Saturday, January 31, 2009

A Black Progressive Law Professor Responds to News That Michael Steele Will Lead the GOP

The Republicans are hurting in national and state politics. Opinion polls consistently reveal that voters are skeptical of the Republican brand. The 2008 election marked the second consecutive cycle in which voters preferred Democratic contenders for Congress and in gubernatorial elections. Finally, after occupying the White House for the last eight years (and all but 12 out of the last 40), Republicans have ceded presidential power to the Democrats as well, and they even lost a few southern states in the process.

The Republicans need new direction and a savvy plan to regroup, and yesterday, they chose Michael Steele as their new leader. Michael Steele is the former Lieutenant Governor of Maryland, and he is the first black to chair the RNC. Steele attended Johns Hopkins University and Georgetown University Law Center. For years he worked in the DC office of Cleary, Gottlieb, Steen and Hamilton, a prestigious New York-based law firm with offices in many other countries. [Editor's Note: I worked at the New York office of Cleary Gottlieb after graduating from law school.]

Predictably, Steele Has Sent Liberals into Attack-Mode
My fellow liberals are already in attack mode. They are, indeed, Palinizing him (to Palinize). Some liberal websites report that he "exploited" homeless people. Others say that he is too close to Bush and that he is homophobic. The MotherJones blog has a picture of him posing with Rush Limbaugh. Although it looks like a cheesy "say cheese" picture taken at a fundraiser or other random political event, readers believe it shows that Steele is a reactionary.

But most of the liberal critiques of Steele argue or imply that he is a "token." Even readers at OpenLeft (one of my favorite blogs) have advanced this idea. Apparently, now that the Democrats have FINALLY elected a black person as president, they feel empowered to disparage blacks they do not like as tokens.

Democrats Should Not Feel Too Comfortable Attacking Steele
Despite having a relatively liberal stance on civil rights, Democrats have not always given black political interests priority. Presently, the party has not really addressed any race-specific social or economic concerns (some even doubt that such exist). I imagine that having Obama as president will obviate the need for the party to do anything race-specific. Obama campaigned as the post-racial first black president, and blacks will probably give him wide latitude to do absolutely anything (or nothing) related to racial issues.

And while the Republicans deservedly suffer a bad reputation among people of color, Dubya appointed Condoleezza Rice and Colin Powell as Secretary of State -- the highest Cabinet position -- which beats Obama's performance. Perhaps they were tokens -- but at they were tokens with power.

Steele's Task: Make the Republicans Moderate and Libertarian
Although I am a liberal, I strongly believe in the concept of an "opposition party," even when Democrats are in control. Personally, I find both parties lacking -- individually and collectively. Discarding either one of them will not benefit voters. So, despite my opposition to most conservative issues, I would like to see the Republican Party remain politically "viable." At a minimum, a strong opposition party (or parties) could give voters other options and effectuate changes in policy.

Although I disagree with most of Steele's political positions, I believe the Republicans made the right choice. Americans love symbols (just ask Obama), and Steele, if given the proper support from the party, can allow Republicans to remake their image. Steele will not send blacks to the Republican Party in droves, but that is not the purpose of selecting him. Instead, if he can improve the party's overall image, then moderate whites might feel comfortable with Republicans once again. Blacks have been solid Democratic voters since FDR. Unless something catastrophic occurs, this will not change in the near future.

Symbolism alone, however, will not save the GOP. Instead, Republicans will need to take more moderate political stances in order to woo independent voters who abandoned the GOP in favor of Obama. If Steele pushes the party more deeply into the direction of rightwing philosophy, particularly on social issues and international affairs, then it will remain an outsider party.

Steele's task, though difficult, is not impossible. Prior to Ronald Reagan's presidency, Republicans were fairly moderate on most issues. Also, a populist agenda that focuses on economic concerns rather than seeking to invade the bedrooms of GLBT people or the wombs of pregnant women, could help the party attract moderate voters, without sacrificing too many supporters in the Midwest and South. And despite Obama's strong victory, he barely won states like Florida, Virginia, and Indiana. A more attractive Republican candidate could certainly shake up the next presidential race.

Steele will need to "negotiate" with the more conservative elements of the party. If the party can redefine conservatism along the lines of libertarianism and consistently embrace a hands-off approach to government, then the GOP might appeal to moderates. Convincing social conservatives that this shift would accomplish more for them politically than dismantling Roe or preventing Adam and Steve from marrying is one of Steele's most difficult tasks. Good luck.

Has Obama Already Redefined State and Federal Relations? Yes -- According to the New York Times

A recent New York Times article reports that President Obama "seems to be open to a movement known as 'progressive federalism,' in which governors and activist state attorneys general have been trying to lead the way on environmental initiatives, consumer protection and other issues. . . ." To support this conclusion, the article cites to Obama's recent which directs the EPA to reconsider the Bush administration's denial of several states' requests to set higher emissions standards than federal law requires. Although I agree with Obama's decision, the article makes too much of this single order. Also, in an effort to portray Obama as fundamentally altering the nature of federalism and states' rights, the article ignores that fact that progressives have a long history of promoting change through state and federal politics.

Liberals Have a Long History of Invoking State Power to Create Change
Throughout history, both liberal and conservative causes have appealed to state autonomy. But slavery, the Civil War, and subsequent debates over racial justice have made states' rights almost synonymous with conservative politics. Southern states justified slavery and Jim Crow in part by appealing to principles of state autonomy -- a view most dramatically asserted through secession.

Abolitionists, however, also invoked state autonomy to challenge the institution of slavery. States began abolishing slavery long before the ratification of the Thirteenth Amendment. And prior to the national prohibition of slavery, "free states" frequently refused to comply with federal statutes that prohibited individuals from assisting runaway slaves. One of the most dramatic displays of a state's resistance to federal law occurred in 1854 when the Wisconsin Supreme Court purported to invalidate the Fugitive Slave Act of 1850. The court also ordered a federal marshall to release a local abolitionist whom he had arrested for freeing a runaway slave from federal custody.

And while the 1960s expansion in civil rights is commonly viewed as a triumph of national interests over local concerns, this description, though true to a great extent, distorts the vanguard role of states in the advancement of equality. For example, in 1945, New York enacted the nation's first law that prohibited employers from discriminating on the basis of race; the federal equivalent passed nearly twenty years later. The New York statute served as the model for federal legislation.

And during the latter part of the 20th century, liberal reform took place as a result of state and federal cooperation and from lobbying by state governments. The Violence Against Women Act of 1994, for example, passed with enormous support and encouragement of state governments. And the Low Level Radioactive Waste Policy Act of 1980, along with various 1985 amendments, resulted from years of negotiations between the National Governors' Association and Congress. Ironically, conservative Supreme Court rulings invalidated portions of both of these statutes as exceeding the scope of federal authority and as invading state autonomy, despite the heavy participation by states in the development of both laws.

By portraying Obama's EPA order as the novel recognition that state autonomy can advance liberal causes, the New York Times article distorts the history of liberal activism within states and the impact of liberal state policies on federal legal reform. This observation holds true in the environmental law context as well. When the Bush-era EPA rejected California's request for permission to apply more stringent emissions rules than federal law requires, this was the first time in 40 years that the agency refused a request by the state to exceed federal requirements. Contrary to the position of the article, the EPA has a history of allowing states to go above federal law.

The rhetoric of states' rights has served as an important instrument for progressive and conservative politics. When states want to pursue more liberal policies than the federal government, liberals support state autonomy and federal cooperation. But when states want to implement more conservative policies than the federal government, conservatives advocate federal restraint while liberals advocate federal preemption.

Obama seemingly embraces the idea of allowing several states to implement stronger emissions standards than the federal government. Had the states sought an exemption to weaken law in the area, liberals would not have supported their request. Accordingly, Obama's openness to state reform in this area has little to do with him subscribing to a new view of federalism. Instead, Obama is simply doing what liberals have done historically: He is using states to promote more progressive ideas than the national politics would tolerate.

Thursday, January 29, 2009

Open Letter to Iran: We Need to Talk

The latest news story from my wonderful city reports that the Obama administration is drafting a letter to the president and citizens of Iran. Apparently, State Department officials have been preparing the letter since November, after Iranian President Mahmoud Ahmadinejad wrote to congratulate Obama for his election victory.

