Here's a strong connection between the Ricci case and Monday's lecture. The case involves the constitutionality of Title VII of the Civil Rights Act, which focuses on equal employment opportunity.
Here are the questions presented to the court.
Here is ScotusWiki's partial summary of the petitioners argument:
In their brief on the merits, petitioners expand upon the arguments made in their second cert. petition. They argue that all race-based government actions are subject to strict scrutiny. When the City acted to benefit minorities, by dismissing the results of tests that made minority promotions more difficult, it correspondingly denied the white firefighters promotions because they were white – a quintessential race-based government action. Indeed, petitioners note, the City acted solely based upon racially-calibrated test results. Thus, even if the City’s refusal to certify the results was not racially motivated on its face, it should be found to be merely a pretext to deny whites promotions.
Petitioners next contend that avoiding disparate impact cannot be a compelling governmental interest, as this would allow racial balancing and enable employers to “surrender to organized racial lobbies.” Moreover, even if compliance with Title VII were a compelling interest, the City should be required to show “strong evidence” that disparate impact in fact occurred before acting to prevent that disparate impact.
Sunday, May 31, 2009
Ricci v. DeStefano and Sotomayor
Ricci v. DeStefano is the official name of the New Haven firefighters case which some have used to determine Sotomayor's views on affirmative action.
Here are few sites where you can get accurate info on the case:
- ScotusWiki - the docket.
- The oral argument before the Supreme Court.
- Scotus Blog - argument preview.
- Scotus Blog - argument recap.
- Background from the CSM.
- A WSJ story with links to audio from the appellate case.
Sotomayor, as an appellate court judge, voted to uphold the trial court's decision. Opponents have used this to brand her a judicial activist. Supporters argue that the decision was narrowly tailored to comply with the law, and so was an example of judicial restraint. Pick your poison.
Here are few sites where you can get accurate info on the case:
- ScotusWiki - the docket.
- The oral argument before the Supreme Court.
- Scotus Blog - argument preview.
- Scotus Blog - argument recap.
- Background from the CSM.
- A WSJ story with links to audio from the appellate case.
Sotomayor, as an appellate court judge, voted to uphold the trial court's decision. Opponents have used this to brand her a judicial activist. Supporters argue that the decision was narrowly tailored to comply with the law, and so was an example of judicial restraint. Pick your poison.
Saturday, May 30, 2009
State Sovereignty
Texas asserts its sovereignty.
The text of HCR 50.
The process from the Texas Legislature Online.
A point by point analysis to follow.
The text of HCR 50.
The process from the Texas Legislature Online.
A point by point analysis to follow.
My Opinion: Empathy, Human Nature and the Federalist Papers
David Brooks weighs in on "empathy-gate" in a way that reminds me of the points we covered in the Federalist Papers:
Here to me is the question: Are we at root rational creatures, or emotional creatures? We have covered ground which tells us about the importance of reason (the influence of the enlightenment in America), and the degree to which reasonableness is a criteria in legal decision making (reasonable doubt, etc...) but the Federalist Papers are full of observations about human nature, how people actually behave versus how we might want them to behave. Aquinas argued that reason was the voice of God in man. To say this suggests that our infallibilities as humans do not negate our ability to hear that voice clearly. I think the founders would have argued that we cannot hear that voice, and if we could, we would not act on it.
#10 tells us the we are prone to form violent factions and vex and oppress each other. #51 reminds us that we are not angels, and that the entire enterprise of governmental formation is meant to correct for this deficiency. I'm betraying a point of view here, but isn't Sotomayor reminding us indirectly of this observation that is at the heart of the American Constitutional system?
We may wish for judges to decide objectively, but will they in fact do so? And if not, should we compensate for this, as we compensate for the ambitions we will naturally expect exhibited by individuals who control the three departments of government? Why shouldn't we expect that judges will be influenced by their backgrounds? Isn't it inevitable? Why shouldn't we compensate for it by ensuring that individuals from various backgrounds sit on the same court so that the totality of the various points of view about justice can check and balance each other?
I always thought the success of the American governing system was that the founders had no illusions about human fallibility, and designed a system to compensate for it. The danger, as I see it, is that opponents of Sotomayor seem to imply that the current occupants on the court are truly objective and free from the biased influence of their backgrounds. This is a dangerous notion. If we disregard the evidence that backgrounds matter, then we risk having a court composed of individuals from one background (that's the point about having all white males there) and justice will inevitably be biased in the direction of their shared background, and that becomes defined as the objective, just outcome. It will hardly be that.
The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.
Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
Here to me is the question: Are we at root rational creatures, or emotional creatures? We have covered ground which tells us about the importance of reason (the influence of the enlightenment in America), and the degree to which reasonableness is a criteria in legal decision making (reasonable doubt, etc...) but the Federalist Papers are full of observations about human nature, how people actually behave versus how we might want them to behave. Aquinas argued that reason was the voice of God in man. To say this suggests that our infallibilities as humans do not negate our ability to hear that voice clearly. I think the founders would have argued that we cannot hear that voice, and if we could, we would not act on it.
#10 tells us the we are prone to form violent factions and vex and oppress each other. #51 reminds us that we are not angels, and that the entire enterprise of governmental formation is meant to correct for this deficiency. I'm betraying a point of view here, but isn't Sotomayor reminding us indirectly of this observation that is at the heart of the American Constitutional system?
We may wish for judges to decide objectively, but will they in fact do so? And if not, should we compensate for this, as we compensate for the ambitions we will naturally expect exhibited by individuals who control the three departments of government? Why shouldn't we expect that judges will be influenced by their backgrounds? Isn't it inevitable? Why shouldn't we compensate for it by ensuring that individuals from various backgrounds sit on the same court so that the totality of the various points of view about justice can check and balance each other?
I always thought the success of the American governing system was that the founders had no illusions about human fallibility, and designed a system to compensate for it. The danger, as I see it, is that opponents of Sotomayor seem to imply that the current occupants on the court are truly objective and free from the biased influence of their backgrounds. This is a dangerous notion. If we disregard the evidence that backgrounds matter, then we risk having a court composed of individuals from one background (that's the point about having all white males there) and justice will inevitably be biased in the direction of their shared background, and that becomes defined as the objective, just outcome. It will hardly be that.
Wednesday, May 27, 2009
Can Judges be Objective? Really?
Early opponents to Judge Sotomayor's nomination to the court are honing in on a sentence in a lecture she gave in 2001, where she spends a great deal of time discussing her life as a Latina. It's an interesting lecture, here's a link, and in it she asks whether we can ever transcend the experiences that shaped us and make truly objective decisions. It's an interesting question, worth a discussion in class. She is arguing that justice requires a court system compsed of individuals from various walks of life. Sounds like pluralism to me.
Anyway. Here is the sentence in context (it's in bold). Let me know if you think its as controversial as some are making it out to be:
...In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
Anyway. Here is the sentence in context (it's in bold). Let me know if you think its as controversial as some are making it out to be:
...In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
Revisions, Initiatives, Amendments, and Equal Protection
I'll admit to still being a bit confused about the precise nature of the Proposition 8 dispute in California, and what the nature of the narrow ruling issued yesterday was, but this helps a bit:
The California court ruled last May that same-sex couples enjoyed the same fundamental “right to marry” as opposite-sex couples. That sweeping 4-to-3 decision provoked a backlash from opponents that led to Proposition 8, which, after a bitter campaign fight, garnered 52 percent of the vote in November.
Tuesday’s opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.
Supporters of same-sex marriage, who filed several suits challenging the proposition after its adoption, argued that the change to the state’s Constitution was so fundamental that the initiative was not an amendment at all but instead a “revision,” a term for measures that rework core constitutional principles.
Under California law, revisions cannot be decided through a simple signature drive and a majority vote, as with Proposition 8. Instead, they can be placed on the ballot only with a two-thirds vote by the Legislature.
But the justices said the proposition was an amendment, not a revision. It has been historically rare for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars had deemed the challenge to Proposition 8 a long shot.
The California court ruled last May that same-sex couples enjoyed the same fundamental “right to marry” as opposite-sex couples. That sweeping 4-to-3 decision provoked a backlash from opponents that led to Proposition 8, which, after a bitter campaign fight, garnered 52 percent of the vote in November.
Tuesday’s opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.
Supporters of same-sex marriage, who filed several suits challenging the proposition after its adoption, argued that the change to the state’s Constitution was so fundamental that the initiative was not an amendment at all but instead a “revision,” a term for measures that rework core constitutional principles.
Under California law, revisions cannot be decided through a simple signature drive and a majority vote, as with Proposition 8. Instead, they can be placed on the ballot only with a two-thirds vote by the Legislature.
But the justices said the proposition was an amendment, not a revision. It has been historically rare for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars had deemed the challenge to Proposition 8 a long shot.
Tuesday, May 26, 2009
Monday, May 25, 2009
Closing Guantanamo Bay ...
... is argued to be a wedge issue designed to divide Democrats.
My hunch is that this is doesn't have legs and the issue will die down, like the Tea Party tax outcry seems to have. I'll monitor the news to see if I'm wrong.
My hunch is that this is doesn't have legs and the issue will die down, like the Tea Party tax outcry seems to have. I'll monitor the news to see if I'm wrong.
No Dems on Campus
Liberty University will not allow students to form a Club for Democrats on campus.
Legal? Is this a First Amendment violation or can the university mandate that its students accept certain principles?
Legal? Is this a First Amendment violation or can the university mandate that its students accept certain principles?
