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Kennedy Abandons Roberts on Affirmative Action

[ 160 ] June 23, 2016 |


I was very pleasantly surprised by Kennedy’s opinion sustaining UT’s affirmative action program today:

The strongest parts of Kennedy’s opinion dealt with Fisher’s contention that UT’s attempts to increase diversity on campus can and should be done exclusively through formally race-neutral measures. First of all, UT presented “significant evidence, both statistical and anecdotal,” that race-neutral measures are inadequate to create a sufficiently diverse campus. Given the compelling interest the state has in such diversity, it must be allowed to experiment, he said.

Even more important from a constitutional (if not a policy) perspective, Kennedy correctly argued that calling the Top 10 Percent system “race-neutral” is disingenuous. Kennedy’s opinion quoted Justice Ginsburg’s observation that such plans are “adopted with racially segregated neighborhoods and schools front and center stage,” and that “[i]t is race consciousness, not blindness to race, that drives such plans.” The Top 10 Percent plan was designed to increase racial diversity. Indeed, unless someone has a secret plan to immediately end endemic de facto school and neighborhood segregation, it is bound to have this effect in practice, since it will guarantee college placement for students in predominantly minority schools.

Kennedy’s increasing impatience with the blind formalism of his Republican-appointed colleagues helps to explain why he finally decided to uphold an affirmative action program. In the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice John Roberts held that race could not be used even as a tiebreaker to choose between equally qualified applicants, based on the fatuous tautology that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Given a background of extensive historical de jure discrimination and persistent de facto segregation, however, the idea that simply ignoring race is sufficient to address racism is an obvious fiction.

Justice Kennedy regrettably joined Roberts’s judgment, but wrote a lengthy, somewhat tortured concurrence in which he refused to endorse the implied conclusion that affirmative action programs are never constitutionally permissible. I will admit to being skeptical that the distinctions drawn by Kennedy in that case would ever make a difference, but today they did.

Justice Alito, conversely, was entirely unsurprising:

There is no small irony in the fact that Justice Samuel Alito, who wrote a long dissent to Kennedy’s opinion, is an alumnus of the Concerned Alumni of Princeton, a group that opposed the gender and racial integration of the university. He is hardly the first conservative to opportunistically discover the value of “colorblindness” once its effects were to make campuses more, rather than less, white.

Alito’s opinion attempts a number of would-be “gotchas” that aren’t very convincing. At one point, he complains that “UT also offers courses in subjects that are likely to have special appeal to members of the minority groups given preferential treatment under its challenged plan.” I confess it is not obvious to me how offering, for example, a Black Studies program and giving students substantial freedom to choose courses demonstrates that the University of Texas is not really committed to racial diversity. Alito also chides UT for using SAT scores, which have “often been accused of reflecting racial and cultural bias.” But, of course, the correlation between SAT scores and racial socioecomomic status is exactly the kind of factor UT’s holistic admissions evaluations—which Alito considers unconstitutional—are designed to take into account. UT is constitutionally permitted to ignore SAT scores—but should also be constitutionally permitted to consider them while placing them in the proper context.

Alito’s complaints about colleges offering courses to appeal to minority groups and “give[ing] undergraduates a very large measure of freedom to choose their classes” were telling. I must admit I was not aware that the 14th Amendment enacted Mr. Allan Bloom’s The Closing of the American Mind…


Today at the Court

[ 104 ] June 23, 2016 |


I have a roundup of today’s decisions. I’ll also have more on the pleasantly surprising Fisher decision later today or tomorrow.

Trump & Cohn

[ 32 ] June 23, 2016 |


A match truly made in Hell.

Donald Trump was a brash scion of a real estate empire, a young developer anxious to leave his mark on New York. Roy Cohn was a legendary New York fixer, a ruthless lawyer in the hunt for new clients.

They came together by chance one night at Le Club, a hangout for Manhattan’s rich and famous. Trump introduced himself to Cohn, who was sitting at a nearby table, and sought advice: How should he and his father respond to Justice Department allegations that their company had systematically discriminated against black people seeking housing?

“My view is tell them to go to hell,” Cohn said, “and fight the thing in court.”

It was October 1973 and the start of one of the most influential relationships of Trump’s career. Cohn soon represented Trump in legal battles, counseled him about his marriage and introduced Trump to New York power brokers, money men and socialites.

Cohn also showed Trump how to exploit power and instill fear through a simple formula: attack, counterattack and never apologize.

