Thursday, April 30, 2009

Is Justice Scalia an "Irresponsible" Judge?

Justice Scalia tends to irritate many people when he visits law schools. Several years ago, a student at NYU Law School infamously (but cleverly) asked Justice Scalia whether he and his wife engaged in a particular sex act. Scalia predictably responded that this was a private matter. The student responded by noting the glaring disparity between Scalia's desire to keep his own sex life private and his rulings excluding sexual conduct from the right of privacy.

Now, a professor has gone after Scalia. It all began when Scalia, appearing at a conference on digital privacy, made comments dismissing privacy concerns related to web-based information as "silly." Scalia also downplayed complaints regarding Internet "tracking," arguing that "I don't find that particularly offensive . . . I don't find it a secret what I buy, unless it's shameful."

In response, Professor Joel Reidenberg, who teaches information privacy at Fordham Law School, required his students to compile information concerning Scalia. The 15-page report contains information regarding Scalia's "home address, the value of his home, his home phone number, the movies he likes, his food preferences, his wife's personal e-mail address, and 'photos of his lovely grandchildren.'"

Scalia, however, has responded in his normally caustic, yet witty, style:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any (boldface added).
Ouch.

Often, when I teach Scalia's opinions I find myself agreeing with his "social criticism" of the other justices. For example, he often accuses liberal justices of being driven by ideology or politics. Similarly, in his comments concerning Reidenberg, he accuses the professor of exercising "abominably poor judgment." I am always troubled, however, that Scalia never turns his blade inward to examine how his own jurisprudence responds to politics and personal ideology. In this moment, I cannot resist the opportunity to use Scalia's words to evaluate his own judging.

Scalia has made the unassailable point that what is "perfectly legal" can also represent "abominably poor judgment." Applying that logic to judicial opinions, one could argue that a Court ruling (or individual Justice's opinion) can contain completely sound logic and fall within the reasonable range of outcomes -- yet still demonstrate an abominable level of judicial irresponsibility. Although there are several moments where I would argue that Scalia acted irresponsibly, the following analysis details perhaps his worst moment of recklessness:

Race and the Death Penalty
McCleskey v. Kemp involved an Equal Protection and Due Process challenge to the Georgia death penalty. A statistical study demonstrated a strong racial pattern in the imposition of capital punishment in Georgia. The racial pattern that most likely resulted in a death sentence involved a black defendant and a white victim. The Court rejected the petitioner's claim, arguing that he had not proven that he had suffered discrimination (even if others potentially had) or that Georgia maintained the death penalty "because of" the racial pattern that emerged.

Justice Scalia voted with the majority. Even though he joined the majority opinion which held that insufficient evidence of racism existed, Scalia nevertheless wrote a memorandum to the other justices prior to the ruling in which he concedes that juries and prosecutors make decisions based on race. Scalia, however, said that the law could not remedy this (which is almost a direct quote from Plessy v. Ferguson):

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.
I would rank this as one of the most egregious examples of judicial irresponsibility. For a Justice of the Supreme Court to concede the operation of jury or prosecutorial racial bias but then pretend that the court is incompetent to remedy the situation when a person's life hangs in the balance is horribly irresponsible.

Ironically, Justice Scalia does not believe that the Court is incompetent to remedy "racial discrimination" when he votes to invalidate affirmative action policies. Nevertheless, the Court cannot change the scenario when the government is, under his own admission, killing someone due in part to racial bias. Highly irresponsible.

GOP Will "Retool" It's Image by Dispatching a Non-Diverse Crowd -- Including a Bush?

I have been pretty fair to the GOP -- even defending RNC Chair Michael Steele and Rush Limbaugh against silly Democratic antics. But I am completely baffled this latest Republican effort to heal the wounded GOP brand.

According to CNN, the GOP will sponsor a series of town hall meetings across the country, billed as "The National Council for a New America." But the group does not look so "new" to me.

First, Jeb Bush and John McCain are two of the leading participants. On some level, I understand having John McCain on the program because he is the most prominent Republican at the moment. But he is also the most prominent Republican to lose to a Democrat in recent memory -- so it will take some work for him to attract people outside of committed Republican circles.

Also, Jeb Bush has been out of office for a while, and (most importantly) his brother has a lot to do with the party's image falling over a cliff. The "Bush" name does not symbolize a "new" America for most voters.

Finally, other than Bobby Jindal, I do not see much diversity on the proposed list of speakers. This will only fuel arguments that the party is "out of touch" with the U.S. mosaic.

Well, let's see what happens. I wonder if McCain's pro-same sex marriage, clearly new Republican daughter is on the list? Probably not. But then again, I didn't see Limbaugh's name listed either.

UPDATE: According to an article in the New York Times, the questions I have raised about this retooling effort are being debated within the GOP. Apparently, the party is somewhat divided over what direction it should take. Some Republicans, for example, praise Specter's departure and want the party to become more solidly conservative. Others, however, are demanding greater flexibility on social and economic issues.

I have argued previously that conservatives could frame support for social causes normally seen as "liberal" by using conservative/libertarian principles. For example, supporting the rights of the accused, keeping the government out of GLBT bedrooms, and endorsing a woman's right to choose are consistent with the Republicans' purported belief in limited government.

How the party works through these issues will certainly impact the way it performs in the near future. I do not think that the current political scene is permanent. Politics comes in cycles. The 60s and 70s were liberal, but this ushered in a period of conservatism. Now, things "look" more liberal -- although I am suspicious about how liberal things actually are. Nevertheless, history provides overwhelming evidence on this: Things do not always remain the same over the course of time in politics. Cycles exist. How a party manages the cycle will determine its fate in the short-term and maybe over the long haul as well.

Wednesday, April 29, 2009

Pass the Smelling Salts: A Racial Divide Exists in the USA

Despite the incessant post-racial discourse of the last year, a recent poll by the New York Times suggests that a strong racial divide persists concerning social and political issues. For example, Obama's approval rating among blacks is 80%, while it is 49% among whites. 21% of whites have an unfavorable view of Obama; the unfavorable number among blacks is too tiny to measure. The Washington Examiner has more analysis and details.

A few comments
First, these numbers are somewhat misleading because they do not control for party affiliation. Most blacks are Democrats, and Obama's support among Democrats who are not black is very strong as well. Some liberal bloggers are using this fact to ridicule the Washington Examiner article, but this criticism does not change that fact that on many important social and political issues, a true racial divide exists. A similar pattern exists with gender as well.

Second, blacks are typically very cynical about politics and politicians, but Obama has certainly changed that. I am concerned, however, that blacks seem unwilling to accept a nuanced view of Obama. Any criticism seems to result in a smackdown (ask Tavis Smiley). I passionately believe that "approving" everything a president does will not advance racial justice, even if the president is black. Apparently, people have not learned to distinguish race from political ideology. While the two concepts are related, they are not the same.

First Pig Flu Death Drowns Out Bad Economic News: 6.1% Drop in GDP During First Quarter 2009

Even though 16, 000 people have already died from the non-celebrity, basic influenza virus this year, the swine flu is all the rage. And now that the CDC has confirmed the first U.S. death from the virus, the news coverage will probably escalate.

But while a majority of the media continues to advance melodrama over important news, a sobering story about the economy has emerged: GDP declined at a seasonally adjusted annual rate of 6.1 % in the first quarter of 2009.

Source: U.S. Economy Shrank at 6.1% Rate in First Quarter

Reader Challenge: How Has Obama Changed DC?