Should Judges have Empathy?
Obama kicked an ant hill when he stated that he wanted to appoint someone to the Supreme Court who had "empathy." Critics have wondered what he meant by that, and whether empathy is a proper quality for a justice on the court. Stanley Fish weighs in and takes us into the philosophic issues associated with what law is exactly.
He offers us this little tidbit:
You might think that “legal” and “just” go together, and sometimes they do; but in the real world “just” and “legal” can come apart. A decision is just when it reflects an overarching vision of what is owed is to each man and woman. A decision is legal when it can be said to follow from established rules, statutes, precedents.
So . . . do courts do justice or not?
He offers us this little tidbit:
You might think that “legal” and “just” go together, and sometimes they do; but in the real world “just” and “legal” can come apart. A decision is just when it reflects an overarching vision of what is owed is to each man and woman. A decision is legal when it can be said to follow from established rules, statutes, precedents.
So . . . do courts do justice or not?
Bond Auction Ahead
Few things are less sexy but more consequential than the bond market. Its the principle way that the U.S. government borrows money, and only works when market participants think that the bonds are worth buying. They still do, but every auction of new bond provides an opportunity to determine just how much.
Watch dogs like to focus on the likelihood that the US could lose its AAA rating. This effectively makes US bonds more risky, expensive and less competitive. Our current debt will become that much more difficult to pay off.
Watch dogs like to focus on the likelihood that the US could lose its AAA rating. This effectively makes US bonds more risky, expensive and less competitive. Our current debt will become that much more difficult to pay off.
Good News and Bad News for Metro
In a terrific example of how governmental objectives can contradict each other. Efforts to fund light rail in Houston are now in jeopardy over efforts to limit the ability to cities to use eminent domain to take private property for public uses.
A Word From GW
When we cover political parties in 2301, I have us read through Washington's Farewell Address and consider his concern about the rising power of political parties. It's useful to reconsider his point in light of the voter id controversy in the the Texas Legislature, which seems to be a primarily partisan issue. The Republican Party is likely to benefit electorally from the requirement while the Democratic Party is likely to suffer from it. While the fight rages on, more pressing substantive concerns may well not be addressed. This was Washington's fear:
I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.
This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.
Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.
It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection.
Though I don't think Washington's concerns about party competition leading people to seek security in the absolute power of individuals has come to pass, it is likely that party competition has made it less likely that we can appropriately govern ourselves adequately. In my opinion the decision by the parties in Texas to place the Voter ID debate ahead of more substantive concerns proves that parties come before the public welfare in our democratic republic. Maybe Washington had a point.
I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.
This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.
Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.
It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection.
Though I don't think Washington's concerns about party competition leading people to seek security in the absolute power of individuals has come to pass, it is likely that party competition has made it less likely that we can appropriately govern ourselves adequately. In my opinion the decision by the parties in Texas to place the Voter ID debate ahead of more substantive concerns proves that parties come before the public welfare in our democratic republic. Maybe Washington had a point.
The Legislative Process and Voter ID
The conflict over the Voter ID bill has escalated into a power struggle over the control of the Legislature's agenda.
Republicans first moved to consider Voter ID ahead of other bills, apparently in an attempt to force a vote in order for Democrats to be able to get to other items on their agenda. Now Democrats seem to have called the Republican's bluff by engaging in a process called chubbing, which is a type of filibuster which allows for debate on normally non-controversial measures as a way to run the clock on and on.
Democrats apparently see Voter ID as such a threat to turnout in future elections that they are willing to put other issues of to the side to defeat it. I saw reference to a study, which I was unable to locate, that burden placed on poor voters by the requirement could cost an average of 1000 votes in each district.
Here are related stories:
- Analysis: Voter ID fight is a power struggle over Texas House agenda
- House Democrats pull out delaying tactics
- Democrats' tactics take down voter ID bill in Texas House
- Standoff on voter ID bill tests House Speaker Joe Straus' leadership
Republicans first moved to consider Voter ID ahead of other bills, apparently in an attempt to force a vote in order for Democrats to be able to get to other items on their agenda. Now Democrats seem to have called the Republican's bluff by engaging in a process called chubbing, which is a type of filibuster which allows for debate on normally non-controversial measures as a way to run the clock on and on.
Democrats apparently see Voter ID as such a threat to turnout in future elections that they are willing to put other issues of to the side to defeat it. I saw reference to a study, which I was unable to locate, that burden placed on poor voters by the requirement could cost an average of 1000 votes in each district.
Here are related stories:
- Analysis: Voter ID fight is a power struggle over Texas House agenda
- House Democrats pull out delaying tactics
- Democrats' tactics take down voter ID bill in Texas House
- Standoff on voter ID bill tests House Speaker Joe Straus' leadership
Overriding Vetoes in Texas
Perhaps the most consequential piece of legislation in the Texas Legislature is HJR 29, the proposal to allow the legislature to override the Governor's vetoes of bills. Here's info from the House Research Organization:
HJR 29 would amend the Constitution to require the Legislature to convene after the 20-day post-session deadline for filing veto proclamations to reconsider vetoes by the governor. The period for reconsidering vetoes would begin at 10 a.m. on the day after the veto deadline and could not be more than five consecutive days. Unless the Legislature had been called into special session by the governor, it could not consider any subject except the reconsideration of vetoes of bills or of line items in the appropriations bill. During the reconsideration session, the Legislature could override the veto of a bill or appropriation line item that the governor had returned within three days before or anytime after sine die adjournment of a session.
This would greatly strengthen the legislature and is almost certainly a response to Governor Perry's zealous use of the veto in past legislative sessions. Since the bill adjusts the constitutional manner in which bills become laws, it requires a change in the constitution, which requires in turn approval by the voters of Texas.
From the Chron: Is Lt. Gov. Dewhurst holding up the veto-override proposal?
HJR 29 would amend the Constitution to require the Legislature to convene after the 20-day post-session deadline for filing veto proclamations to reconsider vetoes by the governor. The period for reconsidering vetoes would begin at 10 a.m. on the day after the veto deadline and could not be more than five consecutive days. Unless the Legislature had been called into special session by the governor, it could not consider any subject except the reconsideration of vetoes of bills or of line items in the appropriations bill. During the reconsideration session, the Legislature could override the veto of a bill or appropriation line item that the governor had returned within three days before or anytime after sine die adjournment of a session.
This would greatly strengthen the legislature and is almost certainly a response to Governor Perry's zealous use of the veto in past legislative sessions. Since the bill adjusts the constitutional manner in which bills become laws, it requires a change in the constitution, which requires in turn approval by the voters of Texas.
From the Chron: Is Lt. Gov. Dewhurst holding up the veto-override proposal?
Sunday, May 24, 2009
Racially Segregated Proms
From the NYT:
Racially segregated proms have been held in Montgomery County — where about two-thirds of the population is white — almost every year since its schools were integrated in 1971. Such proms are, by many accounts, longstanding traditions in towns across the rural South, though in recent years a number of communities have successfully pushed for change. When the actor Morgan Freeman offered to pay for last year’s first-of-its-kind integrated prom at Charleston High School in Mississippi, his home state, the idea was quickly embraced by students — and rejected by a group of white parents, who held a competing “private” prom.
Is there a legal issue here or is this a fully private decision that the courts cannot rule on?
Racially segregated proms have been held in Montgomery County — where about two-thirds of the population is white — almost every year since its schools were integrated in 1971. Such proms are, by many accounts, longstanding traditions in towns across the rural South, though in recent years a number of communities have successfully pushed for change. When the actor Morgan Freeman offered to pay for last year’s first-of-its-kind integrated prom at Charleston High School in Mississippi, his home state, the idea was quickly embraced by students — and rejected by a group of white parents, who held a competing “private” prom.
Is there a legal issue here or is this a fully private decision that the courts cannot rule on?
Friday, May 22, 2009
Obama v Cheney
David Brooks makes, to me, the only interesting point so far about the back and forth between Obama and Cheney. He points out that Cheney's real influence in the Bush White House started to wane beginning in 2005. Many of the changes that have been pinned on Obama actually started in Bush's second term. So who was Cheney really attacking?
When Cheney lambastes the change in security policy, he’s not really attacking the Obama administration. He’s attacking the Bush administration. In his speech on Thursday, he repeated in public a lot of the same arguments he had been making within the Bush White House as the policy decisions went more and more the other way.
Brooks argues that substantively little has changed in terrorism policy between Bush's second term and Obamas current term. What has changed is the manner in which the policies are communicated:
What Obama gets, and what President Bush never got, is that other people’s opinions matter. Goldsmith puts it well: “The main difference between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging. The Bush administration shot itself in the foot time and time again, to the detriment of the legitimacy and efficacy of its policies, by indifference to process and presentation. The Obama administration, by contrast, is intensely focused on these issues.”
Obama has taken many of the same policies Bush ended up with, and he has made them credible to the country and the world. In his speech, Obama explained his decisions in a subtle and coherent way. He admitted that some problems are tough and allow no easy solution. He treated Americans as adults, and will have won their respect.
He suggests for further info that we read The Cheney Fallacy, an article written by Jack Goldsmith, an ex-Bush Administration official known for having run ins with Cheney. I wonder if a rift between the Bush and Cheney camps will break open at some point.
When Cheney lambastes the change in security policy, he’s not really attacking the Obama administration. He’s attacking the Bush administration. In his speech on Thursday, he repeated in public a lot of the same arguments he had been making within the Bush White House as the policy decisions went more and more the other way.
