Why Presidential Elections Matter

As I’ve said before, the Republican Party will not repeal the 1964 Civil Rights Act. But what matters is not just that the statute remains on the books, but how it’s actually applied by the executive and judicial branches.

For example, Title VII of the CRA makes it illegal to retaliate against employees for whistleblowing about discrimination. So one would think that this employee would be protected, right? Not according to the two Republican appointees on the 4CA panel that heard the case:

While a group of workers watched a breaking news story on the office TV, one employee known for making similar comments blurted out, “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f**k them.” Last Friday, May 12, a divided Fourth Circuit panel concluded that there’s nothing illegal about firing an employee for reporting such racially inflammatory remarks to supervisors. Republican appointees Paul Niemeyer (Bush I) and H. Emory Widener (Nixon) joined in the majority over a sharp dissent by Clinton appointee Robert King, who simply could not fathom a ruling so manifestly contrary to federal anti-discrimination law and the public policy goals underlying it.

In October 2002, Robert Jordan, an African-American employee at an IBM office in Montgomery County, Maryland, stood with co-workers watching television reports of the capture of two men suspected of being the notorious Washington, D.C. area snipers. After hearing the news, Jordan’s coworker, Jay Farjah, uttered the “black monkey” comment. Offended, Jordan discussed the remark with two other co-workers, each of whom revealed that Farjah had made similar remarks before. Pursuant to IBM’s mandatory anti-harassment policy, Jordan quickly reported Farjah’s behavior to his supervisors. How did they respond? Within a month’s time, they changed Jordan’s shift so that he could no longer pick up his son from school, made a crude remark toward him at a holiday party and then, despite his four years of service to the company, fired him.

[…]

There’s another, even larger problem with the analysis of Judges Niemeyer and Widener. The primary purpose of Title VII is to avoid harm rather than redress it. Accordingly, it effectively imposes a duty on employees to report, as soon as possible, any actions that they reasonably think might violate the law. Most companies, including IBM, have corresponding internal policy mandates. By refusing workers like Jordan protection for their whistle-blowing, Judges Niemeyer and Widener undermine these important requirements. As Judge King observed, “[Today’s] decision has placed employees like Jordan in an untenable position, requiring them to report racially hostile conduct, but leaving them entirely at the employer’s mercy when they do so.” On the flip-side, if due to fear of retaliation they fail to report such conduct, their only other option is to “remain quiet and work in a racially hostile environment with no legal recourse beyond resignation. Of course,” Judge King concluded, “the essential purpose of Title VII was to avoid such situations.”

In the modern regulatory state, a great deal of policy-making inevitably occurs outside the legislative branch. Michael Tomasky explained the lesson for presidential politics this way:

…some voted for Nader because they just weren’t inspired by Gore personally. Fine. But it should be obvious today that a candidate’s personality is one of the last things serious people ought to be thinking about. No one can survey the past 30 months and conclude, whatever the Democrats’ shortcomings, that there’s no difference between the parties. We would not have John Ashcroft, Dick Cheney, Gale Norton, the USA PATRIOT Act, this Trotskyist war in Iraq, two major class-war tax cuts — the list goes on and on (and on). And that’s only the stuff you hear about. In every agency of government, at every level, there are political appointees who are interpreting federal rules and regulations and deciding how much effort will really be put into pursuing federal discrimination cases, for instance, or illegal toxic dumping. These are the people who are, in fact, the federal government. The kinds of people who fill those slots in a Democratic administration are of a very different stripe than the kinds who fill them during a Republican term, and the appointments of these people have a bigger effect on real life than whether Al Gore sighs too heavily or speaks too slowly.

Indeed, and this precisely why the Joe Klein elections-as-beauty-contests framework is so inherently damaging. “Authenticity” means absolutely nothing. Who presidents will appoint to the federal courts actually does.