Thursday, March 31, 2005

A final word on Schiavo

The saga over Terri Schiavo ended today when she passed away almost two weeks after her feeding tube was removed. This was a tragedy from the very beginning and I am sure that even her husband who fought for the removal of the feeding tube is feeling great sadness as a chapter is closed.

If any good can come out of this case, it is that people begin thinking about what they would want for themselves. When I saw my grandparents this week, they about what they wanted for themselves, and interestingly they seemed to differ in their preferences. I think for myself, I wouldn't want a feeding tube if my situation was basically hopeless. Maybe for a short time just in case, but not for the sake of prolonging my life as apparently was the case for Schiavo when her parents wanted to keep her alive even though there was pretty much no chance she would ever come back.

Legislatures should set clearer default rules when the patient's will is unclear; as long as patient himself can choose, I'm indifferent as to what the default rule should be in favor of continuing life support or not. As long as there are clear rules so that the tragicomedy of the endless litigation that catapulted Terri to the national fame she surely never would have wanted does not happen again.

Age discrimination

Yesterday, the Supreme Court decided a case involving age discrimination in the workplace called Smith v. City of Jackson. At the heart of the case was the question of how to define age discrimination. The law today generally divides discrimination into two kinds: disparate treatment and disparate impact. Disparate treatment occurs when the employer intentionally discriminates against an employee on the basis of a characteristic such as race, sex, or age. Disparate impact does not require proof of malicious intent; an employer practice need only disproportionately affect people with a certain characteristic. For example, an employer might require prospective employees to take a written test in order to become a delivery man; because African Americans as a class are less educated than whites, such a test might have a disproportionate impact on African Americans. Such employer practices are justified only if the employer can prove that they are necessary to the business. The written test might not be necessary for the delivery man job and therefore illegal, but it might be necessary for the job of a reporter, for example.

Employees have long been able to sue under the disparate treatment theory for race, sex and age. Disparate impact has also long been available for race and sex. It had never been clear whether disparate impact was also available for age. The Supreme Court decided yesterday that disparate impact is indeed available, but the Court decided the case in such a manner that disparate impact is recognized in name only. The plaintiffs have much higher burdens of proof than in the race and sex contexts and employers do not need to prove business necessity; only that the specific employer practice is reasonable.

I found the Court's reasoning puzzling in several ways. First, the Court relied on a late 1980s case since overruled by Congress. In that case, the Supreme Court watered down disparate impact in a race discrimination case; in reviving that case, the Court yesterday said that when Congress amended civil rights legislation to restore disparate impact, Congress did not mention age and therefore hadn't intended to overrule the old case. This is poor reasoning because the original case dealt with race and not age, and therefore there was less reason for Congress to state explicitly that disparate impact also applies in its original form to age. At the very least, Congress registered disagreement with the old case and so bringing that case back to life strikes me as extremely odd.

Second, the Court decided the case for the employer despite recognizing disparate impact in the age context. The Court claimed that the employees had failed to identify a specific employer practice even though it was patently clear what the practice in dispute was. The employer had raised pay in higher percentage terms for lower-ranked employees; because older employees tend to occupy higher-ranked positions, older employees as a class saw their pay go up by a lower percentage rate than younger employees (even though older employees saw their pay go up more in absolute terms). This is a very specific practice at issue; because the Court said that the employees failed to identify a specific practice and also said that the employer need not show business necessity, it is unclear to me whether it is ever possible to prevail on a disparate impact theory.

I don't know what the Court recognized, but it is not disparate impact. I understand the Court's reasoning that disparate impact for age is different from disparate impact for race or sex because age because "certain circumstances . . . unquestionably affect older workers more strongly, as a group, than they do younger workers." But the disparate impact theory can accommodate these differences; for example, it should be easier for employers to show business necessity when it comes to age than for race, where disparate impact is almost never justified. In the case just decided, the rationale that the employer gave that it needed to give bigger pay increases to lower-ranked employees in order to retain them could well have satisfied this business necessity test.

