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The Supreme Court v. Accountability

[ 0 ] August 27, 2014 |

Good piece by Erwin Chemerinsky on how judicial doctrines of immunity make it difficult to get effective remedies for abuses of power by local authorities:

Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.

When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.

Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?

The Thompson case is a particularly good example of this shell game — people can have their rights clearly and willfully violated by state authorities, but courts can nonetheless invent reasons why nobody can be held accountable. It’s a serious problem.

Indefensible Arguments Fare Poorly In Federal Court

[ 85 ] August 26, 2014 |

I almost feel bad for the attorneys representing the states here. I can’t say I’d want to come before Richard Posner with nothing but empty tautologies either:

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to ‘tradition’ as the underlying justification for barring gay marriage.

“It was tradition to not allow blacks and whites to marry — a tradition that got swept away,” Posner said. Prohibition of same sex marriage, he said, is “a tradition of hate … and savage discrimination.”

Posner frequently cut off Indiana Solicitor General Thomas Fisher, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates’ parents were married and theirs weren’t.

“What horrible stuff,” Posner said. What benefits to society in barring gay marriage, he asked, “outweighs that kind of damage to children?”

I’m guessing these bans will not be upheld…

Today In Green Lanternism

[ 82 ] August 26, 2014 |

Via Chait, who engages in some entertaining mockery of the embarrassing bad faith summit between Frank and West, we can see a somewhat more measured argument in the same vein from Michael Kazin. To be clear, it’s not nearly as bad as Frank’s Salon hackwork. Nonetheless, my jaw remained on the floor for some time after reading this:

Why has Barack Obama—one of the most eloquent and thoughtful of recent presidents—become such a terrible politician? Midway through his sixth year in office, his ineptitude is pretty clear. He frustrated and demobilized the huge base he built during his campaigns and, unless the polls turn around quickly, will be watching from the White House as the GOP takes full control of Congress this fall. On Tuesday, the Times offered some new evidence in an article about his frosty relationship with Senate Democrats.

[...]

But it also helped him win the 2008 Democratic primary, and then boosted minority and young voter turnout to give him an easy victory in the general election. And if Obama is indeed as arrogant some say he is, then so were some of the more consequential chief executives who preceded him—Andrew Jackson, Woodrow Wilson, Lyndon Johnson, and Ronald Reagan.

Each of those four presidents—as well as greater ones like Lincoln and FDR—built loyal followings and retained them for nearly their entire time in office.

Yes, I’m afraid that as an example of someone who was (unlike Barack Obama) able to retain the strong support of his party, Kazin is citing…Lyndon Johnson. You know, the sitting president presiding over a party so united he did not seek a nomination for which he was eligible. If only Barack Obama had that kind of unifying force. (That “nearly” is sure doing a lot of work.)

In addition, it’s worth noting that in the 1938 midterm elections, the Democrats lost 7 seats in the Senate and 72 seats in the House.  And, perhaps even more to the point, these elections marked a point at which Congress was controlled not so much by the nominal Democratic majorities as by a coalition of Republicans and conservative Democrats.  If FDR had some kind of magic formula that allowed Democrats to maintain support in midterm congressional elections, he apparently declined to use it.

Midterm elections tend to be bad for the party that controls the White House, and this is a particular problem for Democrats, whose less affluent constituencies generally have lower vote turnout. This isn’t a trend caused by Barack Obama being a “terrible politician.”

For a comic conclusion, Maureen Dowd has still “learned” far too much about politics from Aaron Sorkin. And is she in on the ultra-hacky “Obama, unlike any other president ever, plays golf!” trend? I think you know the answer to that.

Area Hack Fires Popgun, Shoots Self Repeatedly In Foot

[ 139 ] August 25, 2014 |

A conservative writer has options. They could, for example, pursue journalism. Alternatively, they could join with Tucker Carlson and do whatever it is that the Daily Caller does. One of the latter is Jim Treacher, the Daily Tucker blogger for people who find Mickey Kaus too highbrow. For some reason, he showed up in my Twitter mentions today:

While racial discrimination in law enforcement is a problem, it would obviously be foolish to think that white people have some sort of blanket immunity from police violence, justified or not. (Let’s leave aside the fact that Treacher, natch, takes the most authoritarian interpretation of the Michael Brown shooting.) So he could not have “learned” this from me, since I don’t believe any such thing and have never written any such thing.

