Governors Are Doing All Kinds Of Things Out There

James L. Rosica at Miami Herald:

Gov. Rick Scott and the Florida Cabinet have ended the automatic restoration of voting and other civil rights to nonviolent felons once their sentences are up.

Sitting as the Board of Executive Clemency, they voted 4-0 on Wednesday to change the panel’s rules and require at least a five-year waiting period before ex-convicts can apply to get their rights back.

“If you’re convicted … you lost those rights,” Scott said at a news conference later in the day. “There ought to be a process to get those rights back.”

Law enforcement officials and state prosecutors favored the change, saying people who have broken the law need a waiting period to prove themselves.

Civil rights advocates called the new rule a step backward, tantamount to double punishment.

The change is effective immediately and potentially affects anywhere from 100,000 to 300,000 felons, experts said.

Miami Herald editorial:

Now felons will have to wait five years after completing a sentence to apply for rights restoration. This will return Florida to the Jim Crow era, when such hurdles were created to prevent blacks from voting.

Make no mistake: This proposal has racial and partisan implications.

A disproportionate number of Florida’s felons are African American, and in this state, blacks overwhelmingly vote Democratic. The Cabinet has further alienated black voters by adopting these more-stringent restoration rules. What purpose does that serve the state or the Republican Party?

In the last decade, more than 20 states have eased the restoration process for people convicted of crimes. Florida should remain in this group of enlightened states. Instead it has gone back a century. It now has joined only two other states — Kentucky and Virginia — in requiring waiting periods and hearings before felons can get their rights restored.

If anything, the Cabinet should have considered more streamlining measures for clemency. The Florida Parole Commission investigates clemency applications, and it has always struggled with huge backlogs. For a time the Corrections Department even loaned some staffers to tackle the backlog.

Clemency application reviews still move at a snail’s pace, delaying justice for felons who have paid their debt to society. The Commission recently told the Legislature that it has a growing backlog of more than 100,000 cases.

Making felons who have served their time wait years to regain their rights has nothing to do with being tough on crime. By embracing this regressive proposal, the governor and Cabinet have sent Florida back to a shameful time of blatant racial prejudice.

Mansfield Frazier at The Daily Beast:

Cleveland State University Urban Studies Associate Professor Ronnie Dunn has written extensively on how, since the advent of the Jim Crow era, unfair laws have been enacted— particularly in Southern states—to deny blacks the right to vote. Writing in a soon-to-be-released handbook on prisoner reentry, he describes how poll taxes, literacy tests, and property ownership were devices routinely used to suppress the black vote and unfairly affect election outcomes.

Florida now joins two other states, Kentucky and Virginia, in having the most severe restrictions on former felons voting and other rights, such as serving on juries and holding certain professional licenses. Five black Florida lawmakers joined a chorus of civil-rights advocates in objecting to the rule changes, saying no evidence existed that the abandoned process, which was approved by former Gov. Charlie Crist and the former cabinet in 2007, was not working.

“It’s really not about what’s right or fair,” said Ken Lumpkin, an attorney and political activist in Cleveland. “This is about stealing elections and hurting an individual’s chances of starting over after prison. If felons had had the franchise in Florida back in 2000, over a million more people would have been eligible to vote, and the election would not have been close enough for the Supreme Court to give it to Bush. What this new governor is doing is rolling back the clock on minority rights. And with Republican governors and legislative majorities in states like Ohio and Wisconsin, no one should be surprised if they try to change the rules in those states also. If that happens, a Democratic candidate for president won’t stand a chance.”

Indeed, incoming Ohio Secretary of State Jon Husted, among other changes, wants to stop county boards of elections from mailing unsolicited absentee ballots to voters and limit the window of time they have to cast them. Democrats, however, charge that Husted’s proposals are designed to discourage voting, especially in big urban counties.

Ohio State Rep. Michael Stinziano (D-Columbus), the former director of the Franklin County Board of Elections, said it would be “bad public policy” to prevent county boards from soliciting and paying postage for absentee ballots. The service, he said, alleviated long lines at polling places (such as those that marred the county’s 2004 presidential election) that caused some elderly voters to walk away without voting.

Back in Florida, state NAACP Vice Chairman Dale Landry said that individuals who have completed their sentences have paid their debt to society in full and should be allowed to vote. “Why do we come back and impose a further penalty?” he asked. “What we’re saying is that… the state wants to impose further sentencing, an additional penalty. That’s exactly what was done here.”

Greta Van Susteren at Fox News on the Daily Beast story above:

This posting is about the HEADLINE (not whether you agree or disagree with the underlying law.  People can differ on whether the law is a good one or not, appropriate or not.)

Headlines are to grab attention — but there is a point when they are simply irresponsible and trying to stir up hate and problems.   I think the headline below “FLORIDA’S RACIST NEW LAW” is exactly that – irresponsible and trying to stir up problems and hate.  The headline DID catch my attention since for many, many, many years prior to TV, I represented a lot of poor African Americans and often in issues involving civil rights.

Upon reading the explosive (I think it explosive) headline, I wanted to know more about “FLORIDA’S RACIST NEW LAW”  — and so I read the article.  I bet many just read the article and stop there — thus left with the impression that Florida is racist (or those who support the law are.)   In actually reading the article, I see that the author writes “[b]ut whether the move was simply tough-on-crime posturing or something more nefarious remains an open question.

You have to dig deep into the article for the “open question” while the RACISM was in bigger, bolder letters in the headline. So what was a PRONOUNCEMENT of FACT in the headline of RACISM (and sure to cause many people to be deeply disturbed) now remains “AN OPEN QUESTION” as to whether the law was a “tough on crime posturing or something more nefarious” (eg racism.)  There is a big difference between being “tough on crime” and being a racist.