Since he announced his run for the White House a year ago, Trump has used such tactics more aggressively than any other candidate in recent memory, demeaning opponents, insulting minorities and women, and whipping up anger among his supporters.

Cohn gained notoriety in the 1950s as Sen. Joseph McCarthy’s chief counsel and the brains behind his hunt for communist infiltrators. By the 1970s, Cohn maintained a powerful network in New York City, using his connections in the courts and City Hall to reward friends and punish those who crossed him.

He routinely pulled strings in government for clients, funneled cash to politicians and cultivated relationships with influential figures, including FBI Director J. Edgar Hoover, mafia boss Anthony “Fat Tony” Salerno and a succession of city leaders.

In the 1990s, a tragic character based on Cohn had a central place in Tony Kushner’s Pulitzer prize-winning play, “Angels in America: A Gay Fantasia on National Themes.”

Trump prized Cohn’s reputation for aggression. According to a New York Times profile a quarter-century ago, when frustrated by an adversary, Trump would pull out a photograph of Cohn and ask, “Would you rather deal with him?” Trump remained friends with him even after the lawyer was disbarred in New York for ethical lapses. Cohn died in 1986.

All the Record Heat

[ 65 ] June 23, 2016 |


In case you want to feel depressed, you can follow the monthly updates at Gizmodo as the Earth keeps breaking its all-time heat records. This will end well.

See also.

Non-Compete Clauses

[ 96 ] June 23, 2016 |


It’s completely ridiculous that it took the New York attorney general’s office to force this to happen, but Jimmy John’s is finally ending its practice of making its employees sign non-compete clauses so they can’t take the valuable skills they learned and get a job at Subway.

The Illinois-based sandwich chain has agreed to stop including noncompete agreements in its hiring documents, a practice that was deemed “unlawful” by the New York attorney general’s office.

The announcement follows an investigation by that office into Jimmy John’s use of noncompete agreements with franchisees in New York, which began in December 2014. The agreements had barred departing employees from taking jobs with competitors of Jimmy John’s for two years after leaving the company and from working within two miles of a Jimmy John’s store that made more than 10 percent of its revenue from sandwiches.

“Noncompete agreements for low-wage workers are unconscionable,” Eric Schneiderman, New York’s attorney general, said in a statement. “They limit mobility and opportunity for vulnerable workers and bully them into staying with the threat of being sued. Companies should stop using these agreements for minimum wage employees.”

It seems that this agreement only covers its New York stores, although Illinois is going after it now, so maybe that will finally stop the practice entirely.

Opinion mongering: a brief typology

[ 66 ] June 23, 2016 |

the mac

The concept of intellectual prostitution is based on the idea that a person’s purportedly honest opinions shouldn’t be for sale. Here’s a classic statement from John Swinton, a leading journalist of the original Gilded Age, made when someone proposed a toast to the glories of America’s “independent press:” Read more…

52-48 for Remain

[ 99 ] June 23, 2016 |



That’s my story and I’m sticking to it. It’s a significant improvement from my freaking out a week ago today, and I’ve further downgraded the threat level from cautiously pessimistic to cautiously optimistic. It’s also going well out on a limb with a chainsaw considering the volatility in polling estimates and the lack of a consensus across the various polling houses.

Four new polls were released overnight, and the spread is to be expected of this entire frustrating campaign. The distribution in support for Remain is +8%, +2%, -1% and -2%.  (I’m ignoring the two updated polls by the houses not affiliated with the British Polling Council, SurveyMonkey and Qriously, which likewise vary).  NCP is currently forecasting 53-47 for remain with a 75% probability of a remain result.

The source of my unexpected cautious optimism is twofold, based on both variables I discussed a week ago. First, the share that are undecided is still stubbornly impressive. While two of the new polls do not top line undecideds, the two suggesting a narrow leave win both do: 9% and 16%. NCP estimates an undecided rate at 10%. Some will, of course, not vote. Those who are still undecided this late in the game that do vote will skew significantly for remain.  The final poll tracker on the Scottish referendum in 2014 from the BBC estimated 50% no, 45% yes, 6% undecided, the day before polling. The result was 55.3% no, 44.7% yes.

Incidentally, the NCP poll tracker at the top of this page appears similar in pattern to my recollections of the Scottish referendum, although only two polls suggested independence, whereas numerous polls have recently predicted a Brexit victory.