The Politico has published an article with a provocative title: 100 days: How Obama changed D.C. The article is relatively long -- occupying 5 web pages. But there is a major problem with the article: Despite the length and provocative title, I cannot find any evidence in the article which demonstrates that either DC has "changed" or that Obama has changed DC. Perhaps I am missing something because it is too early in the morning, and I have not had my daily caffeine fix. If you find some changes in the article, please let me know!

An important note on two of the authors of the article:
Jim Vandehei and John Harris co-authored the article along with Mike Allen. During the presidential campaign, Vandehi and Harris co-authored an article which concedes that the media reporting in the election was biased against John McCain and in favor of Obama. They, however, blamed McCain! See: 2 Politico.Com Reporters Concede Media Biased, Blame McCain

Update: Politico has published another article that takes a very cynical view of Obama's first 100 days: First 100 days more talk than action. The article, written by a longtime Republican strategist and blogger, is somewhat of a hatchet job. I suppose Politico cannot produce an article on this subject that strikes a good balance.

Question: Why all of the 100 days mania anyway? That is such an arbitrary time period -- a little over 3 months -- for assessing a presidency. It probably encourages presidents who love and are great at creating narratives to do a lot of "formal" things that they can include on a list of accomplishments -- even when substantively, the accomplishments are minimal.

Salon's Glenn Greenwald Takes Democrats to Task for Gushing Embrace of Arlen Specter

Major kudos to Glenn Greenwald. He is one of the few progressive bloggers who has the courage and intellectual consistency to speak out when the Democrats betray the liberal values they claim to embrace. His recent analysis of Arlen Specter's defection to the Democratic Party -- a completely opportunistic move designed solely to keep him employed and empowered -- demonstrates the principled nature of Greenwald's blog.

Here is a clip from the article, What Specter's switch says about him, the Democrats and our political spectrum:
Democrats will understandably celebrate today’s announcement, but beyond the questions of raw political power, it is mystifying why they would want to build their majority by embracing politicians who reject most of their ostensible views.

Reports today suggest that Democratic officials promised Specter that the party establishment would support him, rather than a real Democrat, in a primary. If true, few events more vividly illustrate the complete lack of core beliefs of Democratic leaders, as well as the rapidly diminishing differences between the parties. . . .Specter is highly likely to reprise the Joe Lieberman role for Democrats: a “Democrat” who leads the way in criticizing and blocking Democratic initiatives, forcing the party still further towards Republican policies. . . .

Arlen Specter is one of the worst, most soul-less, most belief-free individuals in politics. The moment most vividly illustrating what Specter is: prior to the vote on the Military Commissions Act of 2006, he went to the floor of the Senate and said what the bill "seeks to do is set back basic rights by some 900 years" and is "patently unconstitutional on its face." He then proceeded to vote YES on the bill's passage (emphasis added).

Great stuff.

NYC Flyover Drama: An Update and a Question

The Update: Apparently, the White House Office of Military Affairs wanted a picture of Air Force One with the Statute of Liberty so badly that it ignored an FAA memorandum with said that sending fighter jets near ground zero would alarm residents of the Big Apple. [Note: I wonder if it cost millions of dollars to reach that conclusion.]

The feds also warned local government officials about the impending maneuver but ordered them not to go public with the information. Violators would have received sanctions.

The Question: Couldn't the White House have simply used digital technology to create the photo rather than alarming Manhattan and upsetting President Obama?

Another update: I was only joking when I wondered how many millions of dollars it cost to assess the public's reaction to the flight. Apparently, the frightful photo operation itself cost over $300,000!

Tuesday, April 28, 2009

CNN Offers Reality Check for Swine Flu Fervor: 36,000 in USA Die from Flu Each Year

The swine flu has captured the headlines. It has killed over 100 people in Mexico, and several Americans are now infected with the virus. President Obama has declared a health emergency, and my liberal colleagues have bashed Republicans for failing to link preparations for a feared yet uncertain pandemic with efforts to stimulate the dying economy.

HOLD ON. In a stunning move, CNN has offered a sane perspective in the midst of a media storm regarding the swine flu. Normally, CNN fans the flames of public melodrama, but an article published on CNN.Com makes the practical point that each year, 36, 000 people in the U.S. die from the "regular" flu. In fact, since January, 13,000 people have died from flu-related deaths in the U.S. Also, the CDC has reported at least 800 flu-related deaths each week between January 1 and April 18.

Here is a clip from the CNN article:
People are nervous about swine flu, but the regular flu kills 36,000 people a year in the United States.

That one? The regular flu.

An outbreak of swine flu that is suspected in more than 150 deaths in Mexico and has sickened dozens of people in the United States and elsewhere has grabbed the attention of a nervous public and of medical officials worried the strain will continue to mutate and spread.

Experts are nervous that, as a new strain, the swine flu will be harder to stop because there aren't any vaccines to fight it.

But even if there are swine-flu deaths outside Mexico -- and medical experts say there very well may be -- the virus would have a long way to go to match the roughly 36,000 deaths that seasonal influenza causes in the United States each year.

"That happens on an annual basis," Dr. Brian Currie said Tuesday. Currie is vice president and medical director at Montefiore Medical Center in Bronx, New York.
Of course, no vaccine exists for the swine flu, which has caused concern among medical professionals and the public. Nevertheless, in order to encourage a healthy public response, public health officials must place the swine flu in a greater context. If the CNN article is a reliable indicator, some health authorities are already doing so. I concur!

Monday, April 27, 2009

New Partisan Theatrics on the Left: GOP Supports the Flu

Ok. I'm back. I have been scarce recently, due to professional constraints. Now that I have returned, I have discovered a litany of blog posts which essentially say the same thing: The GOP voted against flu preparation funding in the stimulus. The news is spreading like a....virus...across the web (yeah, cheesy intentional pun).

John Nichols, a writer with The Nation, started the flurry of posts this morning (I believe) with this zinger: GOP Know-Nothings Fought Pandemic Preparedness. Nicols describes a process where silly Republicans voted to water down the amount of money devoted to pandemic preparation in the stimulus package:

When House Appropriations Committee chairman David Obey, the Wisconsin Democrat who has long championed investment in pandemic preparation, included
roughly $900 million for that purpose in this year's emergency stimulus bill, he was ridiculed by conservative operatives and congressional Republicans.

Obey and other advocates for the spending argued, correctly, that a pandemic hitting in the midst of an economic downturn could turn a recession into something far worse -- with workers ordered to remain in their homes, workplaces shuttered to avoid the spread of disease, transportation systems grinding to a halt and demand for emergency services and public health interventions skyrocketing. Indeed, they suggested, pandemic preparation was essential to any responsible plan for renewing the U.S. economy.

But former White House political czar Karl Rove and key congressional Republicans -- led by Maine Senator Susan Collins -- aggressively attacked the notion that there was a connection between pandemic preparation and economic recovery.

Now, as the World Health Organization says a deadly swine flu outbreak that apparently began in Mexico but has spread to the United States has the potential to develop into a pandemic, Obey's attempt to secure the money seems eerily prescient.

Of course, even Nicols acknowledges that no flu pandemic exists. But he does not acknowledge that the stimulus package was an extra stream of money separate from the normal operating budget of the federal government and the normal allocation of money for general spending projects, including public health initiatives.

Nicols does not present any evidence whatsoever to demonstrate that the normal budget failed to devote sufficient funds to the agencies responsible for addressing public health concerns. Nicols also fails to demonstrate why, if necessary, Congress cannot simply allocate funds now as part of an emergency spending plan. Instead, he whips out his partisan club and starts pounding. He does not even state whether the pandemic funds that actually made it into the package are being used to combat the swine flu.

