacancy with another name if it occurred before the cut-off, which to most people means that you can't if it comes later. But never mind.

My mother would have been right at home in the New Jersey Supreme Court. Local lore has it that one day she pulled up and parked right in front of a "No Parking" sign and was getting out of her car when a policeman walked up, shaking his head. "But officer," she is said to have said, "it doesn't say 'positively.'"

UPDATE - And I thought that comment my mother is supposed to have made-- "But officer, it didn't say 'positively'" -- offered a humorous if telling take on the NJ Supremes' decision. But with reality like this (Link via Howard Bashman), sarcasm hasn't a chance:

Chief Justice Deborah Poritz observed that the 51-day rule for substituting a candidate appeared to be arbitrary. She added that other states had deadlines ranging from 30 days to a handful, noting that New York state's statute says that failure to meet the deadline is a "fatal defect."

"Our statute says nothing of the kind," she said.

The Red and the Blue, and Yellow Dog No More - Shiloh Bucher has a terrific post -- short, but deep -- about why she's no longer a Democrat, and it has generated a bevy of interesting comments. Take a look.

One of her reasons is that she believes in the rule of law while the Dems don't seem to. I think this point is of increasing importance, and I'd like to try to say why since I'm convinced there is more to it than mere political expediency. Republicans, after all, are not incapable of expediency, and yet I think there are real differences between the parties on the rule of law, important differences.

This may be a stretch, but I'd like to argue that the two parties are separated by some fundamental philosophical differences that operate below the more familiar differences, even more familiar philosophical differences, such as different approaches to taxes, or states rights, or big government. Everyone is now familiar with the Map of Red and Blue, but I'd like to suggest that the Red and the Blue represent more than geography. In part reflecting the urban/suburban v. rural/small town split, but also drinking from different intellectual currents, increasingly the Democrats are more sophisticated, the Republicans more simple-minded (which I mean in a non-pejorative sense) and common-sensical.

To return to where I started, take laws. Sophisticated Democrats see them as malleable; simple-minded Republicans see them as meaning what they say. Democrats see constitutions as "living," the meaning of statutes as fluid and adaptable -- in short laws as recommendations or suggestions rather than commands. Republicans tend to see meaning as more fixed.

Assuming for the sake of argument that these distinctions have some merit, I think the explanation can be found in a powerful modern intellectual current that has cut something of a philosophical chasm between the two parties, leaving them further apart than at any time I can recall and at least resembling, if not more, the profound party differences that separated the Jeffersonians and the Federalists in the new nation or the regionalized parties that resulted in civil war.

This current is called many things, depending on which eddies that ebb and flow in it one wants to emphasize, but let me highlight two: multiculturalism and relativism. In a number of different arenas today the Republicans are like the Lone Ranger: as often as not, when he comments to his colleague some version of "we're surrounded," the Democrats reply, "Speak for yourself, white, male, Euro-American!"

More seriously, multiculturalists oppose any judgments that require "privileging" (for some reason, they like to turn nouns into verbs) the principles and values of one "culture" over those of another. They regard what were formerly (and still by Republicans) regarded as American principles as simply the culture-bound preferences of one sub-group of Americans. Multiculturalism, then, goes hand-in-hand with relativism, a rejection of absolutes -- whether derived from our history, the Constitution, or laws passed by state legislatures. Plain text ceases to embody plain meaning, and is subject to more and more interpretation. In a world where principles no longer bind and no law is final, the importance of lawyers -- who are increasingly trained to manipulate text -- and courts become more and more important.

C.D. Harris makes what I take to be a similar, or at least a compatible, point on his excellent blog, Ipse Dixit. He mentions a number of current campaigns where it might well be in the Republicans' interest to drop their current candidate and substitute a stronger one, and then comments:

I'll be blunt: Any leftie who would argue that none of these scenarios should be allowed, but that the NJ Democrats should be allowed to replace The Torch is completely unprincipled. It's all or nothing, folks.

I think this is literally true. By "literally," I mean that I'm not using "unprincipled" as a synonym for bad person but simply as a description of an intellectual tradition and position in which principles are minimized, meaning is fluid and not fixed, and rules are recommendations. I should add that although I myself have little sympathy with this tradition (as if you couldn't tell), it has an ancient and honorable lineage, and many people far brighter than I adhere to it. Indeed, some of my best friends are "unprincipled" in this sense. (Someone is sure to raise the objection, so let me reply now: I do not regard the argument that electing Democrats is the highest principle as what I mean by a principled argument.)

In short, the NJ Dems are a perfect expression of their party. And now here's a truly frightening thought: insofar as they succeed, the whole country becomes more like New Jersey.

Can New Jerseyites Write? - I may have missed it, but I've seen surprisingly little discussion, pro or con, of the NJ Dems mounting a write-in campaign for Lautenberg. True, there has been at least one recommendation:

"Bill Clinton is suggesting Bruce Springsteen," the Hotline's Craig Crawford told a stunned John Batchelor and Paul Alexander on their nightly WABC Radio broadcast.

"Bill Clinton is pushing New Jersey native Bruce Springsteen," he repeated, adding, "particularly if they have to do a write-in ballot."

But I mean suggestions from serious people. (Oh strike that; we're supposed to be moving on.)

There have been a few other references. One of Forrester's lawyers suggested a write-in campaign to the Dems. And another:

Vincent Panvini, a lobbyist for the Sheet Metal Workers' International Association, a major Democratic donor, said he believed Lautenberg is popular enough with organized labor and other crucial voting blocs to win the seat even if Democrats have to start a write-in campaign for him

Still, you'd a thunk there would be more discussion of this obvious solution to providing poor NJ voters with a "choice." My goodness, even Washington, D.C., voters were able to deal with Mayor Anthony Williams failing to be listed as the Democratic nominee in the recent election, and he managed to mount a write-in campaign and win.

The NJ Dem leadership, in short, had and has it within its own power to provide a "choice" to NJ voters on November 5 without asking a court to ignore statutes and grant them special favors. But Democrats feel more at home in courts these days.

What If ... ? - I know this may appear unlikely, but what if a court with a Democratic-appointed majority were to conclude that a statute means what it says, that a clear deadline is not merely an "administrative convenience" (as the attorney for the NJ Dems put it)?

So, let's say Torricelli's name remains on the ballot, with the Dems building their campaign around the argument that a vote for Torricelli is really a vote for Lautenberg.

But what if Torricelli wins and then doesn't step aside? He hates Lautenberg so much he would no doubt be tempted to claim that his name was on the ballot and he was elected. Recall that his self-congratulatory resignation statement said only that he was choosing not to run. He did not add the customary Sherman-esque follow-up: "and if elected I will not serve." Would the Dem lawyers go back to court and claim that he wasn't "really" elected? Would a Senate controlled by Democrats refuse to seat him? One controlled by Republicans?

This could get good before it's over. But let's say the NJ Supremes vote the way they're told, Lautenberg's name is on the ballot, and he wins. Maybe there's a silver lining even in that cloud: the Democrats could no longer harp on the 2000 election being handed to Bush by the Court.

Florideja Vu All Over Again? - The Washington Post's "Talking Points" that appeared online Tuesday afternoon discusses the brief the New Jersey Democrats have filed with the state supreme court.

The brief argues that if

"the 51 day technical requirement" prohibits Democrats from replacing Torricelli on the ballot, it would "deprive [the Democratic party] of the fundamental right of ballot access as contemplated by our election laws and as envisioned by our two party political system, and would further deprive a political party of fielding a candidate at the general election."

Another Post story, this one appearing online at 9:30PM Tuesday night, had more deja vu-ish quotes from the Dems.

Senate Majority Leader Tom Daschle, D-S.D., said that by objecting to Torricelli's request, Republicans were "denying the people of New Jersey a choice" in the election.