The second source of this (very) cautious optimism is the turnout. Voter registration hit a new record high for the referendum. Ordinarily this is to be expected with each passing year; however as I’ve written elsewhere, roughly 18 months ago the system of voter registration changed in a manner that would inordinately hit the younger cohorts.  Indeed, I saw evidence a couple days ago that suggests a significant increase in self-reported probability of voting amongst the 18-29 year old cohort in the past two to four weeks (this is from memory). Writing this just after 0900 BST, anecdotal evidence, both locally and nationally, is already reporting queues at polling stations.  Recall, the strongest systematic relationship in estimated support for remain is age: the younger are significantly more likely to support remain, the over 55s leave.

One hypothesis, indeed my hypothesis, combines the undecideds with (what might be) higher than expected turnout, the probability for a remain result increases.

For balance, however, while my take on the record registration implies higher than expected levels of the young turning out to vote, I can readily imagine an alternative explanation. A strong runner-up in the various estimated systematic relationships in support for one side or the other in this referendum is social class. The British have a measure for this: A, B, C1, C2, D, E.  C1 and above are significantly for remain, C2 and below for leave. Of course, a turnout relationship also exists here: higher socio-economic groups are significantly more likely to vote. Thus, the increased registration could be a function of new registrants from the lower echelons of this scale mobilised to vote in order to finally “take back control”.

So there’s the hedge. That said, I’m sticking to my prediction above, and warily eyeing this chainsaw I’ve taken with me out on this uncomfortable limb . . .

EDIT: How could I forget the bookies?  Here’s one, 76% for remain, and a tracker.

Brexit: A Disorganised Parting Shot for Remain

[ 112 ] June 23, 2016 |



I’ve been sitting on this article in Foreign Policy for a few days. It is one of the better articulations in defense of continued UK membership of the European Union that I’ve seen. It makes a lot of the points I want to make, and it makes them better.  Better written, at any rate, but I imagine that’s what comes with the luxury of time. It does hit on one of the truly fantastic aspects of the campaign just concluded:

Just as they reject historical context, lest it disturb the fantasy of their project, Brexiteers reject and ignore the problem of context in the policy debate. No complexity from the real world is allowed to compromise their unsullied imagined future.

Brexit has always been a fantasy, forwarding a purely emotional argument reliant on dodgy figures (at best; outright lies are not unknown). For every objection, they had an answer, regardless of how fanciful.  That £350 million per week we ship to Brussels?  It will go to the NHS instead.  Of course, the £350M figure was significantly exaggerated, and the leading lights of the Leave campaign have a long, proud history of wanting to degrade the Health Service or privatise it entirely. Cornwall receives a massive pile of EU cash (so too does Devon; less so than Cornwall, but one of the newer buildings on my campus was funded in part with a generous dollop of EU money) as its one of the poorer regions of the UK. Under the old EU rules, any region at less than 75% of the median income (EU-wide) was eligible for structural investment funding. Considering some of the competitors in the EU, it’s not a great sign to end up on this list. Cornwall, and parts of western Wales, did. Yet, all this cash has not prevented Cornwall from likely voting exit today. When Leave was campaigning down in Cornwall a week or so ago, they committed to maintaining this funding. Indeed, they’ve made this promise formally to all interest groups receiving EU cash.

But seriously, can we really believe that a post-Brexit Conservative government, one significantly to the right of the current well right-of-center lot, will do all these things? They’ve never been interested in ensuring adequate NHS finding before, let alone investing in the Southwest of England (but then, nobody really seems to do that bit much).

Regarding all these pesky EU immigrants . . . damn near every single economic analysis has demonstrated their positive effect on the British economy (the link is representative). Post-Brexit, while the future of these EU citizens is uncertain, equally uncertain are all the British citizens living elsewhere in the EU. While the estimates are all over the place, up to 750,000 Brits live in Spain according to the BBC. They tend to be older, retired, on pensions (in Spain) which makes sense. You’ve retired, and you’re done with the grey drizzle that typifies the British summer, so you retire to Spain, where they have this thing called the sun. EU citizens living and working in the UK tend to skew significantly younger and healthier. Go ahead, fire up your econometric models, and swap one group for the other, and grimly observe the projections.

The crushing reality of the situation is this dilemma that Brexiters face:

Having been trounced on questions of economics, the Leave campaign has, unsurprisingly, stopped talking about the economy, and instead has relentlessly pushed the immigration argument, and pushed it well beyond the truth (the Leave campaign’s website tells us, for instance, that Turkey will join the EU, which is highly unlikely). But even this supposed trump card is flawed. First, there is the problem already discussed: Being in the single market means accepting high levels of free movement, just as Norway and Switzerland have. End of argument — at least in the real world.

