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Gone Fishering

[ 89 ] December 9, 2015 |


I have a piece on today’s oral arguments in Fisher:

Early in the arguments, Scalia asserted that “there are­­ there are those who contend that it does not benefit African­ Americans to get them into the University of Texas where they do not do well.” Scalia’s apparent assumption, albeit one that he attributed to others, that African Americans admitted under affirmative action programs must be unqualified is offensive in itself – and particularly offensive given how marginal the qualifications of the plaintiff, Abigail Fisher, were.

As the 5th Circuit Court of Appeals observed in its opinion upholding the UT affirmative action program, Fisher almost certainly would not have been admitted even if UT used strictly race-neutral admissions criteria. The argument that colleges should not even consider the racial diversity of its student body in order to give white applicants with poor qualifications a very slightly better chance doesn’t strike me as a very compelling one.

And I must have missed Scalia condescendingly suggesting that Fisher would have been better off at a less-demanding school.

Then, responding to arguments that ending affirmative action would make the UT campu less diverse, Scalia asserted that “Maybe it ought to have fewer [African-American students”, adding “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”


Worse, as Justice Ruth Bader Ginsburg pointed out in her questions, the Top Ten Percent plan can provide a reasonable facsimile of affirmative action only if the courts assume that de facto school and residential segregation will be persistent.

As she said, Alito’s suggestion would make diversity in higher education “totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.”

The response of Gregory Garre, who argued on behalf of the University of Texas, to Alito’s line of questioning was also devastating:

I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.

UT’s admissions policies should not be premised on the idea that Texas’s children will permanently attend segregated and unequal schools because the supreme court is no longer willing to seriously enforce Brown v Board of Education; their admissions offices should be able to take race into account directly, not indirectly.

More at the link of course.

Among other things, today’s argument is an excellent illustration that Alito is much smarter, or at least much shreweder, than Scalia. Kennedy’s position seems to be that he would like to keep remanding the issue to lower courts until he retires. Alito’s “don’t worry, UT can still be diverse plus liberals are the real racists” line of questions is exactly how you try to keep AMK in the anti-affirmative action fold. Scalia’s drunk-racist-uncle ranting about how perhaps the blacks should be kept out of selective colleges for their own good so that spots for SUPERGENIUSES like Abigail Fisher can be kept open is exactly how to keep Kennedy writing equivocal concurrences if not outright joining the liberal faction.

…Lithwick has more.


The Environment In Which Trump Thrives

[ 72 ] December 9, 2015 |


Instapundit second-stringer Elizabeth Price Foley has a SCORCHING HOT TAKE on Trump’s racist immigration proposal:

The latest iteration of PC-induced apoplexy over Trump’s comments comes in the form of comparing restricting Muslim entry to the Japanese internment camps during World War II. But once again, commentators on both the right and left seem to have conveniently forgotten that the Supreme Court upheld the internment of individuals of Japanese ancestry, including American citizens, in Korematsu v. United States (1944).

Uh, nobody is “forgetting” Korematsu or Hirabayashi. They are arguing that the decisions were wrong and have been plainly undermined by subsequent doctrinal developments. Foley in 1952: “Thurgood Marshall seems to have conveniently forgotten that the Supreme Court upheld the segregation of schools in Plessy v. Ferguson (1896).”

The Constitution is not a suicide pact. Protecting national security is a “compelling” government interest that should survive the strictest of judicial scrutiny. The only open constitutional question, it seems to me, is whether today’s Supreme Court would change its mind about these pragmatic realities, or instead sacrifice commonsense national security measures to the God of Political Correctness.

Protecting national security is indeed a compelling interest. Excluding all persons from a religious group from entering the country is clearly not the least restrictive means of advancing this interest. Maybe you could cobble together a bare Supreme Court majority to apply the plenary power doctrine even given such an extreme set of facts, although I wouldn’t bet on it. But if equal protection law applies, Trump’s proposal is not even close to being constitutional, hoary cliches notwithstanding.

James Taranto, Constitutional Scholar

[ 62 ] December 9, 2015 |


Not only is the Donald’s plan to exclude Muslims from entering the United States brilliant politics, asserts James Taranto, it is also constitutional. But that’s absurd, you say. And you are correct!

All of these claims are mistaken. Quite obviously the Constitution’s provision on religious tests for public office has no application to immigration policy. The Equal Protection Clause of the 14th Amendment is equally irrelevant, as it applies only to states.