On the contrary, it would be allowing the Democrats a second choice, since the first one didn't work out so well for them. The Dems are like a pouting consumer who bought a risky campaign product with a short warranty. The warranty expired, the defective campaign product disintegrated after the warranty expired, and now the disappointed Dems are asking the courts to save them from the consequences of their own mistake by letting them return to the store, long after business hours, and choose a shiny new (or perhaps old and used but still serviceable) campaign product.

Democrats say decades of state court decisions put voters' rights above filing deadlines and other technical guidelines.

Attorney General David Samson argued in papers filed with the court Tuesday that the justices have the power to relax the deadline to withdraw and allow Democrats to post another candidate. Samson, who was appointed to his job by McGreevey, said election laws have long been interpreted liberally to allow voters every opportunity.

Hmm. Plain text, filing deadlines, etc., in statutes passed by the legislature and signed by the governor are merely "technical guidelines" that courts can revise or disregard at will? We've heard this somewhere before. In fact, it's becoming a theme song of the Dems, a tune they can't get out of their head.

Tuesday, October 01, 2002

Bush v. Gore II? - Dave Kopel makes a powerful case on NRO that New Jersey law will not allow replacing Torricelli's name on the ballot. The Democrats obviously know this, and thus Governor McGreevey intends to ask the state supreme court to make an exception in this case because of "unusual circumstances."

If the state supreme court complies with the Democrats' request, would not the Republicans (the McGreevied party?) be in a position similar to that of the Bush campaign in Florida after the last election, when it successfully requested the federal courts, ultimately the U.S. Supreme Court, to intervene in order to reign in a runaway state court that was intent on ignoring state election law?

"Don't Feel Badly For Me" - ... was the extinguished Torch's request in his maudlin resignation speech.

O.K. That's easy. In addition to his documented difficulty in distinguising right from wrong, the Senator also can't tell the difference between adjectives and adverbs. He performed badly in office, but his speech was a bad performance.

Actually, his resignation makes me feel quite happily.

Has the New York Times Come to its Senses? - No. On first reading the NYT's editorial this morning on the Torricelli affair it appears the editors have discovered the virtues of competition. "The guiding principle," they write, "should be the voters' basic right to a genuine election." But that appearance is misleading. What the Times really wants is for the courts to step in and protect some of the voters -- the Democrats who made the bad choice of selecting Torricelli as their nominee -- from the consequences of their decision. More precious to the Times than competition is protecting people from the unwanted results of competition.

There are, the Times acknowledges, some petty obstacles, like statutes, that stand in the way of doing what should be done, but apparently only pea-brained Republicans worry about little things like that, for "legal wrangling" should not undermine the right of New Jersey voters to "a competitive race."

Now that the Times has discovered, just in the nick of time, a shiny new previously unknown right -- to "a competitive race -- it will be entertaining to observe their comments on the other races this fall, inasmuch as roughly 90% of the voters live in House districts that are by no stretch of the imagination competitive. Are their rights being violated? Is gerrymandering illegal? Inquiring minds want to know.

Monday, September 30, 2002

Playing Percentages - The Chronicle of Higher Education has a new article (link requires subscription) touting the benefits of the plans adopted, so far, by California, Texas, and Florida that guarantee admission to the state university system to the top graduates (top 4%, 10%, and 20% respectively) of each high school in the state. These plans were adopted to move away from race-based affirmative action while preserving what is seen as the latter's diversity-enhancing effects.

The two authors do argue that percentage plans should not be seen as a substitute for affirmative action, which the continue to support.

For example, critics of percentage plans argue that they disadvantage outstanding minority students who graduate from competitive, integrated high schools and barely miss being in the top 10 percent. Affirmative action would allow universities to recognize the special contribution that such students can make.

This is of course true, but it begs the question of fairness (which in turn is based on our understanding of equality) that is at the core of debates over affirmative because percentage plans also disadvantage non-minority students from strong schools who barely miss being in the top 10%. Making these strong students, both minority and non-minority, stand in line behind students in the top 10% of their classes at weaker schools is, after all, why percentage plans tend to lower the academic quality of entering students.

The authors actually criticize the California and Florida plans because they, out of concern with the point mentioned above, do not guarantee admission to the flagship campuses, only to the system as as whole.

California's 4-percent plan, like Florida's 20-percent plan, suffers from a fundamental deficiency: It guarantees admission only to the university at large, not to its elite institutions. That defect has helped perpetuate a two-tier educational system in California, whereby students, often underrepresented minorities, are steered, or "cascade," to lower-ranked colleges and universities. Not only have flagship campuses remained largely closed to black and Hispanic students, but many of those who might be admitted remain deterred because financial aid is not tied to admissions.

Query: What is it that makes elite campuses elite and flagship campuses flagship? Whatever it is, will they remain elite and flagship if they accept larger numbers of students whose academic credentials are weaker than those they formerly accepted? That is, insofar as the attraction of elite and flagship campuses is that they are, well, elite and flagship, do not admissions schemes that tamper with what made them elite and flagship in the first place risk implementing an academic version of Groucho Marx's famous quip ("I would not want to join any club that would have me")?

More Bias From the New York Times - Andrew Sullivan wrote over the weekend that "[i]t's gotten to the point now that I always check the actual poll when reading the New York Times' version." The particular poll that occasioned this latest barb from Sullivan was in an AP story, but Sullivan found that "the Times headline is a complete distortion of the poll numbers."

Today the Times has two stories from the AP on polling results in two governor's races (in Hawaii and New Mexico), and the way the results are slanted in the Times headlines confirms the bias Sullivan describes.

The Times headline over the story from Honolulu reads, Lead Narrows in Hawaii Gov. Race. The article itself says that Republican Linda Lingle leads Democrat Mazie Hirono by 47% to 39%, a comfortable 8 points. Lingle had a 15 point lead in early June. Since Hawaii hasn't had a Republican governor since 1962 and the Republican candidate still leads by 8%, the Times headline seems like wishful thinking. The reduction in the Republican's lead over the past four months hardly seems like it's the most newsworthy item in the story.

By contrast, the Times headline over the story from Santa Fe reads, Poll: Richardson Leads Sanchez. Here, however, the article reveals that Democrat Bill Richardson's lead over Republican John Sanchez has shrunk from 14% to 9% in the past month.

Where a heavily favored Democrat's lead has dropped in a month, the Times headline proclaims him ahead. Where an underdog Republican is still holding on to an 8% lead after slow tapering in the lead since early June, the Times headline proclaims "Lead Narrows."

One can easily see why Sullivan concludes: "Lies, damned lies, and the New York Times!" In any event, you shouldn't buy a used poll from these guys without kicking the tires and looking carefully under the hood.

Sunday, September 29, 2002

The New York Times Contradicts Itself, Blasts McConnell, Mangles Bob Jones - Criticizing the Bush administration because it "has made ideology the primary consideration in picking judges," the New York Times today called upon the Senate to ... make ideology the primary consideration in picking judges. "Senators are shirking their responsibility," editorialized the NYT, if they approve nominees "who have not demonstrated ... that their judicial philosophies will take the country in the right direction."

I will leave for another day a discussion of the NYT's unappealing notion that it is judges who should determine the direction of the country. What concerns me today is that in its apparent zeal to torpedo McConnell the Times sloppily mischaracterized a Supreme Court case, a case in which it was so blinded by its approval of the result that it failed to see the disturbing -- and threatening implications for the Times's own sometime values -- of its reasoning. In other words, it judged the case the same way it judges McConnell: with a hasty, superficial, and misguided concern only for the immediate political result. Such are the pitfalls of a result-oriented instead of a principled jurisprudence.

According the NYT editorial,

Mr. McConnell disapproves of the Supreme Court's decision in the 1983 Bob Jones University case in which the justices rightly decided that banning interracial dating among the college's students was racial discrimination. He would require the government to subsidize, through tax deductions, schools like Bob Jones.

First, the justices did not "decide" that banning interracial dating among the college's students was racial discrimination (largely a moot question in any event, since black students stayed away from Bob Jones U. in droves because of policies like this). Of course it was; the question of whether or not it was racial discrimination was not at issue. The issue was how to interpret Section 501(c)(3) of the tax code, which provided that "religious, charitable, or educational" institutions could qualify for a tax exemption. Bob Jones maintained that it was both religious and educational and so clearly deserved an exemption. The IRS argued that it could not be charitable since it preached discrimination (there was little or no proof of practice in the record), and so did not.

