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“Grave Indifference”

[ 144 ] April 25, 2014 |

Rape culture at Swarthmore College:

Sendrow is a 23-year-old brunette from Princeton, New Jersey. Her mother is from Mexico; her dad is a Jewish guy from the Bronx. She graduated last spring and works in health care in Washington, D.C. If 3,000 smiling Facebook photos are a good barometer, her four years at Swarthmore seem to have passed by untroubled. But in the midwinter of 2013, Sendrow says, she was in her room with a guy with whom she’d been hooking up for three months. They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. “I basically said, ‘No, I don’t want to have sex with you.’ And then he said, ‘Okay, that’s fine’ and stopped,” Sendrow told me. “And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.”

A month and a half went by before Sendrow paid a visit to Tom Elverson, a drug and alcohol counselor at the school who also served as a liaison to its fraternities. A former frat brother at Swarthmore, he was jolly and bushy-mustached, a human mascot hired a decade earlier to smooth over alumni displeasure at the elimination of the football team, which his father had coached when Elverson was a student. When Sendrow told him she had been raped, he was incredulous. He told her the student was “such a good guy,” she says, and that she must be mistaken. Sendrow left his office in tears. She was so discouraged about going back to the administration that it wasn’t until several months later that she told a dean about the incident. Shortly thereafter, both students graduated, and Sendrow says she was never told the outcome of any investigation. (Elverson, whose position was eliminated by the school last summer, emailed me that he would answer the “great questions” I raised, but never wrote back.)


“Sally,” a 2012 graduate, said she was at a party in the fall of her freshman year when a fellow student cornered her, pushed her against a wall, and began to kiss her, before being pulled off by a mutual friend. Later that night, Sally awoke to find the same student had entered her room and climbed on top of her. She managed to push him off. When she told associate dean Myrt Westphal she wanted to pursue charges through the College Judiciary Committee (CJC), she says, Westphal asked her to say “harassment” rather than “assault,” and questioned whether she really wanted to “pit her two friends against each other.” Discouraged, Sally declined to pursue judiciary action. (Westphal, who retired last spring, declined to comment.)

Similar stories are legion. Jean Strout, a 2010 graduate now studying at Harvard Law School, says that after she was pinned to the ground by a naked, drunk rugby player, she spoke to a male administrator by phone, who told her it sounded like a “misunderstanding” and that she should ask the offender for an apology.

A recent graduate who now practices law in New York City says that when she told an administrator she had been raped, the

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administrator said, “You don’t sound as if you were raped,” and, noticing the cross hanging around her neck, asked if she wanted to see a priest. She declined to pursue the case.

Another student, according to the Title IX complaint, was raped in her dorm room by a friend of a friend with alcohol on his breath. Before he left the room, he looked at her, smiled, and told her, “It’s your word against mine.” After she recounted the incident in a long email to a member of the administration, her complaint says, school officials never got in touch with her or did any investigation.

As spokeswomen for fellow victims, Hope Brinn and Mia Ferguson often underemphasized their own stories, but they too joined the complaints. Ferguson says she was raped her freshman year in a dorm room by someone she considered a friend. After keeping it bottled up for a semester, she told two resident advisers who were required to report what she told them. They proceeded to tell no one. Hope Brinn says a male student burst into her room while she was naked and refused to leave, after having harassed her via text message. According to her Title IX complaint, when she reported the incident, an administrator laughed and told her she might consider having him write “knock” on his hand as a reminder before he goes out. (Brinn has also spoken about a separate incident of sexual assault.)

As Zuylen-Wood observes, The Obama administration has announced that it will seriously investigate all of the schools who are in violation of the Civil Rights Act if they fail to properly investigate sexual assault and harassment complaints. Hopefully it will follow through.