According to most articles on the subject, the letter would try to reassure Iranians that the United States does not want to overthrow their government but instead seeks changes in their country's behavior.

But I remember the persuasive arguments by specialists in the region who said that Bush mistakenly believed that the United States could change countries in the Middle East -- at least in the mold that most Americans would accept. But we are now apparently on a "Global Change Initiative." So let's see what happens.

Imagine the difficult task for the persons writing this letter. I suspect that Miss Manners does not have any advice on how to write a letter that "reaches out to members of the Axis of Evil." But maybe we could try something like this:
Dear, Iran:

We need to talk. We know that the Bush administration said you were a member of the "Axis of Evil. We also recall that the last time we were together, radicals in your country staged a coup d'etat and held several Americans hostage. But maybe we can try to put those bad things behind us.

We believe our relationship might work this time, if you try a little harder. Your letter to President Obama was a kind gesture, but it is only a small step in the right direction. We are not trying to start a fight, but if you really want us to get together again, you will have to do things differently. Otherwise, people might think that you have something that we desperately want, like oil. But we do not need your oil. Once we finish rebuilding Iraq, we will have a pretty good supply of petroleum.

Please call Secretary of State Clinton if you have any questions. We look forward to talking to you soon.


The People of the United States
I am so happy that I am an academic. Sarcasm does not work well in politics.

Wednesday, January 28, 2009

Change Has Arrived: A Very Divided House of Representatives Approves Multi-Billion Dollar Spending Measure

[Sarcasm Alert]
Washington, DC is changing rapidly. The city already set a milestone by hosting the "historic" inauguration, and today, Washingtonians finally had a taste of a "real" winter, as snow, ice and sleet blanketed the Beltway.

But the transformation in Congress provides the most dramatic evidence of a new era. Today, members of the House of Representatives forcefully demonstrated that they have discarded "business as usual" when they approved a multi-billion dollar increase in government spending along strict partisan lines.

I have never witnessed anything like this before. First the Senate ushered in change by bickering over the appointment of Senator Roland Burris. Now, the parties cannot even remotely agree on the stimulus package which many experts argue could help the sluggish economy. Great work!

No Unity Yet: Republicans Set to Oppose Stimulus Package Despite Obama's Effort to Secure Their Votes

After Obama held his widely (and wildly) reported luncheon with Republicans yesterday, media accounts suggested that the Great Unifier had performed an absolute miracle. Republicans emerged from the meeting beaming and offering effusive praise for the president, and Obama later invited some GOP leaders to the White House for drinks. After the GOP mocked the inclusion of funds for family planning in the stimulus package, Obama ordered (or requested) that Democrats remove the provision. But Obama's networking could not change the policy differences between Democrats and Republicans or to secure unified support for the stimulus, in spite of these differences.

ABC News reports that the stimulus will undoubtedly pass, but without much support from Republicans. I do not find this shocking or upsetting. Although contemporary Democrats have often voted against their party's professed values, earning them much criticism during the last decade, Republicans have typically supported the party line. Accordingly, I am not surprised that they have defied Obama's bipartisan gestures.

The cynic in me says that Obama probably knew he would not change their minds, but he engaged in this very public "outreach" in order to portray himself as a unifier and, possibly, to make Republicans look like sore losers for not joining the team. Also, he clearly does not need GOP support for the legislation to pass. If Republicans support him, however, they could lose some credibility if they subsequently tried to criticize the legislation. If the stimulus helps the economy, then the GOP will look bad for not supporting "sound economic policy." But now that Republicans have said they will not support the legislation, I wonder whether a bold Democrat try to reinsert the family planning elements.

Regardless of the underlying motives and risks, the partisan split reminds me of one of the funniest moments during the Democratic primaries, when Hillary Clinton challenged Obama's frequent assertion that he would bring about a "new" politics of bipartisanship and unity, while she was too "divisive" and could only offer "more of the same." I have posted a video clip of Clinton's controversial stump speech. Enjoy.

[Editor's Note: Beware of the CNN pundits!]

Tuesday, January 27, 2009

Pro-Life Race Card: Anti-Choice Activists Blow a Gasket Over Lifting of "Global Gag Rule"

I feel compelled to tell anti-choice activists to relax now that President Obama has revoked the so-called Global Gag Rule. This measure prohibited foreign organizations that receive U.S. financial assistance from performing or counseling women concerning abortions and from lobbying for the enactment of less restrictive abortion laws in their home countries.

Conservative outrage over Obama's decision is a bit surprising because this measure has been the subject of a very predictable game of political football since Reagan issued the order in 1984. In 1993 Clinton revoked it, but Bush reenacted it in 2000. Now, Obama has lifted it. Ah, progress.

Nevertheless, anti-choice activists are complaining loudly in response to Obama's decision. And, despite my disagreement with them on the issue of choice, I still find many of their arguments melodramatic and (therefore) entertaining. In particular, an article on TownHall.Com reaches new heights of melodrama by proclaiming that Obama is "exporting" abortion.

The author, Laura Hirschfeld Hollis, does not entertain me, however, when she pulls an anti-choice race card. According to Hollis, Obama's lifting of the gag rule is ironic because black women in the United States are overrepresented among recipients of abortion. Taking a page from Rick Warren's playbook, Hollis describes abortion as a black "holocaust" and comes across as a rightwing black nationalist as she condemns choice. Hollis argues that:

The single largest cause of death was heart disease, which claimed over 74,000 lives. By comparison, the 1400 abortions of black babies daily in the United States is over 438,000 African-Americans destroyed every year. Upwards of 13 million abortions have decimated the African-American population in this country. This is a holocaust, and one that cannot be prettied up under the rubric of “reproductive freedom.” Why does the man who hearkens back to the words of Martin Luther King not heed the call of some of King’s descendants who lead on this issue today?
Assuming that her factual claim concerning the demographics of abortion is true, Hollis, nevertheless, fails to discuss several important factors that undermine her race card. First, no one is forcing black women to obtain abortions. Hitler did not operate out of a health clinic. Instead, he used the power of the state to implement a genocidal agenda of white supremacy.

Second, Hollis distorts the demographics of women who receive abortion by focusing solely on race. But data also show that poor, unmarried women are disproportionately represented among the class of individuals who seek abortions. This fact, not race, explains the overrpresentation of blacks among women who terminate their pregnancies. Given the economic impact of parenthood, the fact that poor women might seek to terminate their pregnancies more often than wealthy women does not seem irrational. Although I believe that the relationship between race and class is an important social issue, Hollis exploits this relationship in order to portray abortion providers as racial terrorists.

Conservatives have long argued that "racial cards" anger them, but Hollis plays the "game" more dramatically than even Johnny Cochran. And while I believe that race remains an important social issue despite Obama's election, racial justice cannot mean that governments get to control the reproductive decisions of poor women (of all races).

Hold Them Accountable Part II: If Conservatives Caused the Economic Crisis, They Had a Lot of Help from Democrats!

Elections and Economic Performance: The Historical Connection
The poor state of the economy helped to secure President Obama's election victory. An abundance of historical research demonstrates that voters typically blame the incumbent or the incumbent party for bad economic conditions.

Prior to the implosion of Lehman Brothers, McCain led or was tied with Obama in many leading opinion polls. But after Lehman and a number of other financial institutions experienced economic meltdowns and after statistics demonstrated that the economy was in a state of sharp decline, the momentum shifted strongly in Obama's direction.

Exit polls reveal that a majority of voters chose Obama because they trusted him to bring about economic growth. Voter preferences follow historical patterns, including the recent past. Poor economic conditions caused many voters to abandon Carter and Bush I in their re-election bids.

Lil' Bush's Fault?
During the presidential campaign, many pundits and commentators blamed Bush for the economic downturn. They often identified "deregulation" as the main culprit. Specifically, many liberals cited the Gramm-Leach-Bliley Act of 1999, which repealed portions of the Glass-Steagall Act, a depression-era statute that regulated several aspects of the nation's banking industry. The Gramm-Leach-Bliley Act repealed a provision of Glass-Steagall that prohibited the consolidation of a commercial bank and an insurance company or investment bank.