Truly the hack’s hack, Treacher would not identify from which post he “learned” the thing he just made up. But I assume he meant this post, which I now reprint in its entirety:

I don’t know about you, but I’m pretty confident that if a unarmed white kid from suburbs was shot dead by the police we wouldn’t be informed by the Paper of Record that he was “no angel” because of a minor alleged shoplifting. And this!

He had taken to rapping in recent months, producing lyrics that were by turns contemplative and vulgar.

But were his jeans too baggy?

It’s not just that Treacher is making his accusation up out of whole cloth. It’s that the post is not even about disparate treatment of African-Americans by the police at all. (My hypothetical, you’ll notice, assumes that a white person from the suburbs could be subject to being killed by the police.) The post is about the disparate treatment of Michael Brown by the media. Even funnier is that the target isn’t even a conservative media outlet. Indeed, a remotely competent conservative hack could have written something about how eventheliberal Scott Lemieux thinks that the New York Times is using strange racial stereotypes in a story about the Brown shooting. Only Treacher 1)is really not at all competent, and 2)he would presumably see nothing objectionable about the Times story if he read it.

Verdict: Jesus Christ, what a pathetic operation Tucker Carlson is running.

Summing Up On Salaita and Academic Freedom

[ 29 ] August 25, 2014 |

Earlier this year, the Regents of the University of Kansas ended academic freedom in the state, making something called the “improper use of social media” a firable offense for tenured faculty. But give them this: they were honest about what they were doing. Phyllis Wise and the Board or Trustees at the University of Illinois at Urbana-Champaign, conversely, are almost comically dishonest about what they just did:

Since this decision, many of you have expressed your concern about its potential impact on academic freedom. I want to assure you in the strongest possible terms that all of us – my administration, the university administration and I – absolutely are committed to this bedrock principle. I began my career as a scientist challenging accepted ideas and pre-conceived notions, and I have continued during my career to invite and encourage such debates in all aspects of university life.

A pre-eminent university must always be a home for difficult discussions and for the teaching of diverse ideas. One of our core missions is to welcome and encourage differing perspectives. Robust – and even intense and provocative – debate and disagreement are deeply valued and critical to the success of our university.

If academic freedom means anything, tenured academics cannot be fired solely for expressing political views. And yet, if you look carefully at Wise’s letter, you will see not a single word about Salaita’s teaching record or his scholarship. To fire him for reasons not related to either is a definitive denial of academic freedom. Trying to square the circle, Wise attempts to argue that some isolated tweets suggested that Salaita is unfit as a teacher:

A Jewish student, a Palestinian student, or any student of any faith or background must feel confident that personal views can be expressed and that philosophical disagreements with a faculty member can be debated in a civil, thoughtful and mutually respectful manner. Most important, every student must know that every instructor recognizes and values that student as a human being. If we have lost that, we have lost much more than our standing as a world-class institution of higher education.

As I’ve said earlier, and as Timothy Burke has explained at devastating length, the problems with this argument are manifest and fatal. Salaita has an extensive record of university-level teaching. If there was any evidence that Salaita did not conduct himself in a “civil, thoughtful and mutually respectful manner,” it would presumably have surfaced during the many courses he’s taught. But there is no such evidence, and to assume that you can infer how someone will teach from how someone tweets is obvious nonsense. And to expand on Burke’s point, Wise’s unfounded assumption is not only insulting to Salaita, it’s insulting to the members of her faculty and administration who were allegedly unable to see that a candidate does not “value students as human beings.” This is an extraordinary claim, and given the paucity of the evidence to support it is a deeply offensive accusation.

Evidently, academic freedom is not absolute. If there was real evidence that Salaita was an anti-Semite, it might warrant an exception (although inferring it from 140-character bursts on social media requires a very high burden when this alleged anti-Semitism has not appeared in his teaching or scholarship.) But people making this allegation just don’t have the goods. The tweets that use the term “anti-Semitism” clearly assume that anti-Semitism is a bad thing if read in context (and even in isolation when given a remotely charitable reading.) Anti-semites generally do not tweet things like “[t]hat particular look has been used to dehumanize Jews for many centuries, to nefarious ends” and “I believe that Jewish and Arab children are equal in the eyes of God. Equal rights for everybody, Jewish, Muslim, Christian, etc.” And if his firing is to be consistent with academic freedom, that’s the whole ballgame. Some of his tweets, particularly the eliminationist one about Isaraeli settlers, are offensive, but that cannot be a firable offense if academic freedom is to retain any content.