Imagine All the (Non-Rich) People, Eating Expired Baby Food After Obama Raised the Green Lantern

[ 127 ] April 24, 2014 |

Shorter Verbatim Fred Hiatt: “Imagine instead that Obama had embraced the bipartisanship of Simpson-Bowles and tried to steer through Congress a package that made the tax system fairer and solved the nation’s long-term debt problem.

He might have empowered Republicans in Congress — the Roy Blunts and Bob Corkers — who want to work with Democrats and get things done.”

The last line is particularly awesome. As always, I prefer to think of this as a parody of a parody being read by Jeffrey Tambor. Chait makes an obvious point about Pain Caucus Troofers:

Interestingly, the Tax Truthers don’t believe that “leadership” could persuade Republicans to change their position on, say, climate change, or abortion, or financial regulation. The conviction that Obama could talk Republicans into supporting policies they forcefully oppose is limited to the issue that they care about more than any other.

Tax Trutherism sustains itself among elite political and business circles through constant repetition by fellow believers, creating a cocoon, much like the Alex Jones listening audience, where the preposterous becomes mundane. Unfortunately, that cocoon includes large sections of the seat of government of the United States.

I mean, give the Green Lantern Troofers of the left this — they at least think the president could force Congress to do anything.

Norm Ornstein brings some historical perspective.

My Innocence Has Been Permanently Shattered

[ 93 ] April 24, 2014 |

You know, I said this would happen after baseball left Brooklyn and the only fans who have ever cared about a team ever. They didn’t believe me. But, first Barry Bonds broke…well, not “rules” exactly, but something even worse, records that should belong by birthright to boomer icons. The next step was inevitable — actual rule-breaking:

The pictures from Fenway Park Wednesday night were embarrassing for the New York Yankees: pitcher Michael Pineda with pine tar slathered on his neck and manager Joe Girardi, looking as irked and hapless as a man trying to untangle the Christmas lights, losing a wrestling match with a small remote-controlled camera. “Just a bump in the road,” was how Girardi, blinking into the camera lights, tried desperately to close the book on the poor judgment of the man now forever known as Michael Pine-tar. Try telling Tim Leary, Jay Howell or Joel Peralta how these notorious mound busts are nothing but bumps in the road. It’s easier to get a pine tar stain out of a polyester uniform than it is your career resume.

Heavens to besty! A baseball player breaking the rules to get an edge! Michael how could you!

The question now is how long Pineda should be suspended for. Precedent would seem to suggest 10 or 15 games. But remember — there is now photographic evidence that Pineda is guilty of multiple offenses. Clearly, this violation of MLB’s Equal Sovereign Integritude cannot stand; at a minimum, Pineda should get 162 games. During this period, he should be forced to rehab in a training program designed and supervised by Jesus Montero.

Affirmative Action and the Court

[ 31 ] April 24, 2014 |

I have more thoughts about the issues going forward. It seems clear that Sotomayor’s dissent was not just directed at this week’s relatively narrow holding but at the Court’s affirmative action jurisprudence in general. Which, it should always be remembered, is just as indefensible based on the constitutional standards conservatives allegedly adhere to as it is based on progressive ones.

A True Republican Hero

[ 327 ] April 24, 2014 |

Wondering why conservatives are so inclined to admire lawless freeloader Cliven Bundy? Here’s another good reason:

“I want to tell you one more thing I know about the Negro,” he said. Mr. Bundy recalled driving past a public-housing project in North Las Vegas, “and in front of that government house the door was usually open and the older people and the kids — and there is always at least a half a dozen people sitting on the porch — they didn’t have nothing to do. They didn’t have nothing for their kids to do. They didn’t have nothing for their young girls to do.
Continue reading the main story

“And because they were basically on government subsidy, so now what do they do?” he asked. “They abort their young children, they put their young men in jail, because they never learned how to pick cotton. And I’ve often wondered, are they better off as slaves, picking cotton and having a family life and doing things, or are they better off under government subsidy? They didn’t get no more freedom. They got less freedom.”

Nobody could have etc.