Brooks argues that substantively little has changed in terrorism policy between Bush's second term and Obamas current term. What has changed is the manner in which the policies are communicated:
What Obama gets, and what President Bush never got, is that other people’s opinions matter. Goldsmith puts it well: “The main difference between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging. The Bush administration shot itself in the foot time and time again, to the detriment of the legitimacy and efficacy of its policies, by indifference to process and presentation. The Obama administration, by contrast, is intensely focused on these issues.”
Obama has taken many of the same policies Bush ended up with, and he has made them credible to the country and the world. In his speech, Obama explained his decisions in a subtle and coherent way. He admitted that some problems are tough and allow no easy solution. He treated Americans as adults, and will have won their respect.
He suggests for further info that we read The Cheney Fallacy, an article written by Jack Goldsmith, an ex-Bush Administration official known for having run ins with Cheney. I wonder if a rift between the Bush and Cheney camps will break open at some point.
Guns n Credit
We had fun this week with the credit card bill that gained enough votes to pass with a little help from the gun lobby. If your credit card rates don't zoom up through the ceiling, you have an appreciative loaded concealed gun holder in a national park to thank.
This is logrolling at its finest.
- From Open Congress: HR 627.
- Why the Gun Lobby Usually Wins - Politico.com
This is logrolling at its finest.
- From Open Congress: HR 627.
- Why the Gun Lobby Usually Wins - Politico.com
Thursday, May 21, 2009
Parental Rights vs. the Protection of Children
We discussed the case of Daniel Hauser in class today. He's the cancer stricken kid whose mother does not want him to have chemotherapy. She apparently wants him to have a natural cure and is heading to Mexico to get it. Child protective services in Minnesota had taken her to court to force her to allow her son to have the chemo. By not doing so she has been argued to be placing her child in danger.
So the question we considered was whether she was in fact doing so and whether the state was overstepping its bounds.
To make matters more interesting, the family is a member of the Nemenhah religion. This raises the potential question of free exercise violations if the state does not allow her to seek a treatment that is inkeeping with her religious beliefs. Precedence allows the state to intervent if religious practices place children in danger. The greater interest of society in keeping children safe overweighs the parents free exercise rights (sounds like the polygamy case from a year ago). The question is whether that is in fact what is happening here.
A warrant for the mother's arrest has been issued so I expect more on this soon.
So the question we considered was whether she was in fact doing so and whether the state was overstepping its bounds.
To make matters more interesting, the family is a member of the Nemenhah religion. This raises the potential question of free exercise violations if the state does not allow her to seek a treatment that is inkeeping with her religious beliefs. Precedence allows the state to intervent if religious practices place children in danger. The greater interest of society in keeping children safe overweighs the parents free exercise rights (sounds like the polygamy case from a year ago). The question is whether that is in fact what is happening here.
A warrant for the mother's arrest has been issued so I expect more on this soon.
Wednesday, May 20, 2009
Will Judge Kent be Impeached?
Looks likely. Checks and balances at work.
Only a handful of federal judges have ever been impeached. The impeachment process is separate than the criminal process in order to ensure that trumped up criminal allegations could not be used for political purposes. Fallout from the failed effort to remove Samuel Chase from the Supreme Court has minimized use of impeachments for this reason.
Only a handful of federal judges have ever been impeached. The impeachment process is separate than the criminal process in order to ensure that trumped up criminal allegations could not be used for political purposes. Fallout from the failed effort to remove Samuel Chase from the Supreme Court has minimized use of impeachments for this reason.
Human Development Index Across the States
Here's a link to a map that shows that human development in parts of the United States are little better than those in third world countries. Amazingly Texas does pretty well in the study, below Singapore, but above Kuwait.
Wikipedia: Human Development Index.
Wikipedia: Human Development Index.
Tuesday, May 19, 2009
My Gift to My Students
I'm not going to get in the habit of doing this, but just to see who checks this blog out, I'm giving you the quiz questions for tomorrow. Good luck.
1. What argument was used to defend the Divine Right of the King?
2. How did John Locke argue against this doctrine? What did he replace it with?
3. As best as you can, state why Charles the First was executed.
4. Where do unalienable rights come from?
5. What is the role of government according to the Declaration of Independence?
6. What are the just powers of government based upon?
7. According to Jefferson, what was the King of Britain attempting to do?
8. List three specific grievances that the colonists had with the actions of the king.
9. The declaration in fact established the independence of the ______.
1. What argument was used to defend the Divine Right of the King?
2. How did John Locke argue against this doctrine? What did he replace it with?
3. As best as you can, state why Charles the First was executed.
4. Where do unalienable rights come from?
5. What is the role of government according to the Declaration of Independence?
6. What are the just powers of government based upon?
7. According to Jefferson, what was the King of Britain attempting to do?
8. List three specific grievances that the colonists had with the actions of the king.
9. The declaration in fact established the independence of the ______.
Gerry on the Excesses of Democracy
I'm working on my online notes for the Constitutional Convention and ran into this quote from Elbridge Gerry, which made me think about the anti-government attitudes that have been rampant for several decades and have become especially potent since the tea parties.
This comes fr0m Madison's notes:
Gerry: The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience, that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of government. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamor in Massachusetts for the reduction of salaries, and the attack made on that of the Governor, though secured by the spirit of the Constitution itself. He had, he said, been too republican heretofore: he was still, however, republican; but had been taught by experience the danger of the leveling spirit.
He makes it sound like anti-government attitudes, at least in his day, develop illegitimately because people are misled by pretended patriots. Is democracy incompatible with good government since people are duped into starving the beast?
Worth a healthy discussion I think.
This comes fr0m Madison's notes:
Gerry: The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience, that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of government. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamor in Massachusetts for the reduction of salaries, and the attack made on that of the Governor, though secured by the spirit of the Constitution itself. He had, he said, been too republican heretofore: he was still, however, republican; but had been taught by experience the danger of the leveling spirit.
He makes it sound like anti-government attitudes, at least in his day, develop illegitimately because people are misled by pretended patriots. Is democracy incompatible with good government since people are duped into starving the beast?
Worth a healthy discussion I think.
Monday, May 18, 2009
Freedom in Burma
is non existent.
Peculiar circumstances have brought the country back in the news. It's leading pro-democracy supporter has been under house arrest for almost two decades and is now on trial again. Freedomhouse.org puts it on its list of "not free" countries. Opposition is not allowed, nor much news from the outside world. This is an understandable temptation. Democracy is threat to the military rulers.
Here's an interesting report on the world's most repressive societies (and no, Texas is not on the list).
Peculiar circumstances have brought the country back in the news. It's leading pro-democracy supporter has been under house arrest for almost two decades and is now on trial again. Freedomhouse.org puts it on its list of "not free" countries. Opposition is not allowed, nor much news from the outside world. This is an understandable temptation. Democracy is threat to the military rulers.
Here's an interesting report on the world's most repressive societies (and no, Texas is not on the list).
Straight Ticket Voting in Texas
Might be eliminated this legislative session.
SB 317 - Relating to the elimination of straight-party voting in all state elections including the judiciary.
SB 317 - Relating to the elimination of straight-party voting in all state elections including the judiciary.
Show Your Papers
In our discussion of voter ID laws today questions were brought up regarding ID's in general and whether people are required to show ID when asked to by the police, which obviously would require that people carry ID with them. I had to admit that I was a bit out of date on my understanding of the issue.
Apparently I'm not alone. Guidelines are slippery, but tend to depend on whether the police have reasonable suspicion that you are committing a crime, or are wanted. The controlling Supreme Court case is Hiibel v. Nevada.
In addition to the voter ID dispute, increased focus on terrorism and illegal immigration has led more people to support legislation mandating that people identify themselves when asked.
Is this a violation of privacy rights? Or does the need for effective law enforcement trump those rights?
Apparently I'm not alone. Guidelines are slippery, but tend to depend on whether the police have reasonable suspicion that you are committing a crime, or are wanted. The controlling Supreme Court case is Hiibel v. Nevada.
In addition to the voter ID dispute, increased focus on terrorism and illegal immigration has led more people to support legislation mandating that people identify themselves when asked.
Is this a violation of privacy rights? Or does the need for effective law enforcement trump those rights?
Sunday, May 17, 2009
Rallying Republicans
The Tea Party Movement seems to have died down, but abortion might be on the rise as a galvanizing issue for Republicans, as it has over the past three decades. A recent Gallup Poll shows that for the first time a majority of Americans (51%) call themselves pro-life, and the number who call themselves pro-choice has fallen from 56% to 42% since 1995.
The change has happened primarily among Republicans, and among those who have more rigid positions one way or the other on the issue. The number of Americans who say abortion should be legal under certain circumstances has been somewhat volatile (within a dozen or so points) but is essentially the same as it was in the mid 1970s (53% to 54%). The number who say it should be legal under all circumstances has dropped from 34% in the early 1990s to 22% now, and the number who say it should be illegal under all circumstances has risen from a low of 12% in the early 1990s to 23% now. But once again, the numbers are largely where they were in the mid 1970s'.
So I'm not sure if this poll tells us that much. After some shifts -- the pro-choice movement getting stronger in the early 1990s -- the pro-life movement has risen since then, but only to the point where they were 30 years ago. My hunch, based on the observation that political moderates tend to be counter cyclical, is the a dozen years of pro-life ascendancy (Reagan's presidency primarily and the increased power of the Christian Coalition) in the 1980s and 1990s led moderates to react against it. Now, Obama's victory, and the substantial margins Democrats have gained in Congress, has led the same moderates to sway in the opposite direction.