If the outcomes would have been the same, what is the difference? The difficulty is that in future cases, it may be more difficult for employees to prevail on a disparate impact theory even when the employer practice at issue is at best questionable. If we are committed to rooting out discrimination in the workplace, the burden should remain predominantly on employers to justify practices that disproportionately impact certain people; keeping the pressure on employers forces them to be more mindful of potentially discriminatory practices. The new rule articulated by the Court does not make that kind of commitment.

Wednesday, March 30, 2005

Kofi Annan

I'm filling in for POYS today, and I thought I would offer some thoughts on Kofi Annan and the United Nations more generally. Yesterday, the commission looking into oil-for-food scandal issued its second interim report. It found that there was no evidence that Annan influenced the awarding of a contract to company for whom his son, Kojo, worked. It did find, however, that one of Annan's key aides destroyed documents relating to the oil-for-food scandal and that Annan should have conducted a more thorough investigation once he learned that a contract was awarded to his son's company. As is typical with these types of reports, there is something in there for everyone: Annan claimed that he was "exonerated" while his critics on Capitol Hill once again demanded his resignation.

The time has probably arrived for Annan to go. While he may not have done anything wrong specifically with regard to awarding the contract, the fact is that he failed to recognize the potential conflict of interest even after he knew his son was involved. Moreover, at least one of his aides profited from the program, suggesting that his oversight was quite lax. On a whole range of issues his management style has been called into question: UN peacekeepers have been accused of rape in the Congo; some of his subordinates have been accused of sexual harassment (he ignored the charges initially on one of those aides, later reversing course after more evidence was presented); and now there are even allegations that the UN election monitoring agency may have misused funds. If we can't trust the UN staff to monitor elections, then it seems to me there is very little we can expect from it.

I say this with some regret as he seems like a decent fellow, even if bad things have transpired under his watch. In addition, there is no question that a large part of this story is being driven by Republicans in Congress and their media allies (FOXnews seems to run a story about this nearly every day). Had Annan supported the war in Iraq, no doubt these same Republicans would be rallying to his defense. But as they say, he opened himself up to these allegations, and now he must face the consequences.

Of course, none of this really matters, as I doubt anyone can point to something major that a UN Secretary-General has accomplished in the entire history of the organization. The Secretary-General may have more power than a figurehead, but not much more. The tendency of both liberals and conservatives to refer to the "UN" as if it were more than the sum of its parts is misguided. Conservatives makes this argument to scare the public into believing that somehow that US sovereignity is being eroded, while liberals make this argument to strengthen the "moral authority" of the body. The UN is not, nor has it been, nor will it ever be more than the sum of its individual member states pursuing their own-self interest. While Annan and most of the UN staff may have opposed the war in Iraq, it would have matter little if France, Russia, and China were in favor of it.

Tuesday, March 29, 2005

Senator Chafee

Rhode Island Senator Lincoln Chafee has been a headache for his fellow Republicans ever since becoming senator when his father died while in office. After Senator James Jeffords defected from the Republican Party in 2001, throwing control of the Senate to Democrats, Chafee never ruled out following suit. Fortunately for Republicans, they captured a Chafee-proof majority in 2002 and again in 2004. But Chafee has continued to be himself, even declaring that he did not vote for the current President Bush in the last election (he wrote in the first President Bush's name). Safe to say, Senator Chafee is what we call a Republican in Name Only (RINO).

Chafee is up for re-election next year, and I am sure that Republicans would not be too sorry to see him go, even if it means losing his seat to Democrats. I'm sure that Republicans would be only too happy to return the favor and write in his father's name. After all, Democrats did not really lose too much when Senator Zell Miller of Georgia, a DINO, retired and his seat went Republican.

But that was before things got interesting.CNN reports that Congressman Patrick Kennedy may run for the Democratic nomination. Mind you, Patrick is not only a Kennedy, but Ted Kennedy’s son. When Republicans mention Ted’s name, they raise money. Imagine what a nightmare scenario this is shaping up to be for Republicans. Chafee vs. Ted Kennedy’s son.