My Take: I agree with critics who argued that including pandemic preparation funds in the stimulus package did not promote the policy behind the plan -- stimulating the economy. Public health is a general policy issue; it is not properly addressed in legislation combatting a financial crisis. Furthermore, opposition to including the the funds in the stimulus package does not mean that any particular member of Congress opposed investing in pandemic preparation as a general policy matter. Accordingly, my fellow liberals are just pumping out hot air on this one.

Apparently, the mercurial stock market has responded negatively to the flu, a fact that Nicols believes proves the link between the flu and the stimulus. But this argument is not persuasive. The stock market reacts and overreacts all the time. Extreme daily movement in the market usually has nothing to do with sound economic analysis. Instead, it results from public panic, which Nicols's analysis invites.

Finally, while Nicols blames the GOP for opposing the inclusion of pandemic preparation in the stimulus package, he fails to acknowledge that Democrats voted for them as well. The stimulus package would have passed without the votes of the 3 purple Republicans. If the Democrats believed that including the full amount requested by Obey was so compelling, they would not have supported the Republican cuts. On this point, one blogger says that Senate Democrat Charles Schumer also blasted the notion of including pandemic spending in the stimulus package.

My Very Cynical and "Bitter" Outtake: I wonder how the kids in racially segregated urban poverty schools are doing today. While liberals are blabbing incessantly about this silly matter, they should have been analyzing pressing social issues related to poverty and unequal opportunity. Decaying public schools pose a bigger threat to the economy and to public health than GOP opposition to specific items in the stimulus package. Liberals pretend that they are a "progressive" antidote to the GOP, but from here, it looks like many of them do not care about progressive issues at all. So long as they can beat up Republicans, they are happy. But that does not put food on people's tables, right? Yes -- I am venting.

Related article: Dems Put Swine Flu to Good Use.

Saturday, April 25, 2009

RIP: Bea Arthur



A legend has died -- Bea Arthur. Watching television sit-coms was one of the best things about growing up in the 70s. Bea entertained us with Maude and again with Dorothy on the Golden Girls. She was 86. The New York Times has an amazing obit.


Friday, April 24, 2009

Trying to "Get" Hillary Clinton, Mona Charen Contradicts Her Statistics

Conservative writer Mona Charen tries to pull a "gotcha" on Hillary Clinton, saying that Clinton could not "defend" Margaret Sanger, the founder of Planned Parenthood who advocated abortion, in part, on racist grounds (i.e., it could prevent more undesirables from being born). Some conservatives believe that Sanger's bigotry delegitimizes abortion rights, apparently because: Sanger = abortion = racism. I have debunked a similar argument elsewhere: Pro-Life Race Card: Anti-Choice Activists Blow a Gasket Over Lifting of "Global Gag Rule"

Well, that's "truly ludicrious" (to borrow a phrase from Charen). By that logic, celebrating Washington's birthday should offend blacks because he owned slaves. Or perhaps I should not visit the Jefferson Memorial because he owned people too. And what self-respecting black person would live in Florida, Texas or Washington, DC, when all of these places had thriving slave industries? Neither the University of Pennsylvania, Yale Law School, nor American University's law school admitted blacks when they first opened, but I attended two of these schools and teach at the third. In short: Sanger, like Penn, Yale, and Jefferson, reflected the bigotry of her era. Move on!

Anyway. . . Charen says that Clinton first dodged a question concerning Sanger and then attacked former President George Bush:
Clinton then, in good Obamanista fashion, offered a gratuitous swipe at the Bush administration. "During my time as First Lady I helped to create the Campaign against Teenage Pregnancy ... and ... the rate of teen pregnancy went down. I'm sad to report that after an administration of eight years that undid so much of the good work, the rate of teenage pregnancy is going up."

Politicians always simplify, but this is truly ludicrous. Teen pregnancy down under the Clintons but then up under Bush? Sorry, the statistics do not reflect that. According to the Guttmacher Institute (the research arm of Planned Parenthood), teen pregnancy reached an all-time high in 1988 and 1989 and began trending down thereafter, reaching its lowest recent point in 2005 — past the midpoint of the Bush years. It has been going up since then.
Earth to Charen: Clinton took office in 1993, when according to your own statistics, teen pregnancy was trending downward. You also say teen pregnancy has been trending upward since 2005, the midpoint of Bush's two terms -- which means, teen pregnancy increased during the Bush years.

I think it would be hard to link either pattern to a president, but I'll leave that to social scientists. But since Charen thinks the statistics are meaningful, they support Clinton's statement.

Help Wanted: Afghanistan, Many Civilian Jobs Available

Apparently, the job market is booming in Afghanistan, even if it is faltering in the United States. According to an Associated Press article, the government needs civilian workers to assist with "reconstruction and development issues."

Here's a clip:
[The government] said last month it would send several hundred citizens, from agronomists to economists, to work on reconstruction and development issues as part of the military's counterinsurgency campaign.

That has proven to be difficult, and the Pentagon said Thursday that reservists, who often have the skills needed in such a buildup, might be asked to fill the gap.

"I am concerned that we will not get the civilian surge into Afghanistan as quickly as we are getting troops into Afghanistan," Gates said during a daytrip to Marine Corps Base Camp Lejeune. He said he is asking for volunteers who have specific skills "who might serve as a bridge, getting them out of there quickly, and then bringing them back when their civilian replacements are hired."

The Pentagon has been asked to see if it can find 200 to 300 reservists. Officials are canvassing the force to find the needed experts — educators, engineers, lawyers and others, said Bryan Whitman, a Defense Department spokesman.

Absolute Madness: Federal Government Forced Bank of America to Buy Merrill Lynch

The Washington Post reports that former Secretary of Treasury Henry Paulson and Federal Reserve Chair Ben Bernanke forced -- or pressured -- Bank of America to go through with a deal to purchase failing investment bank Merrill Lynch. Bank of America entered into an agreement to purchase Merrill in September 2008, and stockholders approved the transaction in December.

But Merrill's value depreciated significantly before the transaction was completed, and Bank of America CEO Kenneth Lewis said he wanted to pull out of the pending deal. Lewis cited a contractual provision that authorized withdrawal if a "material adverse event" occurred (I am not sure whether this includes depreciation in value).

Bernanke and Paulson, however, threatened to remove Bank of America's Board of Directors if it pulled out of the deal. Now, Lewis is in hot water with stockholders and regulators from the State of New York for allegedly failing to inform stockholders of Merrill's failing health and going through with the transaction.

The government pumped another $20 billion into Bank of America after it suffered losses due to Merrill's woes. According to the article, Paulson refused to provide Lewis with a letter pledging additional federal assistance if Bank of America stayed in the deal, because this would have required a public disclosure. Nevertheless, Bank of America received the additional cash infusion once it posted enormous losses following the Merrill transaction.

To Investigate or Not? The Torture Debate Heats Up

Yesterday, the New York Times reported that Senate Democrats had joined Republicans and would oppose proposals for a Congressional investigation concerning the use of torture during the Bush administration. According to the New York Times article, President Obama also opposes the investigation, arguing that it would distract attention from his policy agenda. But Obama's opposition to the investigation is consistent with his general disagreement with the Left regarding punishment for Bush-era officials who authorized or utilized torture. Progressives want these officials prosecuted; Obama does not.