Liberal critiques of Gramm-Leach-Bliley reached a fever pitch after several venerable investment banks imploded. Gramm-Leach-Bliley would soon symbolize to many liberals the utter bankruptcy of conservatism and the wisdom of liberalism.

Many liberals also blamed the economic crisis on Bush's tax cuts for high-income earners; others argued that the costly war in Iraq caused the problem. Also, during the Democratic primaries, progressives blamed NAFTA and other "free trade" agreements for the loss of jobs in the U.S., which they believe created the deep problems in the nation's "rust belt." Liberals argued that collectively, these failed "conservative" policies required a "change" of direction and that only liberal-Democratic measures could repair the terrible state of affairs.

If Liberals Are Correct on the Economy, They Must Criticize Democrats
Many economists dispute some of the more popular arguments that liberals advance as reasons for the sluggish economy. For example, according to economists, the Gramm-Leach-Bliley Act did not cause the financial crisis. Instead, the housing bubble and its subsequent explosion, the spread of risky mortgage-based assets through financial and securities markets, and the increase in interest rates from years of historically low levels created most of the nation's current economic problems (for an extended discussion of this issue see FactCheck.Org Confirms What Neither Party Will Admit: Bipartisan Blame for Wall Street Woes).

Democrats Supported the Gramm-Leach-Bliley Act
I assume, however, for the sake of argument, that the Gramm-Leach-Bliley Act contributed substantially to the nation's economic crisis. If this is the case, then Democrats are as blameworthy as Republicans. Although the statute is named for the three Republican members of Congress who sponsored it, the legislation passed with wide support from Democrats.

In the Senate, the legislation passed by a vote of 90-8. In the House, the vote was 343-86. President Clinton also supported the legislation, as did his Secretary of Treasury, Robert Rubin. Although popular liberal discourse portrays the Gramm-Leach-Bliley Act as the product of a vile and corrupt GOP, the historical record tells a different story: both parties supported the legislation.

Many Democrats Supported NAFTA, Including Party Elites
Economists, including respected liberals such as Robert Reich (Clinton's Secretary of Labor), dispute the role of NAFTA in the erosion of jobs in the rust belt. Reich argues that mechanization and technological advancements caused most of the job losses in this region -- not NAFTA. But, assuming that NAFTA caused higher rates of unemployment in the U.S, Democrats cannot claim innocence.

NAFTA passed in the Senate by a vote of 61-38. Democrats split their votes 27-28, with one abstention. In the House, the measure passed by a vote of 234-200. Democrats voted against it, 100-156. Although a majority of Democrats voted against NAFTA, the vote was fairly close. Had more Democrats voted against the measure, they could have helped to defeat it.

Furthermore, many prominent Democrats supported the measure, including Senators Joe Biden, Tom Daschle, Bill Bradley, Christopher Dodd, Ted Kennedy, John Kerry, and Joe Lieberman; Representatives Nancy Pelosi and Bill Richardson also cast votes in favor of NAFTA. President Clinton also lobbied heavily for the legislation, and according to Obama's campaign brochures and advertisements, Hillary Clinton did so as well. Although a slight majority of Democrats voted against NAFTA, the measure still received support from many Democrats, including some of the party's most powerful and respected figures.

Obama: For and Against NAFTA
President Obama very passionately condemned NAFTA as he sought votes in Midwestern states during the Democratic primaries. Obama stated that he would not seek to repeal the legislation but that he would use his authority as president and force Canada and Mexico to "renegotiate" its terms.

After he secured the Democratic nomination for President, however, Obama sharply altered his tone with respect to NAFTA. During a June 2008 interview with Fortune, Obama said that he would not unilaterally seek to reopen negotiations concerning NAFTA. After the interviewer reminded him that he had once described NAFTA as "devastating" and as a "big mistake," he explained that campaign rhetoric often becomes "overheated and amplified."

In March 2008 a Canadian official leaked a memorandum of notes taken during a meeting with Austan Goolsbee, a top economic advisor for the Obama campaign. The notes explain that Goolsbee tried to reassure Canadians that Obama's tough stance regarding NAFTA was simply "political positioning." The Obama campaign, however, vehemently denied this description of the meeting, and some of his Democratic supporters contended that conservatives in Canada were trying to discredit his campaign against Hillary Clinton. Obama's comments later that year, however, suggest that the memorandum accurately reflected his views on NAFTA.

In any event, Obama will not seek to repeal NAFTA or even unilaterally to renegotiate its terms. So, if liberals believe that NAFTA helps creates economic distress for Americans, they should criticize Obama for not trying to alleviate the problem.

Bush's Tax Cuts for the Wealthy
Most economists believe that Bush's tax cuts ultimately led to budget deficits, which will only increase over the next few years. Regardless of whether the tax cuts caused the recession, which most economists doubt, Democrats can actually claim innocence on this issue. The measure authorizing the tax cuts passed in the Senate by a 51-50 vote (Vice President Cheney cast the tiebreaker). The vote was highly partisan, with almost all Democrats voting against the measure and all Republicans voting for it. In the House, the vote was equally partisan.

The Costly Iraq War
In a prior post, I analyzed the Democrats' position on the Iraq War. In the House, a majority of Democrats voted against the war, while a slim majority of Senate Democrats supported it. The Democratic support for the war, however, came from some of the party's most powerful figures, such as Hillary Clinton, Joe Biden, Tom Daschle, John Kerry, and Harry Reid. The war has indeed cost a tremendous amount of resources, but Democrats cannot claim innocence on this issue, despite passionate liberal anger with the military action.

Although the Bush tax cuts, coupled with greater government spending, squandered the Clinton-era budget surplus, this did not create the deep financial crisis the nation now faces. And while "cutting taxes and increasing spending" is bad policy, it does not explain why the country is now in a deep recession.

Economists question other popular explanations for the recession, such as the Gramm-Leach-Bliley Act and NAFTA, but regardless of their connection to the nation's financial roles, Democrats and Republicans widely supported both measures.

Finally, the housing and mortgage-backed securities markets contributed most significantly to the financial crisis. But so many different actors were involved in this situation that responsibility transcends party affiliation and government/private-sector status. Although many liberals argue that the economy supports their claim that Bush is the "worst president" in history, the story is far more complicated than this popular script acknowledges.

Editor's Note: This article is the second in a series of essays that examine the extent of Democratic support for Bush's and the GOP's most criticized policies. This essay examines Democratic endorsement of "conservative" policies that liberals argue caused the recession and that discredit conservative political-economic ideology. You can read the first article here: Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I).

Other readings on the economy:

Bah Humbug: Both Parties Are Guilty With Respect to the Economy, But Neither Offers Concrete Solutions

FactCheck.Org Confirms What Neither Party Will Admit: Bipartisan Blame for Wall Street Woes.

Sunday, January 25, 2009

Cheerleading for Ledbetter Law Drowns Out Discussion of More Progressive Pay Equity Measure

The Lily Ledbetter story illustrates some of the difficulties that civil rights plaintiffs face when they seek judicial redress. Ledbetter discovered that her employer had paid her less than her male colleagues for many years. She filed a lawsuit alleging sex discrimination, and a jury returned a verdict in her favor. On appeal, the Supreme Court applied a tougher statute of limitations analysis and reversed the judgment for Ledbetter.

Statute of Limitations "for Dummies"
I do not want to get too technical in my analysis, but here is a little background for nonlawyers. Each type of claim a plaintiff asserts in a lawsuit (breach of contract, negligence, trespass, trademark infringement) has a "statute of limitations," which establishes a time period during which a plaintiff must commence a litigation. If the plaintiff fails to file before the limitations period expires, the court will dismiss the suit as "time barred."