In any event, Chafee doesn't stand a chance. CNN also reported that Rhode Island’s other congressman -- a no-name -- was leading Chafee 41-27 before he dropped out. This is unheard of. Not only do incumbents normally have large leads more than 18 months before the election when their opponents are still relatively unknown, but Chafee also happens to be popular in Rhode Island. The easy explanation is that the state is heavily Democratic. Any bets that Chafee will jump parties in an effort to keep his seat?

Monday, March 28, 2005


The United States has resumed selling F-16 fighter jets to Pakistan after having suspended sales ni 1990 over Pakistan's nuclear program. The move is widely seen as a reward for Pakistani cooperation in the war on terror. Pakistan's bitter rival, India, has objected to the sales, though India may also buy the fighter jets in the near future. India and Pakistan have fought three wars since 1947 and nearly went to war again three years ago.

Perhaps President Bush is pursuing a new peace policy on the old policy of mutually assured destruction (MAD). Never mind that Pakistan and India are already armed with nuclear weapons. More weapons must be better. Perhaps a Nobel awaits?

Sunday, March 27, 2005


While the Schiavo controversy dominated the news coverage last week, a revolution took place in a former Soviet republic called Kyrgyzstan. Demonstrators sent the president fleeing to Russia when they stormed the presidential headquarters on Thursday. And that is about all I know about the country and its history.

(Points to people who know where the country is, and bonus points to those who can pronounce its name; as far as I can tell, monkeys seem to have come up with the name while pounding away furiously at their typewriters.)

Revolutions are naturally colorful, and various revolutions over the years have been associated with all different colors. A little quiz to see how many revolutions/overthrows you can link with their associated colors. (Answers will be posted tomorrow; in the interim, Google if you must.)

a) Ukraine
b) Iraq
c) Georgia
d) Russia

1) Red
2) Purple
3) Orange
4) Rose

UPDATE: The Moscow Times has proposed a color for the Kyrgyz revolution: yellow.

Saturday, March 26, 2005

Seizing Terri

There are reports that state law enforcement agents planned to seize Terri Schiavo and reinsert the feeding tube. They actually were on their way to seize her when the local police said no and the agents backed down.

But imagine that they hadn't backed down. Which would have happened: Elian Gonzales or Waco?

House Majority Leader Tom DeLay said:

"I am not a crook."

(Perhaps the politicization of Terri Schiavo was a way to detract attention so that he might continue to cheat the people?!)

Friday, March 25, 2005

Legacy preferences: a reply

David and I are engaged in debate about how to account for differences in the background of applicants that may be beyond their control and yet affect their admissions chances at top schools. For example, legacies may be more likely to get accepted into top schools even without any legacy preference program in place because they tend to have parents with higher socioeconomic status, which is correlated with higher academic achievement. I argued that affirmative action, if done right, is more likely to improve the overall quality of a student body, and David responded that it is impossible to cancel out every factor. (Bum from Jersey has weighed in with a post that essentially agrees with my argument in favor of affirmative action.)

David understands me to say that higher socioeconomic caused higher academic performance. If I implied this, I apologize for the sloppy wording on my part. I agree that there is correlation if not causation. I am less sure that the higher academic performance is due solely to “industry, thrift and discipline on the part of the parents” as David seems to suggest, though certainly that plays a large role.

I agree that “excellence is worthy, full stop.” Where we seem to part is how we define “excellence.” As a preliminary point, merit is not value-neutral; there has to be some consideration of what values we would like to favor when admitting the “most qualified students. David mentioned the kid with willpower to study and not play video games. Generally we favor good work habits and I see no reason why any admissions office would disregard that trait since it seems to reflect individual choice to succeed and this drive may well be predictive of future excellence. I think we agree there; where we seem to disagree is how deeply to probe into factors that might truly be beyond one’s control in determining “excellence.”