One interesting thing about Wise’s statement, however, is that it does not seem to rely on the fact that the hiring process was not formally complete. The op-ed by Cary Nelson set the basic template for most UIUC apologists: set up a rhetorical shell game where a terrible argument that firing Salaita is consistent with academic freedom is paired with a terrible argument that he wasn’t really fired (even though he would have been teaching for at least a month prior to receiving pro forma approval.) When the weaknesses of one become apparent, just shift back to the other. While I’m sure their lawyers will be making different arguments, Wise’s logic suggests that Salaita could have been fired if he had a tenured position at UIUC formally rather than just de facto. (This should be terrifying to faculty there.) And I think there’s a reason for that. As Ben Alpers has argued, if taken seriously the assertion that Salaita wasn’t really fired would create chaos in academic job markets:

IANAL, but it seems to me that if Hoffman is correct about the labor law here, the entire academic employment system will be disrupted. If faculty are forced to see regents’ approval of hires as something other than pro forma, either hiring schools will have to wait an extra semester or year to bring faculty aboard or schools from which faculty are hired will be faced with tons of last minute course cancellations. The point is that this is not simply about a single letter sent to single faculty member: the academic employment system as currently constituted is absolutely reliant on what are widely seen as rubber-stamp stages of the hiring process being rubber-stamp stages of the hiring process. If Salaita’s hirefire stands, it will, at the very least, make it much harder for the University of Illinois to hire senior faculty (not because of boycotts, but because of due diligence on the part of potential hires) and may well affect other institutions as well.

I assume that Wise does not want to think that senior faculty she’s trying to attract that she will start arbitrarily overturning dean-approved hires at the last minute as a routine practice. But if I were in that position, I think it’s pretty clear that UIUC cannot be trusted.

But the problems the precedent creates for the academic job market are just the beginning. There are serious First Amendment problems here. Salaita may well have a good argument in civil court. And it’s hard to believe it’s a coincidence  that Salaita was fired after pressure was brought by the development office.

But perhaps it will be shown in court that UIUC was within its formal legal rights when it discarded the basic norms of the profession and callously destroyed someone’s career on false implicit pretenses. And ultimately it doesn’t matter whether Salaita was fired because Wise disagreed with his political views, the Board of Trustees disagreed with his views, wealthy donors disagreed with his views, or any combination thereof. His firing was a disgraceful attack on academic freedom no matter what motivated it, and reflects a situation that’s probably only going to get worse.

…Claire Potter has more.

Don’t Forget That Troubling Jaywalking Incident!

[ 90 ] August 25, 2014 |

I don’t know about you, but I’m pretty confident that if a unarmed white kid from suburbs was shot dead by the police we wouldn’t be informed by the Paper of Record that he was “no angel” because of a minor alleged shoplifting. And this!

He had taken to rapping in recent months, producing lyrics that were by turns contemplative and vulgar.

But were his jeans too baggy?

The Fake Disillusionment Con

[ 75 ] August 25, 2014 |

Shorter Thomas Frank and Cornel West: I’m going to pretend to be deeply disillusioned that Obama didn’t turn out to be the Scandinavian social democrat there was absolutely no evidence he was.

There’s not much point in dwelling in the individual arguments, which are the same lazy ones Frank has been making repeatedly in his profit-taking Salon column whether they’re being made by Frank or West. I did enjoy this question, though:

What on earth ails the man? Why can’t he fight the Republicans? Why does he need to seek a grand bargain?

Let’s leave aside the notable lack of any meaningful grand bargain pursuit in his second term, despite Republican control of the House. The idea that he “won’t fight the Republicans”…what can you say? Yes, who can forget the overwhelming Republican support for the ARRA, AVA, the consumer protection bureau, Dodd-Frank, the repeal of DADT, putting a Democratic majority on the D.C. Circuit, etc. etc. Why does Obama insist only on seeking longstanding neoliberal Republican priorities like huge expansions of Medicaid? WHY WON’T OBAMA FIGHT THE REPUBLICANS EVER?

King MVP?