Roger Clegg at The Corner:

Florida governor Rick Scott and his cabinet have ended the policy of his predecessor, Charlie Crist, of automatically reenfranchising felons upon their release from prison. The ACLU et al. are outraged, but it’s the right decision: Those who have demonstrated that they won’t follow the law shouldn’t be allowed automatically to make the law for everyone else; rather, they should have that right reinstated only after they’ve shown that they have indeed turned over a new leaf, as I’ve discussed on NRO many times — for example, here. Kudos to Governor Scott.

Alex Massie:

Given the scale of the injustices and barbarism that characterise large parts of the criminal justice system in many, perhaps even most, American states denying former felons the right to vote once they have been returned to society may seem a minor concern. Nevertheless it is a telling one and something that should shame those states that still bar ex-cons from voting.I’d have thought it an obvious principle of natural justice that we take the view that once released a prisoner should be considered a free man or woman. True, there are certain limited caveats to this (sex offender registries being the most glaring) and some jobs may reasonably (or reasonably in many cases) be considered unsuitable for former felons but none of that has any bearing on the question of whether released prisoners should be permitted to vote.

Clegg links to a piece he wrote elaborating upon this view that ex-cons shouldn’t be permitted one of the most fundamental rights we have to grant. But this is all he has to say:

It is frequently asserted that felons released from prison should be able to vote because they have “paid their debt to society.” But the felon-vote movement will, if pressed, admit that they think felons in prison should be allowed to vote, too. And society is not obliged to ignore someone’s criminal record just because he has been released from prison. Felons are barred by federal law from possessing firearms, for example.

Is that it? Apparently so. Ex-cons can’t be permitted to vote because that’s the slippery slope to letting serving inmates vote too. Colour me unpersuaded. This argument, however, leads one to wonder whether it is in fact possible for felons to “pay their debt to society”? And if they have not done so – as the denial of voting rights suggests they must not have done – then why are they being released in the first place? That, at any rate, would seem to be the logic of this matter. It’s a grim and pitiless worldview.Of course there’s the possibility that other motives are at play, namely that for a number of reasons ex-cons may be more likely to vote Democratic than Republican. But let us put that unworthy thought to one side and simply note that denying ex-felons the franchise is a further punishment that’s above and beyond and entirely unrelated to the crimes which led to their incarceration. I’m amazed, actually, that it’s Constitutional to do so.

No, it’s just one more example of a criminal justice system that, alas, should shame the United States. This is not a question of liberalism or conservatism but of decency. There are many things the Americans do better than us but thank god we don’t have their criminal justice or prison systems.

Incidentally, anyone with any interest in these matters should follow Radley Balko’s work. (And actually the New York Times should have given him an op-ed column years ago.)

Jim Webb Writes An Op-Ed

Heather Horn at The Atlantic with the round-up

Senator Jim Webb at the Wall Street Journal:

Contrary to assumptions in the law, white America is hardly a monolith. And the journey of white American cultures is so diverse (yes) that one strains to find the logic that could lump them together for the purpose of public policy.

The clearest example of today’s misguided policies comes from examining the history of the American South.

The old South was a three-tiered society, with blacks and hard-put whites both dominated by white elites who manipulated racial tensions in order to retain power. At the height of slavery, in 1860, less than 5% of whites in the South owned slaves. The eminent black historian John Hope Franklin wrote that “fully three-fourths of the white people in the South had neither slaves nor an immediate economic interest in the maintenance of slavery.”

The Civil War devastated the South, in human and economic terms. And from post-Civil War Reconstruction to the beginning of World War II, the region was a ravaged place, affecting black and white alike.

In 1938, President Franklin Roosevelt created a national commission to study what he termed “the long and ironic history of the despoiling of this truly American section.” At that time, most industries in the South were owned by companies outside the region. Of the South’s 1.8 million sharecroppers, 1.2 million were white (a mirror of the population, which was 71% white). The illiteracy rate was five times that of the North-Central states and more than twice that of New England and the Middle Atlantic (despite the waves of European immigrants then flowing to those regions). The total endowments of all the colleges and universities in the South were less than the endowments of Harvard and Yale alone. The average schoolchild in the South had $25 a year spent on his or her education, compared to $141 for children in New York.

Generations of such deficiencies do not disappear overnight, and they affect the momentum of a culture. In 1974, a National Opinion Research Center (NORC) study of white ethnic groups showed that white Baptists nationwide averaged only 10.7 years of education, a level almost identical to blacks’ average of 10.6 years, and well below that of most other white groups. A recent NORC Social Survey of white adults born after World War II showed that in the years 1980-2000, only 18.4% of white Baptists and 21.8% of Irish Protestants—the principal ethnic group that settled the South—had obtained college degrees, compared to a national average of 30.1%, a Jewish average of 73.3%, and an average among those of Chinese and Indian descent of 61.9%.

Policy makers ignored such disparities within America’s white cultures when, in advancing minority diversity programs, they treated whites as a fungible monolith. Also lost on these policy makers were the differences in economic and educational attainment among nonwhite cultures. Thus nonwhite groups received special consideration in a wide variety of areas including business startups, academic admissions, job promotions and lucrative government contracts.

Where should we go from here? Beyond our continuing obligation to assist those African-Americans still in need, government-directed diversity programs should end.

Nondiscrimination laws should be applied equally among all citizens, including those who happen to be white. The need for inclusiveness in our society is undeniable and irreversible, both in our markets and in our communities. Our government should be in the business of enabling opportunity for all, not in picking winners. It can do so by ensuring that artificial distinctions such as race do not determine outcomes.