The number are relatively steady for Democrats and democratic leaners, the increase is among Republicans and Republican leaners. This to me is further evidence of hardening of positions among Republicans.
I think a caveat is in order before too much is made of the long term significance of the numbers. What does "pro-life" really mean? Though 51% of the population calls itself pro-life, only 23% support making abortion illegal in all circumstances. What do we make of this discrepancy? How rigid is the pro-life position? Can one be pro-life, but support abortion in certain cases, rape, incest, deformities etc...? Would a rigidly pro-life person accept someone willing to make accommodations as being pro-life as well? I see opportunities for internal divisions here, as well as further fluctuations in the long term.
Nevertheless, there are opportunities for Republicans to use the issue to rally the base. Obama's speech to Notre Dame, and the upcoming fight over David Souter's replacement on the Supreme Court will create more opportunities for the party to raise the issue. But as with the Tea Party Movement, the question is whether the issue can be sustained up to the 2010 elections. It has the advantage of already having been a factor in politics for over 30 years. But as with other issues, the question will be whether the hard core abortion opponents will demand full agreement from the moderates, or whether the need for purity will leads them to drive the moderates from the party. Recall that some Republican leaders argue that the party needs to get beyond abortion as an issue in order to regain competitiveness. The results of this survey suggest this is not going to happen.
The change has happened primarily among Republicans, and among those who have more rigid positions one way or the other on the issue. The number of Americans who say abortion should be legal under certain circumstances has been somewhat volatile (within a dozen or so points) but is essentially the same as it was in the mid 1970s (53% to 54%). The number who say it should be legal under all circumstances has dropped from 34% in the early 1990s to 22% now, and the number who say it should be illegal under all circumstances has risen from a low of 12% in the early 1990s to 23% now. But once again, the numbers are largely where they were in the mid 1970s'.
So I'm not sure if this poll tells us that much. After some shifts -- the pro-choice movement getting stronger in the early 1990s -- the pro-life movement has risen since then, but only to the point where they were 30 years ago. My hunch, based on the observation that political moderates tend to be counter cyclical, is the a dozen years of pro-life ascendancy (Reagan's presidency primarily and the increased power of the Christian Coalition) in the 1980s and 1990s led moderates to react against it. Now, Obama's victory, and the substantial margins Democrats have gained in Congress, has led the same moderates to sway in the opposite direction.
The number are relatively steady for Democrats and democratic leaners, the increase is among Republicans and Republican leaners. This to me is further evidence of hardening of positions among Republicans.
I think a caveat is in order before too much is made of the long term significance of the numbers. What does "pro-life" really mean? Though 51% of the population calls itself pro-life, only 23% support making abortion illegal in all circumstances. What do we make of this discrepancy? How rigid is the pro-life position? Can one be pro-life, but support abortion in certain cases, rape, incest, deformities etc...? Would a rigidly pro-life person accept someone willing to make accommodations as being pro-life as well? I see opportunities for internal divisions here, as well as further fluctuations in the long term.
Nevertheless, there are opportunities for Republicans to use the issue to rally the base. Obama's speech to Notre Dame, and the upcoming fight over David Souter's replacement on the Supreme Court will create more opportunities for the party to raise the issue. But as with the Tea Party Movement, the question is whether the issue can be sustained up to the 2010 elections. It has the advantage of already having been a factor in politics for over 30 years. But as with other issues, the question will be whether the hard core abortion opponents will demand full agreement from the moderates, or whether the need for purity will leads them to drive the moderates from the party. Recall that some Republican leaders argue that the party needs to get beyond abortion as an issue in order to regain competitiveness. The results of this survey suggest this is not going to happen.
Saturday, May 16, 2009
Bills to Consider
For my upcoming mini-semester students:
HB 51 - Relating to funding and incentives to support emerging public research universities in developing and maintaining programs of the highest tier.
HB 2295 - Relating to the continuation and functions of the Texas Residential Construction Commission; providing penalties.
HB 3646 - Relating to public school finance.
HB 3119 - Relating to the creation of a pilot program to provide certain taxable entities with a franchise tax credit for the acquisition and installation of certain air quality monitoring devices to monitor the emission of air contaminants.
HB 1541 - Relating to the period of continuous eligibility for the Medicaid program.
HB 469 - Relating to the establishment of incentives by this state for the implementation of certain projects to capture and sequester in geological formations carbon dioxide that would otherwise be emitted into the atmosphere.
HB 2685 - Relating to the landowner's bill of rights.
HB 51 - Relating to funding and incentives to support emerging public research universities in developing and maintaining programs of the highest tier.
HB 2295 - Relating to the continuation and functions of the Texas Residential Construction Commission; providing penalties.
HB 3646 - Relating to public school finance.
HB 3119 - Relating to the creation of a pilot program to provide certain taxable entities with a franchise tax credit for the acquisition and installation of certain air quality monitoring devices to monitor the emission of air contaminants.
HB 1541 - Relating to the period of continuous eligibility for the Medicaid program.
HB 469 - Relating to the establishment of incentives by this state for the implementation of certain projects to capture and sequester in geological formations carbon dioxide that would otherwise be emitted into the atmosphere.
HB 2685 - Relating to the landowner's bill of rights.
Voter ID in Texas
SB 362.
Still perhaps the most controversial item this term.
background:
- from the Chron.
- why it might not pass, from the El Paso Times.
Todd Smith R-Euless seems to have turned into the point man on the bill in the House. He has been working out compromises between members of his party who want stronger requirements, and others who see this as voter suppression. This may backfire however:
GOP lawmakers unwilling to compromise on strict voter identification requirements they have made a priority at the Capitol may be the very ones who kill the effort in the Texas House, state Rep. Todd Smith, R-Euless, said Wednesday.
"If the far right is unwilling to accommodate on this legislation to any extent, then they do have the power to succeed in killing voter ID, and I will certainly allow them to do so," Smith said.
Still perhaps the most controversial item this term.
background:
- from the Chron.
- why it might not pass, from the El Paso Times.
Todd Smith R-Euless seems to have turned into the point man on the bill in the House. He has been working out compromises between members of his party who want stronger requirements, and others who see this as voter suppression. This may backfire however:
GOP lawmakers unwilling to compromise on strict voter identification requirements they have made a priority at the Capitol may be the very ones who kill the effort in the Texas House, state Rep. Todd Smith, R-Euless, said Wednesday.
"If the far right is unwilling to accommodate on this legislation to any extent, then they do have the power to succeed in killing voter ID, and I will certainly allow them to do so," Smith said.
TXDoT Bill - HB 300
Changes are being proposed to TXDot:
The House's decision over the weekend to paste a 15-member elected transportation commission onto a Texas Department of Transportation bill — replacing the current board of five gubernatorially appointed commissioners — is getting a lot of attention.
But as the 199-page bill moves to the Senate, the real fight between the two chambers — one that could gridlock the legislation in the session's final three weeks — is over language that state Rep. Joseph Pickett, D-El Paso , inserted into the bill that basically would defang the transportation agency.
As presented in a Senate Transportation and Homeland Security Committee meeting Wednesday , it would have TxDOT take its money and then parcel it out to the 25 metropolitan planning organizations across the state. Those bodies, made up of a combination of local elected officials and legislators, would then have final authority over which highway projects get done.
The bill is HB 300.
The House's decision over the weekend to paste a 15-member elected transportation commission onto a Texas Department of Transportation bill — replacing the current board of five gubernatorially appointed commissioners — is getting a lot of attention.
But as the 199-page bill moves to the Senate, the real fight between the two chambers — one that could gridlock the legislation in the session's final three weeks — is over language that state Rep. Joseph Pickett, D-El Paso , inserted into the bill that basically would defang the transportation agency.
As presented in a Senate Transportation and Homeland Security Committee meeting Wednesday , it would have TxDOT take its money and then parcel it out to the 25 metropolitan planning organizations across the state. Those bodies, made up of a combination of local elected officials and legislators, would then have final authority over which highway projects get done.
The bill is HB 300.
We Had to Mull it Over
From the Austin American Statesman:
House Joint Resolution 39, which has cleared the Texas House, would symbolically ratify the 24th Amendment to the U.S. Constitution barring a poll tax for any voter in a federal election.
House Joint Resolution 39, which has cleared the Texas House, would symbolically ratify the 24th Amendment to the U.S. Constitution barring a poll tax for any voter in a federal election.
Friday, May 15, 2009
Burka Wants Recorded Votes in the Texas Leg
The subject is a debate about the Teacher Retirement System, but his real beef is that though people are passionate about the issue, and the results will have serious impacts on constituents, Texas Legislative rules make it easy to not record crucial votes, which minimizes the ability of constituents to hold elected representatives accountable:
... I don’t like the constitutional amendment requiring third readings to be a mandatory record vote. Third reading is perfunctory. Second reading is the real test, and often the crucial vote is a second reading amendment, as it was here. Every vote should be a record vote.
... I don’t like the constitutional amendment requiring third readings to be a mandatory record vote. Third reading is perfunctory. Second reading is the real test, and often the crucial vote is a second reading amendment, as it was here. Every vote should be a record vote.
More on the Texas Leg Winding Down
From the Austin American Statesman:
A few dozen proposals in the Texas House caught the last train to the Senate on Thursday, winning approval before the chamber's midnight deadline for passing bills.