[ 86 ] August 24, 2014 |

There is of course no serious controversy over the Al Cy Young award this year, although since our blog is the home of some commenters who are slightly bigger (although far, far less annoying) White Sox homers than Hawk Harrelson, I guess I have to briefly explain why. (While we’re here, said homers have been repeatedly offended that I called the White Sox team that has been outscored by 70 runs despite a rookie slugging .600 “horrible.” For the record, with the emergence of Abreu I hereby upgrade the White Sox from “horrible” to “very bad.”) The question of whether King Felix or Sale has been better on an inning-by-inning basis is an interesting one; Hernandez has a significantly better xFIP, Sale has a better K rate. But for the Cy Young award that’s not the question. The question is whether you’d rather have (so far) 191 innings of Felix or 136 innings of Sale and 45 innings of the pitching-like stylings of Andre Rienzo. This question is only difficult if you use the same kind of logic that causes you to not see a dime’s worth of difference between Ted Cruz and Barack Obama.

The really interesting question is whether Hernandez has been the most valuable player in the league. I was prepared to scoff at the idea when a commenter brought it up, but in fact it’s a strong case. He’s the leader and fWAR and 3rd in bWAR. Interestingly, neither Fangraphs or Baseball Reference have Trout as the 31 position player; fWAR likes Alex Gordon and bWAR likes Donaldson. Keri does a good job of explaining why, but essentially the best measurements suggest that Trout has been a below-average CF while Gordon and Donaldson are exceptional defensive players. (The Dewan +/- reaches the same conclusion; Gordon and Donaldson have been exceptional, Trout below average.) I’d still be inclined to vote for Trout, clearly the best hitter, because we can’t be as precise about defensive numbers. (If Gordon was the CF and Trout the LF, I might change my mind.) But Gordon could be the best; he’s a fantastic defensive LF on a team winning its division on defense and a solid hitter. On the philosophical question, I might vote against a pitcher in a too-close-to-call case because of the CY Young, but otherwise think they should be fully considered (as the rules require). The “only every fifth day” argument is dumb; value is value.

If I had to vote today, I’d have it:

1. Trout
2. King Felix
3. Gordon
4. Cano
5. Donaldson

But this isn’t a year with a runaway winner like last year; unless someone really pulls away in September, it’s close enough and the defensive metrics aren’t quite precise enough to answer the question definitively. You can make a decent case for several players. (Also, the Mariners have two MVP candidates and another top-10 player, which explains how they’ve compiled the second-best run differential in the league despite playing several players who dream of being replacement level for much of the year.)

Great Moments In Self-Rebuttal

[ 40 ] August 23, 2014 |

Here’s a thoughtful, persuasive argument about how to evaluate scholars who engage in public debates:

What most upset me about the 101 Professors volume and still does — I don’t know everyone covered in that book, but a number of the people I’ve known for 10 years, 20 years, 30 years, a long period of time and I am familiar with a whole range of work that they’ve produced as scholars.

When I attempt to evaluate their careers, when I attempt to evaluate their contributions to higher education, I’m concerned with the whole range of things that they’ve done. What’s their life work? Where does the main weight of their intellectual professional and moral commitments lie? What’s the full range of things that they’ve done?

That’s largely a book in which for many of those people their primary works of scholarship are simply set aside and ignored. Occasional political comments are taken out of context sometimes, letters to the editor, you know, occasional political interventions and their entire lives — and their meaning and their presence in American culture is evaluated on the basis of those occasional statements. That to me, as a scholar, was a fundamental violation of fairness.

I expect to look at the full range of someone’s work and to evaluate their careers in their entirety.

I must agree fully here with Cary Nelson. If only he could have kept his earlier words in mind when writing his tendentious and fact-challenged attack on academic freedom earlier this month.

…relatedly, Timothy Burke is must-reading:

The proof is in the pudding: in how a professor teaches, in how they participate in the professional evaluation of other scholars, in how they execute their administrative duties. There are innumerable examples of faculty in the last fifty years whose intensely expressed public views had no impact on the professionalism of their work with students and colleagues.

The problem in your case is that neither the University of Illinois nor any of the proponents of your decision have presented any evidence that Professor Salaita would be or has been unable to adhere to those ethics. The only evidence is a handful of tweets that really say nothing about how he approaches the classroom, how he mentors students, how he participates in evaluation. The only evidence available about his teaching and professional demeanor is that he earned tenure at another institution and survived the scrutiny of your own faculty in a hiring process, which is far more powerful than four or five sentences on Twitter dubiously interpreted through a hostile and unfair gaze. I would frankly trust Professor Nelson less based on his recent statements in terms of these professional obligations than I would Professor Salaita.