Memo to my fellow politicians: Drop the Procrustean policies and allow harmony to invade the public mindset. Fairness will happen, and bitterness will fade away.

Moe Lane at Redstate:

I wonder if the above was the Senatorial equivalent of a mid-life crisis? – Although that’s not nearly self-destructive enough to be a true analogy.  Senator Webb seems to have forgotten that he has a ‘D’ after his name these days, which effectively means that this entire article is thoughtcrime that will pretty much guarantee him a messy primary in 2012.  Progressives do not appreciate thoughtcrime, particularly in their converts: they bought Jimmy Webb in 2006, and they expect their purchases to perform as expected.

Do I sound entertained?  It’s because I am: and I will enjoy every second that Jimmy Webb is broken on the wheel for relapsing into error like this.  And do you know why I will enjoy every second?  Because of ‘macaca,’ that’s why.  Jimmy Webb stood by and calmly, disinterestedly watched as his new owners flash-mobbed his opponent for supposed racism in the 2006 Senatorial election. He did that because Jimmy Webb wanted to be Senator so badly that he was willing to overlook precisely the hyper-emphasis of race that he complains about now; after all, it put him in office, and that was the important thing, right?

So: Jimmy Webb is right in that we need to stop using race as a criterion for public assistance, and that government-operated diversity programs are doing the country no favors.  And I hope to God that the progressive movement uses my agreement – and the rest of the VRWC’s – to utterly destroy Jimmy Webb’s career.

Roger Clegg at NRO:

The good news is that he calls for an end to (almost) all “government-directed diversity programs,” and, less equivocally, declares that “nondiscrimination laws should be applied equally among all citizens, including those who happen to be white.” Whites are not monolithic, he points out, and neither are nonwhites. All excellent stuff, and his words are especially brave, welcome, and important coming from a leader in the Democratic party. When was the last time a top Democrat said anything like this?

The bad news is that he seems pretty clearly to be leaving the door open to special programs for African Americans, as indeed he has in the past — but, now as then, it’s hard to understand why.

As a good Southern populist, he decries, á la Shirley Sherrod, the exploitation of poor whites and blacks by monied interests. Putting that aside (I don’t think most white Southerners are comfortable as victims), he’s right in his other major point that the original justification of affirmative action forAfrican Americans — who had suffered through slavery and just been liberated from Jim Crow — does not apply very well to members of ethnic minorities who have only recently immigrated to the United States.

But it doesn’t apply very well to African Americans in 2010, either. Senator Webb asserts that blacks “still experience high rates of poverty, drug abuse, incarceration, and family breakup,” but the word “still” is misleading, since the critical one that largely drives the others — illegitimacy — has gotten radically worse, not better, as discrimination has radically diminished.

Consider, in any event, those African Americans who were born in, say, 1992 — the birth year of those now getting college-admissions preferences. Those students are not slaves or former slaves, were not alive under Jim Crow and have never been victims of government discrimination, and were born over a quarter-century after the Civil Rights Act of 1964 was passed to protect them from public and private discrimination. Additionally, theAfrican Americans who get these preferences at the more selective universities come overwhelmingly from middle- and upper-class backgrounds, not from impoverished farms or ghettos.

Jonah Goldberg at The Corner:

It seems to be generating a lot of chatter, some of it critical, on the right. Policy-wise, I’m with Roger Clegg. But I guess I’m more forgiving of Webb’s reluctance to come out against racial preferences for African Americans. First, I think Roger would agree with me that Webb is right that the case for preferences for blacks is morally and historically distinct from, and better than,  the case for preferences for, say, Hmong, Hispanics or Jews. Again, I agree with Roger that the case isn’t persuasive, but it’s considerably more persuasive than other kinds of preferences. Moreover, it’s hardly shocking that a Democrat would feel the need to equivocate on the subject. So, while I’d rather that Webb made a stronger case, I think his case is extremely strong given where his party is these days. Simply by arguing that the diversity racket is bogus, he’s moved the center of gravity on the left considerably rightward. Were he to succeed in persuading his fellow Democrats (inconceivable as far as I can tell), it would be great progress and would do serious damage to race preferences of any kind. So kudos to Webb, I say.

John Cole:

I think a lot of people are missing where Jim Webb is coming from in his op-ed. I’m not going to defend the entire thing, but I think you need to understand that Webb comes from a portion of Appalachia where poverty is so deep, so ingrained, that the idea in those regions that there is some sort of “white privilege” is in fact laughable. To them, the privilege of chronic unemployment, life in a tarpaper shack with no medical care, food stamps but no grocery store, and not much of a future doesn’t look like that great of a deal. And you need to understand, there are a LOT of people in this situation. I regret the way the piece read, and I hate the title, but Webb is talking about addressing the deep-rooted poverty he’s seen his entire life in the back hills of VA, WVA, Kentucky, and elsewhere. I don’t find that message to be much different from the lesson Shirley Sherrod was trying to pass on regarding class v. race. In many regards, I bet Sherrod and Webb would agree.

When a lot of people said the Democratic party “left them” in this region, we’re talking about dirt poor folks who have basically given up on the government. These were the folks that embraced the Democratic party of FDR and Eleanor Roosevelt (Eleanor is particularly beloved to this day in rural WV), to them, the Democrats of today really are no different than Republicans in their indifference toward the poor and working poor, and they end up voting on social issues. Tom Franks said a thing or two about this. There really is no one fighting for unions any more. Show me a Democrat that is different from a Republican on coal in WV and I’ll show you an unelected Democrat.