The Huffington Post, however, reports that "some" type of investigation by Congress will take place. The only detail that remains unanswered, according to Huffington Post is the form of the investigation.

Professor Dan Marcus, a colleague of mine at American University, Washington College of Law, offers some great analysis of the situation in the Huffington Post article. Marcus is was a counsel to the 9/11 Commission and is a leading expert on National Security Law.

Tuesday, April 21, 2009

Would Prosecuting Yoo Contradict DOJ's Stance in Torture Lawsuit?

A few days ago, President Obama indicated that his administration would not pursue criminal charges against Bush-era officials responsible for torturing terrorism suspects. Now, he could be changing his mind:
Obama said it would be up to his attorney general to determine whether "those who formulated those legal decisions" behind the interrogation methods should be prosecuted. The methods, described in Bush-era memos Obama released last Thursday, included such grim and demeaning tactics as slamming detainees against walls and subjecting them to simulated drowning.
He said anew that CIA operatives who did the interrogating should not be charged with crimes because they thought they were following the law.
I smell some major nuance: The "torturers" are immune, but the lawyers and commanders could face prosecution. I am not sure that anything will come from this. The administration is already defending John Yoo, author of the so-called "torture" against a torture lawsuit. Prosecuting him for similar conduct would seem contradictory. Perhaps he is holding out the possibility of prosecutions because someone said it is inappropriate for a president to tell the A.G. whom to prosecute.

PS: I have not been able to locate DOJ's motion to dismiss the lawsuit against Yoo online. If you have it, could your provide a link? Thanks.

Also, I have been missing in action for the last few days, because I need to complete some professional writing. Thanks for reading!

Friday, April 17, 2009

Startling Discovery: Banks Want Federal Financial Assistance Without Strings Attached

The Washington Post has made a startling discovery: Banks want federal financial assistance without strings attached.

Earlier this week, Goldman Sachs announced that it would soon repay its "bailout" (or "TARP") loan and abandon the controversial program. But even though Goldman has pledged quickly to repay $10 billion it owes the federal government, the company has not promised rapid repayment of $28 billion in government-secured loans it received from private investors.

When financial markets froze last year, the government enacted TARP in order to provide direct financial assistance to banks. But in a separate program administered by FDIC, the government acts as the guarantor of loans made to banks by cautious investors. If the banks default on the loans, the government must pay the outstanding balance.

In addition, the Federal Reserve sponsors a discount lending program, which provides banks loans at a below market interest rate. The Federal Reserve does not disclose the list of beneficiaries.

After Goldman announced that it was pulling out of TARP, New York Times financial reporter Floyd Norris observed that the company was not forgoing governmental assistance altogether. Instead, Goldman elected to retain the benefit of $28 billion dollars in federally guaranteed loans -- not to mention nearly $12.9 billion in payments it received from AIG, which were undoubtedly funded by TARP assistance the embattled insurer received.

Companies Are Leaving TARP Because They Want "No Strings Attached" Federal Financial Aid
Today's Washington Post explains why companies are trying to repay TARP loans, while retaining the benefits of other government aid programs. The answer lies in the details of the various programs. TARP now has tougher conditions, including restraints on executive compensation. The FDIC loan guaranty program does not carry such restraints. Remarkably, banks want "free" money. [Note: "Remarkably" = sarcasm.]

The Washington Post reports that J.P. Morgan Chase has joined the list of banks that want to leave TARP. Jamie Dimon, the company's CEO, says that TARP is a "scarlet letter," and he renounces the idea of accepting additional funds from the government.

But while JPMC will rush to repay its $2.1 billion TARP loan, the company has no immediate plan to repay $40 billion in federally guaranteed loans it received from investors through the FDIC program. In fact, during the first week of April 2009, JPMC borrowed an additional $2.3 billion (which exceeds the amount of the company's TARP loan) through the FDIC program.

Irony: Is the Government Giving Banks the Money They Need to Get Out of TARP and Escape Restraints on Government Aid?
It appears that banks are taking advantage of governmental financial programs, such as the FDIC guaranty, in order to abandon TARP and its restrictions. Although the government has "toughened" requirements for TARP recipients, it provides less restrictive financial assistance to many of the same companies through other aid programs.

If the government provides banks with access to "unregulated" (or "less regulated") loans, the profits they make from lending this money could allow them to accelerate repayment of their TARP loans and evade the programs' tougher restrictions. At a minimum, government aid could free up other assets, which the banks could then apply to TARP payments. So, the government could actually fund banks' efforts to escape executive compensation limits that attach to TARP assistance. And if these firms subsequently participate in Tim Geithner's "toxic assets" purchase plan, they will receive additional governmental assistance that does not come with the conditions that TARP imposes, but which contains very generous risk formulas that allocate potential losses primarily to the government and potential gains primarily to private investors.

Unregulated Funds Can Generate Bank Profits
Furthermore, because banks that participate in the FDIC or Federal Reserve loan programs receive below market interest rates, they can make higher profits by using these cheaper money sources to finance their own loans to individuals and companies at higher interest rates. Accordingly, it is plausible that government aid has contributed to the sudden "profits" several banks have recently reported. As some commentators have argued, recent bank profits could in fact represent a government-sponsored windfall, rather than a real turnaround in financial markets.

Unequal "Welfare" Policies
Although the financial crisis warrants governmental intervention, it seems unconscionable to give many of the very companies that were largely responsible for causing the financial crisis easy access to governmental financial assistance. Furthermore, if the public supports extraordinary restraints on the receipt of governmental assistance for the poorest and most vulnerable persons in society, the public should demand similar concessions from bankers who want federal financial support. With some states callously considering whether to test recipients of unemployment assistance for drug use, it appears that the federal government is financing efforts by banks to escape politically popular restraints on the use of federal financial aid.

Thursday, April 16, 2009

No Prosecution of the Bush Six in the United States

Earlier today, Dissenting Justice published: "No Prosecution of the "Bush Six" in Spain." The article discusses a rumored decision by the Attorney General of Spain to decline pursuing prosecuting Bush administration officials who authorized the torture of terrorism suspects. If Spain decides to prosecute the officials, the decision largely have symbolic meaning because the Obama administration has already taken a position disfavoring prosecution of Bush-era officials who either authorized or committed torture.

Today, the Obama administration released the controversial "torture memos" -- or legal documents prepared by Department of Justice attorneys that justify the use of torture by United States interrogators. This issue created domestic and international outrage during the Bush administration, and it caused many self-identified progressives in the Democratic Party to align with Obama over Hillary Clinton during the primaries.

Obama, progressives argued, would dramatically improve the image of the United States in the "world community" because he would implement their understanding of civil liberty, which includes vigorous opposition to governmental secrecy, the abolition of torture, extension of habeas rights to all terrorism detainees, an absolute prohibition of indefinite detention, and opposition to rendition. Obama, however, has failed to meet the expectations of civil libertarians on most of these issues.

Today, President Obama made new statements regarding the potential prosecution of Bush-era officials, which will likely generate additional criticism among progressives. President Obama's comments reiterate his stance disfavoring the prosecution of Bush administration officials. An Associated Press article analyzes Obama's new statements opposing prosecution. Here is a clip from that article:
President Barack Obama absolved CIA officers from prosecution for harsh, painful interrogation of terror suspects Thursday, even as his administration released Bush-era memos graphically detailing — and authorizing — such grim tactics as slamming detainees against walls, waterboarding them and keeping them naked and cold for long periods.

Human rights groups and many Obama officials have condemned such methods as torture. Bush officials have vigorously disagreed.