I am not sure exactly how David defines “excellence,” and I invite him to correct me, but I understand his definition to be pretty much straight up comparison of absolute numbers; background is irrelevant. For example, under his definition, a student with a 1500 SAT score from an upper class background is clearly more worthy than a student with a 1200 SAT score from the ghettoes. My understanding of excellence looks beyond scores and other superficial indicia of academic performance and takes into account factors that indicate great likelihood of future excellence. The ghetto kid who overcomes significant hurdles to score a 1200 seems particularly impressive and likely to succeed in his future endeavors. In this way, my understanding of excellence takes into account more factors to try to arrive at a more complete picture of each applicant.

The recent experiment in Texas with the ten percent plan is a case in point. Under this plan, the top ten percent of every high school is guaranteed admission to the University of Texas. As it has turned out, the top ten percent of the predominantly black and urban high schools has done fairly well at the University of Texas and perhaps even better than those in the 85th percentile at the “better” high schools who had better scores. There is something to be said for considering background factors when it comes to determining excellence, and affirmative action, if done right, can capture these factors in improving the overall excellence of student bodies. (I consider the Texas plan a form of affirmative action because it relies on segregation across the school districts in order to integrate the University of Texas.)

I prefer not to view such affirmative action plans as penalizing legacies who tend not to benefit from such programs but rather as benefiting those from disadvantaged backgrounds. Nonetheless, I readily acknowledge that such plans do penalize legacies, if only because there are only limited spaces at top schools and something has to give if there is to be room for students admitted through affirmative action. I also readily acknowledge that it is impossible to try to cancel out “every antecedent, unchosen influence on a person's life,” but this does not mean that we should not try to incorporate a totality of the circumstances approach to try to predict the academic potential of each applicant in determining who is truly excellent. Even if we cannot take into account every single factor, taking at least some factors into account can improve the overall “accuracy” of the admission process in predicting future academic success.

Thursday, March 24, 2005

Legacy preferences: a response

David has offered an extremely thoughtful response to my post. Before I paste below his response, let me say that he and I have cleared up a point of confusion. We agree that even without a legacy preference policy in place, legacies would still be admitted at a somewhat (but not dramatically) higher rate than non-legacies because legacies are more likely as a class to be more academically accomplished. (So as not to confuse the reader further before pasting David's reply, I explain the source of confusion more fully in a comment below this post.)

Although David and I have reached agreement on that one point, we still disagree on what it means that legacies are more likely as a class to have better records of academic achievement. Without further ado, here is his reply:
You say you agree that legacy applicants are better qualified, "if only because the socioeconomic status of one's parents is the greatest predictor of academic performance."

But what, exactly, does the correlation between socioeconomic status and academic success imply? My guess is that you would be inclined to say that wealth and social connections -- which children receive independent of their merit -- create an unearned and undeserved advantage for those children who happen to luck into them. But the correlation between wealth (or, if you prefer, "socioeconomic status") and academic success does not imply that wealth _causes_ academic success. Projecting a cause where you see a correlation is perhaps the cardinal sin of social science. And I would argue, in this case, that parental wealth and child academic success are less likely to be a cause/effect pair, and rather more likely to be two effects of the same cause, namely industry, thrift and discipline on the part of the parents.

But then, why should that argument be enough to let the legacies off the hook for their good fortune? Sure, their success might have nothing to do with wealth. But they are still helped along by the industry, thrift, and discipline of their parents. Shouldn't they be handicapped for that as well? I mean, kids don't choose to have disciplined, hardworking parents who value education -- they just luck into it or they don't.

And why stop with the parents? If a kid happens to have a lot of will power, or to be inclined toward pleasing her elders, or to enjoy academics more than video games, those are unchosen advantages themselves, right? So why even reward people for doing well at all?