Hundreds of others were left behind
...
Among the bills that the House passed before the deadline was a proposal that would allow some families who make too much money to qualify for the Children's Health Insurance Program to have a "buy-in" option that would allow them to pay premiums to sign up for it.
The House also approved a ban on drivers using cell phones in active school zones, unless they use hands-free devices or are in some type of emergency.
...
Tentatively passed
House Bill 836 — Would authorize the hunting of feral hogs by helicopter.
House Bill 662 — Prohibits drivers younger than 18 from talking or texting on a cell phone except in an emergency. Amended to say that hands-free devices would not be allowed.
House Bill 55 — Bans people driving in active school zones from using cell phones and other wireless devices unless they use hands-free devices or are in an emergency.
House Bill 2962— Could add about 80,000 children to the Children's Health Insurance Program by allowing certain families above the current income limit to pay to join the program.
House Bill 2511 — Seeks to more clearly define how political action committees can spend corporate and union money.
Sent to governor
House Bill 1736— The House approved Senate changes to this measure, which would increase compensation from the state for people who were wrongly imprisoned. It would increase the lump-sump payments from $50,000 to $80,000 per year of incarceration but, under Senate changes, would no longer provide health insurance.
A few dozen proposals in the Texas House caught the last train to the Senate on Thursday, winning approval before the chamber's midnight deadline for passing bills.
Hundreds of others were left behind
...
Among the bills that the House passed before the deadline was a proposal that would allow some families who make too much money to qualify for the Children's Health Insurance Program to have a "buy-in" option that would allow them to pay premiums to sign up for it.
The House also approved a ban on drivers using cell phones in active school zones, unless they use hands-free devices or are in some type of emergency.
...
Tentatively passed
House Bill 836 — Would authorize the hunting of feral hogs by helicopter.
House Bill 662 — Prohibits drivers younger than 18 from talking or texting on a cell phone except in an emergency. Amended to say that hands-free devices would not be allowed.
House Bill 55 — Bans people driving in active school zones from using cell phones and other wireless devices unless they use hands-free devices or are in an emergency.
House Bill 2962— Could add about 80,000 children to the Children's Health Insurance Program by allowing certain families above the current income limit to pay to join the program.
House Bill 2511 — Seeks to more clearly define how political action committees can spend corporate and union money.
Sent to governor
House Bill 1736— The House approved Senate changes to this measure, which would increase compensation from the state for people who were wrongly imprisoned. It would increase the lump-sump payments from $50,000 to $80,000 per year of incarceration but, under Senate changes, would no longer provide health insurance.
Texas Bills: SB 690 and HB 1893
I'm preparing for my mini-semester class and intend to focus on legislation, whether alive or dead, in the Texas Legislature. I'll have my students summarize the politics surrounding the legislation. Here are few items so far:
Senate Bill 690, which "would raise the required number of signatures for a charter amendment in Texas’ 346 home-rule cities from 5 percent of qualified voters to 10 percent."
- Commentary from the Texas Observer.
House Bill 1893: Handguns on college campuses.
- Commentary from the Texas Observer.
Senate Bill 690, which "would raise the required number of signatures for a charter amendment in Texas’ 346 home-rule cities from 5 percent of qualified voters to 10 percent."
- Commentary from the Texas Observer.
House Bill 1893: Handguns on college campuses.
- Commentary from the Texas Observer.
Running out of time in the Texas Leg
Any bill not debated on the floor in the Texas House is now unlikely to be placed on the House calendar and will not be considered this term. The Chron reports that this includes some controversial items, like casino gambling:
Casino gambling: All bets are off. Texas hold ’em had to fold ’em. Hands-free cell phones in cars has crashed. And guns on campus bit the bullet as the first major legislative deadline started killing bills.
All were pieces of House legislation that had to be debated by midnight Thursday or lose hope of passage in this year’s legislative session under House rules. They were among dozens of bills that the House would never reach before the witching hour in a 28-page calendar.
The campus gun bill was among some of the most controversial measures this year, a move that would have allowed licensed handgun owners to tote their weapons at universities and colleges. Seventeen states have tried it. All have failed. Only 11 U.S. universities allow handguns on campus.
“What do you get when you put bread in an oven? Toast,” said Rep. Joe Driver, R-Garland, sponsor of the handgun bill.
Some of the bills, like a ban on trans fats in restaurants, might get a second life since they have passed the Senate and could still be heard in the House But for the gambling bills, cell phones and handguns, the 81st Legislature is all but over.
Casino gambling: All bets are off. Texas hold ’em had to fold ’em. Hands-free cell phones in cars has crashed. And guns on campus bit the bullet as the first major legislative deadline started killing bills.
All were pieces of House legislation that had to be debated by midnight Thursday or lose hope of passage in this year’s legislative session under House rules. They were among dozens of bills that the House would never reach before the witching hour in a 28-page calendar.
The campus gun bill was among some of the most controversial measures this year, a move that would have allowed licensed handgun owners to tote their weapons at universities and colleges. Seventeen states have tried it. All have failed. Only 11 U.S. universities allow handguns on campus.
“What do you get when you put bread in an oven? Toast,” said Rep. Joe Driver, R-Garland, sponsor of the handgun bill.
Some of the bills, like a ban on trans fats in restaurants, might get a second life since they have passed the Senate and could still be heard in the House But for the gambling bills, cell phones and handguns, the 81st Legislature is all but over.
Thursday, May 14, 2009
The Revolving Door
The Texas Observer reports that the Democrats who lost seats due to redistricting have done alright for themselves as lobbyists.
Vulture Funds
A new one for me.
There are accusations that these are investments groups that buy debt owed from poor countries at a discount and litigate for full payment. Critics argue that they prevent poor countries from getting out from under debt that was generally squandered by authoritarian leaders. Greg Palast doesn't like them, Felix Salomon does.
Maxine Waters has introduced the Stop Vulture Funds Act to prevent American companies from engaging in this activity.
There are accusations that these are investments groups that buy debt owed from poor countries at a discount and litigate for full payment. Critics argue that they prevent poor countries from getting out from under debt that was generally squandered by authoritarian leaders. Greg Palast doesn't like them, Felix Salomon does.
Maxine Waters has introduced the Stop Vulture Funds Act to prevent American companies from engaging in this activity.
Wednesday, May 13, 2009
Obama to Seek to Regulate Derivatives
To continue the post below, Obama is also pushing to expand (though it might be more appropriate to say update) financial regulations by applying them to derivatives:
Marking its first major effort to overhaul financial regulation, the Obama administration will seek new authority to supervise the virtually unregulated complex financial instruments, known as derivatives, that were a major cause of the market crisis, Congressional aides and others who have been briefed on the decision said Wednesday.
The administration will ask Congress to approve legislation that would impose a new government oversight structure for the instruments, which Warren Buffett once called “weapons of mass destruction.”
In a two-page letter to Congressional leaders, Treasury Secretary Timothy F. Geithner asked for the swift approval of a measure that would require many kinds of derivative instruments, including credit default swaps, to be traded on exchanges and subject to tighter regulation. Derivatives can take many forms, but in total there are trillions of dollars’ worth exchanging hands every day around the globe.
Again this marks a significant shift in the role government plays in the economy, one that is more suspicious of business activities that the Bush Administration thought should be allowed to happen without oversight. As with anti trust policy, the more you trust the market, the less regulation you want, the less you trust it, the more.
- Comments by Gary Becker.
- Wikipedia entry on Financial Regulation.
- A History of Financial Regulation.
Marking its first major effort to overhaul financial regulation, the Obama administration will seek new authority to supervise the virtually unregulated complex financial instruments, known as derivatives, that were a major cause of the market crisis, Congressional aides and others who have been briefed on the decision said Wednesday.
The administration will ask Congress to approve legislation that would impose a new government oversight structure for the instruments, which Warren Buffett once called “weapons of mass destruction.”
In a two-page letter to Congressional leaders, Treasury Secretary Timothy F. Geithner asked for the swift approval of a measure that would require many kinds of derivative instruments, including credit default swaps, to be traded on exchanges and subject to tighter regulation. Derivatives can take many forms, but in total there are trillions of dollars’ worth exchanging hands every day around the globe.
Again this marks a significant shift in the role government plays in the economy, one that is more suspicious of business activities that the Bush Administration thought should be allowed to happen without oversight. As with anti trust policy, the more you trust the market, the less regulation you want, the less you trust it, the more.
- Comments by Gary Becker.
- Wikipedia entry on Financial Regulation.
- A History of Financial Regulation.
Obama Reverses Anti Trust Policy
From the NYT:
President Obama’s top antitrust official this week plans to restore an aggressive enforcement policy against corporations that use their market dominance to elbow out competitors or to keep them from gaining market share.
The new enforcement policy would reverse the Bush administration’s approach, which strongly favored defendants against antitrust claims. It would restore a policy that led to the landmark antitrust lawsuits against Microsoft and Intel in the 1990s.
This is no surprise, and it points to a key dispute over what constitutes a free market and what type of capitalist system we want to have, a laissez faire or regulated. Simply put, a free market--as explained in the economics textbooks--is called free because it is free from control by forces on the demand or supply side. Monopolies are argued to violate the free market because they can control the market. There are no downward pressures on prices because the consumer has no options in purchases due to efforts by the monopolists to remove them.