Difficulties often arise in this area of law, however. For instance, determining when the clock begins is not always an easy proposition. Consider a claim such as medical malpractice. A patient might not discover the impact of a doctor's misdiagnosis until years after the negligent doctor rendered care. In order to address this matter, courts and legislatures have created more flexible standards under which the limitations period does not begin until such time that the plaintiff could have reasonably "discovered" the violation. [Editor's Note: Although news accounts accurately report that most Republicans voted against the Ledbetter legislation, most reports neglect to mention that several Republicans supported a proposal that would have applied a "discovery rule," instead of the paycheck rule.] Courts apply several other exceptions in this area of law in order to balance plaintiffs' interest in obtaining justice with defendants' interest in not being hauled into court to account for actions taken many years in the past.

Pre-Ledbetter Statute of Limitations Rule
Prior to the Ledbetter decision, federal and state courts applied a flexible rule that alleviated the burden for civil rights plaintiffs. [Editor's note: Because the Ledbetter ruling only addresses claims under federal law, state courts do not have to follow it when deciding cases brought under state civil rights statutes. For the same reason, the legislation pending in Congress will not affect state court rulings that rigidly interpret statutes of limitations for state civil rights statutes].

The pre-Ledbetter standard was known as the "paycheck rule," under which each new discriminatory pay period reset the statute of limitations clock, thus giving plaintiff more time to file a claim. This approach is quite helpful for plaintiffs because most federal equal employment provisions have very short limitations periods -- usually just 180 days. By contrast, the statute of limitations for breach of contract is as high as fifteen years in some states. Because workers typically do not know the salaries of their colleagues, by the time they discover the sex-based pay differentials, the window for filing a lawsuit would have expired.

Even under the old flexible standard, however, plaintiffs could only recover up to 2 years of backpay. So, if a plaintiff discovered that for five years she had received a lower salary than her male colleagues, she would have 180 days after her last paycheck to bring a lawsuit, but she could only recover damages for the previous 2 years of discriminatory pay.

In the Ledbetter case, the conservative bloc of the Supreme Court invalidated the paycheck formula and held that the limitations period begins on the date of the initial discriminatory wage decision and that subsequent paychecks do not reset the clock. This ruling would prove disastrous for most pay equity litigants -- which is why businesses strongly support it.

Remedial Legislation: The Ledbetter Fair Pay Act
Immediately after the case, several members of Congress sponsored legislation that sought to reverse the ruling. Although the House ultimately passed a measure, Senate Republicans blocked its passage in early 2008. In any event, President Bush had threatened to veto any measures that reversed the Ledbetter ruling. Republican opposition to the legislation became a presidential campaign issue.

The Democrats have now flexed their muscles and have passed the Ledbetter Fair Pay Act, pending the outcome of a conference committee and final vote. Media accounts suggest that Obama, who really knows how to work a narrative, wants this as the first piece of legislation he signs as president. And if news accounts are accurate, he will probably get his wish. The Ledbetter remedial legislation will probably become law within a week.

The "Real" Equal Pay Legislation Has Received Very Little Discussion
At the same time that the House passed its version of the Ledbetter legislation, it also voted to enact a more progressive measure called the "Paycheck Fairness Act." Sponsored by Representative Rosa DeLauro of Connecticut, this measure received even more "yes" votes than the widely reported Ledbetter legislation. The House appended this provision to the Ledbetter legislation and sent the complete package to the Senate.

In 2007, Hillary Clinton introduced an almost identical version of the Paycheck Fairness Act in the Senate. The Senate, however, has apparently tabled consideration of DeLauro's proposal and will instead rush the narrower Ledbetter legislation to President Obama.

Although Congress will presumably (and hopefully) revisit the legislation sponsored by Clinton and DeLauro, the cheerleading surrounding the more discrete and moderate Ledbetter Fair Pay Act has drowned out discussion concerning the more expansive and progressive Paycheck Fairness Act. I understand why Democrats want to rush and get the Ledbetter law enacted and to host a press-heavy signing ceremony with Obama flanked by Ms. Ledbetter and activists (for some reason I wasn't invited). This, however, should not preclude reform-minded individuals from considering and advocating the enactment of more progressive measures. But if we continue to define "reversing Bush" as the sole measure of progressive politics, then more substantive policies like the Paycheck Fairness Act will continue to receive little attention in the media and among politicians and progressives.

Highlights from the Paycheck Fairness Act
Although I do not agree with every item in the legislation introduced by Clinton and DeLauro, I think that we should consider and debate all options. In order to facilitate that process, I have provided some highlights from the more expansive House bill.

The proposed measure acknowledges that existing legislation mandates pay equity, but it finds that:

Artificial barriers to the elimination of discrimination in the payment of wages on the basis of sex continue to exist decades after the enactment of the Fair Labor Standards Act of 1938 . . . and the Civil Rights Act of 1964. . . .

These barriers have resulted, in significant part, because the Equal Pay Act has not worked as Congress originally intended. Improvements and modifications to the law are necessary to ensure that the Act provides effective protection to those subject to pay discrimination on the basis of their sex.
The proposed measure would modify existing law in the following ways:

  • It would require employers to justify sex-based pay differentials in the same job category by proving the existence of a "bona fide" business necessity related to the work the position;
  • Plaintiffs could demonstrate that employers could achieve the business necessity with less discriminatory means;
  • The measure would prohibit employers from retaliating against employees who inquire about or discuss the wages of other employees or who file claims alleging discrimination;
  • The measure would allow for punitive damages, upon a finding that the employer acted "with malice";
  • The measure would establish various programs to help industry reduce and eliminate gender-based pay discrepancies, including the provision of "technical assistance" to companies and the training of "women" and "girls";
  • The proposal would require the Secretary of Labor to collect sex-specific salary data as a part of the routine compilation of employment statistics by the government.
I do not agree with all of these measures. In particular, I believe that punitive damage awards are almost always excessive because they do more than "compensate" victims and basically allow juries to express outrage. Also, I am not sure that the training programs will work. But other measures, such as the bona fide business necessity requirement, appear promising, because employers often successfully explain away discrimination by offering flimsy excuses. Tightening this loophole could help victims of discrimination tremendously.

Related Readings on Dissenting Justice:

Much Ado About Nothing? Liberals Absolutely Ecstatic Over Return to Pre-Bush Status Quo

For additional reading on all sides, see:

Senate Moves Forward on Lily Ledbetter Fair Pay Act

Equal Pay Measure Will Ignite Litigation

Making Ledbetter Better, Or at Least Less Bad

Democratic Death Wish On Labor Relations

Support the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act

Saturday, January 24, 2009

No Child Left Behind: Obama Magically Negates Differences in Black-White Peformance on Standardized Tests!

Well, I won't say much on this one, because regular readers already know how I feel. But let's just say, I believe that eradicating educational inequality will require much more than watching a president speak -- and that any researcher who feels otherwise is just [insert your favorite hyperbole] . . . .

Here's the press release: "The Obama Effect": Test-Taking Performance Gap Virtually Eliminated During Key Moments of Obama's Presidential Run

The New York Times also covered the story: Study Sees an Obama Effect as Lifting Black Test-Takers

And here's the video. It's somewhat of a "snooze" at various points, but it's still worth watching. Even if you generally do not believe in the concept of someone "drinking the Kool-Aid," this guy might persuade you to make an exception.

Friday, January 23, 2009

Much Ado About Nothing? Liberals Absolutely Ecstatic Over Return to Pre-Bush Status Quo

Yesterday, three news stories captured my attention, not so much because of their content, but because of some liberals' reaction to them. The first story covered Obama's promise to lift the so-called "Global Gag Rule," a Bush-era executive order that prohibits foreign recipients of federal money from performing abortions, counseling women about abortions, or from advocating less restrictive abortion policy in their home countries. The second story involves Obama's issuance of a series of executive orders which mandate the closure of the Guantanamo Bay detention facility, prohibit U.S. interrogators from using torture, and create a task force to devise an alternative plan for the detention of war and anti-terrorism captives. The final story reports the Senate's passage of the Ledbetter Fair Pay Act, which, if enacted, would reverse a Supreme Court ruling that requires usage of a more restrictive statute of limitations analysis in employment discrimination cases.

Blissful Liberal Response
Some liberals have responded blissfully to these reports. On Alternet.Org, for example, an article describes Obama's reversal of the Global Gag Rule as evidence that he has already begun "mopping up Bush's misogynistic mess." With respect to the detention and torture developments, the ACLU has a link on its website that permits readers to: "Thank Obama For His Bold First Steps!" And news that the Ledbetter bill could soon become law has sent my pals at Daily Kos into a state of complete euphoria and has many of them advancing the "good Democrats" versus "evil Republicans" narrative.