Sotomayor and Equality

[ 127 ] April 23, 2014 |

Yesterday’s affirmative action case is a close question, but Sotomayor’s dissent is perhaps her strongest work yet.

In addition, as Liptak notes, Sotomayor also had an excellent response to Roberts’s smarmy, ahistorical Parents Involved tautology:

We have seen this reasoning before. See Parents Involved, 551 U. S., at 748 (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”). It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as “not sufficient” to resolve cases of this nature.

Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. And although we have made great strides, “voting discrimination still exists; no one doubts that.”

Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. See Gratz, 539 U. S., at 298–300 (Ginsburg, J., dissenting) (cataloging the many ways in which “the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools,” in areas like employment, poverty, access to health care, housing, consumer transactions, and education); Adarand, 515 U. S., at 273 (Ginsburg, J., dissenting) (recognizing that the “lingering effects” of discrimination, “reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods”).

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter. [Some cites omitted]

Serwer has more.

Failing on Climate Change

[ 23 ] April 22, 2014 |

A must-read piece from Plumer.

Today In the War on (Some Classes of People Who Use Some) Drugs v. The Fourth Amendment

[ 194 ] April 22, 2014 |

Today, a bare majority of the Court upheld the constitutionality of a search that stopped a truck and found 30 pounds of marijuana. The sole basis for the search was the uncorroborated tip of an anonymous informant. That sentence is nearly sufficient in itself to refute the majority’s case, but Breyer and (somewhat more surprisingly, Thomas, who spoke for the Court) joined the Court’s three consistent opponents of the Fourth Amendment to uphold the search. Scalia dissented for Ginsburg, Kagan and Sotomayor.

There’s really not much I can add to the Scalia dissent, which demolishes the majority and leaves nothing standing. There is one paragraph I’d like to highlight, however. This is a little different than the typical drug case in that the possibility of impaired driving presents a immediate potential public safety risk that someone possessing drugs in their apartment does not. The police certainly do have the leeway to conduct traffic stops if they observe someone driving recklessly, and if they’re altered to reckless driving by even an uncorroborated informant, that’s usually OK. In this case, however, the police had nothing resembling reliable evidence of impaired driving either coming or going:

It gets worse. Not only, it turns out, did the police have no good reason at first to believe that Lorenzo was driving drunk, they had very good reason at last to know that he was not. The Court concludes that the tip, plus confirmation of the truck’s location, produced reasonable suspicion that the truck not only had been but still was barreling dangerously and drunkenly down Highway 1. Ante, at 8–10. In fact, alas, it was not, and the officers knew it. They followed the truck for five minutes, presumably to see if it was being operated recklessly. And that was good police work. While the anonymous tip was not enough to support a stop for drunken driving under Terry v. Ohio, it was surely enough to counsel observation of the truck to see if it was driven by a drunken driver. But the pesky little detail left out of the Court’s reasonable-suspicion equation is that, for the five minutes that the truck was being followed (five minutes is a long time), Lorenzo’s driving was irreproachable. Had the officers witnessed the petitioners violate a single traffic law, they would have had cause to stop the truck, and this case would not be before us. And not only was the driving irreproachable, but the State offers no evidence to suggest that the petitioners even did anything suspicious, such as suddenly slowing down, pulling off to the side of the road, or turning somewhere to see whether they were being followed. Consequently, the tip’s suggestion of ongoing drunken driving (if it could be deemed to suggest that) not only went uncorroborated; it was affirmatively undermined. [Some cites omitted]

That should settle it. Even under the probably-too-forgiving standards of Terry and its progeny, there was no “reasonable suspicion,” and the search is therefore unreasonable under the Fourth Amendment and the evidence collected should be suppressed. Scalia again:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

That Word “Lawless,” I Do Not Think…

[ 117 ] April 22, 2014 |

Andrew C. McCarthy, sunk appropriately to the bottom of the wingnut welfare barrel at Pajamas Media, is outraged!