Of course, if the UK remains in the single market, the UK must accept most if not all of the associated rules and pay for the privilege, without membership of the Council of Ministers or of the European Parliament. Ironically, leaving the EU yet remaining in the market is pretty much the opposite of “taking back control” over anything. Yet leave the single market, you invite economic chaos and uncertainty.

I need to wrap this up and go help out with GOTV for Remain as the polls are already open.  Prior to leaving the house for the day, I will post on current polling numbers.

That said, the following is a counter-point to the Foreign Policy article linked at the top, originally a response on my fb page when I posted the article. It’s typical of the genre, and is quoted with the public permission of the author.

haha, Foreign Policy always knows what’s best(not). For instance their position on Syria is out of touch with reality and this Kafkaesque notion that some how a UK that is fully sovereign is some how ‘little’ typifies their ‘journalistic’ style. I know, maybe if the ‘leave’ campaign is ‘little England’ then maybe the ‘remain’ crowd should be categorized as the ‘no England’ group. I fail to see how English culture will endure in the long run in the face a watered down national image and unlimited immigration from the third world….huh, maybe that’s why there is a referendum in the first place. People across the Soviet Union knew there would be and economic price to pay with the dissolution of the USSR, but they did it anyway. Perhaps sovereignty and self determination are worth more than what ever threats the ‘no Englanders’ put forwards. It’s amazing to watch the elite circle the wagons…

The terrorist watch list is still a due process disaster, and trying to expand its use is shameful

[ 389 ] June 22, 2016 |

Alex Pareene is right:

The no-fly list is a civil rights disaster by every conceivable standard. It is secret, it disproportionately affects Arab-Americans, it is error-prone, there is no due process or effective recourse for people placed on the list, and it constantly and relentlessly expands. As of 2014, the government had a master watchlist of 680,000 people, forty percent of whom had “no recognized terrorist group affiliation.” This is both an absurdly large number of people to arbitrarily target in gun control legislation, and far, far too few to have any meaningful effect on actual gun ownership, let alone gun violence.

…Almost any popular and previously debated gun control measure would have made a better symbolic lost cause. Democrats could be staging a sit-in in support of universal background checks* and waiting periods, nationally standard gun licensing and training requirements, and tougher restrictions on where and how guns are sold. All of those, or even any one of those, would have been more defensible both politically and morally. Instead House Democrats are going to the mat for a shitty, racist, useless bill.

I can appreciate the political wisdom behind the choice of this bill as the subject of high-profile political theatrics; I’m sure it’s overwhelmingly popular, and it hits the Republicans on a weakness (refusal to do anything at all about gun violence) and a strength (terrorism) simultaneously. Anyone who cares about the 4th amendment or due process rights should still be disgusted by it.

FARC Ceasefire

[ 22 ] June 22, 2016 |


Great news out of Colombia, where the government and the FARC have finally come to an agreement to call a cease fire in the 50-year civil war, a cease fire that probably means the end of the conflict as FARC members are laying down their guns.

If Serious Speakerperson Paul Ryan rolls out a policy in the forest, does it make a sound?

[ 131 ] June 22, 2016 |

Yes, but it is drowned out by Trump being a big gross loudmouth. And possibly the silly press that won’t shut up about the GOP’s presumptive nominee for White House resident.

Except that, thus far, Ryan’s beloved agenda—the one his wonkish heart has been dreaming of and laboring over and counting on to define his speakership—has been something of a PR bust, yet another sad casualty of this election cycle’s Trumpsanity.

What makes that paragraph particularly hilarious is that in the three grafs before it, Cottle makes it clear that Ryan’s “Better Way” roll out has ranged from yawntastic to boring AF.

To be fair, it was a crushingly dull affair. Congressional powers as delineated in Article One of the U.S. Constitution is not the most scintillating of topics. Compounding the challenge, many rank-and-file House members are not the most enthralling orators. This was particularly true Thursday, with way too many lawmakers on hand to sing the same basic notes: The Constitution rocks, unelected bureaucrats are bad, and executive overreach is ruining America. Only the examples of regulatory outrage varied, based on each speaker’s home district: Keith Rothfus of Pennsylvania’s 12th denounced the burdens on coal plants; Doug Collins of Georgia’s 9th talked about poultry-farming regulations; Bradley Byrne of Alabama’s 1st bemoaned the tightening of red-snapper season; French Hill of Arkansas’s 2nd shredded the Environmental Protection Agency’s Clean Water Rule; and so on, for 15, 16, 17 speeches. As the logic goes in Congress: Why have just three or four lawmakers explain a proposal when a dozen or more will happily hold forth for the cameras? Which guarantees redundancy and tedium, but makes perfect sense when you consider that Ryan’s entire “A Better Way” project is a grand exercise in messaging that, in addition to positioning his conference as the party of ideas, is also meant to give individual members a chance to impress the voters back home with all the deep policy thinking they’ve done.