The plain text supported Bob Jones. The qualifying categories are linked with the disjunctive "or," not the conjunctive "and," which at least as a grammatical matter means that an organization could qualify if it were any one of the three, not that it would have to be two or more. But courts are often unrestrained by the apparent limitations placed by plain language, and that was the case with the Supremes here, in large part because the IRS made a persuasive argument that the whole nature, purpose, and structure of the tax exemption scheme was suffused with the general requirement that some "public benefit" be served, and it was not frivolous to maintain that even preaching discrimination served no public benefit.

But there is much more to Bob Jones (the case, not the school) than the public benefits of interracial dancing. Among other things, this decision resulted in reducing the power of Congress, which wrote the statute, and the courts, which interpret it, in favor of the executive agency with the responsibility of enforcing it. The New York Times does not generally celebrate the deference of Congress and courts to the enforcement whims of the executive branch.

Much more ominously, the Court, unnecessarily, went far beyond allowing the executive branch to withhold tax exemptions to any organization whose "public benefit" it questioned. In addition to requiring that tax-exempt organizations must provide some "public benefit," the Court went further and also held that their purposes must not conflict with "common community standards," that they be in harmony with the "common community conscience." And the content of that conscience will be determined by the executive branch acting through the IRS.

Thus the Times, mindful only of the immediate result of the bad guy Bob Jones losing, has mindlessly embraced -- and indeed held out as a litmus test for judicial appointment -- a sweeping expansion of executive authority whose reasoning and rationale would support the IRS, if in its judgment their principles or practices violated "public policy," revoking the tax exemptions of, for example:

• a museum that displayed the work of Robert Mapplethorpe;

• Planned Parenthood, and other organizations that advocate or perform abortions;

• non-profit organizations that advocate peace in a time of war;

• private universities and foundations, such as the Bill Gates Foundation, that give awards and grants restricted by race.

Michael McConnell would be a much better defender of the principles the New York Times occasionally and selectively trumpets than is the Times itself.

* * * * *

ADDENDUM 1 - I neglected to address the editorial's assertion that McConnell "would require the government to subsidize, through tax deductions, schools like Bob Jones." I am tempted to respond polemically, which is all this comment deserves, but I will restrain myself and say only that this charge is nothing more than ad hominem horsefeathers.

With some difficulty I will also refrain from a long discussion of whether the government's decision not to tax something amounts to a government subsidy. Reasonable people can disagree about this, but in my view tax restraint does not amount to a subsidy. To day it does is to say that the government is subsidizing every church, synagogue, and mosque in the country. Much to the chagrin of some, the government simply can't tax every financial transaction that takes place, and it makes no sense to say that it subsidizes all activities it doesn't tax. If a father gives a daughter $50 to attend a Gay Pride event, is the government subsidizing the promotion of homosexuality because it (so far) has refrained from taxing that gift? My wife, Jessie, and I are spending an ungodly amount of money for Jessie to attend Bryn Mawr (which, in its wisdom, does not offer merit aid). If the Times were right, we should thank our government for subsidizing us since, in its beneficent generosity, it has so far refrained from taking all of our assets in taxes.

I can't speak for Prof. McConnell, but I'm confident that he would find the charge that he would require the government to subsidize Bob Jones et. al. risible. I suspect, however, that he would give Congress, not the courts or the executive branch, the responsibility for writing tax legislation. I'm also confident that as a judge he would be reluctant to hand over to the IRS, without Congressional authorization, the authority to deny tax exemptions to all organizations that it thought violated public policy or offended the community conscience. I strongly suspect the Times would support Judge McConnell in this reluctance the first time the IRS, acting on principles the Times now endorses, moved to take away the tax exemption from an organization it likes.

ADDENDUM 2 - I also posted a discussion of Bob Jones back in June, here. One thing I noted there was that a group of Congressmen had attempted to overturn the IRS ruling denying exemptions to discriminatory schools. One of them was Al Gore.

Two Ubiquitous Affirmative Action Fallacies - I'm tempted to say that if someone can show me a defense of preferential admissions that does not contain these fallacies I'll give him or her an autographed copy of my next book ... or ten cents in coin.

I discussed a typical example just two days ago, here. And now here's another example of the same thing (See what I mean? It's everywhere), from a review in today's New York Times Book Review of The Game of Life: College Sports and Educational Values, by James Shulman and William G. Bowen:

"The Game of Life," by James Shulman, a researcher and administrator at the Andrew W. Mellon Foundation, and William Bowen, president of the foundation and formerly president of Princeton, marshals the evidence that high athletic ability -- the kind that gets high school children onto the wish lists submitted by college coaches to admissions committees -- confers advantage in the admissions scramble. Supporters of affirmative action cogently point out that this sort of "affirmative action" for athletes (as well as for alumni children) has never, at least until now, elicited cries of foul on the ground that it violates meritocratic principles. Somehow that kind of indignation seems to arise only in response to the putative advantages of minority candidates. (Emphasis added)

For some reason, every time this point is made -- and it is made in virtually every defense of racial preferences -- it is always made with a sort of breathless sense of discovery, as though the author had just come up with an unanswerable "gotcha!" that will drive the final nail into the coffin of racist or redneck or Republican (but, from a liberal point of view, I repeat myself) objections to affirmative action.

Here are the two fallacies on which that argument depends:

1. The Merit Fallacy

I'm sorely tempted to call this one The Meretricious Fallacy (Meretricious: "tawrdrily and falsely attractive"; "superficially significant" -- Merriam-Webster Collegiate Online). Anyway, this is an argument that no one who accepts the legitimacy of criteria based on anything other than merit can make a principled criticism of racial preferences. It is a fallacy because it wrongly assumes that the only criticism of racial preferences is that they offend the merit principle. That is not true. They also offend, and more fundamentally, the principle that no person should be rewarded or punished based on race or religion. For example, merit is totally irrelevant to the illegitimacy of an admissions office in a public institution giving preferences to Presbyterians. (And preferences to Jews or Catholics or wiccans would have been equally illegitimate, even if the rationale were to compensate for past discrimination.)

2. The Fallacy of Fungible Discriminations

This is the argument that all discrimination is alike; if you can discriminate for one reason, you can discriminate for any reason. Thus if it's acceptable to give preferences based on athletic or musical ability or the alumni status of parents, it's also legitimate to give preferences based on race or religion. Preferences, in short, are preferences; if one is O.K., all are O.K.

In some respects No. 2 is simply the other side of the coin of No. 1. The Merit Fallacy says that if you accept any exception to merit you have no principled basis to criticize any discrimination, and The Fallacy of Fungible Discriminations says all discriminations are on the same moral plane. But they are not. Because of our history, and the core values that have emerged from it, race and religion are in a special, protected category. We allow, even require, the state to impose benefits and burdens on us based on a whole host of criteria -- but not race or religion, which are or should be off limits to government control. As I wrote two days ago making this same point against the same fallacies, no Constitutional prohibition bars discrimination for or against tight ends or tuba players. That hardly means, as defenders of racial preferences must maintain, that discrimination based on race or religion is also acceptable.

Saturday, September 28, 2002

Sweet Home Alabama - My wife and I went to see the new movie Sweet Home Alabama this afternoon. I was going to let it go unblogged, but then I noticed the recent spate of movie criticism and response that has been provoked by the good Reverends Shaprton and Jackson and their objections to Barbershop (see here for example) and I thought, "if them, why not me too?"

It's the story of a poor Southern girl with a hidden past who makes good in the Big Apple, becomes engaged to a very appealing fellow whose Mom is the Mayor from Hell, and returns home to Alabama (except it seems to have been filmed in Georgia and Florida, or some unknown place where they have lightening bugs in the fall) to secure a divorce from her long-abandoned good ole boy husband. You can probably figure out the rest.

