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Category: General

Sotomayor and Equality

[ 123 ] 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.

I’m just going to leave this headline in the post and let you savor it…

[ 91 ] April 23, 2014 |


Prosecutors: Cuckolded husband’s tape proves Dinesh D’Souza knew he broke campaign laws

So much to savor! So very, very much!

Getting around the Puget Sound is about to get even more difficult

[ 53 ] April 23, 2014 |

This is not surprising, but quite devastating. The higher than expected sales tax receipts will probably prevent cuts from going all the way up to 17%, but the 14-15% cuts will still be devastating. While changes to the final cuts are inevitable, something approximating the coming carnage can be viewed here. Some thoughts:

1) I’ve wished some transit nerd somewhere would come up with some sort of ‘transit use per transit system quality’ index. Obviously transit modeshare is highest in those cities with the most advanced systems like New York and DC. But for a system that consists almost entirely of slow, stuck in traffic buses, Seattle has pretty impressive numbers (nearly twice the modeshare of transit in Portland, for example). I very much hope this isn’t the beginning of a death spiral; a “worse service–>fewer choice riders–>less political support for transit—>worse service” feedback loop. But I’m far from confident it won’t be.

2) Anyone who voted no has no business pretending they’re not a fan of Tim Eyman. This vote completes what he started in 1999—destabilizing transit funding by making car ownership artificially cheap. Furthermore, anyone who voted no has no business pretending climate change is something they care about in any meaningful way, as forcing thousands of cars onto the road in exchange for a trivial tax cut.

3) Anyone asserting confidently what the ‘no’ vote really tells us about what ‘the people’ really want needs to shut up, at least until we have some more and better data. First, it’s a special election with low turnout. Obviously one of the most important pieces of missing data is how many people voted primarily no because they didn’t like the regressive flatness of it. Depending on how much the vote totals tighten, if that number is between 7-10% of no votes that’s enough to get us to a tie. I would like to believe that’s the case, as it would bode well for the future and confirm my frustration and anger with the dysfunction in Olympia, but I’m not going to assert it must be true because I want it to be so. In particular, I hope Sound Transit won’t overreact and water down the ask for ST-3 in 2016. The electorate in a presidential election will be much, much more pro-transit than this.

4) I really hope this factors into the current negotiations Murray* is engaging in with TNCs and taxis; the arbitrary cap on TNC cars on the road was a bad policy prior to devastating transit cuts, and it’s even worse now. One in six Seattle households is currently car-free, and the city should be doing what it can to encourage that number to grow, not shrink. Implementing these two changes simultaneously goes against all kinds of environmental and land use concerns the city claims to have.

5) From what I’ve been told, Metro seems to think late night service cuts are a good place to start, because of relatively low ridership numbers. I can see where this is coming from, and it’s not like I’ve got a good, politically viable plan for how to figure out cuts with the least amount of  pain, but: not all ridership numbers are equal. Late night service does at least two very valuable things: it allows mostly poorer people with irregular-hour service jobs to, well, keep those jobs, it takes drunk people off the road. In other words, the rides provided by a 11:30 PM bus are higher stakes than the average ride. Whatever metric goes into how to distribute the final cuts, I hope it doesn’t just look at raw ridership numbers.

6) Speaking of which, people are going to lose jobs over this, and they’re going to be the kind of people with very little by way of a cushion when it happens. We’ll pay for a lot of these cuts indirectly, through social services. As 40% of this money was going to road repair, and Olympia seems committed to roads bills that are heavily tilted away from basic maintenance, and toward shiny new “screw the future and invest in cars for another century” roads projects, we’ll also pay through the back door for this vote through increased car repair costs.

7) Metro is going to try to combine these cuts with some common-sense restructures that will make service more efficient, and hopefully minimize the impact of the cuts. They have to do this, and many of the restructures they want to do would be worth doing in a service hours-neutral environment. Still, this is dangerous: previous restructures (such as West-Seattle/Ballard 2012, in light of ‘rapidride’ service introduction) have produces never-change-anything “save my stop” backlashes and prove quite politically difficult, but have been retroactively supported by the communities they serve. In other words, people were skeptical but have eventually bought into them. But under current circumstances, they restructures will be combined with service cuts. Will users and communities stung by the cuts make the distinction between the cuts and the sensible, efficiency-increasing restructures? I doubt it.

8) I don’t celebrate the death of traditional journalism as a general matter, but I’m going to make an exception on the day the Seattle Times bites the dust.

*Murray seems to have his head on straight about the idiocy of the caps, but his tenure in Olympia shows he’s not anywhere near the deal-maker he imagines himself to be.

That’s O. Henry, Professional Oracle, to you sir

[ 9 ] April 23, 2014 |

Call it a modern day version of “The Ransom of Red Chief,” if you must.

Fox News and its resident God-botherers would have you believe that it was the fact that the child sang a spiritual that led to his release, but just listen to that boy sing.

It ain’t his angelic voice that earned him his freedom.

Matt BRUENIG discovers secret motivation for criticisms of his insights

[ 145 ] April 23, 2014 |


I apologize for the initially dyslexic spelling of Bruenig’s name.

(FWIW, my objection to his piece had nothing to do with his law school reform proposals, which might be worthwhile on grounds other than the ones he gave, since the ones he gave were based on empirical assertions about the employment prospects for law graduates that bear no relationship whatever to reality. How a brand new graduate of a sub-elite law school managed to miss this would be interesting to know).

Coolidge and the Confederates

[ 44 ] April 22, 2014 |

Tonight’s Pathe film is a bit of unused or perhaps scrap footage, only half put together and lacking sound. It is also Calvin Coolidge honoring the Confederate dead.