Anti-trust policies allow for government to break apart monopolies in order to allow for competition, but tend to upset monopolists who want their profits (in the perfectly free market profits are zero). The story above points out that the business friendly Bush Administration limited anti-trust actions. Obama's more skeptical attitude towards business, and the apparent suspicion that recessions provide great opportunities for predatory activities, has led to the reversal above.
Another clear indication of the ideological shifts that are underway in American politics.
For further info:
- Definition: laissez-faire.
- Senator Obama's position on anti-trust policy.
- Anti-trust policy timeline.
- Greg Mankiw on Obama's Actions.
President Obama’s top antitrust official this week plans to restore an aggressive enforcement policy against corporations that use their market dominance to elbow out competitors or to keep them from gaining market share.
The new enforcement policy would reverse the Bush administration’s approach, which strongly favored defendants against antitrust claims. It would restore a policy that led to the landmark antitrust lawsuits against Microsoft and Intel in the 1990s.
This is no surprise, and it points to a key dispute over what constitutes a free market and what type of capitalist system we want to have, a laissez faire or regulated. Simply put, a free market--as explained in the economics textbooks--is called free because it is free from control by forces on the demand or supply side. Monopolies are argued to violate the free market because they can control the market. There are no downward pressures on prices because the consumer has no options in purchases due to efforts by the monopolists to remove them.
Anti-trust policies allow for government to break apart monopolies in order to allow for competition, but tend to upset monopolists who want their profits (in the perfectly free market profits are zero). The story above points out that the business friendly Bush Administration limited anti-trust actions. Obama's more skeptical attitude towards business, and the apparent suspicion that recessions provide great opportunities for predatory activities, has led to the reversal above.
Another clear indication of the ideological shifts that are underway in American politics.
For further info:
- Definition: laissez-faire.
- Senator Obama's position on anti-trust policy.
- Anti-trust policy timeline.
- Greg Mankiw on Obama's Actions.
Tuesday, May 12, 2009
Voir Dire
I just finally served on a jury. I've been summoned before, but this was the first time I went through voir dire and was selected (we ended up convicting the defendant). I'll post a summary of the experience at some point, but a few notes on voir dire.
I had no idea how involved a process this was. As some of you know, its how a group of 12 people are drawn from a larger pool of citizens, but its also the way that the court introduces potential jurors to both the judicial process and the players in a particular case. The judge, and prosecuting and defense attorneys all have the opportunities to introduce themselves and ask vague questions related to how one might be disposed to decide specific questions. The judge seemed keen on repeating the necessity for an unbiased approach to the case and honed in on people who seemed uncertain about whether they could in fact be impartial.
That was her constitutional role.
I also learned a lesson many learned before me. If you don't want to be on the jury, talk a lot during voir dire. I didn't, and was selected, which is what I wanted.
Juries, in my opinion, may be the most unjustly maligned institution in American government. To criticize juries is frankly to criticize the American people. In my opinion my fellow jurors, were thoughtful and conscientious. A great experience overall.
- Legal Definition.
I had no idea how involved a process this was. As some of you know, its how a group of 12 people are drawn from a larger pool of citizens, but its also the way that the court introduces potential jurors to both the judicial process and the players in a particular case. The judge, and prosecuting and defense attorneys all have the opportunities to introduce themselves and ask vague questions related to how one might be disposed to decide specific questions. The judge seemed keen on repeating the necessity for an unbiased approach to the case and honed in on people who seemed uncertain about whether they could in fact be impartial.
That was her constitutional role.
I also learned a lesson many learned before me. If you don't want to be on the jury, talk a lot during voir dire. I didn't, and was selected, which is what I wanted.
Juries, in my opinion, may be the most unjustly maligned institution in American government. To criticize juries is frankly to criticize the American people. In my opinion my fellow jurors, were thoughtful and conscientious. A great experience overall.
- Legal Definition.
Monday, May 11, 2009
GOP Rank and File Breaks Rank?
More Republicans in the U.S. House are breaking with their leadership and voting with Democrats for items like the recent credit card bill. Evidence that Republican leadership is weakening its hold on the party? This creates opportunities for new leadership. This is worth monitoring.
Sunday, May 10, 2009
After the Housing Crisis, the Credit Card Crisis
As if the housing crisis wasn't enough, the recently completed stress tests revealed potential problems the cumulative credit card debt holds in store for the economy:
The bank stress test results, released Thursday, suggested that the nation’s 19 biggest banks could expect nearly $82.4 billion in credit card losses by the end of 2010 under what federal regulators called a “worst-case” economic situation.
But if unemployment breaches 10 percent, as many economists predict, the rate of uncollectible balances at some banks could far exceed that level. At American Express and Capitol One Financial, around 20 percent of the credit card balances are expected to go bad over this year and next, according to stress test results. At Bank of America, Citigroup and JPMorgan Chase, about 23 percent of card loans are expected to sour.
Even the government’s grim projections may vastly understate the size of the banks’ credit card troubles. According to estimates by Oliver Wyman, a management consulting firm, card losses at the nation’s biggest banks could reach $141.5 billion by 2010 if the regulators’ loss rate was applied to their entire credit card business. It could top $186 billion for the entire credit card industry.
It has always appeared to me peculiar that we measure economic growth by including sales placed in credit, not paid for outright. Downward adjustments for GDP in the past few years is apparently in the works. The credit card industry has suddenly become a bi-partisan punching bag.
The bank stress test results, released Thursday, suggested that the nation’s 19 biggest banks could expect nearly $82.4 billion in credit card losses by the end of 2010 under what federal regulators called a “worst-case” economic situation.
But if unemployment breaches 10 percent, as many economists predict, the rate of uncollectible balances at some banks could far exceed that level. At American Express and Capitol One Financial, around 20 percent of the credit card balances are expected to go bad over this year and next, according to stress test results. At Bank of America, Citigroup and JPMorgan Chase, about 23 percent of card loans are expected to sour.
Even the government’s grim projections may vastly understate the size of the banks’ credit card troubles. According to estimates by Oliver Wyman, a management consulting firm, card losses at the nation’s biggest banks could reach $141.5 billion by 2010 if the regulators’ loss rate was applied to their entire credit card business. It could top $186 billion for the entire credit card industry.
It has always appeared to me peculiar that we measure economic growth by including sales placed in credit, not paid for outright. Downward adjustments for GDP in the past few years is apparently in the works. The credit card industry has suddenly become a bi-partisan punching bag.
Understanding the Rationale Behind the Expansion of Executive Power
As I argue in class, and have pointed out in previous posts, the expansion of executive power does not always happen because of aggressive executives. Just as often it can occur because the legislature defaults and hands hard choices off to the executive. This is rational, at least in terms of pure vote seeking, because hard choices make enemies and enemies tend to want to vote office holders out of office.
Since executive officials, especially those in charge of independent agencies such the Federal Reserve Board, do not have to face the voters at all (perhaps indirectly through the president) they are in a position to make hard choices and not feel the immediate backlash from an angry population. If these hard choices are necessary choices, like cutting popular programs or raising taxes, then this process can help government be effective. It helps explain why individuals like Alexander Hamilton supported life time appointments for presidents and senators.
So it seem to be inevitable that the executive branch will expand power over time. In many cases the dynamic involves the legislature delegating power to the executive in order to handle a crisis, and taking a back seat while it implements the vague legislation it passes, all the while putting itself in a position where it can oversee or criticize the decisions the executive makes after the fact.
This dynamic seems to be continuing during the ongoing financial crisis:
THE longer the financial crisis runs, the more policy makers at the Treasury, the White House and the Federal Reserve are working around Congress rather than with it.
It’s not that anyone is behaving illegally or unconstitutionally, but rather that Congress seems to want to be circumvented and to delegate more power to the executive branch as well as to the Fed, at least temporarily.
While Congressional leaders are consulted on the major policies, Congress is keeping its distance, perhaps to minimize voter outrage. This way, Congress can claim credit if a recovery comes, but deny responsibility if the price tag ends up higher than advertised or if banks seem to be receiving unfair benefits from the government.
Trillions of dollars of financial commitments have been made without explicit Congressional approval. For instance, the Federal Reserve has promised up to $1 trillion in “quantitative easing,” namely, using monetary policy to buy assets other than traditional Treasury securities. Not only will this have a big impact on the real economy but it also could prove costly selling those assets when the time comes. The Fed has also lent hundreds of billions of dollars to banks and issued over $500 billion in potential guarantees to money market funds. Its Term Asset-Backed Securities Loan Facility eventually could involve up to $1 trillion in purchasing securities backed by credit cards, student loans and other assets.
The traditional division of labor among policy makers was that the Fed determined the quantity of money in the economy — it set monetary policy — and Congress decided precise government expenditures — it handled fiscal policy. These new programs blur that distinction and, in essence, the Fed is running some fiscal policy.
Is this good news or bad news. Is Congress better suited to make appropriate choices or is the executive branch? Of course one might want to argue neither, these decisions should be made by the private sector, but that begs the question whether private sector actions led to the problem to begin with.
Since executive officials, especially those in charge of independent agencies such the Federal Reserve Board, do not have to face the voters at all (perhaps indirectly through the president) they are in a position to make hard choices and not feel the immediate backlash from an angry population. If these hard choices are necessary choices, like cutting popular programs or raising taxes, then this process can help government be effective. It helps explain why individuals like Alexander Hamilton supported life time appointments for presidents and senators.
So it seem to be inevitable that the executive branch will expand power over time. In many cases the dynamic involves the legislature delegating power to the executive in order to handle a crisis, and taking a back seat while it implements the vague legislation it passes, all the while putting itself in a position where it can oversee or criticize the decisions the executive makes after the fact.