Although the Alabamians were a little hickier and even weirder than we natives think we are, they were at least portrayed sympathetically (or what Hollywood thinks of as sympathetically). I actually liked it and would recommend it (though you should keep in mind that I'm not too far removed from hick myself, and am the type who likes movies much better than films). Still, there was one line in it that grates: after Reese Witherspoon had been back in Alabama a day or so and begun to fit back in a bit, her estranged husband says, "Well, at least you've got your accent back."

I can guarantee you that no good ole boy (even a secretly cool one, as the husband turns out to be) would have said that. He'd have said, "Well, at least you've lost your accent."

UPDATE - I never should have started down this road, but now that I have I should point you to other, less charitable reviews in the New York Times ("a ball of fluff ... that peddles a faux populist sentimentality" -- don't you just love it when movie reviewers act like they know what populism is?) and the Washington Post. In fact, the WaPo disliked it so much that it had to run three reviews: here ("mostly stereotypes and cliches"), here ("tiredly familiar"), and here. This last one was a doozy. After mixing breakfast metaphors every which way from Sunday -- "These Grits Don't Ring True" [!] plus "thin gruel," it also asserts somewhat churlishly that the movie managed to "elide the vexing issues of sexuality and race that tug at the film's edges." Only a very small tweak to the vocabulary -- adopting the mandatory mantra of "race, class, gender" and this review would have been right at home in a History Dept. seminar.

If I might adopt the faux persona (as the reviewers would say) of a character from the movie (something easy for me to do since I was born and raised -- or should I say "reared"? -- in Alabama), I would point out that all these reviews are about what you'd expect some pointy-headed Yankees to say.

And there's even news about those who got me started down this misbegotten path: the good Reverends Jackson and Sharpton. The New York Times reports today of still-roiling controversy over Barbershop. What I found most interesting, however, was not the continuing huff and puff of the aggrieved Reverends but that the NYT, as it often does, managed once again to find an expert who knows even less than the writer. (Come on, be fair. This is an AP story. All the NYT did was run it.) Here's the line the article takes:

The flap over the popular movie has exposed a generational rift between civil rights activists and younger blacks who have no memory of the days of bus boycotts, freedom rides and lunch counter sit-ins, some scholars say.

Some scholars? Unfortunately, one of them (are there more?) is quoted:

"You have some individuals from the civil rights movement, Jesse Jackson and Al Sharpton, who are utterly offended that some of their icons have been criticized," said Todd Boyd, an associate professor at the University of Southern California's School of Cinema-Television.

"You have another generation who finds no problem whatever in criticizing anyone who they deem appropriate for criticism. They have rejected this idea of the sacred cow."

Al Sharpton is a lot of things, but veteran of the civil rights movement is not one of them. He was born in 1954, and thus was one year old when Rosa Parks refused to give up her seat on the Montgomery bus; six years old when Greensboro students first sat-in at a lunch counter, launching the Student Non-Violent Co-ordinating Committee; nine years old when Martin Luther King gave his "I Have a Dream" speech; and fourteen years old when King was killed. True, Jesse Jackson did hire him in 1969, at 15, to help shake down companies that hadn't hired enough blacks, but shortly after that he was off on the road with James Brown and then working with Don King, the fight promoter.

Jackson and Sharpton may be offended that Martin Luther King and Rosa Parks have been "disrespected" by one character in a movie. I am offended that they are mentioned in the same sentence/paragraph/story with King and Parks.

Friday, September 27, 2002

Ideology-blindness? - Democrats oppose color-, ethnicity-, and gender-blindness, but they appear to favor politics-blindness (except, of course, when gerrymandering electoral districts). How else can we interpret the furor from their side of the aisle over the possibility that Miguel Estrada may have asked candidates for a clerkship with Justice Kennedy questions that one of them is said to have viewed as an "ideological litmus test"?

What am I missing here? Has it now become a civil rights violation for a Supreme Court Justice to select clerks he or she believes will be sympathetic to the justice's interpretive approach and constitutional values?

If it is illegitimate for judges to be concerned with judicial philosophy in the selection of their clerks, why is it legitimate for Sen. Schumer (D, Interest Groups) to flaunt his concern for it in the selection of judges? Or perhaps it was some other New York Senator Charles E. Schumer who issued a press release whose headline is: "SCHUMER SAYS ROLE OF IDEOLOGY IN JUDICIAL CONFIRMATION PROCESS SHOULD BE LEGITIMIZED AND CONSIDERED IN EVALUATION OF JUDICIAL NOMINEES "

UPDATE - The following appears in what must be that other Senator Schumer's press release cited above:

For whatever reason, possibly senatorial fears of being labeled partisan, legitimate considerations of ideological beliefs seem to have been driven underground. It's not that we don't consider ideology, we just don't talk about it openly.

And, unfortunately, this unwillingness to openly examine ideology has sometimes led Senators who oppose a nominee to seek out non-ideological disqualifying factors, like small financial improprieties from long ago, to justify their opposition. This in turn has led to an escalating war of gotcha politics that has warped the Senate's confirmation process and harmed the Senate's reputation.

And some Senators who are unwilling "to openly examine ideology," i.e., admit that they would oppose any conservative nominee, have even been known to seek out and make a disqualifying "gotcha" out of the nominee's openly examining ideology in his role assisting in the selection of, not judges but judges' clerks!

I indicated yesterday (here) that People for the American Way believes the Supreme Court guilty of discrimination, but I had no idea the problem was as pervasive as Democrats must think it is.

Race-Baiting in Maryland - In their first debate, sponsored by the NAACP at primarily black Morgan State University "before a vocally partisan crowd of 2,100 people who booed Ehrlich into silence as he sought to make his opening statement," Democratic gubernatorial candidate Kathleen Kennedy Townsend made this enlightening comment on the sensitive subject of race:

"He opposes affirmative action based on race," she said. "Well, let me tell you, slavery was based on race. Lynching was based on race. Discrimination is based on race. Jim Crow was based on race. And affirmative action should be based on race."

Hmmm. I would have thought that slavery, lynching, Jim Crow, etc. had pretty well established that discrimination based on race is wrong. I guess not. Ms. Townsend obviously thinks that the only way to fight racial discrimination is with ... racial discrimination. That's strikes me as rather like burning a village in order to save it.

UPDATE - I've just seen that MediaMinded has teed off on the same offensive Townsend quote. Check him out.

Gephardt: Hoist On His Own Canard - So, former and future (?) Speaker Gephardt thinks we should "Defend the Country, Not the Party"? To see him whistling another tune, please see my post from yesterday, "Politics and War," and the update to it I've just added.
Iraq Trained(s?) Al Qaeda - A few minutes ago CBS News reporter Lesley Stahl, speaking with Don Imus on the latter's morning show, announced that this Sunday 60 Minutes will air an important segment revealing evidence that Iraq has been intimately involved in harboring and training Al Qaeda. Apparently the Israelis captured an extensive collection of Palestinian documents in Ramallah, and Stahl was shown material that she said proved the close connection between Iraq, Al Qaeda, and Palestinian terrorists. Should be interesting.
Race a "Specialized Talent"? - Joanne Jacobs links to an interesting dialog about elite college admissions at The Atlantic Online between James Fallows and Jacques Steinberg, author of The Gatekeepers: Inside the Admissions Process of a Premier College (Viking).

So far there are only two (long) entries, but this is good reading for anyone interested in what goes on behind the closed doors of elite admissions offices. I would, however, like to take issue with Steinberg's one brief comment (so far) about the lower requirements for minorities:

And I would argue that one can't criticize the arguably lower standard against which a minority candidate might be judged (especially one whose parents had not attended college, who would be coded as "NCP," or "non-college parent," in admissions lingo) without also looking at the standards against which other applicants with specialized talents are held.