Start Over

[ 56 ] April 22, 2014 |

I basically wrote this column last month, but to reiterate the point, Alex Pareene is right and he writes a better column than I do. Fire everyone on the New York Times editorial page except Krugman and start over.

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

[ 190 ] 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…

[ 113 ] 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 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

[ 143 ] 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.]

Leftist writer discovers major social injustice: new law grads get paid way too much

[ 128 ] April 22, 2014 |

Matt Bruenig’s auto-bio at his blog:

I write about politics, the economy, and political theory, primarily with a focus on the set of interlocking issues that affect poor and working people. My writing is informed by a leftist political perspective that draws upon a diverse set of historical and contemporary leftist intellectuals. In particular, the various theories of egalitarian distributive justice that began with John Rawls have had the most influence on me, with Amartya Sen’s capability approach to distributive justice being perhaps the most influential.

In addition to this blog, I’ve written for some other publications, including The Atlantic (I, II), The New Republic, The American Prospect, Salon (I, II), The Week, and at my home base of sorts: Demos’ Policy Shop.

Bruenig’s leftist political perspective in re the Lawyer Problem:

In 2012, the median income for lawyers in this country was around $113,000, more than triple the national median income for all occupations. Why such high pay? In significant part, it’s because we have made becoming a lawyer exceedingly difficult, which has the effect of driving up the prices lawyers can charge for their services. . .

The legal profession and everything that touches it is flush with silly amounts of cash. This is a direct result of America’s legal licensing regime. And this surplus of cash creates an upper class of legal industry professionals making way more money than they ought to.

The big scandal in all of this is not that law students are somehow getting a raw deal because of the debt they undertake in their arduous path through the credential gate. It’s that the whole system wastes a ton of money that could be spent on more useful things than lining the pockets of lawyers and law professors.

By making it easier to become a lawyer, we could undermine this malicious dynamic. Make law schools two years instead of three. Or better yet: Get rid of law schools altogether and make law an undergraduate degree. Eliminate the bar exam or, if you’d like, make passage of it the only requirement to practice law and get rid of all the rest of the qualifications. One way or another, we should do what it takes to flood the market with legal credentials and drag lawyers down into the pits [of] financial normality with the rest of the middle class.

This perspective sounds a whole lot like Fantasy Libertarian Economics 101 to me, but maybe I need to re-read A Theory of Justice.

In any case, arguing that law school graduates make too much money because the median income for “lawyers” in the US is $113,000 is akin to claiming that academics are overpaid because the average salary for “professors” right now is $119,000.

The fallacy at the core of such arguments is that they simply assume barriers to entry are as a matter of fact (as opposed to as a matter of overly simplistic economic theory) maintaining high incomes for people who are currently getting JDs and doctoral degrees. That hypothesis only seems plausible if your income statistics are limited to a misleading subset of the relevant social category. Thus law school graduates are magically transformed into people with established careers as lawyers, while the enormous group of people with advanced degrees who teach or try to teach at colleges and universities become tenured full professors.

The punch line here is that Breunig isn’t some charmingly naive anthropologist who believes that while “we have a very, very limited demand for brilliant poet-musicians . . .we have an infinite demand for corporate lawyers; anybody who can get a law degree will get a job.” No Breunig is — wait for it — a brand new graduate of Boston University’s law school!

Let’s glance for a moment at his classmates’ employment outcomes (these stats are for 2013 BU grads as of February 15, 2014):

Total graduates: 278

Total graduates with arguably real legal jobs nine months after graduation: 169 (Full-time non-temp bar passage required, minus school-funded “jobs” and one putative sole practitioner).

Total unemployed or severely underemployed graduates: (unemployed, employed in jobs that were both part-time and short term, or status unknown): 65

How exactly do these stats reflect a successful cartel whose barriers to entry have driven up wages for law graduates — excuse me, “lawyers” — to dizzying heights? And note that these are the graduates of a high-ranked law school! (BU is a top 25ish school, meaning it’s around the 87th percentile of ABA accredited institutions).

Again, let us leave the world of economic and political theory, and talk about practice:

Marin County District Attorney
3501 Civic Center Drive, Room 130
San Rafael, CA 94903
Deputy District Attorney (Uncompensated)


Position Description:

The Marin County District Attorney’s Office is seeking applications from attorneys who are willing to accept unpaid, temporary positions that offer a valuable opportunity to gain courtroom experience including trying misdemeanor jury trials. Successful applicants will serve as sworn Deputy District Attorneys with responsibilities that include handling daily criminal calendars, handling various motions, trying misdemeanor jury trials, and conducting legal research. These are FULL TIME positions that require a minimum commitment of six months and may continue for up to one year. Due to budgetary constraints, the Marin County District Attorney’s Office is unable to hire successful applicants at the conclusion of their uncompensated term. Successful applicants may not engage in the practice of law outside of the office during their uncompensated term.
Position Requirement:

Applicants must possess a J.D. degree from a law school approved by the American Bar Association and be a current, active member of the California State Bar. Successful candidates must pass a criminal background investigation including a fingerprint check.
Minimum Requirements:

No experience is required but only applicants with outstanding academic records and superior oratory and writing skills will be considered. Applicants invited for an interview will be required to submit a writing sample.
Application Information:

Please submit a cover letter, resume and copy of your law school transcript by e-mail or US Mail. No telephone calls please. We will contact you if we believe an interview is appropriate or if further information is required.

Barry Borden
Chief Deputy District Attorney
3501 Civic Center Drive, Room 130
San Rafael, CA 94903

The current market-clearing salary for an entry-level DA job in Marin County, with its oh-so-reasonable cost of living, appears to be zero. So it looks as if “lawyers” are being “dragged down into the pits of financial normalcy with the rest of the middle class” quite effectively as it is.

h/t Matt Leichter

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