That way lies madness. The reason for letting the best students into the best schools is that excellence is worthy, full stop. Life includes the fact that people are dealt different hands to start with. We owe it to everyone to give them a strong start -- to give everyone the chance to succeed, via a good universally available public education. But we have no way of drawing a bright line between the advantages people start with and the individual choices for which they are personally accountable. I would worry that you don't even have a coherent way to specify anything for which it's right to hold people accountable -- and to use as a basis for reward -- once you commit yourself to cancelling out every antecedent, unchosen influence on a person's life. We need to make sure that everyone gets up to the starting line, and we (try to and ought to) do that through public education. But we can't, and shouldn't, presume to make everyone an equally strong runner.

Legacy preferences and affirmative action

David Robinson, a college friend who is now a Rhodes Scholar, wrote a letter to the editor that was published in the Daily Princetonian. In the letter, he took issue with a recent opinion piece implying that the admission rate for legacies would fall were the University to end its legacy preferences policy. For the Class of 2008, 39 percent of legacies were accepted, while just 12 percent of non-legacies were admitted. Here is David’s letter in full:

Freddie LaFemina writes that "tradition fails to justify legacy admits." Even if that were correct, it wouldn't mean we should join him in wishing for a "George Soros-like figure who would pledge a billion dollars to the University if it would end its 3-to-1 advantage for legacies in admissions." Why? Because tradition isn't the only, or even the best, explanation for the higher admissions rate among legacies.

The best explanation is that people who get admit[t]ed to Princeton on their academic merits often produce children who are similarly capable. So it's reasonable to expect that people whose parents went to Princeton are going to be among the best-qualif[i]ed applicants, regardless of whether the admissions office knows that their parents went to Princeton. Legacies do get an extra boost. But LaFemina's argument implies that without the boost, only a third of the legacy applicants would get in, and that's almost certainly too low an estimate.

I agree with David that as a class, legacies more academically accomplished, if only because the socioeconomic status of one’s parents is the greatest predictor of academic performance and Princeton alumni generally tend to be better off than most. Mr. LaFemina makes this point in the original opinion piece, arguing that since legacies are already more likely to be admitted in the first place, there is little or no reason to give them an added boost. This is an argument I agree with. David tells me in an [aside] that he intended to remain neutral in his letter on whether legacy preferences should ever be used.

Notwithstanding that fact, I find it hard to believe that even a third of legacy applicants would be admitted were Princeton to end its legacy preference policy. To repeat a number, for the Class of 2008, 39% of legacies were admitted, a 27 point differential from non-legacies. Even if most legacies are “qualified,” an assumption that I do not dispute, it is hard to believe that such a large differential would still hold up when there are thousands and thousands of applicants and many extremely well-qualified applicants are turned away. Even if we assume that legacies will still have a higher admission rate as a result of generally higher academic achievements, I do not think that this would translate into a differential of more than a few percentage points. Many non-legacies are, after all, also extremely well-qualified.

This debate about legacy preferences is a corollary to the debate about affirmative action. In a sense, these two policies have competing effects. Legacy preferences reinforce past advantages; I assume that this policy tends to favor whites because until only recently, Princeton was mostly white. Affirmative action policies, in contrast, seek to compensate for past discrimination that places minorities at a disadvantage today (though such policies may be justified by the “diversity” rationale; this justification would not be necessary if it were not for past discrimination that creates the need for affirmative action policies in the first place). The two debates are linked in the sense that when affirmative action plans are struck down but legacy preference plans are left in place, many perceive some sense of unfairness in the process.

Whatever the merits of a legacy preference policy, I think that the justification for affirmative action is much stronger when it comes to “merit” because I think that if done right, it will lead to the admission of a superior student body. I say this not in the sense that “diversity is better,” though I think that is true. I say this because I would find very attractive a minority applicant with a 1200 SAT score who emerged from the ghettoes where most people don’t even take the SATs and those who do are lucky to even get an 800 score. This student is certainly much more promising than the legacy who scored 1500 in an environment where everyone gets at least 1300. It is possible, even likely, that the minority applicant would have done just as well, if not better than the legacy applicant had they been given equal opportunity. Further, “merit” is not only measured by SAT scores but also by other indicia of academic success including success against all odds.