Actually, one can, and I will. Race is not a "specialized talent." Racial discrimination, i.e., distributing benefits or burdens based on race, is not the same as discriminating on the basis of athletic or musical ability or the alumni status of one's parents. There is no Constitutional prohibition that bars discrimination for or against tight ends or tuba players. All discrimination, in short, is not the same; the fact that preferences for some reasons are acceptable does not mean that preferences for any reason are.

Thursday, September 26, 2002

Extreme Right, Republican, Whatever - New blogger Kaimi Wenger has several interesting posts on the Estrada nomination. He was especially struck by a quote from Nan Aron, head of the Alliance for Justice, in The Nation article by Jack Newfield that was relied on by Estrada's critics in the Thursday hearing.

Aron claimed that "the extreme right already controls seven of the thirteen circuit appeal courts." Wenger did some checking, spoke to a researcher at the Alliance for Justice, and confirmed that in AFJ's "methodology" any circuit with more judges appointed by Republicans than Democrats is under the control of the "extreme right."

Now that same "methodology" has appeared in Bob Herbert's column in the New York Times.

The political right has been relentless in its campaign to control the federal courts, and that campaign is getting awfully close to an absolute victory. Seven of the 13 circuit courts are already controlled by Republican appointees, and it is possible that within two years that control will extend to as many as 12, and maybe all 13 circuits.

Now we know how to keep the courts from being dominated by the "extreme right" (Alliance for Justice) or "political right" (Herbert): defeat all Republican nominees.

Politics and War - No, not that war (the coming war with Iraq), this war (the one between Daschle/Democrats and the president over that war). ABC's influential The Note says "today is likely to be about trying to determine the political impact of yesterday's explosion." What explosion? Why "Tom Daschle's long bomb" accusing the president of politicizing the war.

I will leave it to others wiser than I to thrash this out, but while the Gore/Daschle/Democratic charges of making national security a political issue are being examined I thought a very short trip down memory lane might throw some helpful light on the subject. I refer to the last time Democrats in Congress were faced with what the Washington Post described as "one of the most important votes they will ever cast in their careers." War? Well, not exactly. It was the vote over whether "to open an inquiry of impeachment against a popular president from their own party." (For Minority Leader, A Matter of Consensus; Inquiry Vote Tests Gephardt's Skills, October 8, 1998, Section A, p. 18)

I know, I know. We've all "moved on" and "put that behind us." Still, history's there, and occasionally it can be enlightening. I was struck at the time (which is why I saved the reference) by the reverence and sense of gravity with which the House Minority Leader, Richard Gephardt, faced his grave Constitutional duty to determine whether high crimes and misdemeanors sufficient to justify removal of the president from office had been committed.

What guiding principle did Gephardt bring to this awesome and historic task?

"My first and prime responsibility is to the [House Democratic] caucus," he said in an interview. "I want to get members elected and win more seats. That's what they want to do, and that's what they want me to do."

UPDATE (27 Sept.) - Playing catch-up to Daschle and Gore, the once and wannabe Speaker has now added his discordant note to the current chorus of sanctimony. In an OpEd in today's New York Times, Gephardt writes that

President Bush himself has decided to play politics with the safety and security of the American people.... This is not how a great nation should debate issues of war and peace.

Of course not. Playing politics should be limited to such pedestrian matters as deciding whether a president has committed impeachable offenses, where it is perfectly O.K. to adopt whatever position will most improve the prospects of House Democrats in an upcoming election.

People for the American Way Says the Supreme Court Discriminates - In a letter to the Senate Judiciary Committee opposing Miguel Estrada (link via Howard Bashman), People for the American Way mentions an interview in which Estrada, a former clerk to Justice Kennedy, is said to have minimized the significance of the relatively small number of minority law clerks at the Supreme Court. According to PFAW:

Mr. Estrada reportedly dismissed the numbers, stating that “if there was some reason for underrepresentation, it would be something to look into,” but concluded that he did not “have any reason to think it’s anything other than a reflection of trends in society.” USA Today (March 13, 1998). Mr. Estrada’s statements suggest a troubling disregard or lack of awareness about the role of present and past discrimination in limiting the ability of minorities to obtain such important positions, including the role of the vestiges of past discrimination in creating and perpetuating “trends in society.”

Since PFAW believes that one of the reasons there aren't more minority Supreme Court clerks is "present" discrimination, it apparently believes the Supreme Court justices discriminate in hiring.

Then, in one of the funniest examples I can recall of the pot calling the kettle black (perhaps that should be modified here to various official Hispanic pots calling Estrada not brown enough), PFAW has the gall to bring up the comments of a candidate for a clerkship with Justice Kennedy who complained that Estrada "asked me a lot of unfair, ideological questions," adding that "I felt like was being subjected to an ideological litmus test."

Apparently unaware of the contradiction, PFAW concluded the paragraph immediately preceding the one complaining about ideological litmus tests by demanding:

Mr. Estrada should be questioned closely about his views concerning the continuing effects of discrimination and concerning Supreme Court decisions that have approved affirmative action to help solve those problems.

Oh, I get it. Litmus tests are what the other side uses. All we demand is adherence to "the American Way."

33 "Realist" Scholars Oppose War - The academic petitions against war in Iraq continue to pile up. Now come 33 international relations scholars of the "realist" persuasion who, according to an article in the Chronicle of Higher Education (link requires subscription), are about to take out an ad in the New York Times claiming that a military attack on Iraq "would be profound and costly mistake."

The statement is said to make four points:

There is no evidence that the Iraqi regime is in league with Al Qaeda.

The Iraqi regime would not dare use nuclear weapons, because it fears retaliation from the United States or Israel.

A war in Iraq could be very costly in terms of U.S. casualties and regional instability.

Postwar Iraq would be extremely difficult to occupy and govern.

Unlike the last academic anti-war petition, at least all of the signatories to this one can claim professional involvement with their subject.

"What we tried to do here," said Mr. Mearsheimer [Univ. of Chicago, one of the organizers] in an interview, "was to restrict the list to scholars who focus on international-security affairs, and to scholars who believe that power matters in international politics -- that it's sometimes necessary for the United States to go to war to defend its national interests. This is not a group that could be identified as left-wing or dovish."

Still, I wonder how they know there is "no evidence" of Iraqi co-operation with Al Qaeda or what Saddam "would not dare" do.

Wednesday, September 25, 2002

OOPS! - The Congressional Hispanic Caucus, which has just announced its opposition to Miguel Estrada, as of this writing has forgotten to update its web site, which lists its past support of ... Miguel Estrada.

This is the "Statement of Purpose on the Recruitment and Support of Judicial Nominees" of their "Hispanic Judiciary Initiative":

Political leadership, particularly in the federal government, benefits from a diversity of thought and action. In an effort to promote this diversity, the Congressional Hispanic Caucus promotes and encourages Hispanic representation at all levels and in every branch of government. In order to ensure that the Judicial branch more accurately reflects the communities that it serves, the CHC will actively work to identify and recommend qualified Hispanic candidates to fill federal court vacancies. As with all positions, the CHC strives to find judicial candidates who are qualified, experienced, have a demonstrated commitment to the Hispanic community and who will enhance diversity on our courts by contributing under-represented perspectives.

Judicial Candidates of Interest to the CHC

• Jose Martinez, nominated to the U.S. District Court, Southern Florida District. Link to CHC letter to the Chairman of the Senate Judiciary Committee.

• Miguel Estrada, nominated to the U.S. Circuit Court of Appeals, District of Columbia Circuit

According to today's Washington Post,

Rep. Robert Menendez (N.J.) said that during an interview with caucus members in June, Estrada appeared to have "a very short fuse. . . . I don't think he has the judicial temperament that is necessary to be a judge."

Perhaps, but that conclusion never reached the Home Page of the CHC, which says that its site was last updated August 15, 2002.

UPDATE - The Board of Directors of The Latino Coalition issued a news release today condemning the decision of the Congressional Hispanic Caucus (all of whose 18 members are Democrats) to oppose Miguel Estrada as "a slap in the face of U.S. Latinos."