In releasing the documents, the most comprehensive accounting yet of interrogation methods that were among the Bush administrations most closely guarded secrets, Obama said he wanted to move beyond "a dark and painful chapter in our history. . . ."
Although civil liberties advocates believe President Obama should not have absolved Bush administration officials, the President argues that:
"Nothing will be gained by spending our time and energy laying blame for the past."
Attorney General Eric Holder made similar comments:
"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department. . . ."
Holder also said that the government would provide legal counsel for Bush-era officials who face legal proceedings (either before a court or Congress) related to the issue of torture. Holder also stated that the government would pay for any monetary judgments against these officials.

Cynical Conclusion
With all of these dramatic "changes" going on in the nation, I have decided to re-post a "blast from the past": Progressives Awaken from Obama-Vegetative State.

No Prosecution of the "Bush Six" in Spain

Despite earlier reports, it now appears unlikely that the "Bush Six" will face prosecution in Spain for allegedly violating international human rights law. In March, a human rights attorney requested that Spanish Judge Baltasar Garzon consider filing charges against officials from the Bush administration who authorized the use of torture against terrorism detainees. Judge Garzon requested advice from Attorney General Candido Conde-Pumpido. Today, Conde-Pumpido stated that any prosecution of the individuals should take place in the United States:
"If there is a reason to file a complaint against these people, it should be done before local courts with jurisdiction, in other words in the United States . . . ."
Copnde-Pumpido also disputed whether the individuals violated international law by providing a legal justification for torture, rather than actually committing torture:
"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out. . . ."
Many Liberals Want Prosecutions, Obama and Panetta Do Not
Many liberals have called upon the Obama administration to pursue criminal charges against Bush-era officials who authorized torture. Both President Obama and CIA Director Leon Panetta, however, have firmly stated their opposition these demands.

Because the Obama administration has already stated its opposition to torture prosecutions, the Spanish criminal investigation is largely symbolic. The prospect of criminal charges against Bush-era officials, nevertheless, caused jubilation among many liberals.

Spain Has Very Few Options for Transferring the Bush Six Out of the United States
Because the Obama administration opposes prosecution of the Bush Six, the United States probably would not grant any requests for extradition from Spain. Although Spain could pursue extradition in another jurisdiction if the Bush Six traveled outside of the United States, it remains unclear whether another country would grant extradition requests over the objection of the Obama administration.

Ironically, Spain could presumably use rendition and abduct the Bush Six to "justice." This option, however, is purely theoretical -- i.e., it would never happen -- despite the fact that conservatives and apparently many liberals do not disagree with government-sponsored international kidnappings.

Obama Administration in Contact With Spain Over the Investigation
Earlier this week, human rights lawyer Scott Horton published an article in the Daily Beast which states that indictments of the Bush Six are forthcoming. If Horton had accurate information when he wrote his article, Conde-Pumpido apprently stepped in and altered the course of events. Although the court could still issue indictments, this path seems unlikely given Conde-Pumpido's statements.

Horton's article also states that the Obama administration has remained in close contact with Spanish officials regarding the criminal investigation. It is unclear, however, whether the United States pressed Spain not to issue indictments or to pursue prosecutions.

The so-called Bush Six includes: former Attorney General Alberto Gonzales; former Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney's Chief of Staff, David Addington; former Department of Justice attorneys John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.

Consider This: The Politics
In the absence of overwhelming domestic public support for the prosecution of senior governmental officials in a foreign court, it seems highly unlikely that President Obama (or any other president) would consent to extradition. If substantial public support for prosecution existed, then the prosecutions would take place domestically.

President Obama has probably decided that prosecuting the Bush Six or transferring the group to another country for trial would be too polarizing and politically damaging and that a substantial part of the public would not favor such a course of conduct. Also, it is possible that President Obama does not want to establish a precedent that his sucessor could use against him and members of his staff in a display of brutal partisan politics. In sum, Obama is doing what is politically safe. What president would not?

Tuesday, April 14, 2009

False Profits?

Suddenly, everything is coming up rosy for Goldman Sachs. After converting to a "bank holding company" last year and receiving $10 billion dollars in TARP assistance from the federal government, Goldman, formerly known as the nation's largest "investment bank," has shocked observers by posting a "profit." The company also sponsored a stock offering in order to raise funds to repay its debt to the government and to free itself from TARP.

Bye Bye December
Financial market analysts have approached Goldman's purported profits with skepticism. First, Goldman's earnings report excludes the entire month of December 2008. Floyd Norris, financial reporter for the New York Times, explains that Goldman converted to "calendar year," rather than quarterly reporting after it elected to become a bank holding company. Consequently:
Goldman’s 2008 fiscal year ended Nov. 30. This year the company is switching to a calendar year. The leaves December as an orphan month, one that will be largely ignored. In Goldman’s earnings statement, and in most of the news reports, the quarter ended March 31 is compared to the quarter last year that ended in February.

The orphan month featured — surprise — lots of write-offs. The pretax loss was $1.3 billion, and the after-tax loss was $780 million.
In response to Norris' arguments, Goldman says that banking law requires the change in its reporting schedule. This change, however, does not undo the reality that under the old schedule, Goldman may not have earned a profit. According to Norris, Goldman has declined to disclose whether it would have earned a profit under its traditional reporting schedule.

The Goldman-AIG Connection
Another area of skepticism concerns the controversial $12.9 billion payment Goldman received from AIG -- the troubled insurance company that has received over $100 billion in TARP assistance. AIG "insured" Goldman's investments in risky mortgage-related assets. Even though the market has effectively deemed these assets "toxic" (i.e., worthless), Goldman recovered much more than the market value of its investment after AIG used TARP assistance to cover Goldman's risk.

Had AIG entered into bankruptcy like other banks and, presumably, as the automobile industry will soon do, it is unclear whether (and probably unlikely that) Goldman would have received far more than market value for the unsecured insurance policies. Accordingly, the bailout of AIG represented a major financial gain for Goldman.

After stating that the public's interest in Goldman's relationship with AIG has "mystified" him, Goldman CFO David Viniar dismissed speculation that Goldman's receipt of controversial payments from AIG allowed the company to realize a quarterly profit. Viniar said that most of the transfers from AIG occurred last year, and that the transfers from January to March 2009 "rounded to zero."

Viniar also stated that December 2008 transfers from AIG were "insignificant," but he does not provide any numbers. As Norris argues, however, Goldman has doctored its reporting by excluding December from its quarterly numbers altogether. Norris also questions whether Goldman's December losses would have been even larger absent the AIG transfers.

Goldman's "Fuzzy Math" Excludes $28 Billion In Government-Secured Loans
Goldman has only announced a plan to pay back $10 billion in federal loans that it received by participating in TARP. Goldman, however, borrowed an additional $28 billion on the open market, but the government acted as a guarantor on those loans. According to Norris, Goldman has no concrete plans to repay those loans, but the federal guarantee undoubtedly conferred value to Goldman.

Goldman's Competitors Are No Longer Around
The Bush administration decided to save AIG, which has undoubtedly benefited Goldman. Bush officials, however, refused to bail out Lehman Brothers -- which was Goldman's biggest competitor. Many of Goldman's other competitors (e.g., Morgan Stanley) were folded into other companies in distress sales.

Goldman's recent "profits" likely result in part from the elimination of other leading financial institutions as serious sources of competition. Because many former and current Goldman staff participated in the government's decision to bail out AIG and allow Lehman Bros. to collapse, AIG's survival and payment of billions of dollars to AIG has provoked a substantial amount of scrutiny and controversy.