Again, I think the way the piece read will rub a lot of people the wrong way, and that is was in the WSJ makes it a hard pill to swallow for a lot of us, but I don’t think for a minute Webb meant to claim that minorities have not suffered.

Nsenga K. Burton at The Root:

Virginia Senator James Webb has made no bones about his disdain for affirmative action programs and policies. The Democrat believes that affirmative action programs marginalize whites and that “white privilege” is largely a myth. Webb’s views about affirmative action caused controversy during his 2006 run. In a Wall Street Journal book review written in 2000, he stated that affirmative action “has within one generation brought about a permeating state-sponsored racism that is as odious as the Jim Crow laws it sought to countermand.” Since he sounds like a Republican and a Tea Party member, the reintroduction of this topic via a Wall Street Journal op-ed is a great way to rally the troops, especially in a state like Virginia. We’ve said it before and we’ll say it again: There is a reason the Democrats used to be called Dixiecrats.

James Joyner:

While I don’t disagree with the premise, I’m not sure what policy conclusion one reaches.   I fully agree and have long argued that using race as the sole criterion for policy preference should end.  But, surely, we don’t want to create new categories, such as “Scotch-Irish Sons of Confederate Veterans,” for special treatment.   We could target based on poverty, perhaps with some sort of regional cost of living adjustments.

I like the concept of “enabling opportunity for all.”  But what does that mean in practice?   Do we Federalize education?  Under our current system, which is typically funded by local property taxes, children in poor communities are trapped in poorly funded schools.   That’s doubly true if surrounding communities are also poor.   And this gets compounded by the fact that poor families are more likely to be single-parent families with households headed by poorly educated, young people too tired to give their kids’ education much attention and poorly equipped to do much good, anyway.   How do we break this cycle through the government?

Kevin Drum:

Class-based program programs might, in the end, provide modestly less help for ethnic minorities than current policies — though well-designed ones might not. But they have some advantages too. For one thing, they help poor people. That’s worthwhile all by itself. (Kahlenberg quotes William Benn Michael as noting acidly that currently the debate in higher education is mostly about what color skin the rich kids will have.) Beyond that, there’s another benefit: for all the good it does, there’s no question that race-based affirmative action has drawbacks as well. It makes employers suspicious of minority graduates, wondering if their degrees were really fairly earned. It provokes a backlash among working class whites. And it’s open to abuse on a number of fronts. Class-based programs don’t solve all these problems at a stroke, but they go a long way toward addressing them

Would it be possible for us to adopt class-based programs? One obstacle, I think, is the insistence of conservatives on refusing to even admit that racism is a problem anymore. It’s become practically a truism on the right that racism is a thing of the past, nothing more than a convenient whipping boy to be exploited by race hustlers like Jesse Jackson and Al Sharpton who prey on liberal guilt and federal largesse. This is just poisonous. There’s no way that blacks or any other ethnic minority will ever take conservative complaints at face value if they flatly refuse to concede that there’s even a problem left to be addressed.

This isn’t normally a subject I write much about. I’ve done only modest reading about it, and my personal background — middle class white guy born and raised in Orange County — obviously doesn’t give me any valuable personal insight. But the status quo has done, and continues to do, a lot of damage to all sides. It’s probably a fantasy to think that there’s any progress to be made in our current fever swamp atmosphere, but a conservative concession on the reality of race as a continuing problem — think racial profiling, penal system injustices, health system disparities, etc. — combined with a liberal concession on emphasizing class much more than we have in the past, would almost certainly be a step forward.

UPDATE: Michael Lind in Salon

In My House

Harvard Professor Henry Louis Gates arrested in his own home. The arrest report PDF file is here. Charles Ogletree is representing Gates; the statement from Ogletree  is at The Root.

Jeffrey Goldberg:

Professor Henry Louis Gates, Jr.,is arrested in his own home in Cambridge by police, who then accuse him of “loud and tumultuous behavior.” Let’s see — if the police were arresting me in my own house — for breaking and entering into my own house — I might become both loud and tumultuous. Word fail when you read stories like this. I’m sure Pat Buchanan will be on television tomorrow arguing that it wasn’t, in fact, Gates’ house.

Ta-Nehisi Coates:

bet he did exhibit “loud and tumultuous behavior.” I likely would too. Actually, I wouldn’t. But I don’t work for Harvard. And my mother taught me how black men are to address the police.

Radley Balko:

So if you’re going to be a pedestrian who mistakenly calls the cops because you see a black man trying to pry open the jammed door to his own home, and if you’re going to be the responding cop who then questions said black man for possibly burglarizing his own home, then arrests said black man for subsequently taking offense and getting uppity with you, both of you should probably make sure said black man is not Henry Louis Gates, the famed Harvard professor of African-American Studies.

Jack and Jill Politics:

Skip Gates is 60 years old and can’t walk WITHOUT A CANE.

Yeah, he’s a threat to you and me, y’all. I feel soooo much safer knowing that he was taken off the streets.

Jonah Goldberg at The Corner:

I’m generally a fan of Gates and a lot is still unknown. But at minimum, I think it’s interesting how the Globe’s coverage is immediately and almost entirely about the alleged racial angle. If I were the arresting officer, I might wonder why my version of events deserves so much less credulity. Then again, I might not.