"Today is a sad day in Hispanic America. Our Latino political leaders have decided to put partisan politics over the benefit of our community simply to satisfy the needs of their party bosses," said TLC President Robert Deposada. "Sacrificing the nomination of the first Latino to the DC Circuit Court of Appeals, just to lend credibility to an obviously partisan lynching of an extremely well qualified and decent Latino, like Miguel Estrada, is an act of betrayal and corruption to millions of Latinos across this country."

"It's so sad that the only Latinos opposing Estrada's nomination are those who are controlled by partisan bosses who are looking to score political points at the expense of our community," Deposada added. "Not a single Hispanic organization has opposed Mr. Estrada's nomination. So what other reason other than partisan obligation, would they have for doing this? The members of the Congressional Hispanic Caucus need to make a simple decision, whether they are partisan leaders or community leaders? And after this decision, we are convinced they already chose party over community."

"P.G." is not PC - "P.G," Prince Georges County, Maryland, a rich, black-majority Washington, D.C., suburb, is both the subject and the title of a new novel by Connie Briscoe. "Touted," exclaims the Washington Post, "as an African-American 'Peyton Place,'" P.G. County tells the story of the richest African-American county in the country.

Briscoe's P.G. County is an alternate universe in which one character refers to Atlanta's Morehouse as an Ivy League college -- a misnomer that makes perfect sense in a world in which the elite for generations have been proud products of historically black colleges. But it is also depicted as a county with a chip on its shoulder. "I sense an inferiority complex there," Briscoe says.

That inferiority complex has been on display.

The book's title, for starters, will no doubt produce a great deal of teeth-gnashing and eye-rolls. Years ago, Prince George's County Executive Wayne Curry's administration successfully crusaded to make The Washington Post avoid the practice of abbreviating the county's name in headlines. Many residents, the administration argued, saw it as a sign of derision, disrespect.

Briscoe doesn't see it as an affront. Although she grew up in this area always referring to the county as "P.G.," she is sensitive to the issue and unsuccessfully tried to persuade her publishers to lengthen the title. She says they wanted to keep it P.G. County because it was snappier, easier to remember.

Briscoe deals with the abbreviation issue in the book by having all of the county residents say "Prince George's." Those characters living outside the county, particularly the snarky old money "Gold Coast" Washington families from upper 16th Street, snidely say "P.G." The characters generally stick to that rule, but "even they may slip up sometimes," she says.

No one seems to have complained, so far, that one of the main characters is "the black-sheep daughter" of one of the old money black families there. Nevertheless, watch your mouth when you're tempted to say "P.G." County ("D.C." still seems to be O.K.); otherwise, you might be branded as the sort of person who calls San Francisco "'Frisco."

Tuesday, September 24, 2002

You heard it here first, folks. It has now become clear, due to their opposition to the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals, that liberals favor color-blindness and oppose ethnic preferences!

They think no conservative -- no exceptions for race, sex, or ethnicity -- should be appointed to appellate courts.

Worth v. Martinez - InstaPundit links to an excellent article by Stuart Taylor in National Journal about Worth v. Martinez, an important new attack on affirmative action in the federal government filed by the indomitable Center for Individual Rights. Go read the Taylor article.

This case is of potentially vital importance for two reasons: it threatens to put the final nail into the coffin of racial/gender preferences in government hiring, and perhaps of affirmative action in general; and it may make it impossible for the Bush administration to continue avoiding affirmative action, since it now has the obligation to defend the indefensible practices outlined in the complaint and surrounding materials.

Now if I may be so bold as to engage in some shameless ownblog-promotion, let me point out that a few of you already read about that case here, where I wrote that

CIR's lawsuit, Worth v. Martinez, threatens to do to the employment practices of the federal government, the nation's largest employer, what its suits against the University of Michigan's preferential admissions policies may do to college admissions (depending on what, if anything, the Supremes do with the latter).

Well, not totally shameless; I feel guilty enough about blowing our own horn to point out that my post really didn't do much more than point readers to Stanley Kurtz's impressively thorough discussion of CIR's argument in Worth v. Martinez here and to CIR's powerful discussion of the issues in the case here. I did not link it directly before, but CIR's statistical table demonstrating how dramatically white males are "underrepresented" in the federal work force is also worth checking.

Returning now to the shameless self-promotion, I do think one thing I pointed out in my earlier post bears repeating here (lesson: the more you blog, the more opportunities you can find, or create, to quote yourself!):

Despite the protests of many defenders of preferences that they do not believe in quotas or proportional representation, CIR's evidence demonstrates that the EEOC and those administering employment at HUD believe that "underrepresentation" of any group except white males is not evidence of discrimination; it is discrimination. (In a crucial distinction, the CIR makes clear that its complaint is not with the vast and pervasive "underrepresentation" of white males in the federal workforce but with the discriminatory policies and practices responsible for it.)

Donning once again the garb of good blogcitizen, I will close by pointing out that two other excellent articles from last month on Worth v. Martinez can be found here, by the indispensable Roger Clegg, and here, by Terry Eastland, publisher of The Weekly Standard.

Keep your eyes on this case.

Monday, September 23, 2002

Is Indoctrination O.K.? - The Chronicle of Higher Education has begun a colloquy (link requires registration, I think) based on the question of whether it is "appropriate for professors to distribute class-discussion guidelines stating that students should acknowledge the role of sexism, racism, and heterosexism in society?" Really. Well, I suppose the fact that there's at least some disagreement over the propriety of indoctrination is a hopeful sign.

Here's a taste of the discussion to date -- the question followed by a few of the responses (each paragraph is from a different discussant; I omitted their names):

This past spring, a professor at the University of South Carolina at Columbia was surprised to find herself in a controversy over guidelines she distributed that called for students in her courses to "acknowledge that racism, classism, sexism, heterosexism, and other institutionalized forms of oppression exist" and to "assume that people -- both the groups we study and the members of the class -- always do the best they can." The guidelines are widely used in courses in women's studies, sociology, and some other disciplines, and faculty members who use such guidelines say that they encourage open and full participation by students. But critics say the guidelines amount to inappropriate intimidation of students who may disagree with the professor's views. Are such guidelines appropriate?

Among the comments so far:

I have chosen not to use them, largely because I feel that a semester is not long enough for a group of often resistant students to do the work that is necessary to struggle together with how to create a truly anti-oppressive classroom environment.... I see this reaction against [the] guidelines as a backlash against the extremely limited/partial efforts made by progressive university educators during the last 30 years. I think that progressive faculty need to look at the larger structures in which the supposedly free classroom is embedded....These institutions are not the allies of social justice.

I understand the desire to create “safe environments” to discuss politically and personally charged issues, but I question whether telling students what to believe ultimately creates a “safe environment”.

It's interesting that there is such a focus on [the] guidelines, but there is no discussion about professors who create an atmosphere that is far more harmful. Shouldn't we be looking at the student's [sic] and if they felt it had a political agenda?

Sure, you want open discussion without certain political positions being stipulated as beyond question. But there are sexist, racist, and classist structures of power in society that make your "open discussion" a ruse. The poor, black women in the class are oppressed. And all of you are programmed to be sexist, racist, and classist, so your open discussion will merely perpetuate oppressive structures of power.

The primary goal of liberal arts education is no longer the expansion of horizons, the enlightenment of the mind, or the enrichment of the spirit. Rather, it is to rant and rave about all that has gone wrong and rotten in human societies....

Looking at some academics, how leisurely is their life, how out to lunch they are about the real world, how drawn to perversity, like moths to fire they are, and how imature they are in their social interactions, I get outraged at the thought that with their salaries three costodians could be hired to keep the place clean.

Let's see if I've got this right. Now "heterosexism" is wrong? So, I guess if you're straight; believe in merit rather than affirmative action; believe people can get ahead through hard work rather than government fiat; and believe that just saying you don't like someone's attitude doesn't make you a racist, then according to this female teacher something is wrong with you.

The funniest response so far (I guess) was from someone who, after apologies for being "combative" and protests that he (I'll return to how I know he is a he) "is not trying to indulge in chop-logic," is forced to take issue with the part of the guidelines assuming that people always do the best they can.