Is the "Market" Skeptical Too?
How has the market reacted to Goldman's "good" news? Today, just one day after Goldman announced its profits and generated 1/2 of the money needed to repay its debt to the government, the company's stock fell 12 percent.

Sunday, April 12, 2009

Not Exactly "Socialism": While Government Pumps Trillions of Dollars Into Banks, States Forced to Slash Aid to Vulnerable Persons

These are the kind of stories that make people question the nation's priorities. An article in the New York Times reports that 34 states have been forced to slash spending for indigent and vulnerable individuals. Because the "stimulus" package only covers 40% of the state budget shortfalls, states must either make budget cuts or raise taxes -- or both.

But securing the nation's safety net and investing in human capital seem like a smart uses for federal assistance. Human capital investments could help retrain people and prepare them for a modified, post-recession economy. Instead, the approach of both the Bush and Obama administrations has centered around rescuing banks, rather than individuals. Once the banks start lending again, the country will "live happily every after." This narrative sounds like a repacked and updated version of the heavily maligned "trickle-down economics" theory advanced during the Reagan era.

Here is a clip from the New York Times article:
Battered by the recession and the deepest and most widespread budget deficits in several decades, a large majority of states are slicing into their social safety nets — often crippling preventive efforts that officials say would save money over time

Perhaps nowhere have the cuts been more disruptive than in Arizona, where more than 1,000 frail elderly people are struggling without home-care aides to help with bathing, housekeeping and trips to the doctor. Officials acknowledge that some are apt to become sicker or fall, ending up in nursing homes at a far higher cost.

Ohio and other states face large cutbacks in child welfare investigations, which may mean more injured children and more taken into foster care. Despite tax increases, California has ended dental coverage for adults on Medicaid, all but guaranteeing future medical problems.

“There’s no question that we’re getting short-term savings that will result in greater long-term human and financial costs,” said Linda J. Blessing, interim chief of the Arizona Department of Economic Security, expressing the concerns of officials and community agencies around the country. “There are no good options, just less bad options.”
Important stories like these barely receive coverage. Well, at least we know that the President has a new puppy!

California Voters May Not Like Same-Sex Marriage, But They Love Pot!

According to an article in the Washington Post, the legalization of "medical" (wink) pot is making the use of marijuana a "mainstream" practice among residents of California. Even though California is more conservative than Iowa on the issue of same-sex marriage, residents in the Golden State can smoke pot with abandon -- so long as they get a doctor's note.

With little notice and even less controversy, marijuana is now available as a medical treatment in California to almost anyone who tells a willing physician he would feel better if he smoked.

Pot is now retailed over the counter in hundreds of storefronts across Los Angeles and is credited with reviving a section of downtown Oakland, where an entrepreneur sells out classes offering "quality training for the cannabis industry. . . ."

It really is that easy, the barker explains. Before being allowed to enter the upstairs dispensary and "smoking lounge," new customers are directed first to the physician's waiting room, presided over by two young women in low-cut tops. After proving state residence and minimum age (21), customers see a doctor in a white lab coat who for $150 produces a "physician's recommendation."

Valid for one year, it is all that California law requires to purchase and smoke eight ounces legally.

"I told him I had problems with my knee," said Joe Rizzo, 31, emerging from an examination recently with a knowing grin and a renewed card.

Outside the Blue Sky Coffee Shop in Oakland, Ritz Gayo clutched an eighth of Blue Dream ($44) and tried to remember the nature of his complaint.

"Um, my back," said Gayo, 20. He went on to recite a partial list of symptoms suggested in newspaper ads: "Chronic back pain and the rest, like everyone else," he said. "Non-sleeping. Can't eat very much.

"That, and I love pot."

Before I provoke the rage of my pot-advocate readers: I am not endorsing re-criminalization. Instead, I think it is fascinating that voters in the state were so incensed over gay people marrying each other that they rushed to amend the state constitution to deny equal protection. At the same time, voters have shaped California law to defy national "morality" over the issue of drugs and criminality. Am I wrong -- or is that an interesting contrast?

Saturday, April 11, 2009

Obama Administration Will Appeal Court Ruling Which Allows Habeas Petitions for Certain Captives in Afghanistan

The Obama administration has announced that it will appeal a recent Federal District Court decision, which held that three captives at Bagram Air Force Base in Afghanistan could challenge their status as "enemy combatants" in United States courts. The District Court held that the Supreme Court's ruling in Boumediene v. Bush, which allows Guantanamo Bay detainees to file habeas corpus petitions, also gives Bagram detainees access to United States courts. The Obama administration opposes the petitions and has announced that it will appeal the District Court's ruling.

Civil liberties advocates blasted the Bush administration for subjecting Guantanamo Bay captives to indefinite detention and for denying them access to federal courts. The outrage over Guantanamo Bay among President Obama's liberal base and among the populations of certain United States allies (particularly in Europe) probably explains why President Obama's first set of executive orders included a provision directing the closure of the controversial detention facility.

The Obama administration, however, has taken the position that Supreme Court's reasoning in Boumediene does not confer habeas rights to Bagram detainees. This is the same argument that the Bush administration made.

This logic, however, could support the capture and transfer of individuals to Bagram, where they could face prolonged and indefinite detention and denial of access to United States courts. Bagram could become the functional equivalent of Guantanamo Bay.

Even though Bagram differs from Guantanamo Bay because Afghanistan (unlike Cuba) is the site of a war, the particular detainees subject to the District Court's ruling were allegedly captured outside of Afghanistan and taken there for detention. Supreme Court precedent, however, has allowed the government to deny habeas rights to individuals detained in the "theater of war." The District Court, however, held that the government could not prevail under this exception because its own conduct and decisions placed the petitioners within the vicinity of a war.

The Constitutional Law Blog has more coverage of the legal issues.

Friday, April 10, 2009

Et Tu, Olbermann? Some Liberals Finally Realize That for Certain Issues, "Change" Actually Means "More of the Same"

Ever since President Obama became the frontrunner in the Democratic primaries, many liberals have gleefully discarded the useful concepts of dissent, critical thinking, and a sanely guarded view of politicians. Rather than approaching politics with critical distance, many liberals became so emotionally charged over the prospects of winning the White House, expanding the party's lead in Congress, and electing an amorphously left-identified black man that they refused to listen to others who questioned whether any politician could deliver the grand promises of "change" that Obama and his supporters made during his campaign.

After President Obama took office, it became abundantly clear that he would continue engaging in some policies that liberals derided during the Bush administration. A few progressives criticized the continuation of these policies, the inherent contradiction between Obama's promises and his embrace of these policies, and the hypocrisy of liberals who failed to condemn Obama, even though they skewered Bush for the exact same conduct. These arguments, however, led to a concerted "pushback" from many liberal protectors of the administration.

Dissenting Justice, for example, provoked a storm among some liberals after running a series of essays which argues that Obama's position on "rendition" differs from Bush's practices in "form" rather than "substance." Since that time, President Obama has embraced positions that are similar to or indistinct from Bush's stance on policies such as state secrets and indefinite detention.

Et tu, Olbermann?
It now seems that some liberals have given up trying to deny the closeness of Obama's and Bush's positions on some aspects of antiterrorism policy. MSNBC commentator Keith Olbermann ranks among the most effusive and uncritical supporters of President Obama. During the Democratic primaries, Olbermann was responsible for spreading a grossly distorted -- actually, downright deceitful -- story which implied that Hillary Clinton remained in the primaries because she was waiting for the possible assassination of Obama. Olbermann produced a nearly 1/2-hour rant in which he accused Clinton of being racist, selfish, insensitive, and many other undesirable adjectives. The Obama campaign immediately emailed the video to other media, after which it quickly spread around the Internet.