Pleased -- Not Ecstatic
Let me clearly state what regular readers of this blog should already know: I completely agree with all of the policy changes that have taken shape in recent days. In my scholarship and teaching, I have criticized anti-choice policies, deprivations of due process, and strict rules that toughen the ability of victims of unlawful discrimination to receive justice. Accordingly, I welcome these shifts in policy.

Using Bush's Policies As Baseline to Measure Change Can Limit Progress
Although I support these policy developments, they do not send me leaping around with excitement because they simply restore the legal status quo that existed prior to the Bush administration, which began just eight years ago. And while I view these policies as a "positive" turn, they can only represent a radical advancement if we accept the Bush administration's policies as the baseline for measuring change.

Using Bush as the Baseline Obscures the Fact That His Policies Departed From Past Practices
I strongly encourage liberals to reconsider treating the reversal of Bush's abhorrent polices as a monumental shift in U.S. political culture and ideology. While describing the significance of recent (and future) policy changes in very dramatic terms can further the political interests of Democrats, the political campaigns have ended. Also, my commitment to justice far exceeds my commitment to any political party -- and if the two diverge, I will certainly choose justice over party politics. And while many younger voters probably view "anything but Bush" as a tremendous advancement, their limited experiences do not change that fact that the types of policies that Obama has recently implemented and proposed were once standard practice.

Using Bush as the Baseline Can Curb Liberal Demand for "Real" Monumental Change
I fear that by treating "new" policies that restore the pre-Bush legal terrain as Earth-shattering developments, we risk lowering our expectations and settling for less progressive change. Merely reversing Bush could become the "ceiling" or ultimate aim for liberals. Many liberals -- especially younger ones who lack a knowledge of history -- could become content so long as U.S. policies mirror those of 1999. Although a return to the pre-Bush past would represent a shift in policy, we should demand deeper changes before we enter a state of euphoria.

The Pre-Bush Status Quo Was not Perfect
The fact that the pre-Bush "liberal" status quo was not perfect should also cause liberals to demand greater reform and to approach this new era with caution and vigilance. For example, while the proposed Ledbetter legislation restores the older, more flexible rule for calculating the statute of limitations period, it does not alter the utterly short time period (six months) for bringing a claim, nor does it alter the legal standards for proving discrimination that have hindered plaintiffs' ability to succeed on their claims. The House version of the Ledbetter statute includes a host of procedural and substantive reforms that could benefit civil rights plaintiffs and represent real progress over the Clinton era. The Senate version, however, omits those changes, and it appears that House Democrats will compromise and agree to eliminate their more progressive provisions.

Furthermore, while liberals celebrate the fact that foreign organizations that receive U.S. financial assistance can once again perform and counsel women regarding abortions (just as they did during the Clinton administration), domestically, the federal government and most states exclude abortion services from government-sponsored health plans. It is unclear whether Obama will try to reverse this policy as he implements health care reform. But it is absolutely clear that he will not try to reverse this widely desired policy if liberals, content with the restoration of old rules, do not even float the possibility of this forward-looking change. Some reproductive rights groups "get it" and have pushed Obama on this issue.

Although reversing Bush's bad policies represents change, simply restoring the pre-Bush past does not excite me. Treating the reinstatement of pre-Bush policies as a monumental shift risks making this the sole aspiration of liberals and other reform-minded individuals. A cautious approach, by contrast, could place the nation's leaders on notice that voters want deeper reform, and it could educate younger voters who experience these limited "changes" as novel and radical.

Related Readings on Dissenting Justice:

Thursday, January 22, 2009

Closing Guantanamo Bay Detention Facility and Prohibiting Torture: The Executive Orders

Law blogs are buzzing over three executive orders that President Obama issued Thursday. The executive orders provide that: (1) an interagency task force must create a plan to close down the Guantanamo Bay detention facility within one year; (2) an interagency task force must develop procedures for detaining "individuals captured or apprehended in connection with armed conflicts and counterterrorism operations"; and (3) all U.S. personnel, including agents with the CIA, must use interrogation standards that comply with the Army Field Manual and the Geneva Conventions.

Interrogation Methods
I am most excited about the order that requires interrogators, including those with the CIA, to comply with the Geneva Conventions and the Army Field Manual, both of which ban the use of torture, including "waterboarding." The approval of torture (which is inhumane and illegal) by the Bush administration was one of its darkest moments. This order, along with the Detainee Treatment Act of 2005, the Geneva Conventions, and the Army Field Manual, establishes a blanket prohibition of torture. The order also requires the CIA to shut down any detention facilities it operates.

Closing Guantanamo Bay
The Guantanamo Bay order is probably the most complicated of all. The order requires that an interagency task force must produce a plan to close the detention facility and that closure must occur within one year. The task force must submit the plan within six months.

So, as many commentators predicted, Obama has moved quickly to "close" the Guantanamo Bay detention facility, but it will remain open for the near future. Also, the order only affects the detention facility, not the military base; nor does it affect other U.S.-controlled detention facilities. The order, however, halts the trial of individuals before military commissions.

What To Do With Detainees?
The order lists several possible paths for individuals who remain detained at Guantanamo Bay when the date of closure arrives. The executive order provides that those persons "shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States." This language permits the government to place detainees in other military facilities, which probably would not satisfy some civil libertarians who seek either release or detention in federal prisons.

Potential "Loophole": Military Trials Remain an Option
Also, the order does not rule out the possibility of prosecuting detainees in military commissions, rather than in federal courts. Here is the relevant language:

In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution. . . .
The Center for Constitutional Rights has issued a statement which asserts that anything other than a trial in a federal court would "discredit all of the new administration’s efforts in the eyes of the world." While I do not accept this contention (at least not yet), Obama would definitely contradict a campaign promise if he does not utilize federal courts to prosecute suspected terrorists.

No Enforceable Rights
Finally, the executive orders do not create enforceable rights. Instead, they just establish rules of conduct for executive branch personnel. In the absence of action by Congress on this subject, aggrieved individuals cannot sue to enforce these measures or to recover damages for violations.
Related Readings on Dissenting Justice:

Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)

Waffling or Just Filling in the Details: Obama's Statements on Guantanamo Bay Raise Questions

Wednesday, January 21, 2009

Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)

[Note: This article is the first in a series that examines the extent of Democratic support for Bush's most criticized policies. This essay examines Democratic endorsement of "Bush's" wars and his administration's restraints on civil liberties contained in the Patriot Act and amendments to FISA. Subsequent articles will examine other aspects of Democratic support for Bush's policies.]

The end of Bush's disastrous presidency has generated a lot of commentary, which describes him as the worst president in U.S. history. Although I believe the claim is debatable, I will, for the sake of argument, agree with the assertion. Accordingly, I hereby proclaim that Bush is the worst president in U.S. history. He ranks lower than presidents who presided over the slaughter and brutal relocation of Native Americans. His actions are worse than the decisions by presidents who extended slavery and whose inaction led to the Civil War. He has done more damage than presidents who grabbed land during the westward expansion and "negotiated" treaties to seal the deal.

Presidents Do Not Act Alone
But a president's actions do not occur in a vacuum. Many other individuals and institutions influence and "check" the president's behavior. The constitution, for example, distributes governmental power horizontally among the three federal branches and vertically between the national government and the states. Also, the behavior of corporations, nonprofits, and individuals influences policy and the macroeconomy. The transactions among financial institutions, home purchasers, and other investors, for example, contributed greatly to the housing bubble and its subsequent implosion and to the spread of risky securities, which have wreaked havoc upon financial markets.

Political Parties Can Dissent from Irresponsible Behavior
The two major parties can also help make public officials more accountable. For most of Bush's presidency the Democratic Party has been the minority party in Congress. As such, a vigilant Democratic legislative caucus could have monitored and challenged the president, in order to prevent him from implementing the worst decisions in U.S. history.