Attorney General Eric Holder announced today that dozens of lawyers will be reassigned to the Justice Department’s pardon office in anticipation of a surge of applications from drug offenders for reductions in their sentences — applications the Obama administration has signaled it would look upon favorably. This exercise is another transparent usurpation of legislative power by the president. The pardon power is just the camouflage for it.

This is just pure gibberish, on a par with conservertarian defenses of Shelby County. The pardon power, a core executive power at the time of the founding, is right there in Article II and everything. You cannot “usurp” legislative powers by using explicitly delegated powers, even if you use them in ways Andy McCarthy doesn’t like by freeing some prisoners of the War on (Some Classes of People Who Use Some) Drugs.

The pardon power exists so that the president can act in individual cases to correct excesses and injustices.

So it’s being used particularly appropriately here.

The Obama administration is philosophically opposed to mandatory minimums in the federal penal law, especially in the narcotics area.

I wish!

The Justice Department is filled with racialist ideologues and pro-criminal rights ideologues (they tend to be the same people) who have long contended that the drug laws are racist. This is another of those absurd arguments that finds racism based on unintended consequences rather than racist designs.

Leaving aside the question-begging about whether the consequences are “unintended,” I’m sure the people of color locked up in prison for drug offenses in grossly disproportionate numbers will be happy to hear that racism doesn’t exist unless it is a matter of self-conscious, purposeful racism on the part of legislative drafters.

The mandatory minimums for crack (“cocaine base”) crimes are more severe than for

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powder cocaine (which was called “cocaine hydrochloride” back when I was a federal prosecutor). Many crack distributors are black and Hispanic, while many powder cocaine distributors are white — although there are plenty of whites in the former category and minority dealers in the latter.

Shorter Andy McCarthy: since not literally everybody prevented from voting by a literacy tests was African-American, the laws weren’t racist.

It has been argued for decades that this disparity is unjust. As a matter of racism, this claim is frivolous. As a matter of logic, it is not: crack is rightly punished more severely because it is more addictive and ruinous. For a long time, though, crack was punished at a 100:1 ratio to powder coke (e.g., the 10-year mandatory minimum kicked in at 5,000 grams, or 5 kilos, of powder coke but only 50 grams of crack). It is perfectly constitutional for Congress to do this, but it is not sensible — crack may be worse than powder coke, but not a hundred times worse.

So the Obama administration’s actions here — which are perfectly constitutional and wise — should be beyond reproach. Glad we’ve settled this! It must be said that the War on (Some Classes of People Who Use Some) Drugs is getting exactly the quality of representation it deserves here.

[HT Andrew.]

The Aristocrats! Everything Is Illuminated Edition

[ 147 ] April 22, 2014 |

Winner-take-all economics, apparently, applies even to mediocre literary fiction if you can attract Hollywood:

Literary power couple Jonathan Safran Foer and Nicole Krauss have put their Park Slope limestone on the market for $14,500,000, as The New York Daily News was the first to report. Built in 1901 by the Woolworth family, the 7,670-square-foot house sits on a double lot that goes all the way through to the next block. It also has a conservatory with Tiffany stained glass.

So if you have some Deep Thoughts that have been thought and expressed many times before* about a horrible event in human history and can add some gimmicks to OK prose, get cracking — you might win the lottery. The Holocaust and 9/11 have been done, but, I dunno, the Ukraine famine ordered by Stalin was also very horrible, and I’m sure a fictional precocious annoying kid has some things to say about it that sound a lot like what you’d say about it. Maybe try to get in touch with Stephen Daldry’s agent in advance. You might be able to follow that up with a book in which the reader can flip through pages that produce an accumulating pile of cash money, proving that we need to flood the market with English degrees.

*Since I was criticized in comments for assuming that the instantly forgotten but Oscar (TM) nominated film version of Extremely Loud and Incredibly Close would live down to the ghastly source material based on the preview and the director, I forced myself to watch at least an hour when I saw that it was on HBO. Unless you really enjoy attempted crude emotional manipulation that fails to even achieve its aim because of its simultaneous banality and pretentiousness, I would strongly advise against doing this. Tobias was, if anything, too kind.