But of course affirmative action is not always so tailored to search out these students. Crudely admitting students on the basis of race seems to admit those blacks who are already relatively well off. In fact, affirmative action at Harvard does not even seem to admit very many blacks who were at a disadvantage from historical prejudice; many if not most black students here were born elsewhere in places like Africa. I have a much more difficult time with affirmative action for these students who were likely given ample opportunity to succeed academically.

If done right, affirmative action may be more likely to produce a “better qualified” student body than legacy preferences. There are arguments for legacy preference that go to the effect that alumni are likely to contribute more money if their children attend Princeton, but that is a separate argument. The argument for legacy preferences cannot stand on the premise that as a class legacies may have higher SAT scores.

Wednesday, March 23, 2005

The utilitarian argument

The litigation over Terri Schiavo's fate may be winding down. The district court refused to order the reinsertion of the feeding tube as did the appellate court. Barring further remarkable developments, the Supreme Court appears to be the last option for Terri's parents. I have to say that I'm surprised the federal courts have held firm in light of the extraordinary political pressure that Congress placed on them by granting them jurisdiction over the case in the law passed over the weekend.

Via Will Baude, I see that Ross Douthat at the American Scene has made what comes close to a utilitarian argument for keeping Terri alive:
In the absence of definite proof of Terri Schiavo's desires, she asks, why not choose life? Who's hurt by it? If the materialists are right, and we are our brain functions, then Terri is gone forever -- so she isn't hurt. Her husband can get a divorce, so he isn't hurt. The parents are willing to take care of her, so the state's pocketbook isn't hurt. So what's the harm? Why not let her live?

I agree with Will that this argument is a non-starter because some notion of personal autonomy should take into account what Terri would have wanted. In the utilitarian analysis, her will should count for something. But when what she would have wanted is unknown (and I'm not terribly convinced by her husband's claim that she made a flippant remark that she wouldn't have wanted a tube while they watched TV), there might be room for a utilitarian argument. What's the big deal if her parents are willing to take care of her? I find this by far the most persuasive argument for keeping her alive.

So why haven't I heard more people make this argument? One possibility is that this argument comes dangerously close to the arguments for the right to privacy such as a right to sodomy, pornography, sex toys and other forms of pleasure that hardly dare speak their name at the dinner table. What's the harm in permitting two men or two women to make love to each other? This is a road that social conservatives are unwilling to go down, so they can hardly rely on a utilitarian argument of this type.

Tuesday, March 22, 2005


A new Harvard student group called DormAid offers a dorm-cleaning service. This much seemed uncontroversial until the Harvard Crimson ran an op-ed last week criticizing the service for creating a new way for those with money to separate themselves from those without money. For reasons that remain unclear to me, this op-ed gained traction until finally today the New York Times ran an article covering the controversy.

As a practical matter, money, status and more generally a desire to have nice things will always find ways to out. Even school uniforms, ostensibly to cut down among other things demand for expensive clothing, still allows for brand name socks and ties and more subtle ways of demonstrating advantage. Even in Iran where women wear burkas, nose jobs are a way for women to distinguish and beautify themselves.

If anything, clean dorm rooms do not reach the same level as expensive socks because anyone can have a clean room in minutes. It is really only the bragging value that seems to be at stake here, and I'd be surprised if people really bragged about this. People don't really like to brag they go to Harvard, and the process of revealing this information is called "dropping the H-bomb." I've heard people wonder whether they should just say they go to school in Boston, and whether this might backfire if they're forced to reveal this after stonewalling for as long as possible. Then that might seem all the more snobby by making it seem to be a bigger deal than it actually is. All this is not to say that there are no snobby people at Harvard; only to say that it is very likely that many students get this service not for any bragging value but because they genuinely value this service.

To the extent that some people can afford the cleaning service more readily than others, this is a problem. But the solution is not to cap spending by the better off; those worse off are not going to benefit if their richer counterparts can't hire someone to clean their rooms. It smacks of spite. Rather, the solution is to increase the spending power of the less well off so that they can all share in the things that the commercial marketplace has to offer.