The remainder of this essay considers whether the Democrats provided a useful "check" or a dissenting voice in response to Bush's "bad" decisions. If Democrats voted for or failed to challenge the policies which critics assert make Bush the worst president, then they must share some of the blame for the existence of those policies.

Even if the Democrats could not persuade enough Republicans to cross party lines in order to defeat Bush's bad policies, Democrats could still express dissent by voting against his terrible agendas. Let's see how they performed.

The Two Wars: Afghanistan and Iraq
Bush's critics often cite his decisions to lead the country into two costly and deadly "wars" as the leading reasons why his presidency ranks at the very bottom (Congress has not formally "declared war" since 1941). Although many liberals believe the Afghanistan War was justifiable, they almost uniformly disagree with the Iraq War, citing Bush's failure to uncover "weapons of mass destruction." Many liberals also disagree with the execution of the war and lament its rising costs and human toll. But what position did Democrats in Congress take on the wars? [Editor's Note: For the record, I disagreed with both wars.]

If the decision to invade Afghanistan helps to make Bush the worst president, then Democrats cannot claim the moral high ground whatsoever. The Authorization for Use of Military Force, which permitted the invasion of Afghanistan, passed in the House 420-1 (and 10 abstentions); it passed in the Senate 98-0 (and 2 abstentions). Most Bush critics, however, reserve their deepest anger for the Iraq War.

The resolution to authorize the invasion of Iraq produced mixed results among Democrats. A majority of House Democrats voted against the resolution. Although the measure passed in the House by a vote of 296-133, the vote among Democrats was 82-126 (with 1 abstention). In the Senate, however, the measure passed by a vote of 77-23; among Democrats, the vote was 29-21. So, while House Democrats declined to authorize a war that a majority of the public supported, Senate Democrats agreed with Bush and the public -- but not to the same extent as Republicans.

Although Democratic lawmakers split their votes on the Iraq War, a closer look at "who" voted in favor of the resolution reveals an interesting pattern. The group of Democrats who voted in favor of the Iraq War includes some very powerful figures, such as: Hillary Clinton, Obama's Secretary of State; Joe Biden, Obama's Vice President; Tom Daschle, Obama's Secretary of Health and Human Services; John Kerry, Democratic Presidential Nominee 2004, and Harry Reid, Senate Majority Leader. If supporting the war shows a "lack of judgment" (as Obama said) or, if it helps to make Bush the worst president, then Democrats must share part of the stigma they assign to Bush.

Civil Liberties
Bush's critics rightfully condemn his administration's infringement of civil liberties. But many Democrats supported the very legislation and other practices that liberals believe make Bush's presidency the worst in history.

Patriot Act
Liberals have very passionately criticized the Patriot Act, which gives the President greater access to people's private records and communications under the guise of hunting terrorists. Despite liberal criticism, the Patriot Act passed with wide majorities in both Houses of Congress. Furthermore, the same powerful Democrats (see above) who supported the Iraq War voted for the Patriot Act as well. Nancy Pelosi, the Speaker of the House, also voted in favor of the measure.

Reauthorization of the Patriot Act
Congress reauthorized the Patriot Act in 2006. A majority of House Democrats voted against reauthorization, but only 9 Senate Democrats voted against it. Some of the biggest power brokers in the Democratic Party supported reauthorization of the Patriot Act, including former Representative Rahm Emanuel, who is now Obama's Chief of Staff. Senators Clinton, Biden, Kennedy, and Reid also voted for reauthorization. And the most powerful Democrat -- President Obama -- voted for reauthorization. If passage of the Patriot Act makes Bush the worst president, then Democrats who voted in favor of the law deserve condemnation as well.

After the news media leaked that Bush was administering a secret program of warrantless wiretapping, liberals rightfully criticized the scheme, which violated the Federal Intelligence Surveillance Act and, arguably, the Fourth Amendment. Despite the outcry from liberals and conservatives who embrace civil liberties, Congress has amended FISA to expand the president's authority and to immunize companies that helped the government monitor communications without a warrant. The immunity provision sparked a tremendous amount of outrage among liberal activists.

2007 FISA Amendments
Despite liberal criticism of Bush's spying program, many Democrats voted to expand presidential power and to immunize companies that conducted warrantless wiretaps under Bush's illegal program. Congress passed the "Protect America Act of 2007, which amended FISA to permit warrantless surveillance of communication if the government believes that one or more of the parties to the communication is located outside of the United States. This is precisely the expansion that Bush sought.

Most Democrats voted against the 2007 changes to FISA. In the Senate, the measure passed 60-28 (with 12 abstentions); 27 Democrats, however, voted against the measure, including Senators Clinton and Obama. 16 Democratic Senators, however, voted in support of the measure, as did Senator Lieberman (who retains seniority in the Democratic caucus, but who won his Senate race as an Independent).

In the House, the measure passed by a vote of 227-183 (with 23 abstentions); Democrats, however, voted against the amendment by a vote of 181-41 (with 9 abstentions). The Democratic vote against this amendment is one of the strongest moments in the party's opposition to Bush on civil liberties issues.

2008 FISA Amendments
The 2007 amendment to FISA contained a sunset provision, which provided that the newly added terms would expire in 180 days. But Congress has now passed new amendments that substantially expand presidential authority. The FISA Amendments Act of 2008 allows the government to conduct warrantless wiretapping of foreign targets for up to seven days, after which it must obtain a warrant. But the amendment gives the FISA court 30 days to review a request for a warrant, while the government can continue its surveillance. Under the original version, the government needed to obtain a warrant within 48 hours. Congress also approved the most controversial provision, which immunizes companies that assisted the government with its illegal warrantless surveillance, thus preventing wronged parties from recovering damages for improper invasion of their privacy.

The 2008 amendments to FISA passed in the House by a vote of 293-129 (with 13 abstentions); a slight majority of Democrats voted against the measure, 127-105. In the Senate, the measure passed by a vote of 69-28, with 3 abstentions. Among Democrats, the vote was 27-21 against the measure.

Although a small majority of Democrats voted against the 2008 amendment to FISA, the list of Democrats who voted for the measure, include Senators Feinstein and McCaskill and Representatives Emanuel and Pelosi. But the most prominent and controversial Democratic support for the amendment came from President Obama. Although Obama promised unequivocally to vote against the legislation during his campaign, he ultimately broke this promise. This vote represented his first major clash with the Left. Senator Clinton voted against the measure, while McCain abstained.

Although Democrats failed to support the Iraq War, many of the Democratic leadership authorized the military action. Furthermore, virtually all Democrats voted for the war in Afghanistan.

Also, while liberals consider the Patriot Act the "poster child" of abuse by the Bush administration, strong majorities of Democrats voted for the legislation, and Senate Democrats, including President Obama, voted to reauthorize the provision.

With respect to FISA, Democrats, particularly members of the House of Representatives, have strongly opposed the expansion of presidential power. Nonetheless, many of the most powerful Democrats, including President Obama, voted to augment presidential power under FISA and to immunize companies that helped Bush conduct warrantless wiretaps.

Although presidents have a lot of control over the legislative agenda that Congress pursues -- particularly with respect to war -- this does not deprive Congress, including members of the minority party, from organizing against the president's initiatives. And while many liberals consider Bush the worst president in U.S. history, many Democrats voted in favor of policies that commentators cite as Bush's most disastrous.

As liberals welcome an era of "change" in Washington, we must remember that Democratic leaders endorsed some of Bush's most injurious policies. Bashing Bush might seem fun, but it fails to hold Democrats accountable. Change, however, cannot occur unless liberals act consistently. Otherwise, we look like unprincipled hypocrites.

Related Readings on Dissenting Justice:

Hold Them Accountable Part II: If Conservatives Caused the Economic Crisis, They Had a Lot of Help from Democrats!

Get a Grip People: Bush Is not the Worst President in U.S. History

Tuesday, January 20, 2009

My Requisite Feel-Good Inauguration-King Day Essay

Words cannot express how happy I am . . . that is, how happy I am to write my first ever "Requisite Feel-Good Inauguration-King Day Essay." And because words cannot express my utter contentment, I have decided to "write" a photo essay, instead of offering "more of the same." Here are some of the things that make me oh so giddy, effervescent, and full of "hope." Enjoy.