Jonah again:

Lots of e-mail has come in since last night when I posted about Henry Louis Gates’s arrest. The responses from readers are interesting in that they reflect a divide running through conservatives I’ve noticed before. About half the readers think Gates is hilariously in the wrong. The other half, give or take, think that the cop was transparently to blame for the whole mess. That’s a gross generalization of several dozen e-mails, but I think it reflects how conservatives, like Americans generally, are of two views when it comes to cops. One side is inclined to distrust them, see them as potential abusers of authority —  mere men with badges and guns. Another side is deferential to police. That is not to say they condone abuse or sanction cops being above the law. But they give cops the benefit of the doubt for a host of reasons.

[…] I don’t think this divide is unique to conservatives. As I say, I think it runs straight through the American, and, no doubt, human heart. But it’s interesting in this context because I think conservatives are expected to be far more deferential to law enforcement. And, when I read the Gates police report, I immediately sympathized with the cop who had to deal with a very high-status guy trying to bully the cop in part by accusing him — unfairly, by my lights —  of racism. It’s very interesting to read lots of conservatives offer good faith disagreements.

David Bernstein:

FWIW, even if the cops’ story is 100% accurate, I don’t see what the point of arresting Gates was. Yelling at a cop isn’t a crime, Gates clearly posed no threat to anyone, and the cop should have either used his training to defuse the situation or just walked away–he already knew that Gates wasn’t a burglar, which was the original reason for the cops’ presence.]

UPDATE: Personally, whenever I encounter cops in a potentially adversarial situation, e.g., during a traffic stop, I become absurdly obsequious, precisely because I know they have the power to arbitrarily arrest me if I piss them off. Law professor or not, the power dynamics in a confrontation with cops is not in your favor.

Spencer Ackerman:

To steal a line that Adam Serwer tweeted, Ross picked a great day to write about the post-racial America on the horizon. This will teach one of the most distinguished American scholars of his era to act all uppity and shit to a police officer who recognizes he’s no threat in his own house.

Toure in the Daily Beast:

This is surely not over—there’s a gulf between those two accounts wide enough to drive a Hummer through. And many questions are left unanswered: Why did Gates’ neighbor, who works at Harvard magazine, fail to recognize him? When the Harvard University Police showed up, couldn’t they have realized what was happening and whose home it was and found another way to resolve all this? And most important, why did the officers find it necessary to arrest a man who was in his own home and who had not posed or made a threat to them? The worst crime in the police report is Gates yelling at an officer who was telling him to calm down. Is that a crime?

UPDATE: Charges dropped, apparently.

UPDATE #2: John McWhorter

Roger Clegg in National Review

Will at the League on Clegg

UPDATE #3: Lots of commentary after that press conference last night:

Ta-Nehisi Coates

James Joyner

Matthew Yglesias

At The Corner

Yuval Levin

Andy McCarthy

Jay Nordlinger

At TPM, Josh Marshall

Erin Manning

UPDATE #4: Legal Insurrection

Flopping Aces

Dan Riehl

UPDATE #5: Ed Morrissey

Michael C. Moynihan in Reason

Jacob Sullum in Reason

Jack Dunphy in National Review

UPDATE #6: Richard Thompson Gates in Slate

Jack Dunphy again

Mark Steyn

Maureen Dowd in NYT

Brandon del Pozo via Henry Farrell

Steve Teles via Reihan Salam

Joe Carter

John Schwenkler

UPDATE #7: Radley Balko in Reason

Christopher Hitchens in Slate

UPDATE #8: Ed Morrissey

Dustin Siggins at New Majority

UPDATE #9: Hamilton Nolan at Gawker

UPDATE #10: Mark Kleiman at Ta-Nehisi’s place

But How Would Originalism Apply To The Jon And Kate Divorce Proceedings?

Ramesh Ponnuru in the NYT makes a provocative argument:

The debates on these issues are highlighting a deep inconsistency in the way my fellow conservatives approach race and the law. Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

At The Corner and Bench Memos, lively debate:

Jonah Goldberg:

He makes the straightforward argument that an investigation into the original meaning and intent of the Constitution and its amendments will not reveal a constitutional prohibition of race preferences. The Constitution simply does not demand colorblindness, says Ramesh. I find it an unlovely argument, not because it is poorly formulated or poorly written but because it might well be true. But as a firm believer that the something bad can be constitutional and something good can be unconstitutional (or unsupported by the Constitution) I shouldn’t be surprised when the Constitution fails to ratify my own philosophical preferences.

Anthony Dick:

One thing that might be motivating Ramesh is his inclination toward judicial restraint as a principle of constitutional construction. That is, a principle concerning what should judges do when they confront a text whose original meaning is not entirely clear in its application today. Many conservatives believe that judges in this instance should defer to the electoral branches, which are more accountable to the people and better suited to policymaking. But this is not a preference for originalism. It is a preference for a relatively strong legislative power as against an assertive judiciary that would maintain strict constitutional limits on the affirmative powers of government.

Ponnuru responds to Dick:

Having said all that, I think this discussion brings up two related problems for originalists. The first is the lack of a really well worked out principles about the role of precedent. If part of the justification for originalism is that it constrains judicial discretion, that justification is undercut to the extent that there is discretion about whether to respect precedent. The second is that we are so very far away from the Constitution as originally understood, which makes the first problem much worse. How to get back to that Constitution, to the extent that we can or should, is a thorny intellectual problem even before it is a political one.

Roger Clegg:

The problem with Section 5 of the Voting Rights Act is that it prohibits many state actions that are not unconstitutional (since it employs an “effects” test, and the Fifteenth Amendment prohibits only disparate treatment — actions taken “on account of race”). Indeed, its principal use these days is to require states to engage in disparate treatment, namely the racial segregation of voting districts by racial gerrymandering. In addition, Section 5 supplants state authority in matters committed by the Constitution to them and substitutes federal judicial and bureaucratic supervision instead (this could be justified if necessary to stop states from violating the Constitution, but as just noted Section 5 goes way beyond that). Finally, Section 5 applies to some states and not others, without any existing factual basis for doing so, which is likewise inconsistent with the Constitution’s federalist structure.