Monday, March 21, 2005

More on Schiavo

Congress today passed a law providing for federal courts to hear the case of Terri Schiavo in the hopes that the federal courts will decide this issue differently than did the state courts and order reinsertion of her feeding tube. The law is remarkable in that it names Ms. Schiavo and grants authority to her parents to sue in a particular federal court in Florida. The legislators were also careful to say that this law did not affect other laws already on the books and effectively represented a one-shot deal.

Although I understand the purpose of the legislation, I worry that inordinate pressure will be placed on the federal judge slated to hear this case. Congress has not stated it in so many words, but is essentially asking him or her to decide the case in a particular way; were the judge to affirm the state courts, conservatives would be back to square one.

This is why I agree with House Minority Leader Nancy Pelosi that this law represents improper use of legislative authority. Because Congress is attempting to influence the outcome of this litigation, I think this law comes dangerously close to a violation, if not an outright violation, of the separation of powers that allocates legislative power to Congress and judicial power to the courts.

Sunday, March 20, 2005

An utterly absurd hypothetical

This is not going to happen, but just imagine what pandemonium would erupt were Terri Schiavo to emerge from her vegetative state as a direct consequence of her feeding tube being removed.

Saturday, March 19, 2005


Why doesn't anyone believe me when I say that I'm winning support for my Social Security plan? Beats me.

Friday, March 18, 2005

Terri Schiavo

Congress today subpoenaed Terri Schiavo, a severely brain-damaged woman who has been the center of a struggle between her husband and her parents over whether her feeding tube should be removed. The subpoena is an effort to forestall the removal of her feeding tube, was removed today after litigation in the Florida state courts was exhausted.

This reason for the subpoena is understandable, but it will be the ultimate embarrassment for Ms. Schiavo if she actually appears before Congress in her vegetative state, even if the congressmen travel to her hospice as the lawyer for the House committee suggested. Whatever her wishes were regarding whether she would want the feeding tube to be removed, I am sure that one of the last things she would have wanted to do was testify before Congress in this manner. But of course none of this is really for her to testify, but only to buy more time for her before her feeding tube was removed.

(A word to non-lawyers: 99% of the cases we read in law school came about because people were stupid and didn't plan ahead; don't make the same mistake Ms. Schiavo did in not stipulating in extremely clear terms ahead of time what she would have wanted. Thinking ahead and trying to plan for the unexpected is a way to cut down dramatically on these hard cases.)

The whole thing is tragic, but it also further exposes the hypocrisy of partisan politics. Republicans have long championed federalism, but when state politics doesn’t come out the way they want it to, they want the federal government to intervene. The Florida state courts weren’t deciding the Schiavo case the way conservatives wanted, so conservatives wanted to pass a bill in Congress that would provide for federal courts to hear this and hopefully decide the issue differently. Yale Law School professor Jack Balkin gets it exactly right when he says that conservatives would seek a federal ban on abortion were Roe v. Wade overturned; all this talk of states’ rights is hogwash. And the same goes for Democrats. Normally in favor of the federal government, they have suddenly become fans of federalism, wanting the states to decide gay marriage and the legality of medical marijuana, for example. This hypocrisy is to be expected, but that Ms. Schiavo should be caught up in this partisan politics is tragic.

More on steroids

The New York Times on the Web yesterday ran this photo of the baseball commissioner during the steroids hearings:

Talk about someone needing a Bud Light.

Seriously, this is a public relations war and defensive postures like this are not going to help Commissioner Bud Selig and Major League Baseball if it hopes to survive with as little damage as possible.

Thursday, March 17, 2005


Today, Congress opened hearings on steroid use in baseball. Although I suspect that this is a photo-op for the congressmen, there is something to be said for baseball failing to regulate itself adequately.