Eating after Grilling

The Ocean

The Gators (I couldn't choose one picture)

Brooklyn! I miss living in the best city in the USA

The Jeffersons: 70s TV Comedies Are the Greatest

"There's a New Girl in Town" (Alice had one of the best theme songs)

Living Single (Could easily have been a 70s or 80s show)

Frasier -- Perhaps the greatest comedy ever!

Sarah Vaughan: Sassy and the Divine One

Happy Inauguration-King Day from Dissenting Justice!

Monday, January 19, 2009

Huh? Obama Praises the "Worst President" as a "Good Guy"

While liberals debate whether Bush is the worst president in history, Obama has offered his opinion (at least his public one) of the man liberals love to hate. During a recent interview with CNN, Obama said the following concerning Bush:
I always thought [Bush] was a good guy. . . .

I mean, I think personally he is a good man who loves his family and loves his country . . . .

[He made] the best decisions that he could at times under some very difficult circumstances. . . .

Do the people at Democratic Underground know about this?

Saturday, January 17, 2009

Get a Grip People: Bush Is not the Worst President in U.S. History

I have always found surveys that ask people to rank presidents a little silly. People who complete these surveys often fail to look beyond their own reality and consider figures from the past. Also, even when people look to the past, they usually employ contemporary standards to judge historical conduct. But many political positions that are suicidal today, were perfectly acceptable in the past (and vice versa). Not taking this into account can cloud our assessment of historical actors. Finally, in order to determine a president's place in history, we might have to wait until long after the person leaves office before we can accurately ascertain the longterm impact of the individual's term in office.

But. . .Now That I'm in the Game, Others Compete Strongly With Bush for the Bottom-Feeder Award
Having said that, I have been lured into the game of presidential rankings due to the numerous postings on liberal blogs which state uniformly, unequivocally, and without any nuance whatsoever that President Bush is the absolute worst president in the history of the United States. Liberal blogger Bernie Horn, at Blog for Our Future, has posted an essay, Bye Bye to the Worst President Ever, which has become popular on progressive blogs.

Horn concludes that Bush is the worst president because he, among other things, made the "worst foreign policy mistake in the history of this country," presided over an "unprecedented rejection of human rights," caused "unprecedented increases in inequality," engaged in a "culture of sleaze," blindly rejected science, and because he utterly refused "to protect the health, safety, and legal rights of Americans." Horn's analysis follows the pattern of many other "Bush-Is-the-Worst-Ever" essays because he fails to consider actions by other presidents that make them strong -- if not stronger -- candidates for the role of worst president.

One could rationally argue, for example, that the Vietnam War was an even greater foreign policy mistake than the Iraq War. Also, Andrew Jackson's callousness regarding the rights of Native Americans, which led to the brutal ejection of the Cherokee from Georgia, provides a much earlier instance of a president abusing a group's human rights. The Supreme Court held that federal law protected the Cherokee from Georgia's effort to remove the tribe in order to take possession of gold discovered on tribal land. In response, Jackson snidely declared: "John Marshall has made his decision. Now let him enforce it!"

Even presidents ranked among the "greatest" have made horrible decisions that rival Bush's for their inhumanity and illegality. FDR, for example, ordered the internment of Japanese Americans, and his administration filed legal briefs to the Supreme Court that contained fraudulent "evidence" of their involvement in espionage and sabotage in order to justify this gross deprivation of liberty.

Another Possibility: Andrew Johnson
Let me state for the record that I disagree with just about everything Bush has said or done. But I have not allowed that fact to unnerve me or to distort my reading of historical events. There are many other presidents who could top Bush on the "worst president" list. When I think about the subject, Andrew Johnson always emerges as my choice -- or at least as a strong contender.

As a Southerner and a Democrat, Johnson supported slavery, but he also strongly opposed secession. Johnson was the only Senator from the South who refused to leave Congress after the advent of the Confederacy. He also attempted to modify his position on slavery, stating that if free, blacks could become better workers. Newspapers in the South criticized Johnson as positioning himself for a vice presidential position. Lincoln ultimately chose him as a running mate (dropping Vice President Hannibal Hamlin, whom party advisors viewed as too progressive) during his re-election bid. Lincoln wanted to unite Republicans and Pro-War Democrats in order to strengthen his electability.

At his inauguration ceremony, a clearly drunken and red-faced Johnson addressed the Senate. Johnson delivered a rambling and incoherent speech, during which he frequently referred to himself as a "plebeian," who lacked knowledge of "parliamentary law" and procedure, but who would call upon learned individuals for help. Historical accounts of the moment provide great entertainment. Johnson, however, has an excuse for his drunkenness: he had consumed a few shots of whiskey to help him recover from an illness.

Johnson's Deplorable Presidential Decisions
But Johnson's pre-presidential behavior, as entertaining as it is, cannot qualify him as the worst president. Once Lincoln died and Johnson replaced him as president, however, Johnson quickly became the enemy of Reconstruction. He also established himself as a terrible leader, a staunch opponent of social and legal progress, and as a guardian of white supremacy. Here are some highlights (or "lowlights") from Johnson's presidency:

* Johnson explicitly encouraged the State of Mississippi to prevent blacks from voting. Negotiating the state's return to the Union, Johnson encouraged the governor to extend voting rights to those "persons of color" who could "read the Constitution . . . in English and write their names . . . [and] who own[ed] real estate valued at not less than two hundred and fifty dollars." Johnson said that if the state took this action, "the radicals, who are wild upon negro franchise, will be completely foiled in their attempt to keep the southern states from renewing their relations to the Union. . . ."

* During the war, General Sherman seized lands in coastal South Carolina, Georgia, and Florida and declared that they would be distributed to former slaves. Many freed slaves actually occupied and began utilizing the land for subsistence. Johnson, however, overruled the decision. Johnson resisted all efforts to distribute land to the former slaves.

* Johnson vetoed legislation permitting blacks in the District of Columbia to vote, arguing:

Where a people . . . speak . . . through the. . . ballot box, it must be carefully guarded against the control of those who are corrupt in principle and enemies of free institutions . . . [I]n admitting . . . a new class of voters not qualified for the exercise of the elective franchise we weaken our system of government instead of adding to its strength and durability.

* Johnson offered amnesty to a very broad class of individuals involved in the rebellion. Under the sweeping provision, Johnson even pardoned Alexander Stevens and Jefferson Davis, the Vice President and President of the Confederacy.

* During the war, Congress created the Freedmen's Bureau, an agency in the Department of the Army. The Freedmen's Bureau provided healthcare, shelter, schools, legal assistance, and protection from racial violence to the former slaves. After the war, Congress voted to extend its operations. Johnson vetoed the legislation -- twice.

* After the war ended, the Southern states enacted "Black Codes," or discriminatory laws designed to subjugate blacks. Some laws, for example, criminalized black unemployment. The penalty for these so-called "vagrancy" laws included a fine or term of servitude. Because blacks lacked legal representation or money to pay fines, they were sentenced to a term of bondage, often to the very individuals who "owned" them during slavery. The laws also forced black orphans (this was a huge problem, due to the war, post-war violence, and the sentencing of adult blacks to terms of servitude) to terms of bondage until the age of 18. Congress passed the Civil Rights Act of 1866 to combat these practices and to secure the equal status of blacks under the law. Johnson vetoed the legislation.

* Radical Republicans in Congress spearheaded the passage of the Tenure of Office Act, which required Senate consent before the president could remove officeholders whose appointments were made with Senate consent. Congress (shamelessly) passed the law in order to prevent Johnson from firing Secretary of War Erwin Stanton -- who was a Radical Republican. The position was of great importance because the the South remained under military rule at the time. During a congressional recess, Johnson replaced Stanton with Ulysses S. Grant. When Congress reconvened, however, the Senate rejected Stanton's removal. Grant withdrew from the position, but Johnson again fired and replaced Stanton. The House moved to impeach Johnson because he violated the statute. Johnson escaped removal from office by one vote in the Senate. He was, however, the first president whom the House impeached.