I happen to have the Supreme Court of the United States right here:

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution. — Bollig v. Sharpe (1954)


“[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.'” Schneider v. Rusk, 377 U. S. 163, 377 U. S. 168 (1964); see Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 641-642 (1969); Bolling v. Sharpe, 347 U. S. 497 (1954). —Frontiero v. Richardson (1973) [holding that gender discrimination by the federal government violates the 5th Amendment


All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny…

Cases decided after McLaughlin continued to treat the equal protection obligations imposed by the Fifth and the Fourteenth Amendments as indistinguishable; one commentator observed that “[i]n case after case, fifth amendment equal protection problems are discussed on the assumption that fourteenth amendment precedents are controlling.” —Adarand v. Pena (1995)

As far as I can tell, every single Supreme Court justice to have considered the question since has concluded that the Fifth Amendment binds the federal government with obligations fundamentally similar to those the equal protection clause of the 14th Amendment imposes on the states. When declaring the equal protection clause irrelevant to the question of whether the federal government can impose a major disability on a particular class of people, this seems highly relevant!

Under existing precedent, it is black-letter law that Trump’s plan would be subject to strict scrutiny, and it would plainly fail the least-restrictive-means requirement (as conflating “terrorists” with “Muslims” is simultaneously under- and over-inclusive.) If Trump’s plan were held constitutional, it would represent a doctrinal revolution.

I will grant that reverse incorporation is not, from a formalist perspective, exactly the sturdiest doctrine — Bolling and its progeny are evidence that pretty much everyone is a pragmatist in the end. Given that Taranto is predicting how the Court would rule, however, this is beside the point.

…I agree the best case for the constitutionality of some version of Trump’s proposal would be the plenary power doctrine, which the court has never explicitly overruled. I think this would be an appropriate opportunity to do so. At any rate, my central point — that it’s massively ignorant to assert that the equal protection clause is not binding because it’s a federal case — stands.

Notes on the Death of Satire

[ 162 ] December 8, 2015 |


Item 1:

Trump Gives Muslim On Fence About Radicalizing Just The Push He Needed

Item 2:

At one point, Trump said he hoped his ban “doesn’t take long,” but then he went on about the report that a deposit of $28,500 was made into the account of Syed Farook, the husband in the couple who mounted the San Bernardino attack last week. He said: “How many other checks were sent to people all over the country that had been radicalized? Nobody knew this guy was radicalized. I probably radicalized him.

Only one of these is from The Onion. Whether there’s anything Trump can say that torpedo his candidacy remains all too unclear.

[Via djw]

UPDATE: Mother Jones has updated its story, as you can see at the link, and corrected Trump’s quote to “the wife radicalized him.” For perhaps the first time ever in a story involving Donald Trump, subtext has remained subtext rather than becoming text.

The Party of Trump

[ 51 ] December 8, 2015 |


Whether or not the Donald wins the nomination, he’s defining the party who’s nomination he’s seeking because of his willingness to say the quiet parts loud:

In his speech from the Oval Office on Sunday night, President Obama took care to urge his fellow citizens not to equate the extremism of ISIS with the beliefs of Muslims as a whole. “Just as it is the responsibility of Muslims around the world to root out misguided ideas that lead to radicalization, it is the responsibility of all Americans, of every faith, to reject discrimination. It is our responsibility to reject religious tests on who we admit into this country. It’s our responsibility to reject proposals that Muslim-Americans should somehow be treated differently.” Obama made his case on both pragmatic grounds (mistreating Muslims would feed into ISIS’s preferred narrative) and on moral grounds (Muslim-Americans deserve the same rights as the rest of us). Obama’s comments drew particular ire from Senator Marco Rubio, a leading Republican presidential candidate. “And then the cynicism, the cynicism tonight to spend a significant amount of time talking about discrimination against Muslims,” Rubio declared on Fox News. “Where is there widespread evidence that we have a problem in America with discrimination against Muslims?”

It is unclear what sort of evidence Rubio would accept. According to FBI statistics, hate crimes against Muslim-Americans, which spiked in 2001 after the 9/11 attacks, have settled in at an elevated level five times higher than before 2001. If Rubio considers these dry statistics too abstract, he could look to current Republican poll leader Donald Trump, who last night proposed a “total and complete shutdown of Muslims entering the United States.”

Trump has dominated the Republican race by channeling the passions of its base more authentically than any other candidate. Trump’s imprint has been felt in ways that go far beyond his mere chances of capturing the nomination, which (I continue to estimate) remain low. Liberals fall into the habit of assuming that the most authentic spokesperson for the party’s base must necessarily be its most likely leader. The vociferous opposition Trump provokes among Republican leaders guarantees the last non-Trump candidate left standing will enjoy their consolidated and enthusiastic support. What Trump has done is to make the Republican party more Trump-like.