Until recently, Olbermann did not bend in his effusive portrayals of Obama and his scathing and acidic criticism of his opponents. But even Olbermann has shifted away from his uncritical stance now that the Obama administration has again deployed a broad state secrets defense to oppose lawsuits challenging the Bush administration's use of warrantless wiretapping and rendition.

Salon blogger Glenn Greenwald, who, unlike many other liberals, has not become seduced into uncritical submission by the Obama administration, does a great job analyzing Olbermann's and other liberals' opposition to Obama's position on state secrets. Earlier this week, Greenwald himself wrote a lengthy article that criticizes Obama's deployment of the state secrets doctrine.

Here is a clip from Greenwald's essay on Olbermann:

Last night, Keith Olbermann -- who has undoubtedly been one of the most swooning and often-uncritical admirers of Barack Obama of anyone in the country (behavior for which I rather harshly criticized him in the past) -- devoted the first two segments of his show to emphatically lambasting Obama and Eric Holder's DOJ for the story I wrote about on Monday: namely, the Obama administration's use of the radical Bush/Cheney state secrets doctrine and -- worse still -- a brand new claim of "sovereign immunity" to insist that courts lack the authority to decide whether the Bush administration broke the law in illegally spying on Americans.

The fact that Keith Olbermann, an intense Obama supporter, spent the first ten minutes of his show attacking Obama for replicating (and, in this instance, actually surpassing) some of the worst Bush/Cheney abuses of executive power and secrecy claims reflects just how extreme is the conduct of the Obama DOJ here.
According to Greenwald, Obama's biggest supporters have no choice but to point out how his policies mimic Bush's because:

It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused.
Unfortunately, in the recent past, many liberals actually placed "tribal loyalty" above intellectual consistency and adherence to progressive values.

Greenwald also observes that the state secrets issue has generated passionate criticism on vehemently pro-Obama sites such as Daily Kos and Booman Tribune and at the reliably liberal, though not as visibly pro-Obama, TPM. Previously, commentary on Daily Kos that offerred even slightly critical perspectives on the Obama administration often faced stiff resistance or, even worse, silence and dismissal. Apparently, things are indeed changing for a few people.

Related readings on Dissenting Justice:

Obama Administration Will Appeal Court Ruling Which Allows Habeas Petitions for Certain Captives in Afghanistan

Rendition, Secrecy and Torture: Inseparable?

Forcing His Hand or Providing Political Cover? Congressional Democrats Introduce Legislation on "State Secrets"

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Tuesday, April 7, 2009

GLBT Equality Movements Reject the Meaning and Pace of "Change" Embraced by "Liberal" Politicians

In only a few months, courts in Connecticut and Iowa and lawmakers in Vermont have legalized same-sex marriage. And a 2004 court ruling in Massachusetts invalidated a same-sex marriage prohibition in that state.

Although voters in California, Arizona and Florida voted to ban same-sex marriage on Election Day 2008, a Florida judge recently overturned the state's ban on "homosexual" adoptions, and voters in Gainesville, Florida defeated a referendum which sought to repeal an ordinance that prohibits discrimination on the basis of sexual orientation and gender identity. Also, the Washington, DC City Council has voted to recognize same-sex marriages performed in other jurisdictions.

Most of these recent GLBT victories have occurred after decades of litigation, lobbying, political organizing, public information campaigns, and painful setbacks. Many commentators believe that public division over same-sex marriage helped President Bush win the 2004 election. That year, Bush sponsored an unsuccessful constitutional amendment that would have banned same-sex marriage. Exit polls show that a higher percentage of religions conservatives voted in key swing states than in the previous election cycle, possibly due to conflict over the same-sex marriage issue. Given this history, in 2008 all of the leading candidates in both parties danced around GLBT rights, and none of the true contenders endorsed same-sex marriage.

GLBT Movements Accomplish Change, Other Groups Find "More of the Same"
GLBT equality movements have engaged in relatively savvy political and legal action, which has led to their recent victories. No other liberal social movement can claim the rapid success that GLBT organizations are currently experiencing.

Labor groups are struggling to get Democrats in Congress to pass the Employee Free Choice Act. Also, the decision by the Obama administration to push the auto industry into bankruptcy and consolidation -- rather than giving car manufacturers trillions of dollars like banks have received -- will undoubtedly require drastic concessions by labor.

While women's rights groups celebrated the enactment of the Ledbetter Fair Pay Act, the statute really does not guarantee equal pay at all. Instead, it is simply a procedural measure that reinstates the more flexible statute of limitations rule that most courts applied in employment discrimination cases until 2006, when a divided Supreme Court imposed a more restrictive rule. The Ledbetter legislation is an important advance. Nevertheless, while gender equality advocates gushed over President Obama's ceremonial signing of the law, Congress tabled a more expansive proposal that would have relaxed the extraordinarily tough evidentiary burdens on plaintiffs in pay equity cases.

Pro-choice groups are another important Democratic Party constituency. In recognition of their electoral significance, President Obama reversed the "Global Gag Rule" during the early days of his presidency, but it remains pretty clear that he will not seek to reverse the Hyde Amendment and to legalize the use of federal funds for domestic abortion services.

Blacks and Latinos voted heavily for President Obama, but race and civil rights have not formed a visible part of the new administration's domestic agenda. Although the economy is certainly relevant to people of color -- who are disproportionately poor and unemployed -- most of the government's policies dealing with the economy have transferred wealth to powerful financial institutions. By contrast, only a few reforms have been implemented that provide immediate consumer-based relief. This glaring dichotomy explains the passionate response of the public to executive bonuses and compensation.

Finally, civil libertarians celebrated the President's executive orders banning torture, closing the Guantanamo Bay detention facility, and shuttering the CIA prisons. But they have been largely unsuccessful convincing the Obama administration to abandon highly criticized policies of the Bush administration -- such as asserting a highly expansive state secrets litigation defense, adhering to the use of rendition by the CIA, denying civilian attorneys access to the Guantanamo Bay detention center, holding out the possibility of "harsh" interrogations, and asserting broad power to detain indefinitely terrorism suspects (even if the government no longer uses the term "enemy combatants").

What Explains the Difference: GLBT Groups Are Not Passively Following Congress and the President
Although President Obama stated during his campaign that he would seek the repeal of Don't Ask, Don't Tell and the Defense of Marriage Act, he has not taken any affirmative steps to do so. Prior to his inauguration, press statements by anonymous members of his staff indicated that he would not move quickly on DADT.

Recent comments by Secretary of Defense Robert Gates affirms these earlier accounts. But Gates took a similar stance during the Bush administration, which caused some GLBT rights advocates (including this blogger) to question his nomination by President Obama. Needless to say, DADT is officially on the back burner.

Also, President Obama has not altered his position on same-sex marriage: He still believes that marriage should be limited to heterosexual couples. Rather than accepting his position or lobbying him to change his mind, GLBT rights groups have pursued other avenues of relief, including some that could force his hand.

For example, a recent lawsuit challenges the constitutionality of DOMA. Plaintiffs in the case entered lawfully recognized same-sex marriages under Massachusetts law. They seek equal access to federal benefits which DOMA denies, rather than a federal right to same-sex marriage.