So, in reauthorizing Section 5 in 2006, Congress exceeded its constitutional authority. Striking it down would honor the Constitution’s text, and would not be judicial activism; upholding it would mean ignoring constitutional text, and would be judicial activism.

Matthew Franck:

But on the constitutional question, Ramesh is right to raise doubts about whether, on an originalist reading, the Fourteenth Amendment “mandated a policy of strict colorblindness by state and local governments.”  And Roger doesn’t really argue that it does mandate that, other than to ask “where in the Constitution’s text it says that white people have different constitutional rights than black people.”  But the whole historical question is, just what sort of rights are we talking about when we say people are entitled to the “equal protection of the laws”?

Abigail Thernstrom

Ramesh celebrates two much-beloved conservative principles — originalism and judicial restraint — as reasons to eschew Supreme Court review of two key civil-rights cases — Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO) (decided June 21) and the much-discussed case of Frank Ricci (and colleagues), firefighters in New Haven, Conn., who were denied promotions because not enough minorities scored well enough on the qualifying exam. Yet neither originalism nor judicial restraint justify turning a blind eye to serious constitutional violations.

NAMUDNO is Ramesh’s exhibit number one, and I confine my remarks to that case.

Not even Justice Clarence Thomas, he writes, discusses “any historical evidence about what the ratifiers of the 15th Amendment intended.” He finds it “hard to believe” that framers in 1870 wished “to empower courts to determine which voting rights laws were necessary.” Congress is the proper body to make that judgment, and, in Ramesh’s view, its overwhelming vote in 2006 finding preclearance to be still necessary should be honored.

Where to begin? Yes, the 15th Amendment explicitly gave Congress enforcement power. But the framers did not write into the Constitution mindless populism. By Ramesh’s reasoning, it was wrong for the Court even to have reviewed the constitutionality of the act in 1966 (South Carolina v. Katzenbach). It had no business second-guessing the congressional determination that a deeply radical law to enfranchise southern blacks was necessary.

Let’s be clear: From the outset, the 1965 Voting Rights Act was constitutionally daring, unprecedented legislation. It demanded judicial review. The act suspended literacy tests in one region of the country, even though as recently as 1959 the Court had upheld the right of states to screen potential registrants for their ability to read and write. But such tests, as administered in much of the South, were totally fraudulent, and Congress banished them — in one region of the nation only. (The prohibition was subsequently extended to the nation as a whole and made permanent.)

Ponnuru responds to all:

I am not quite sure what Roger means when he calls my op-ed “ill-timed,” but the rest of his points are clear enough. First, he asserts that the Voting Rights Act goes beyond the Fifteenth Amendment and thus supplants authority that the Constitution leaves to states. Maybe so, but where’s the historical evidence?

Second, Roger reiterates his view that “courts determine facts all the time” and depending on will apply legal standards in different ways. Nobody disagrees with that claim. But there are two other things to remember. The first is that the Court is not just finding facts, but deciding whether those facts justify certain policy responses—which is a quintessentially legislative judgment. The second is that nobody has yet presented an originalist grounding for the constitutional standard being applied.

Third, Roger notes that Ricci has a statutory claim as well as a constitutional one. I didn’t comment on it. Note that I said that we shouldn’t leap from the unfairness of Ricci’s treatment to the conclusion that he should win his case. I didn’t say that all of his legal claims deserved to lose.

Fourth and last, Roger suggests that Ricci’s treatment straightforwardly violated the state’s obligation to provide all persons with the equal protection of the laws. Again, he supplies no originalist analysis to back up this contention. Roger and his organization, the Center for Equal Opportunity, do fine work on racial issues. I just think less of that work should be done in court.

Anthony Dick responding:

I’m glad to hear Ramesh agree that originalists who assert the unconstitutionality of the Voting Rights Act aren’t necessarily guilty of any deep inconsistency, since he’s unsure exactly what the original meaning of the 15th Amendment is. I agree, too, that further originalist analysis on this point would be welcome. I would note, however, that the best evidence of the Constitution’s original meaning is the plain language of the text. And the plain language of the 15th Amendment, which merely empowers Congress to enforce a ban on racial discrimination in voting, requires a severe amount of stretching to accommodate the sweeping federal imposition that is Section 5 of the Voting Rights Act.

From other blogs ’round the sphere:

Damon Root in Reason:

Judicial restraint, as Ponnuru puts it, “is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.” Ponnuru calls this a “virtue” and, until relatively recently, most conservatives would have agreed. But as he notes, conservatives do not want the Supreme Court to defer to the judgment of local officials in New Haven, Connecticut, where a white firefighter named Frank Ricci saw his test results for an officer position thrown out because black applicants scored poorly on the same test. Ricci sued and the Supreme Court will be offering its decision fairly soon. But why—goes the argument for judicial restraint—impose a federal solution to a local problem? In other words, isn’t Sotomayor’s 2nd Circuit vote to uphold New Haven’s decision perfectly consistent with conservative judicial principles?