Because he’s essentially an empty suit with an eye towards maximizing votes, Rubio is a particularly instructive case study. Less than 4 years ago, he was the most prominent face of an immigration reform proposal that was supposed to stop the Republican bleeding of Hispanic voters. (Kerry won Hispanic voters by 9 points. Obama in 2012 won them by 44.) He has now settled very comfortably into the casually racist nativism of the Republican base. Because he’s part of the establishment, he frames his xenophobia as anti-anti-xenophobia rather than outright xenophobia where possible, but the difference is more stylistic than substantive. And as Rubio moves ever closer to Ted Cruz ideologically, I’m not sure that Republican voters won’t just go ahead and vote for the latter.

Republican Frontrunner Understands His Market

[ 110 ] December 8, 2015 |


The creep towards fascism accelerates:

But Donald Trump eventually became bigger news. Hours after the Monmouth poll was released, the billionaire released a statement to press demanding “a total and complete shutdown of Muslims entering the United States.” Trump said the ban would apply to refugees, tourists, and even American citizens who happened to be traveling abroad. It was objectively the most Islamophobic of all his Islamophobic statements, the most aggressively divisive proposal in a campaign defined by aggressive divisiveness.

Today In Corporate Shakedowns

[ 24 ] December 8, 2015 |


Students who don’t purchase meal plans getting charged a food tax anyway:

Before his 35-mile commute through Appalachian hills to classes here at the University of Tennessee, Michael Miceli eats a gigantic breakfast. It is his way of getting through the day without spending money on a campus lunch.

Food deprivation is merely one trick Mr. Miceli uses to minimize his college debt, now creeping past $22,000. So the $300 bill he got from the university this semester — for food — sent him into a tailspin.

“I was in near panic at the thought of having to borrow more money,” said Mr. Miceli, 23, a linguistics major.

For the first time this year, the University of Tennessee imposed a $300-per-semester dining fee on Mr. Miceli and about 12,000 other undergraduates, including commuters, who do not purchase other meal plans. The extra money will help finance a $177 million student union with limestone cornices, clay-tiled roofing and copper gutters, part of a campus reconstruction plan aimed at elevating the University of Tennessee to a “Top 25” public university.

But, hey, at least somebody tends to benefit from this kind of thing:

Other colleges have deals that offer sweeteners — renovations to the president’s house, private parties catered for employees, free meals for athletic officials in exchange for free football tickets.

These arrangements, which auditors have criticized, can create revenue streams outside the normal budgeting process for funding pet projects, raising the potential of abuse.

At South Carolina State University, a historically black institution, a 2014 audit found that students paid $343 a year in “hidden costs” for food. The money was rebated to the institution by its vendor, Sodexo, a French company, partly to pay for a $5 million wellness center, which was never built. The university, under new leadership, said it has ceased the practices described.

The Environment in Which Trump Can Thrive

[ 254 ] December 7, 2015 |

Some sage wisdom from the “Most Powerful Conservative in America,” everybody:

In addition to the obvious, I would bet dollars to beef and broccoli lunch specials that the “Asian food” the Ericksons were abstaining from was Chinese food.

Problem Solved!

[ 46 ] December 7, 2015 |


Speaking of the infantilization of politics:

Ted Cruz released a statement saying, “If I am elected President, I will direct the Department of Defense to destroy ISIS. And I will shut down the broken immigration system that is letting jihadists into our country. Nothing President Obama said tonight will assist in either case.”

Well, that will solve everything!

On a related note, it is overwhelmingly likely that the Republican nominee in 2016 will be someone who believes that the state should coerce a woman into carrying a pregnancy resulting from a rape to term, or it will be Donald Trump.

The Shock Doctrine

[ 167 ] December 7, 2015 |


Allison Hantschel on the latest fusilade of dudebro wankery at Salon:

I love it when some comfortably situated jerkoff who will not suffer a single thing as a result of a Republican presidency likes to talk about using that Republican presidency to teach the rubes a lesson! Sure, I mean, some women might die from lack of decent health care, and some kids might starve if their food stamps get cut off, and some old people might just have to put on four sweaters and turn the thermostat down again, and a couple of bridges might collapse, and we might send another few goddam thousand kids to die in the sand, but hey, at least progressives will be proved right for once!

Is there a name for this genre of commentary? You know, like when a columnist wishes for poor people to learn from their poverty or imagines a natural disaster to inspire people with lots of awesome death? Or when a politician compares people on unemployment to stray animals who’ll return to the site of their handouts and breed? What do we call this particular rhetorical tic? I feel like it needs a name so we can see its practitioners coming.