If it is true that none of us use our full brain capacity (ever, but let us suppose that we do not use our full brain capacity all of the time) and if it is true that each and every one of us does, at one time or another, exhibit laziness (both of which assumptions I take to be beyond dispute), then the notion that all of us (members of groups or participants in Dr. Weber's class) are ALWAYS doing THE BEST that we can is preposterous.

Unintentionally proving his point, this contributor to the colloquy signed his entry "Anonymous," but the email address he provided reveals his name and institutional affiliation.

You Get What You Pay For - Merit aid actually allows colleges to enroll larger numbers of high-ranking students? Wow! These college planners have actually figured out that if you reward something you tend to get more of it? Amazing. Even more amazing is that so many self-consciously elite colleges, ostensibly devoted to excellence, refuse to give merit aid.

You'll have to pardon my sarcasm, but as the father of a daughter at a very expensive college that proudly if perversely refuses to give any merit aid (despite dispensing funds from the bequests of long-dead dowagers who bequeathed money for that purpose), I was painfully interested in the comments on that subject in an article by Daniel Levin, a Vice President of the Association of Governing Boards of Universities and Colleges, about the influence of college guides, such as the famous one by U.S. News & World Report, in Sunday's Washington Post.

"After studying factors that influence the rankings," according to Levin, some colleges have

accepted more students in early-decision programs or offered more financial aid on the basis of merit -- usually at the expense of aid for needy students. Such decisions generally enable colleges to enroll greater numbers of higher-achieving students, which may lead to a higher ranking but also can lead to questions about who gets in, why, and with how much financial aid.

Of course many colleges, especially public ones, have various laudable goals other than attracting the best students. Nevertheless, I find it interesting that rewarding academic excellence should be so controversial in elite higher education circles.

Opposition to "One Florida" Plan: Process or Substance? - In a long front-page article today on Jeb Bush, David von Drehle writes in the Washington Post that

Jeb Bush and his brother have acted to replace affirmative action programs with open admission policies at state universities. The "One Florida" policy guarantees a place at a Florida college to every student in the top 20 percent of his or her class. But Jeb's brusque implementation of the program helped energize an enormous backlash among black voters against his brother's presidential campaign in 2000.

On the contrary, my strong impression is that blacks opposed the "One Florida" plan primarily for substantive reasons, not because they were angry about its "brusque implementation." They object to its abandoning overt racial preferences in favor of a plan that is color-blind.

(For evidence that the "One Florida" plan has not undermined minority enrollments, see here, here, here, and here.)

Sunday, September 22, 2002

The National Organization of (Democratic) Women - Faced with a choice between a respected 16-year incumbent in Congress who is pro-abortion, leader of the successful fight to enact legislation protecting battered women, endorsed by leading national labor, environmental, gay rights, and anti-gun groups, and who is also a woman, and a young challenger who agrees with her on all the issues, you would think the National Organization of Women would support the woman incumbent, wouldn't you?

You should know better. Connie Morella, the incumbent, you see, has an almost fatal flaw: she's a Republican. NO(D)W, which switched positions on sexual harassment when the Harrasser-in-Chief was a Democrat, is for all practical purposes an appendage of the Democratic Party.

According to an article in today's Washington Post, NOW seems to be caught between a rock and a hard place (not to be confused with being caught between Iraq and a hard place; I'm sure they're not ambivalent about that).

"I would say that there's some real hand-wringing going on among our activists," said Kim Gandy, president of the National Organization for Women, which remains uncommitted to either candidate. "It's always a difficult position when you've got an incumbent who is good on your issues and a challenger who is very good."

Really? Imagine how long NOW would wring its hands if Morella were a Democrat and Van Hollen, her male challenger, were a Republican. About a split NOW nanosecond.

Two Severe Dumps on the Dems - The Democratic Party has just been subjected to severe criticism from two important sources that, in one case, nearly always supports it and, in the other, is known for his usually serene, non-judgmental manner.

David Broder, perhaps the dean of political columnists, accuses the Dems of putting "Politics Over Principle," the title of his column in Sunday's Washington Post:

The Democratic leaders in Congress, in both the House and Senate, largely have abandoned principle and long-term strategy for the short-term tactics they think will help them in this November's election.

Tom Daschle's desire to hold the one-vote margin in the Senate and Dick Gephardt's hope to pick up the six additional seats that would switch control of the House are driving decisions -- even on large and consequential matters.

Similarly, in a long editorial entitled "Bystanders," the editors of The New Republic -- which endorsed Gore and which virtually always supports Democrats -- wrote that

[i]t has been a long time since this journal felt so despondent about the Democratic Party. The United States is today engaged in perhaps the most important foreign policy debate in a generation.... And yet with the possible exception of Joe Lieberman, the leaders of the Democratic Party have nothing serious to say.

.... No one today can honestly say he or she is a Democrat because of what the party believes about the greatest threat facing the United States. The Democrats are a party of bystanders, a party without a position on the issue that matters most.

With friends like these....

Historical Chutzpah II - On 9/11 of this year I posted an item about the chutzpah of 1100 American historians signing a petition to Congress (they planned to deliver it Sept. 17) demanding that Congress debate and pass a declaration of war before any attack on Iraq. Failure to do so, they asserted with all their assembled professional authority, would be "in clear violation of the Constitution," presumably like all other American military actions since 1941, the last time Congress passed a declaration of war.

My complaint was not with the substance of their argument (although I am less sure of the Constitutional necessity of a formal declaration of war than I once was) or with their right to petition Congress. My concern, rather, was that they tried to pump up the weight of their argument by wrapping it with heavy banners of professional expertise. As I wrote last time:

Some of the authority claimed by the signatories ... is ... questionable, since many of them have no claim to professional expertise on what the Constitution requires in the making of war. Civil War historians or women's historians or economic historians may be brilliant, and may be outstanding in their fields, but their recommendations as to what we should do, or not do, regarding Iraq are due no special deference. As citizens they have every right to express their opinions -- and again, those opinions may well be persuasive -- but they did not offer their opinions as citizens but as "the undersigned American historians."

It should be noted that in the jargon of the trade "American historians" are not historians who work in America, but historians whose field is American history. That professional expertise was expected to add gravity to an argument that otherwise might appear political. (Just as there are said to be no atheists in foxholes, it would appear that their are no post-modernists on petitions.)

I shall return to this matter of expertise in a moment, but first I should explain why I am revisiting this matter at all. There are several reasons. The date of delivery to Congress is now scheduled for Sept. 25, and the organizers now claim over 1200 signatures. (The petition itself and list of signers can be found here.) More important, as a result of President Bush's powerful speech at the United Nations and his decision to seek Congressional approval, the petition organizers have become more shrill in their rhetoric.

Earlier, the petitioners demanded only a vote in Congress; they adopted a studied indifference to the outcome of such a vote. That veneer has now been stripped away as they have subsequently been forced to argue that a Congressional resolution is insufficient; it must be a formal declaration of war. As Joyce Appleby and Ellen DuBois, the UCLA historians who organized the petition, recently argued:

After weeks of resistance, the president finally said he would consult Congress and seek a resolution authorizing the use of military force. The announcement quieted many critics and media commentators, but it should not have. It is a deceptive distraction. A resolution might be only a vaguely worded affirmation of the dangers of Saddam Hussein's weapons of mass destruction. By contrast, a vote on a declaration of war would involve Congress in a sober assessment of the costs, risks, and wisdom of a preemptive strike at Iraq.

Inadequate as mere consultation is, President Bush has undercut even its limited value by telling audiences he doesn't expect any debate on Capital Hill to alter his position. This imperious response does not sound like a man who once swore to uphold the Constitution.... Congress must debate whether or not to declare war and then take a vote. A resolution that is less than a declaration of war might satisfy those people who think Congress should have a say in the matter, but it would not satisfy the Constitution.