Even after I adjust for historical prejudice, the evolution in the nation's political culture over time, and my own personal hatred of slavery and Jim Crow (for obvious reasons), I still believe Johnson's action's did greater harm to justice, humanity, and to national unity than Bush's policies. Either way, history will eventually find a place for Bush. And it might differ from the position to which liberals currently assign him.

Recent, Related Posts:

Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)

Separate and Unequal Public Schools: "Liberal" Blue States Have Worse Records Than "Dixie"

Thursday, January 15, 2009

Separate and Unequal Public Schools: "Liberal" Blue States Have Worse Records Than "Dixie"

Democrats frequently brag about their party's diversity and support for "equality" measures. They also blast the Republican Party as a relic of the past and as a racist, sexist, and homophobic organization that only attracts white, male, and older voters.

After the "historic" battle between Hillary Clinton and Barack Obama, the Democratic Party has given the country its first black president. Around 90% of blacks vote for Democratic candidates, and this trend started long before Obama's candidacy. Majorities of Latinos, Asian Americans, women, and younger voters also prefer Democrats. And liberal political scientists hope that Obama's election victory means that white elites, forward-thinking younger voters and traditionally Democratic-leaning persons of color have now formed a liberal "Great Society Coalition" that will reverse a generation of Democratic losses in presidential politics.

On many issues, the Democratic Party provides more support for the interests of vulnerable communities and progressive social movements. But Democrats perform miserably in other areas, and these failures undermine the rhetoric concerning its diversity and liberalism. Educational inequality is perhaps the greatest failure of contemporary liberal governance.

Separate and Unequal Schools: Blue States Outperform Dixie
Many of the nation's public schools are separate and unequal. Typically, the country's school populations are racially homogeneous, and vast differences in funding exist across jurisdictions. On average, schools with relatively poorer student populations receive less public funding. Also, schools with higher concentrations of students of color tend to have poorer student bodies. Together, these two realities produce school systems in which the average student of color attends racially isolated and poorly funded schools, while white students attend racially isolated, yet better funded schools.

Educational statistics repeatedly confirm that Democratic (or "blue states") are among the very worst offenders with respect to racial isolation and funding inequity. The Civil Rights Project at UCLA (formerly at Harvard University) and the Federal Education Budget Project of the New America Foundation conduct research and compile data related to education policy. Reports prepared by these two institutions reveal that "liberal" blue states have worse records than Dixie with respect to educational equality.

Racial Isolation
The Civil Rights Project is a leading national authority on race-related education research. A 2006 publication released by the Civil Rights Project analyzes the rate of racial segregation in public schools for each state. The report presents data regarding several categories of segregation (e.g., black, Latino, Asian-American) and for varying degrees of isolation (e.g., majority-minority, 90-100% minority). Public schools in liberal Democratic states consistently rank among the most racially isolated in the nation.

Blacks and Latinos Most Segregated in Democratic Jurisdictions
According to the Civil Rights Project, the 10 states with the lowest percentages of black students attending schools with white students are: New York, Illinois, Michigan, California, Maryland, New Jersey, Mississippi, Louisiana, Texas, and Wisconsin. In terms of black students attending highly segregated schools (90-100% minority students), the list is almost identical: New York, Illinois, Michigan, Maryland, New Jersey, Pennsylvania, Alabama, Wisconsin, and Mississippi.

With respect to Latino students' exposure to white students, the 10 most segregated systems are located in: New York, California, Texas, New Mexico, New Jersey, Illinois, Rhode Island, Arizona, Florida, and Maryland. The states with the highest percentages of Latino students attending highly segregated schools (90-100% minority) are: New York, Texas, California, Illinois, New Jersey, Arizona, Rhode Island, Florida, New Mexico, and Maryland.

These rates of racial isolation are not inevitable. Nevada, for example, has a large population of black and Latino students in its public schools, but it has one of the highest rates of integration for these two demographics. The Civil Rights Project attributes this to a longstanding, but now-expired, desegregation decree. Since the lifting of the desegregation order, however, Nevada has experienced an increase in racial isolation for black and Latino students.

California Consistently Bad
In 1979, California voters amended the state constitution to prohibit state courts from ordering busing or student reassignment unless a federal court would do so under the same circumstances. The amendment effectively toughened the legal standard for remedying racial isolation in the state's public school because at the time, California law, unlike federal law, prohibited both intentional and de facto racial segregation in public schools.

The movement to pass Proposition 1 began as a state judge contemplated issuing a busing order to cure segregation in the Los Angeles metropolitan area. The amendment made the proposed remedy illegal under state law.

Today, California has one of the most racially segregated school systems in the country. White students in the Southeast, however, are more likely than students in any other region of the country to attend public school in a multiracial environment, although resegregation in the Southeast has grown more rapidly than in any other region in the last decade.

Funding Inequality
In the 1978 case Rodriguez v. San Antonio Independent School District, the Supreme Court held that funding inequity across school districts does not violate the Equal Protection Clause. Funding inequity results because in most states, property taxes finance school expenditures. Wealthier districts with higher property values can generate greater tax revenue and allocate substantially more money for their education budgets. Although poor whites suffer from this problem as well, persons of color more often live in "concentrated poverty" neighborhoods than poor whites. Accordingly, funding inequality, though problematic across racial groups, has a distinct racial effect.

The Federal Education Budget Project of the New America Foundation has compiled data on funding inequity within each state. This research reveals that, in addition to having the most racially segregated school systems, the blue states have the highest levels of school funding disparities in the nation.

According to Federal Education Budget Project report, the "South is the most equitable region" with respect to school funding. Specifically, the 10 states with the most evenly funded school districts are: Hawaii, West Virginia, Florida, Iowa, Washington, Delaware, North Carolina, Texas, Wisconsin, and Louisiana. By contrast, the most inequitable states (from bad to worst) are: Idaho, Pennsylvania, New York, Vermont, Wyoming, Missouri, Massachusetts, Virginia, Montana and Illinois.

Illinois and New York: Terrible Records, Despite Obama and Clinton
Examining funding and racial composition data together reveals that public schools in Illinois and New York rank among the most racially isolated and unevenly financed in the entire nation. These states also rank among the bluest states in the nation.

Illinois has one of the best records of electing blacks (and Democrats generally) to public office, and it is the home of the nation's first black president and the Great Emancipator. Illinois sits in the cradle of change. Yet, the state's record of "diversity" has not lead to the systematic implementation of egalitarian education policy. New York, a bastion for liberal Democrats and the home state of Hillary Clinton, has a terrible record of performance on these issues as well.

No Bragging Rights
As a veteran professor of Constitutional Law and Race Relations, my exposure to data confirming the persistence of inequality -- even in states governed by Democrats -- makes me more guarded than many of my colleagues concerning the implications of Obama's election victory and the Democratic sweep of Congress. Although having a black president provides an enormous amount of positive symbolism, this fact alone will not lead inevitably to policies that address entrenched patterns of inequality.

When progressives condemned Southern whites as racists because they supported Clinton over Obama, they conveniently ignored the vast patterns of inequality in their own communities. Although Democrats have legitimately criticized the GOP for referring to Obama as a "magic Negro," pervasive educational inequality harms black children much more than the Republican's satire. And while contemporary civil rights activists flexed their muscles to rid the nation's airwaves of Don Imus, they have not engaged in equally organized and passionate advocacy to challenge educational inequality.

Supporting symbolic change means little unless it leads to the actual transformation of policy. Embracing policy transformation does little, unless the new policies seek to undo entrenched patterns of inequality, rather than simply reciting (again) that discrimination is wrong. Until the Democrats begin to show progress on these issues in jurisdictions where they have consistently exercised dominance, I will remain guarded concerning the significance of their recent success in national politics.

By exploring these issues, I seek to push Democrats beyond a simplistic narrative that portrays liberals as just and conservatives as unjust. Ultimately, I hope to persuade liberals (and anyone else who listens) to embrace a concept of "diversity" that extends beyond mere window-dressing and to imagine and begin creating a society where access to equal educational opportunity does not depend upon one's race or class. Before they can meaningfully reform the image of the United States in foreign affairs, Democrats need to challenge the invidious distribution of important social resources in their own communities.
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