Once and for all time, politics is not a game and its consequences are not imaginary for many, many people. Salon columnists may always have a job no matter who is in office, and let’s face it, so will I, but there are people who will not. Who will be fired, turned away from clinics, denied help, denied food, denied their rights under the law, as a result of decisions being made by voters. Real people, who have real lives. They’re not bargaining chits to be used to push a presumably somnolent country to some kind of spiritual epiphany.

Precisely. “We’ll show the neoliberal sellouts by putting the Republican in office,” particularly in the heighten-the-contradictions variant, is the lefty equivalent of “this town could really use a Katrina so we could bust the teacher’s unions.” It’s better in the sense that the desired ends are more desirable, and even worse because it has no chance of working even on its own terms — when “successful,” as in 2000, it achieves the downside but not the upside.

And the appalling callousness of the argument is also a crucial reason why it won’t work tactically. “We will hold out until the Democrats have presicely my position on pet issue(s) x(y)” won’t work because there are too many potential “dealbreakers,” and also because some of the “dealbreakers” would be net vote losers and/or unable to attract viable candidates. But the additional problem is that the subset of voters a spoiler third party or write-in candidate needs to consistently attract isn’t “people who place the highest priority on issue x the Democrats are neglecting,” but “people who place the highest priority on issue x the Democrats are neglecting and are indifferent to the massive amounts of avoidable human suffering a heighten-the-contradictions strategy would entail if it worked.” There are, fortunately, just not enough assholes out there for this to work. And the problem gets more acute since the ballot box can’t send carefully targeted and specific messages — there are almost as many issue priorities projected onto Nader’s essentially vacuous campaign as there were Nader voters — so most people won’t see their “dealbreaker” addressed by the party and will see their action created horrible consequences for nothing. It’s better for all involved if the gullible and the stubborn don’t have to learn the lesson the hard way.

Jeb! vs. the Right to Vote

[ 32 ] December 6, 2015 |


Pema Levy has an essential story about the alleged reasonable, moderate, thinking-person’s conservative currently languishing in the remainder bin of the Republican primary and his active role in keeping former felons disenfranchised:

The year Ghent stood before Bush at the podium, the consequences of felon disenfranchisement were particularly profound. The 2000 presidential election was ultimately decided by a 537-vote margin in Florida. More than 500,000 ex-felons were barred from the polls, including at least 139,000 African Americans, who vote overwhelmingly for Democratic candidates. Their exclusion almost certainly changed the outcome of the race. The beneficiary, of course, was Jeb Bush’s brother.

Bush, today a leading candidate for the Repub­lican presidential nomination, did not invent this quasi-monarchical process. But he did embrace it. Mother Jones obtained more than 1,000 pages of transcripts of clemency hearings held during Bush’s tenure. Together, they provide a glimpse into his moral reasoning as he weighed the worthiness of the appeals by thousands of ex-felons hoping to regain their rights. The transcripts, covering two years of hearings, show that Bush seems to have relied on an entrenched set of personal values in his rulings. If a crime involved alcohol abuse—such as DUI manslaughter cases, which were relatively common—he liked to see several years of complete sobriety before he would restore the person’s rights. He was loath to approve the applications of petitioners he felt were not sufficiently remorseful or did not take full responsibility for their crimes. He sometimes asked wives in attendance to keep their husbands in check. Ex-felons needed to prove, over years of good behavior, that they had reformed. Bush often denied clemency simply because he believed not enough time had elapsed since the completion of the petitioner’s sentence. He did not appear to question the basic premise of his judgments: that the right to vote should be contingent on a citizen’s moral rectitude.


Under Jeb Bush, Florida undertook a second voter purge—again with a sharp racial skew—in 2004, the next presidential election year. Of the 48,000 people on the second list, 22,000 were black. Just 61 people on the list were Hispanic, at a time when Florida Hispanics, including the Cuban community in Miami, voted solidly Republican. After the media made the list public, and with a potential lawsuit looming, Bush abandoned the purge.

In the beginning, felon disenfranchisement “was racial,” says Sancho, an outspoken critic of both purges. But after the 2000 election, he observed, it “turned into a partisan issue.” In his new book, Give Us the Ballot, journalist Ari Berman argues that the 2000 election inspired efforts to suppress voting across the country, after Republicans witnessed their party’s electoral success in Florida when thousands of Democratic-leaning voters were kept off the rolls.

Bush used it very badly, but as Levy explains the system is a rotten one. Letting the ability of free adults to exercise the most fundamental political right come down to inherently arbitrary decisions by the executive branch is just a terrible idea.