The petition's organizers and spokesmen are also outspoken opponents of the doctrine of pre-emption, going so far as to label it un-American. Writing in Newsday and the Los Angeles Times on Sept. 18, Appleby and DuBois assert that

[t]he trauma of the Sept. 11 attacks may have numbed the public to how unprecedented a preemptive attack from the United States would be. It would violate every principle this country has stood for.

But after a drought of public discourse, who realizes this? Historians do. They cultivate the memory of their nation's principles and practices.

Writing on, Appleby and DuBois made it appear that we are standing at Armageddon.

We stand at a historical crossroads -- the nation will either return to its constitutional provision for making war or continue the baleful practices of the Cold War and its for-us-or-against-us mentality, its imperial presidency, and the suppression of dissent.

It is quite possible that some of the signers of the petition do not share these apocalyptic visions, for they are not included in the document itself and appeared in print after virtually all had signed. But since the signers, through their spokesmen, claim to be the custodians of the nation's Constitutional conscience, it may be worthwhile to pay some attention to who they are.

As I mentioned in my first post on this matter, I must emphasize that there are many deservedly eminent historians on this list. I will not name names here, but anyone familiar with the field of American history these days will recognize the names of some of its finest practitioners. That said, and reiterated, it must also be said again that many signatories have no more professional expertise in what the Constitution requires regarding going to war than any well-informed citizen (some of them perhaps less), and the claim that the opinions expressed in the petition deserve deference because of the professional expertise of 1200 practicing American historians is, not to put too fine a point on it, bogus.

Who Are These People?

I googled more or less randomly some of the names on the list that I did not recognize. The results were certainly not a scientific or statistically valid sample, but what I found was nevertheless interesting.

First, among the 15 or 20 names I searched there were a couple graduate students. How many of the 1200 are graduate students? Who knows. These students will presumably become professional historians, but they weren't yet. One person is deputy executive director of a Gay, Lesbian and Straight Education Network. At least one person signed twice (unless there are two Mary Todds at Concordia University). There were also a few law professors (wannabe historians?) and a few who were professors of some history other than American. One was chairman of his university's Portuguese Studies program; another's web site lists his specialty as:

Early China: seven centuries of Warring States through Eastern Han (475 BC-AD 220), with an emphasis on the sociopolitical context; aesthetic theories and material culture; and belief.

Presumably because the petition organizers, Professors Appleby and DuBois, have written extensively in women's history, there appears to be a heavy representation of practitioners in that area. Aside from the large number of women's historians, however, the impression I got was of a fairly wide cross-section of American historians, which is to say people who were not specialists in Constitutional history or values. Their opinions may be informed, even profound, but it is not because of their professional expertise. There is, in short, a truth in packaging isssue here.

Here are some typical examples of what I found, taken from departmental web sites:

Interests in science, race, cultural encounters, and environmental history in colonial America. She is working on book-length studies of science and colonization in the eighteenth century and on Benjamin Franklin's science. [Found here]

works in women's history, gender history, twentieth-century cultural history, and the history of sexuality (especially lesbian history).... Her current project is a book on the history of sexuality in the United States since World War II. She is also an associate editor for the Encyclopedia of American Lesbian, Gay, Bisexual, and Transgender History & Culture forthcoming from Scribner's in 2003. [Found here]

Interested in social and cultural history, she has published a book on religious sects in colonial Massachusetts, Quakers and Baptists in Colonial Massachusetts (1991). Her current research focuses on the 17th century Anglo-Atlantic, expanding beyond New England to include all the colonies established by the English in the Americas. [Found here]

I began as a German historian, moved to British history and then began to be interested in age relations, marriage, memory, and the cultures of European and American family life. At the moment, I am moving offshore, writing about Atlantic islands and the prominent place they have had in the western imaginary since the Ancients. [Found here]

Her Ph.D. is in U.S. history, and major fields of interest include women's history, Jewish women's history and culture, the history of education, and history as theater. She is the author or editor of eight books, including most recently The Journey Home: How Jewish Women Shaped Modern America and Talking Back: Images of Jewish Women in American Popular Culture. [Found here]

M 1.30-3.20 Not CR/D/F II or III(0)
A critical examination of the intersections of sex, gender, and law in the formation of American culture from the early nineteenth century to the present as evidenced in a series of sensational civil and criminal cases, each concerned with some form of sexual(ized) violence or violation. Themes include the gendered nature of sexual transgression; the correspondence of sex and violence; and the mutually constitutive nature of sexual meanings, identities, and practices. [Found here]

She is a cultural historian of the twentieth century whose scholarly field of interest is the introduction of new technologies, particularly those related to popular culture. [Found here]

... has worked in the cultural heritage and historic preservation fields as a scholar, teacher, and consultant. Educated in cultural geography and urban planning, he wrote a doctoral dissertation at Columbia University on collective memory, urban development, and the roots of the American preservation movement. [Found here]

Current Research Activities
Social history of adolescent boys and violence in the 19th and 20th century, specifically boys who murdered; the changing historical experience of female adolescence (continuing). The perspective is interdisciplinary but the methodology is primarily historical; the analysis is based on U.S. census materials, diaries, letters and family papers, institutional and organizational records, periodical literature, and medical case records. [Found here]

Again, I make no claim that the above examples are representative of the 1200 names on the petition; there are many distinguished scholars in such traditional fields as the Civil War or Colonial America and some Constitutional historians as well. Nevertheless, I do not think it is unfair to suspect that this list, taken as a whole is much more representative of political opinion on campus than of any scholarly consensus among American historians who have professional experience that would add weight to their views about Constitutional war powers.

Their views are certainly worth no less than yours or mine (and as I said in my first post, I actually tend to agree with them to a certain extent), but they are also no better. Upon close inspection (or at least my casual, brief inspection), the fancy garb of professional expertise in which those views are dressed looks all too much like the emperor's new clothes.

Saturday, September 21, 2002

Is It "Insensitive" To Call Republicans Nazis? - Yes. According to a front page story in the Washington Post today, "Townsend [Dem. candidate for governor of Maryland] Fires New Strategist for 'Nazi' Remark."

The remarks:

"Bobby Ehrlich is a Nazi. His record is horrible, atrocious," [Julius] Henson said in a telephone interview. "In Prince George's County, we'll define him as the Nazi that he is. Once we do that, I think people will vote for Kathleen Kennedy Townsend.... He should be running in Germany in 1942, not Maryland in 2002," Henson said.

That definitely wasn't a nice -- or, as it turned out, politic -- thing to say, but -- call me perverse [I've been called worse] -- I find the comments of the Democrats in firing Henson about as offensive as his offense.

First, Townsend's campaign spokesman, Peter Hamm, labeled Henson's remarks "insensitive and irresponsible." Insensitive??? That strikes me as expressing all the outrage of, say, calling the WTC terrorists "insensitive" for killing so many people, or at least so many women, children, and minorities. On the other hand, Hamm is a Democratic operative, and insensitivity is about the worst sin in the Democrats' moral code.

Next, Karen White, director of Henson's actual employer, something called the Democrats' coordinated campaign, issued the following blistering denunciation: "Those comments are unfortunate, and we will not be able to consider Mr. Henson for employment at this time." Maybe later. The incompletely closed door on Henson's employment with the Democrats suggests that Ms. White may have found the storm caused by the reporting of his comments more bothersome than the actual comments.

Finally, there is influential Democratic Maryland Congressman Albert Wynn. Wynn,

who initially recommended Henson as "probably the best field guy in the state," said he is encouraging White to reconsider the decision to fire Henson. "I think she should keep him," Wynn said. "Perhaps an apology to Mr. Ehrlich is in order."

But perhaps not. Ehrlich, after all, is a Republican, and all Henson did was call him a Nazi. That's not much, if any, worse than what the Democrats paid Henson to say about Ellen Sauerbrey, the Republican candidate for governor, four years ago. Perhaps if Wynn reflected upon the fact that Republicans in Maryland are an embattled minority (Gore carried the state by 17%), he might be more, well, sensitive.