This dynamic seems to be continuing during the ongoing financial crisis:
THE longer the financial crisis runs, the more policy makers at the Treasury, the White House and the Federal Reserve are working around Congress rather than with it.
It’s not that anyone is behaving illegally or unconstitutionally, but rather that Congress seems to want to be circumvented and to delegate more power to the executive branch as well as to the Fed, at least temporarily.
While Congressional leaders are consulted on the major policies, Congress is keeping its distance, perhaps to minimize voter outrage. This way, Congress can claim credit if a recovery comes, but deny responsibility if the price tag ends up higher than advertised or if banks seem to be receiving unfair benefits from the government.
Trillions of dollars of financial commitments have been made without explicit Congressional approval. For instance, the Federal Reserve has promised up to $1 trillion in “quantitative easing,” namely, using monetary policy to buy assets other than traditional Treasury securities. Not only will this have a big impact on the real economy but it also could prove costly selling those assets when the time comes. The Fed has also lent hundreds of billions of dollars to banks and issued over $500 billion in potential guarantees to money market funds. Its Term Asset-Backed Securities Loan Facility eventually could involve up to $1 trillion in purchasing securities backed by credit cards, student loans and other assets.
The traditional division of labor among policy makers was that the Fed determined the quantity of money in the economy — it set monetary policy — and Congress decided precise government expenditures — it handled fiscal policy. These new programs blur that distinction and, in essence, the Fed is running some fiscal policy.
Is this good news or bad news. Is Congress better suited to make appropriate choices or is the executive branch? Of course one might want to argue neither, these decisions should be made by the private sector, but that begs the question whether private sector actions led to the problem to begin with.
Monday, May 4, 2009
Does the Chrysler Bankruptcy Deal Violate the Constitution?
HotAir thinks it does.
I blame the late hour, but the reasoning is too high brow for me. There are however increased concerns that the range of federal actions taken to keep the economy afloat has expanded government's role in the economy too far.
Click here for background on the Chrysler deal.
I blame the late hour, but the reasoning is too high brow for me. There are however increased concerns that the range of federal actions taken to keep the economy afloat has expanded government's role in the economy too far.
Click here for background on the Chrysler deal.
Stare Decisis, Judicial Conservatism, and David Souter
The New Republic argues that David Souter's adherence to precedence has made him the only true conservative, as opposed to a movement conservative, on the Supreme Court over the past few years:
Souter's departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter's decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.
The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis--let the decision stand. Upholding precedent staunches the forces of change--and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.
From 1953, when Earl Warren joined the Supreme Court, until well into the 1970s, the Supreme Court issued one liberal opinion after another--opinions that enhanced protections for criminal suspects, took the government out of American bedrooms, demanded an end to segregation, insisted on equal protection for women, and identified and enforced a woman's right to choose abortion.
Asking the Supreme Court to overrule these decisions is anything but judicially conservative--it's downright radical. And when the judicially conservative David Souter was asked to toe the movement line, he insisted on a very conservative response: No. He alone stood for judicially conservative values, insisting on maintaining and supporting the Court's own doctrine and decisions. He stood by stare decisis.
Its a good read, and a useful way to evaluate the various labels placed on both ideologies and approaches to the Constitution.
It puts an interesting spin on the decisions of Justices Scalia and Thomas for example:
...the justices we think of as the genuine conservatives, led most prominently by John Roberts, Samuel Alito, and Clarence Thomas, have made no secret of their eagerness to dump, trash, ignore, overrule, overturn, bury and immolate volume after volume of the Supreme Court's liberal precedents.
Thomas--a hero for the conservative movement--is more than delighted to revisit and reject precedent where he finds it out of step with a proper reading of the constitution. No less an authority than Antonin Scalia has said of his colleague that Thomas "doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, 'Let's get it right.'"
Here's where movement conservatism -- which we might define as political support for a set of beliefs that we label conservative -- butts up against (and even contradicts) classical conservatism which is defines as a system of government which respects traditions and the slow organic way that law develops over history. To seek to overthrow tradition, precedence, is to behave radically, not conservatively. Society gets law right gradually over time, not at the single stroke of a pen.
This argument is sure to go nowhere with contemporary conservatives of course.
Souter's departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter's decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.
The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis--let the decision stand. Upholding precedent staunches the forces of change--and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.
From 1953, when Earl Warren joined the Supreme Court, until well into the 1970s, the Supreme Court issued one liberal opinion after another--opinions that enhanced protections for criminal suspects, took the government out of American bedrooms, demanded an end to segregation, insisted on equal protection for women, and identified and enforced a woman's right to choose abortion.
Asking the Supreme Court to overrule these decisions is anything but judicially conservative--it's downright radical. And when the judicially conservative David Souter was asked to toe the movement line, he insisted on a very conservative response: No. He alone stood for judicially conservative values, insisting on maintaining and supporting the Court's own doctrine and decisions. He stood by stare decisis.
Its a good read, and a useful way to evaluate the various labels placed on both ideologies and approaches to the Constitution.
It puts an interesting spin on the decisions of Justices Scalia and Thomas for example:
...the justices we think of as the genuine conservatives, led most prominently by John Roberts, Samuel Alito, and Clarence Thomas, have made no secret of their eagerness to dump, trash, ignore, overrule, overturn, bury and immolate volume after volume of the Supreme Court's liberal precedents.
Thomas--a hero for the conservative movement--is more than delighted to revisit and reject precedent where he finds it out of step with a proper reading of the constitution. No less an authority than Antonin Scalia has said of his colleague that Thomas "doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, 'Let's get it right.'"
Here's where movement conservatism -- which we might define as political support for a set of beliefs that we label conservative -- butts up against (and even contradicts) classical conservatism which is defines as a system of government which respects traditions and the slow organic way that law develops over history. To seek to overthrow tradition, precedence, is to behave radically, not conservatively. Society gets law right gradually over time, not at the single stroke of a pen.
This argument is sure to go nowhere with contemporary conservatives of course.
Sunday, May 3, 2009
OGs and the Expansion of National Law Enforcement Power During the Great Depression
This may be a bit lowbrow, but I've been flipping through cable and stumbled across a History Channel piece on the history of crime, which put its hook in me and I watched for a while. One of the points made in its coverage of crime in the summer of 1933, during the Great Depression, was that local law enforcement quickly became incapable of fighting back against increasingly better armed gangsters.
Small towns were selected principally due to their inability to protect themselves. Many of the names were familiar with during this time (Dillinger, Bonnie and Clyde, etc...) were in operation at the same time period, which caught the attention of the national media. For an ambitious bureaucrat like J. Edgar Hoover this was a perfect opportunity to expand his institution's authority. Though law enforcement had previously been primarily a state and local domain - a reserved power - support increased for the national involvement in order to assist local authorities, and the increased focus on criminality led to popular support. Since banks had been robbed, and the crimes crossed state borders, the constitution's commerce clause was used as providing justification for the expansion of power.
The point I'm making is that quite often when people discuss constitutional issues, especially those involving expansions of national power, we tend to only focus on the textbook problems associated with how terminology is interpreted and forget about the pragmatic problems faced at different points in our history and how expansions of national authority were considered to have been practical solutions to those problems.
File this under ideology versus pragmatism.
Small towns were selected principally due to their inability to protect themselves. Many of the names were familiar with during this time (Dillinger, Bonnie and Clyde, etc...) were in operation at the same time period, which caught the attention of the national media. For an ambitious bureaucrat like J. Edgar Hoover this was a perfect opportunity to expand his institution's authority. Though law enforcement had previously been primarily a state and local domain - a reserved power - support increased for the national involvement in order to assist local authorities, and the increased focus on criminality led to popular support. Since banks had been robbed, and the crimes crossed state borders, the constitution's commerce clause was used as providing justification for the expansion of power.
The point I'm making is that quite often when people discuss constitutional issues, especially those involving expansions of national power, we tend to only focus on the textbook problems associated with how terminology is interpreted and forget about the pragmatic problems faced at different points in our history and how expansions of national authority were considered to have been practical solutions to those problems.
File this under ideology versus pragmatism.
Saturday, May 2, 2009
Justifying Hate Crimes Law Circa 2001
I'm not sure what the precise differences are between the current legislation and the one debated in 2001, but here's the Senate Committee report justifying the bill, plus background from one of the staffers who helped draft the bill.
Are Hate Crimes Laws Constitutional?
Thanks again to Michael for pointing out a current controversy, this one over the hate crimes legislation that passed the U.S. House of Representatives this past week.
I'll wait til later to outline the arguments that are made regarding its constitutional status (which focus primarily on whether it violates First Amendment speech and free exercise rights as well as the equal protection clause of the 14th Amendment), but opencongress.org has text of the bill so we can at least look at what we are judging:
Local Law Enforcement Hate Crimes Prevention Act of 2009 -
Authorizes the Attorney General to provide technical, forensic, prosecutorial, or other assistance in the criminal investigation or prosecution of any crime that:
(1) constitutes a crime of violence under federal law or a felony under state, local, or Indian tribal law; and
(2) is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the state, local, or tribal hate crime laws.
Directs the Attorney General to give priority for assistance to crimes committed by offenders who have committed crimes in more than one state and to rural jurisdictions that have difficulty covering the extraordinary investigation or prosecution expenses.
Authorizes the Attorney General to award grants to assist state, local, and Indian law enforcement agencies with such extraordinary expenses.