[HT Corey Robin.]

The 9/11 Tribunals Are A Disaster

[ 78 ] April 21, 2014 |

A very useful, if enraging, account.  One important takeaway:

The Obama administration had hoped to prosecute the 9/11 case in a New York criminal court. But it reversed course in the face of security fears and criticism that the government would grant constitutional rights to terrorists.

While the military tribunals have been plagued by delays, the department has successfully prosecuted several terrorism cases in civilian courts. Most recently, prosecutors in Manhattan won a conviction against Sulaiman Abu Ghaith, the most senior adviser to Osama bin Laden to be tried in civilian court in the United States since 9/11.

Attorney General Eric H. Holder Jr. noted that the New York case had proceeded from capture to conviction in about a year. “It is hard to imagine this case being presented with greater efficiency or greater speed,” he said.

The arguments made against giving Khalid Sheikh Mohammed a civilian trial were horrible at the time and look even worse now. Dave Cullen has more on the current disaster.

The National Popular Vote

[ 159 ] April 21, 2014 |

Hendrik Hertzberg notes that a 10th state has signed on to the National Popular Vote initiative:

On Tuesday, the State of New York took a baby step—or maybe a giant leap!—toward making the United States of America something more closely resembling a modern democracy: Governor Andrew Cuomo signed a bill joining up the Empire State to the National Popular Vote (N.P.V.) interstate compact.

As I’ve explained many times (fifty-one, to be exact), N.P.V. is a way to elect our Presidents the way we elect our governors, our mayors, our senators and representatives, our state legislators, and everybody else: by totting up the voters’ votes—all of them—and awarding the job to whichever candidate gets the largest number. And it does this without changing a word of the Constitution.

Impossible, you say? No. Quite possible—even probable—and in time for 2020, if not for 2016.

As Hertzberg says, it’s instructive that while all 50 states have an independent executive and for better or worse 49 states have also chosen to copy the bicameralism of Congress, none has copied the electoral college. And no other liberal democracy uses it either. This makes sense, since given modern democratic norms it’s utterly indefensible. It was premised on two key assumptions (nonpartisan elections and the need to substantially filter popular

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control over representatives) that are are not only anachronistic in 2014 but we so immediately untenable it’s very likely that a constitutional convention meeting in 1802 would have chosen popular vote to elect the president. The electoral college has many obviously terrible elements — the potential to elect a non-winner in the popular vote contrary to basic democratic principles, rendering major states like New York, California and Texas irrelevant to presidential elections — without any serious corresponding benefits. Nobody uses it anywhere else because there’s no case for keeping it other than pure inertia.

Unfortunately, this doesn’t necessarily mean that it’s going anywhere. Silver is probably right about this:

Here’s the problem: All the states to have joined so far are very blue. Until some purple states and red states sign on, the compact has little in the way of territory to conquer.

As the chart below indicates, the relationship between whether a state has joined the compact and how it voted in 2012 is nearly 1-to-1. The seven states where President Obama won by the widest margins, along with D.C., have joined. So have three others — New Jersey, Illinois and Washington — where Obama won by at least 15 percentage points. But none below that threshold have done so.

To succeed, NPV needs support from the elites of both parties, and as of now it doesn’t have it. While as Silver says it’s not obvious that having a presidential election system that actually meets contemporary democratic standards structurally benefits either party (unlike, say, D.C. statehood) Republicans right now seem to see the NPV as an attack on the legitimacy of the Bush presidency. Probably the only way to create bipartisan action to work around or abolish the electoral college would be if both parties get screwed by the EC in successive elections. 150,000 more votes for John Kerry in Ohio in 2004 and we might have been rid of the thing, but as of now we’re probably stuck with it for a while more.

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