The precarious status of the economy could help generate public support for efforts to alter the discriminatory distribution of federal benefits which DOMA mandates. Also a strong plurality to majority of the public supports "civil unions" and "equal benefits." Because this litigation advances an idea that enjoys popular support, it might succeed.

In any event, this case (along with an ongoing one that challenges the legality of DADT) could test President Obama's commitment to his campaign promises related to GLBT rights. Retreat from those promises could prove politically embarrassing and damaging.

Other Social Movements Are Passively "Going With the Flow"
Unlike GLBT social movements, most liberal groups are not visibly pushing the federal government or engaging in a sustained strategy in other venues. Apparently, they are still "glowing" over the Democratic sweep of Congress and the election of Obama.

Recent polls show almost unanimous Democratic support for President Obama. Furthermore, the Washington Post recently reported that many blacks feel conflicted over whether they should criticize Obama. Passive acceptance of the federal government's positions on policy is not a useful social movement strategy.

The differential treatment of auto manufacturers and financial institutions -- as well as the possible abandonment of the "public plan" option in health care reform -- means that labor unions could lose on some very important issues unless they push the Obama administration to alter its position. It is unclear whether women's rights groups will lobby for more substantial change, but with a new study reaffirming the existence of dramatic pay disparities that correlate with gender, the passage of substantive pay equity legislation could do more to advance gender equality than the Ledbetter legislation.

Importance of Engaged Social Movements to Social Change
Loyalty to a political party has never secured social change. Instead, political activism and litigation -- combined with political opportunities created by shifting economic and social conditions and international affairs have all led to substantial changes in policy across United States history.

Political commentators often distort history by vastly overstating the role of presidents and understating the importance of social movements to the history of policy innovation. Today, our society inflates the role of Lincoln in bringing about abolition, the centrality of Roosevelt to the New Deal and end of the Great Depression, the role of Kennedy in the enactment of the Civil Rights Act of 1964, and the role of Johnson in the passage of the anti-poverty and Great Society programs.

Although presidential leadership and vision were critical to the accomplishment of these policies, these dramatic changes would not have occurred without the engagement and agitation social movements. Presently, GLBT movements apparently "get" this aspect of history.

These observations are not unique to liberal causes. Conservative movements have also engaged in collective political action and litigation in order to accomplish their goals. Conservative social movement activity explains the sluggish move to integrate public schools after the landmark ruling in Brown v. Board of Education, the success of anti-choice movements in the 1980s, the effective politicization of same-sex marriage by conservatives in 2004 and 2008, the substantial legal constraints placed on the use of affirmative action, and the present realization among opponents to same-sex marriage that they must now recharge their activities in order to halt the impact of the marriage equality movement.

Only time will reveal if other liberal causes will take on a more activist stance towards policy and social change. If they fail to adopt more proactive approaches, they might obtain only nominal changes in an era that promised substantial progress.

Vermont Legislature Overrides Veto, Legalizes Same-Sex Marriage

Vermont has become the fourth state to recognize same-sex marriage. Yesterday, Governor Jim Douglas followed through with his threat to veto legislation that legalized same-sex marriage. Today, however, the state legislature swiftly overturned the veto, by a vote of 23-5 in the Senate and 100-49 in the House. Prior to the veto override, former governor and past presidential candidate Howard Dean urged lawmakers to pass the measure.

Vermont joins three other states that recognize same-sex marriages. Last week, the Iowa Supreme Court unanimously held that a state prohibition of same-sex marriage violated the state constitution. The Connecticut Supreme Court issued a similar ruling last year. And in 2004, the Supreme Judicial Court of Massachusetts invalidated a state ban on same-sex marriage. Although the highest courts in Hawaii and California also invalidated those states' prohibitions of same-sex marriage, voters overturned those rulings by constitutional amendment.

Social Movements Activity
The dramatic movement on this issue results from a litigation strategy devised by same-sex marriage proponents. Vermont is the only state to legalize same-sex marriage through legislation. Although court involvement in the issue has led some commentators to make claims of "judicial activism," the rulings have reasonably applied existing state law doctrine.

President Obama has stated that he does not support same-sex marriage. And while marriage is typically regulated by local law, the constitutional issues the subject implicates can bring it into the purview of federal courts. Advocates, however, have largely avoided the federal courts given their conservatism. Nevertheless, a recent litigation seeks to invalidate a portion of the Defense of Marriage Act that denies equal federal benefits to same-sex couples who are lawfully married in their home states. The Obama administration has not responded to the lawsuit, but during his campaign, he said that he supported the repeal of DOMA.

Closing Thought
I often disagree with proponents of same-sex marriage because they typically do not favor disbursing important social benefits (health care, etc.) to nonmarital relationships. Nevertheless, I support the recent rulings and legislation because the denial of same-sex marriage raises very compelling equal protection and fundamental rights concerns. The recent success of this movement, however, should not foreclose debate over the necessity of using marriage as the exclusive or primary vehicle for distributing social resources and benefits.

Related Readings on Dissenting Justice:

Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!

Advice to Vermont: Veto Your Governor!

Utterly Empty Rhetoric: Some Conservatives Argue That the Iowa Supreme Court Engaged in "Judicial Activism"

Iowa Supreme Court Strikes Down Gay Marriage Ban

Monday, April 6, 2009

Great Unifier? Pew Center Survey Finds Largest Partisan Gap in Presidential Approval Ratings

The Pew Center has released a study which finds deep partisan divisions in public perception of President Obama's job performance. According to the Pew study, 88% of Democrats and 27% of Republicans hold favorable views of President Obama. The 61-point gap is the largest of four decades.

The partisan gap contradicts one of the most prevalent themes in President Obama's campaign: Only he could unify the country. Although I always questioned and really never believed this narrative (not believing that any candidate would reduce partisanship), the theme strongly shaped his campaign and proved highly effective.

In February 2008, the Editorial Board of the Austin American-Statesman published an editorial that offers very effusive support for Obama and passionately embraces the "unity" theme:
Obama presents a view of governing that is inclusive and relies on Americans to work with their government to solve sobering problems at home and abroad. Obama’s familiar refrain on the campaign trail is, “Yes, we can.”

[Obama's] optimism, unifying vision and ability to inspire are the kind of healing balm the country needs at this moment in history. . . .

At home, we’re divided into red and blue camps. Democrats and Republicans have stoked divisions to advance their party’s interests. Meanwhile, Washington is stumbling along with its red leg moving right and blue one lurching left.

Along the way, elected officials - and the public - have forgotten that those legs are part of the same body. It’s not surprising, therefore, that we’ve danced in place, failing to make progress on the big challenges that confront our country. . . .

No other candidate except Obama offers a way out of that rut. He has articulated a vision that would allow the legs of government to again move fluidly in a natural motion that takes the country forward [boldface text added].
That rosy vision has not taken hold.

The Pew study suggests that the partisanship gap results not only from Republican disapproval of President Obama, but from Democratic approval of him as well. These numbers reflect a historical trend.

Beginning with George Bush, Republicans and Democrats have almost uniformly opposed Presidents from the other party, but they have strongly endorsed their own party's leader. The level of support and disapproval for Carter, Bush, Sr. and Clinton, however, was more evenly distributed among voters in both parties. Although Obama promised to reverse the pattern of partisanship, it seems to have grown larger during his presidency.

Related Reading on Dissenting Justice: Look Who's "Divisive" Now: The Anti-Obama Attacks Similar to Republican Smearing of the Clintons
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