Those Contradictions Won’t Heighten Themselves!

[ 126 ] December 6, 2015 |

As with the previous and no doubt future Salon articles urging people not to vote for Hillary Clinton, Shane Ryan’s article is so stupid its stupidity cannot be encapsulated by even a lengthy block quote. Erik highlighted the heighten-the-contradictions nonsense at the core of the article. I will just observe again that this kind of argument is much more likely to be advanced by affluent white guys living in major urban centers than the people upon whom the contradictions will be most heightened. “I have a ludicrously implausible fairytale about how four years of Republican rule will mean a president and a median vote of both houses of Congress who are to the left of Bernie Sanders. I’ll take a tax cut and you can take no health care or civil rights enforcement or safe abortions, and we’ll see who’s right.” Ryan says he’s be accused of “cutting off my nose to spite my face.” To be clear, I am in fact accusing him of wanting to cut off other people’s noses in service of his self-congratulatory wank fantasies.

The whole thing is equally horrible, though:

Others have already written extensively on the issues that make her a deeply unattractive candidate to progressives; on how she’s not just dishonest — a description that applies to even the best politicians — but strikingly dishonest

Calm down there, tiger. Watch about five minutes of any Republican debate and you’ll feel better. Yeah, invoking 9/11 to dodge questions about Wall Street was offensive, but as a reason to throw the elections to Republicans it’s a long way from “threadbare.”

on how she has tacked leftward merely to combat Sanders’ progressive momentum — going against a lifetime of pro-Wall Street, pro-business action — and not because she actually espouses any of her shiny new positions;

In part because of Sanders, and in part because of the leftward trajectory of the party as a whole, Clinton has tacked to the left. This is supposed to be a bad thing because…I have no idea. It might be a good reason to vote for Sanders over Clinton in the primaries, but anyone who thinks it’s bad news for evaluating Clinton as a general election candidate is a clown. Also, Clinton is in fact “espousing” these new positions; the question is actually whether she believes them. (I hope Salon takes whatever revenue this dreary clickbait generates to hire some editors.) Although in fact when evaluating candidates for public office this is also a largely irrelevant question. Presidential candidates lead coalitions and operate in particular historical contexts with particular political possibilities. Had Lyndon Johnson become president in 1952, I’ll guarantee you wouldn’t think of him as a progressive giant on domestic policy.

However, it is worth reiterating that to Sanders supporters like myself, the two candidates are not separated by a matter of small degrees, but by an ocean of philosophy and behavior

Even comparing them in a vacuum, this is dubious. But comparing them as potential presidents of the United States in 2016, the assertion is laughable. The amount of major progressive legislation a Republican House would pass under either would be “none.” Their judicial and most of their executive branch appointments would be fundamentally similar. There would be some differences — probably more law enforcement directed at the financial sector, for example — but the idea that they constitute an “ocean” worthy of letting Ted Cruz and a Republican Congress run the country is insane.

Among Clinton’s predominantly liberal supporters, male and female alike, we see a lot of projection — people who seem to be mistaking her for Elizabeth Warren — and not a lot of introspection.

Ah, so Ryan is indeed the poor man’s Henwood, and again let me say [cites omitted.]

It would be disingenuous to deny that Hillary’s campaign inspires negative emotions, but this decision ultimately comes down to tactics and policy, not spite.

Haha, yeah, keep telling yourself that buddy. I’m reminded of a certain one of our regulars who switches between Sarah Palinesque arguments that criticizing someone’s arguments about how to vote are anti-democratic because people have the right to cast votes as an act of irrational onanism if they want and arguments that a plan of 1. Republicans win election 2. ?????? 3. ?????? 4. ??????? 5. ?????? 6. Democrats smash the military-industrial complex and institute Danish political economy! represents immensely sophisticated 18 dimensional chess you are too dumb to understand, sometimes within the same paragraph.

And finally, why I couldn’t resist writing about this:

On the other hand, there is a good strategic reason not to vote for Hillary, and it boils down to this: If progressives fall in line, it shows the DNC and the party’s structural elite that they can have our loyalty for nothing. It sets a terrible precedent for the future. To steal a crass expression, why buy the cow when you can get the milk for free?

Well, Republicans have shown that trying to get your candidate in the primaries and then pulling the lever for whoever wins can work just find to push their party rightward, so this is not true at all. But my favorite part is that someone advocating a substantial risk of Roe v. Wade being overruled choosing to use an egregiously sexist metaphor to make the case. I’m guessing this guy isn’t much of a poker player.

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