This is a grave disservice to Professor Salaita: it insinuates something about him as a professional without any evidence whatsoever. If the content of several sentences he wrote is sufficient in your view, then you have a faculty full of unprofessional teachers and colleagues. So does Swarthmore. So does every academic institution in the United States.

Unanswerable.

Moynihan and the Overton Window

[ 157 ] August 23, 2014 |

Today’s reminder that Daniel Patrick Moynihan was awful:

Even some Democrats seem to think that Mr. Gore’s attacks occasionally go over the top…Today Senator Daniel Patrick Moynihan, a New York Democrat who supports investing some of the Social Security trust fund in private markets, took issue with [Gore’s use of] the word “privatization.”

“That’s a scare word,” said Mr. Moynihan, who supported Mr. Bradley in the primaries but has since endorsed the vice president.

Although, in fairness, it must be noted that after doing perhaps more than any Democrat to make bad welfare reform policy possible Moynihan did cast a wholly meaningless vote against the final version.

This episode illustrates a rather obvious problem with the “Overton Window” concept, the 21st century version of the Laffer Curve (that is, a sloppy cocktail napkin concept with a grain of truth used to make difficult problems conveniently vanish.) The assumption seems to be that if a president (or perhaps other public official) proposes something it shifts the ideological spectrum in that direction even if it doesn’t pass. But Bush’s push to privatize Social Security, to the extent that it affected things at all, apparently had the opposite effect. In 2000, a Democratic senator from New York was running interference for Bush’s nutty Social Security policy. Now, House Republican budgets refuse to propose any changes to Social Security, and the biggest “threat” to Social Security is a bad nominal proposal to slow the rate of benefit growth intentionally presented in a form that have no chance of passing, a pretense that Obama has thankfully given up. There’s no reason to believe, in either theory or practice, that trying and miserably failing to do something will make it easier to do next time.

The Leftward Drift of the Democratic Party

[ 130 ] August 22, 2014 |

Tali Mendelberg and Bennett Butler:

A true measure of a president’s priorities lies hidden in plain sight in his budget proposals. Under that standard, Mr. Obama has been more committed to communities like Ferguson than any Democratic president in the past half century.

By looking at what percentage of the budget presidents propose to spend to fight poverty, we can compare their degree of commitment.

While Mr. Obama advocated for the Affordable Care Act as a way to assist poor African-Americans, for example, we can’t put that on an effort scale and compare it to President Bill Clinton’s advocacy for his health care plan. Our method also avoids the problem of accounting for forces beyond presidents’ control.

Using this method, we find that President Obama attempted to deliver far more than his counterparts. The Congressional Budget Office’s inflation-adjusted numbers show that Mr. Obama sought to spend far more on means-tested anti-poverty programs than other first-term Democratic presidents. The targeted needs include food, housing, education, health care and cash.

Mr. Obama earmarked 17 percent of his budget for these needs, versus Mr. Clinton’s 12 percent and Jimmy Carter’s 8 percent. These presidents all faced economic challenges, although of different degrees and strength. Each was committed to the needs of the poor and the disadvantaged. But Mr. Obama made good on that commitment far more concretely.

Admittedly, this metric does not account for the most important quality of a presidency, the content of his speeches (or, more accurately, a willfully selective recollection of the content of his speeches.) But for people actually interested in the question, I find the idea that the Democratic Party is to the right of where it was in 1975 — let alone 1994 — incomprehensible.

“I’ll go in and rob everyone blind and don’t need to move to Argentina cause the supply of suckers never ends.”

[ 56 ] August 22, 2014 |

Tea Party organizations are an purposively inefficient mechanism for relieving rubes from their money:

And then you get a direct mail piece, or an email, or see an ad on the web that promises change by supporting candidates who embrace your ideals.

Hopeful and excited to learn that there are organizations willing to fight for what you think will “fix this country,” you grab your credit card and fire off a donation, confident you have contributed to a worthwhile cause. If only it were so!

The reality may well be far from what you believe, and have a right to expect; in fact, you may be sickened to learn the truth about how little of your money actually goes to directly or indirectly supporting candidates and their campaigns.

I can I assure you, however, that if you respond to a solicitation with money Mitch and Murray will be intensely interested in your contact info.

And as with everything else to do with the Tea Party, none of this is remotely new.

 

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