So, this grand exercise in messaging and policy thinking involves Republicans whining about the same damn things they’ve been whining about forever, only with a different sign stuck on the podium.

Which is what the GOP has been doing for almost as long as I can remember. How disruptive to be sure. Truly it is a shock that the press won’t pay attention to Ryan’s brilliant ideas and instead keeps nattering about Trump.

Just look at what happened at the rollout of the agenda’s first plank: Ryan’s pet anti-poverty plan. The speaker and seven colleagues crossed the Anacostia River to commune with the impoverished, overwhelmingly minority residents from the “bad” side of Washington. But after all the speechifying, the only thing reporters wanted to talk about was Donald Trump’s latest outrage, regarding the Mexican heritage of Judge Gonzalo Curiel. And so the big news to come rolling out of the event was Ryan’s “textbook” racism comment.

“The first six questions were about Trump,” AshLee Strong, Ryan’s spokesman recalled to me. The leader’s office has come to expect that sort of thing, she admitted. “Still, it seemed like an odd time to be hammering at Trump.”

Yes. How odd. I mean why would anyone ask the Republican SotH about the racist statements of Trump, the Republican’s pick for next president, while he – the SotH – was on a photo-op/sound-bite collection expedition in darkest SE, D.C.? Truly it is a mystery.

How the heck is Ryan supposed to get anyone focused on reform when there is a trash-talking, thin-skinned, bomb-throwing carnival barker busy turning the presidential race into the political equivalent of The Jersey Shore? It just ain’t gonna happen.

What a tragedy it is that the GOP was absolutely unable to do any policy reform before this presidential election cycle started. But what with the vital business of finding out how Clinton was able to murder everyone in Benghazi with her army of Vince Foster clones and holding the 12 zillionth vote to defeat Obamacare, they just couldn’t get to it. Thanks Obama!

But is there a silver lining for SotH Ryan? Of course there is.

Which, in the long run, may work out just fine for the speaker. Ryan’s labors as a wonkish Sisyphus—shoving his policy boulder up the hill only to have it crash back down every time the Donald opens his yap—will only fuel his image as the sober, determined, thoughtful foil to Trump’s garish, empty demagoguery. And once Trumpsanity is finally over, well, who’s to say how Ryan will choose to use his new juice?

[Shudders at the thought of Ryan juice of any vintage.] Right. The sober, determined, thoughtful foil who said he wouldn’t support Trump unless Trump cleaned up his act, counted to 10 and changed his mind. I know foils are supposed to be flexible, but one that bends into a circle when it brushes up against a shouty sack of wind is friggin’ useless.

After its scorching affair with Trump, Republican voters may well find themselves ready for a more boring suitor—one whose idea of sexy talk involves an in-depth critique of Article One authority.

Oh I see. This is a humor column.

“There Are Too Many Black People On American Currency Nowadays. Please Eliminate One. I Am Not A Racist Crackpot.”

[ 85 ] June 22, 2016 |


Steve King, everybody:

King filed an amendment late Tuesday to an appropriations bill that would prevent money from being spent on any redesigns of the country’s currency. And he made it clear that his intention is to keep bills looking exactly the way they do now.

“It’s not about Harriet Tubman, it’s about keeping the picture on the $20,” he told Politico, even though Jackson’s image will still be on the back of the bill. “Y’know? Why would you want to change that? I am a conservative, I like to keep what we have.”

He also called it “racist” and “sexist” to say that the United States should put a woman or person of color on the country’s money. “Here’s what’s really happening: This is liberal activism on the part of the president that’s trying to identify people by categories, and he’s divided us on the lines of groups,” he said. “This is a divisive proposal on the part of the president, and mine’s unifying. It says just don’t change anything.”

Donald Trump becoming the Republican Party’s presidential nominee is just a completely inexplicable phenomenon that randomly came out of nowhere.

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