Teacherken at Daily Kos:

First, I think the entire approach of “originalism” is more than a little flawed.  I have always found it ironic that members of the Federalist Society hold up as their hero John Marshall, who while a Federalist, was hardly one easily categorized as either a strict constructionist or one who used loose/broad construction in his interpretations.  Certainly his insistence on the constitutional limitation of original jurisdiction in declaring part of the Judiciary Act unconstitutional in Marbury seems on its face to be strict constructionist.  But that is the only case during Marshall’s long tenure that an act of Congress was declared, even in part, unconstitutional, the next such ruling being that of Taney with respect to the Missouri Compromise in the Dred Scott case.  In fact, one might well argue that some of his other rulings, such as his interpretation of both the Commerce Clause in Gibbons v Ogden and the elastic clause in McCulloch v Maryland are sweepingly broad.  A Federalist believing in the importance of the powers of the national government would certainly support both, but I doubt the argument could be made either on the basis of originalism or strict interpretation of the text.

Bob017 at Free Republic:

What Ponnuru is saying is that conservatives are relying on the anti-originalist, liberal perversion of the Fourteenth Amendment, under which federal courts bar any kind of racial discrimination at the state level. He’s saying that under the original Fourteenth Amendment, states could discriminate as they liked. Therefore conservatives, insofar as they are originalists, have no grounds for attacking New Haven’s anti-white discrimination practices. But Ponnuru, in addition to his Benedict Arnold-like behavior of going to the Times to attack conservatives, is mangling the issue. Under the original Fourteenth Amendment, as enunciated in the 1896 Plessy v. Ferguson decision and followed in many other decisions for 60 years after Plessy, the Constitution allowed states to have “separate but equal” racial arrangements, such as separate train coaches or separate schools for whites and blacks, so long as the separate facilities were equal. However, as I have argued (“Does Grutter violate the Fourteenth Amendment?”, VFR, August 2003), the original Fourteenth Amendment would clearly prohibit “together but unequal” arrangements, such as admitting people of two different races to the same institution under grossly different standards for each race, which is what we have under minority racial preference systems. Such practices violate the Amendment’s mandate that states shall not deny to any person the equal protection of the laws.

UPDATE: Roger Clegg

Ramesh again

Andy McCarthy

The Spanish Word for “Kabuki” is “Kabuki”

Kevin Drum is already tired of the Sotomayor story, as he states in a post entitled “Supreme Court Kabuki Watch.”

The nomination of Sonia Sotomayor to the Supreme Court is only 12 hours old and I’m already sick of it.  Conservatives, who seem constitutionally unable of viewing any non-white nominee as anything other than identity politics run wild, have already decided she’s just a crass affirmative action hire.  Out of a decade-long appelate court career, the only opinion of hers they seem to have heard of, or care about, is Ricci.  And unlike all the middle class white guys on the court, who are apparently paragons of race-blind rationality, they’re convinced that she’s just naturally going to be incapable of judging any case before her as anything other than a woman and a Hispanic.

James Joyner:

Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court.  I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites…

…it’s hard to stop the kabuki once it starts.  Its modern incarnation began with Robert Bork, an obviously brilliant but undeniably controversial and arguably kooky appointment.  It quickly became standardized and applied to all but the most tepid appointments.  It took months to confirm John Roberts and Samuel Alito, despite their stellar qualifications and moderate temperaments.

Joyner mentions Larison. He’s weighed in on Sotomayor and the National Journal piece by Stuart Taylor. The Sotomayor quote in question: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” The entire speech is up at NYT.

Taylor:

So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Larison:

What goes unsaid here is that this would be the wrong thing to do, which makes it unclear why Sotomayor should be punished for saying something that does not seem in itself all that objectionable. I agree that a double standard exists, which tells me that we should not apply an unreasonable standard equally, but instead should try to police and stigmatize expression less obsessively. Note also that the supposed “claim of ethnic and gender superiority,” as Taylor puts it, is exceedingly weak, if it is there at all. The first quote can just barely be read this way if you really want to read it that way, and the second does not refer to superiority, but only to difference. Since when have people on the right denied or complained about recognition of the importance of real physiological and cultural differences?

Ed Whelan on the quote.

Roger Clegg

Now, if I were Judge Sotomayor and were asked if being Latina affected the way I did my job, I would answer:  Of course, anyone’s perspectives will be shaped by that person’s experiences.  But what judges—especially appellate judges—do is interpret legal texts and apply them to cases, and our experiences will not play much of a role in performing that task.  And even then it is problematic to suggest that ethnicity and sex can tell us what experiences someone has had and what their effect has been.

So, if someone had asked me to give a speech on “A Latina Judge’s Voice,” I would have tried to make that point early and often.  I would have certainly made it at least once.  But Judge Sotomayor did not make it at all.

Orin Kerr at Volokh

John McCormack at The Weekly Standard

Todd Gaziano

Ilya Somin

Kerry Howley in Reason:

This seems completely innocuous to me; being Hispanic in the United States means exposure to both a dominant and minority culture, and one might expect such exposure to favorably affect the process of deciding difficult, marginal cases. But Ilya characterizes the sentiment as left-wing identity politics. Perhaps he would be more impressed if he considered the statement in context. She [Sotomayor] goes on to say that:

We should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group.

and

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

and

No one person, judge or nominee will speak in a female or people of color voice.

I doubt Sotomayor and I agree on much, but this is a good speech.

Rod Dreher has changed his mind about the quote, after reading the entire speech.

Ta-Nehisi Coates

Matt Y has two posts up. One answering Ramesh’s “Harriet Miers” post from yesterday. And the other:

As anyone who knows me can attest, I don’t have what you’d call a strong “Hispanic” identity. Three of my four grandparents are Jews from Eastern Europe. My paternal grandfather, José Yglesias, was a Cuban-American born in Florida. But that puts the family’s actual Hispanic ancestry pretty far back in the past. He grew up in a Spanish-dominant immigrant community, but spoke English fluently. My dad grew up in an English-speaking household and knows some Spanish. I took a semester of Spanish at NYU one summer. And Cuban-American political identity in the United States is heavily oriented around a highly ideological far-right approach to Latin America policy that neither I nor anyone else in my family shares. The Yglesiases emigrated from Cuba before the Revolution, José was initially a Castro supporter, and though he gave that up he and my dad and I all share what you might call anti-anti-Castro views.