Directs the Office of Justice Programs to:
(1) work closely with funded jurisdictions to ensure that the concerns and needs of all affected parties are addressed; and
(2) award grants to state and local programs designed to combat hate crimes committed by juveniles. Amends the federal criminal code to prohibit willfully causing bodily injury to any person because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of such person.
Amends the Hate Crimes Statistics Act to expand data collection and reporting requirements under such Act to include:
(1) crimes manifesting prejudice based on gender and gender identity; and
(2) hate crimes committed by and against juveniles. Declares that nothing in this Act shall be construed to prohibit the exercise of constitutionally-protected free speech.
Hate crimes laws are argued by supporters to be necessary in order to ensure that crimes that are historically not prosecuted by state and/or local officials (like lynching back in the bad old days) are prosecutable at a higher level less prone to local and state prejudice. The question is whether they go beyond simple punishment of acts and punish thoughts instead, which would be found unconstitutional (....probably, but read up on the Supreme Court's approval of a law punishing pandering) and whether the assumptions that the law is based on (that these criminal acts will not be prosecuted at lower levels) is no longer relevant and that this law recognizes a special class of people who will be protected at a higher level than others. Religious groups seem to have picked up on the fact that the last part of the law states that the law should not be construed to prohibit speech, but says nothing about free exercise of religious belief.
This is a great mental workout. I'll dig up some useful comments on this subject and post them soon.
I'll wait til later to outline the arguments that are made regarding its constitutional status (which focus primarily on whether it violates First Amendment speech and free exercise rights as well as the equal protection clause of the 14th Amendment), but opencongress.org has text of the bill so we can at least look at what we are judging:
Local Law Enforcement Hate Crimes Prevention Act of 2009 -
Authorizes the Attorney General to provide technical, forensic, prosecutorial, or other assistance in the criminal investigation or prosecution of any crime that:
(1) constitutes a crime of violence under federal law or a felony under state, local, or Indian tribal law; and
(2) is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the state, local, or tribal hate crime laws.
Directs the Attorney General to give priority for assistance to crimes committed by offenders who have committed crimes in more than one state and to rural jurisdictions that have difficulty covering the extraordinary investigation or prosecution expenses.
Authorizes the Attorney General to award grants to assist state, local, and Indian law enforcement agencies with such extraordinary expenses.
Directs the Office of Justice Programs to:
(1) work closely with funded jurisdictions to ensure that the concerns and needs of all affected parties are addressed; and
(2) award grants to state and local programs designed to combat hate crimes committed by juveniles. Amends the federal criminal code to prohibit willfully causing bodily injury to any person because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of such person.
Amends the Hate Crimes Statistics Act to expand data collection and reporting requirements under such Act to include:
(1) crimes manifesting prejudice based on gender and gender identity; and
(2) hate crimes committed by and against juveniles. Declares that nothing in this Act shall be construed to prohibit the exercise of constitutionally-protected free speech.
Hate crimes laws are argued by supporters to be necessary in order to ensure that crimes that are historically not prosecuted by state and/or local officials (like lynching back in the bad old days) are prosecutable at a higher level less prone to local and state prejudice. The question is whether they go beyond simple punishment of acts and punish thoughts instead, which would be found unconstitutional (....probably, but read up on the Supreme Court's approval of a law punishing pandering) and whether the assumptions that the law is based on (that these criminal acts will not be prosecuted at lower levels) is no longer relevant and that this law recognizes a special class of people who will be protected at a higher level than others. Religious groups seem to have picked up on the fact that the last part of the law states that the law should not be construed to prohibit speech, but says nothing about free exercise of religious belief.
This is a great mental workout. I'll dig up some useful comments on this subject and post them soon.
Souter's Retirement
As has been noted by many commentators, David Souter never liked Washington and its politically charged atmosphere so it is not a surprised that he opted to retire when there seemed to be a reasonable chance that he would be replaced with a like minded individual.
This will be a dominant news item for the rest of the summer. Here are a few links worth perusing, though many more are out there.
- Obama Announces the Retirement.
- Possible Replacements.
- Conservatives Target Select Possible Nominees for Opposition.
- Washington Preps for Battle.
- Wikipedia: David Souter.
- Oyez Project: David Souter.
Souter is generally used a textbook example of the importance of, or problems with depending on your point of view, service during good behavior because it allows the judiciary the opportunity to exercise independence. In the case of Souter, this meant not being the lock step conservative he was sold as being. He has since drifted to the left, as did Earl Warren and William Brennan before him.
Given that he has a liberal voting record, it is not expected that his retirement will change anything on the court.
Some wonder however whether his retirement, since it will allow for Republicans to mount an offensive against his replacement, might help focus the party and help it regain momentum. Its a debatable point. Since the retirement rumor mill also includes 89 year old Stevens and cancer survivor Ginsburg, they might have plenty opportunities to get it right.
This will be a dominant news item for the rest of the summer. Here are a few links worth perusing, though many more are out there.
- Obama Announces the Retirement.
- Possible Replacements.
- Conservatives Target Select Possible Nominees for Opposition.
- Washington Preps for Battle.
- Wikipedia: David Souter.
- Oyez Project: David Souter.
Souter is generally used a textbook example of the importance of, or problems with depending on your point of view, service during good behavior because it allows the judiciary the opportunity to exercise independence. In the case of Souter, this meant not being the lock step conservative he was sold as being. He has since drifted to the left, as did Earl Warren and William Brennan before him.
Given that he has a liberal voting record, it is not expected that his retirement will change anything on the court.
Some wonder however whether his retirement, since it will allow for Republicans to mount an offensive against his replacement, might help focus the party and help it regain momentum. Its a debatable point. Since the retirement rumor mill also includes 89 year old Stevens and cancer survivor Ginsburg, they might have plenty opportunities to get it right.
Experts Weigh in on the Future of the GOP
NYT's Weekend Opinionator has a terrific summary of the various arguments, from the left to the right, about what the Specter defection means for the Republican Party's future. Should it moderate its positions in order to broaden its tent, which risks loosening it from its ideological moorings, or purify itself by pushing moderates out of the party, which risks making it uncompetitive. That's quite the dilemma. I'm fascinated with how the party figures this things out and what mechanisms drive the process.
Here's an interesting quote:
. . . Persuasion becomes virtually impossible when the target audience doesn’t see the need for even having the discussion. There may not be enough of an effort by critics of the mainstream from “reform” and dissident conservative perspectives to appeal to the persuadable, but one of the reasons why “the conservative rump” is in its current predicament is that it long ago stopped making any effort at persuasion in relating to the rest of the country, insisted on reiterating its greatest hits and expecting the country to follow. Persuadable, non-ideological voters were lost for lack of seriously trying to secure them as reliable supporters. Suburban voters were driven away by the combination of Iraq, general incompetence and perceived ideological rigidity. In addition to being an awful propaganda line for the war, “stay the course” became a large part of the GOP’s unimaginative electoral strategy as well. Nowadays, if they acknowledge mistakes at all, mainstream conservatives are keen to pin responsibility on anyone but themselves while tarring anyone who points out the obvious errors of the last decade as treacherous or some crypto-liberal eager to score points with the media. Some of these people may exist, but the presumption that every critical voice falls into this category is evidence of intellectual exhaustion and insecurity.
I take it that the author is concerned that the Republican Party leadership wants to limit itself to arguments within a small group of insiders, and ignore the interests of non-ideological moderates who might potentially be supporters of the party because they agree with their positions on issues. My hunch is that an old guard has taken hold within the party and refuses to give up control. A a purge of sorts has to take place in order to allow the party to respond to shifts in the broader population. This will take time, but it will happen at some point. You can't live forever.
Here's an interesting quote:
. . . Persuasion becomes virtually impossible when the target audience doesn’t see the need for even having the discussion. There may not be enough of an effort by critics of the mainstream from “reform” and dissident conservative perspectives to appeal to the persuadable, but one of the reasons why “the conservative rump” is in its current predicament is that it long ago stopped making any effort at persuasion in relating to the rest of the country, insisted on reiterating its greatest hits and expecting the country to follow. Persuadable, non-ideological voters were lost for lack of seriously trying to secure them as reliable supporters. Suburban voters were driven away by the combination of Iraq, general incompetence and perceived ideological rigidity. In addition to being an awful propaganda line for the war, “stay the course” became a large part of the GOP’s unimaginative electoral strategy as well. Nowadays, if they acknowledge mistakes at all, mainstream conservatives are keen to pin responsibility on anyone but themselves while tarring anyone who points out the obvious errors of the last decade as treacherous or some crypto-liberal eager to score points with the media. Some of these people may exist, but the presumption that every critical voice falls into this category is evidence of intellectual exhaustion and insecurity.
I take it that the author is concerned that the Republican Party leadership wants to limit itself to arguments within a small group of insiders, and ignore the interests of non-ideological moderates who might potentially be supporters of the party because they agree with their positions on issues. My hunch is that an old guard has taken hold within the party and refuses to give up control. A a purge of sorts has to take place in order to allow the party to respond to shifts in the broader population. This will take time, but it will happen at some point. You can't live forever.
Friday, May 1, 2009
Happy May Day
A big deal in most other countries, not so much around here. Apparently the day was not a hit with the Puritans, plus there's the connection with the labor movement which makes it a bit too red for many in these parts. Plus there's all that peculiar dancing around poles and stuff.
Still, have a happy one.
Still, have a happy one.
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