But for all that, I have to say that I am really truly deeply and personally pissed off my the tenor of a lot of the commentary on Sonia Sotomayor. The idea that any time a person with a Spanish last name is tapped for a job, his or her entire lifetime of accomplishments is going to be wiped out in a riptide of bitching and moaning about “identity politics” is not a fun concept for me to contemplated. Qualifications like time at Princeton, Yale Law, and on the Circuit Court that work well for guys with Italian names suddenly don’t work if you have a Spanish name. Heaven forbid someone were to decide that there ought to be at least one Hispanic columnist at a major American newspaper.

EARLIER: Justice Sotomayor

Jeffrey Rosen Gets A Post Of His Own

$100 on Sonia Sotomayor?

UPDATE #1: Already updated! Noah Millman on Larison’s post.

UPDATE #2: Two more Matt Y posts, one on the Taylor piece and the second on a Michael Goldfarb post that Jason Zengerle also comments on.

Jennifer Rubin in Commentary:

Wow, isn’t it grand to live in a country where a Latina can be nominated for the highest court and then treated with kid gloves because everyone is scared to treat her like any other nominee? Not so much, actually.

But let’s be honest: there is a political reality to what Taylor says. Senators, like all politicians, are remarkably sensitive to being labeled “racist” — or the less inflammatory version, “insensitive.” (No, it didn’t insulate Clarence Thomas from a political onslaught but the rules are different, we all know, for a conservative nominee.)

So what do conservatives do? Stick to the point. The point is impartiality. The point is whether, as Richard Cohen notes, it’s time to jettison the mindset of racial favoritism. (”Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules — oops, you’re white. Sorry, not what we wanted.”) The point is what Sotomayor thinks her job as a judge is, as distinct from what the job of a legislator or president is.

UPDATE #3: Jonah Goldberg

And on another related subject, Meghashyam Mali in New Majority tells the story of Miguel Estrada, a George W. Bush appointee.

Yet, despite this stellar resume, the same Senators who stand ready to place Sotomayor on the Supreme Court refused to even vote on Estrada’s nomination. Perhaps the new requirement of judicial “empathy” might be the difference? Sotomayor was, after all, born in the Bronx and grew up in a housing project in that borough. After the loss of her father, she was raised by her single mother. Yet, Miguel Estrada may also bring much “empathy” to judicial decision making. Not only is he a Honduran immigrant, but only reached the United States at the age of 17, with little knowledge of the English language. He joined his single mother and in five years had mastered English and navigated a new culture well enough to graduate with distinction from Columbia University. Whatever challenges Sotomayor may have experienced in her life, it is clear that Miguel Estrada has also overcome many struggles.

David Weigel in the Washington Indepedent on Estrada

Guy Benson at NRO on Estrada

UPDATE #4: On Rush Limbaugh’s comments, Steve Benen.

On Stuart Taylor, Adam Sewer at Tapped.

Andrew Sullivan

Reihan Salam

Among conservatives, the emerging consensus is that Sotomayor is an identity-politics pick. It’s certainly true that Obama has gained considerable kudos by naming the first Latina to the Supreme Court. Yet this is a kind of politicking that Republicans have engaged in as well. Antonin Scalia, the most celebrated conservative jurist of our time, sailed through confirmation despite a decidedly controversial reputation as a brilliant intellectual bomb-thrower. His main asset was the fact that he was the first Italian American named to the Supreme Court, a constituency that Democrats were careful not to offend. Though greatly admired by many on the right, George H.W. Bush’s nomination of Clarence Thomas was widely seen as motivated by a desire to replace Thurgood Marshall with another African American. Absent the role of identity politics, it’s not obvious that Thomas would have been Bush’s first choice. Had the brilliant Miguel Estrada been confirmed to the D.C. Circuit Court of Appeals, one can imagine that he’d be sitting on the Supreme Court instead of Samuel Alito. All this is to say that the identity politics charge won’t stick. If anything, attacking Sotomayor as an “affirmative-action hire” will make Republicans look like bigoted bullies to Latino voters.

Michelle Malkin

Republicans are not allowed to mention Sotomayor’s ethnicity lest they be branded bigots, but every Democrat on cable television harped on her multicultural “diversity” and “obstacle”-climbing. President Obama made sure to roll his r’s when noting that her parents came from Puerrrrto Rrrrico. New York Sen. Schumer stated outright: “It’s long overdue that a Latino sit on the United States Supreme Court.” Color-coded tokenism dominated the headlines, with blaring references to Sotomayor as the high court’s potential “first Hispanic.” (Not true.)

UPDATE #5: Ramesh Ponnuru

Nick Baumann in Mother Jones on Dreher

UPDATE #6: Glenn Greenwald

UPDATE #7: Mark Thompson at The League on the Larison post.

Mark Thompson again.

UPDATE #8: More Larison

UPDATE #9: On kabuki and exhaustion, Will Wilkinson:

God, I hate politics. It really does make people stupid, especially those whose tribe is out of power. When Sonia Sotomayor was nominated, I knew nothing relevant about her judicial philosophy or, much more importantly, about her actual record as a judge. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.

Tbogg

UPDATE #10: Julian Sanchez