This whole steroids scandal has some striking analogues to the corporate scandals that rocked Wall Street three years ago. The investigations come in the aftermath of some fantastic years. As corporate profits grew and the stock markets boomed in the late 1990s, so did the home run count among the more elite athletes. Things have since dried up. The stock market is still nowhere where it was five years ago and no one has hit 50 home runs in a while. Without glamor, the fraud has become exposed and it now seems that the success of the late 1990s based at least in small part on cheating and perhaps inspired still more cheating.

This analogy is by no means perfect because the federal investigation into BALCO probably would have turned something up anyway, but it is worth noting that of the two Yankees linked to the probe, Jason Giambi and Gary Sheffield, only Giambi has been stigmatized. Perhaps not coincidentally, he was the one who had a really bad year last year while Sheffield had another banner year.

My feeling is that steroids use has already gone down a lot and will go down more, and that corporate fraud is somewhat in check for the time being due to increased scrutiny. But I also think that cheating will continue, and will grow all the more as good times return and people stop paying careful attention to the bottom line. Although we may close some loopholes now, the cheating will just find new ways to out, shocking us when we thought we couldn't be shocked any longer.

Wednesday, March 16, 2005

More on Summers

Hit him again guest blogged about the Harvard faculty vote of no confidence in President Larry Summers that took place yesterday afternoon. Even though I blogged last month that I thought he was a goner, I was still surprised. It had seemed that the controversy had died down. Now I really think he's gone; although the faculty vote was non-binding, it's hard to see how he can stay on in these circumstances.

On a somewhat lighter note, the Harvard Crimson quoted Alan Dershowitz, my criminal law professor last year:

Outside the Faculty meeting, Professor Alan M. Dershowitz—who, as a member of the Law School faculty, was not invited to yesterday’s session—mingled with members of the press on the street in front of the Loeb Drama Center.

“The idea that you vote to censure, it’s just not what you should be doing,” said Dershowitz, who said he had been walking through the neighborhood with his family and stumbled on the meeting.

I'm not surprised that he made himself available to talk to the media just because he is a publicity hound by nature. But his claim that he "stumbled" on the meeting is preposterous because he knew the meeting was happening and he is drawn to controversy like bees to honey. Some of my classmates and I had a good laugh about this and the law school must have known what a farce that statement was because it edited out that part in the daily e-mail to the law school community that contains excerpts of recent articles that quote law professors.

Faculty Uprising

POYS graciously allowed me, a Harvard student, to offer some thoughts today on the travesty that took place yesterday regarding President Lawrence H. Summers. Let me begin by making clear that I disagree totally with both the tone and substance of his remarks regarding women in science. His comparison between the lack of women in science and the lack of Jews in agriculture and whites in the NBA suggested that he took the topic less than seriously. The tone throughout was somewhat condescending: his references to his daughters' play habits with toy trucks is a case in point. He should have known that his words would carry extra weight as president of Harvard, even if he was speaking off the record and was attempting to be provocative.

Having said that, Summers repeatedly apologized for his remarks, has promised to engage in the Faculty in a new spirit of cooperation, and further investigate the lack of tenure offers to women at Harvard. Despite his apologies, he has been consistently rebuffed by the Faculty of Arts and Sciences, who would seem, by their "lack of confidence" vote yesterday, to be satisfied with nothing less than his resignation or removal.

Universities are not like corporations, where executives reign supreme, but neither are they democracies. One has to ask what right the Faculty of one Harvard school has to act as some sort of high court. Input of the Faculty is no doubt important, but at the end of the day someone must be able to make decisions for the University, and that person is the president. Moreover, the actions of the Faculty over the past few weeks have demonstrated that this is more about settling old scores than women in science or even the future of the University. Instead of focusing on constructive proposals to increase the ranks of women professors at Harvard, faculty members have attacked Summers' leadership style in its totality, quibbled with his plans to expand the campus into Allston, objected to his plans to reform the undergraduate curriculum, and even brought up an article he wrote over a decade ago while at the World Bank in which he suggested that Africa was "underpolluted." I find the objections to the proposed changes in the undergraduate curriculum especially laughable, given that many faculty members openly express displeasure at having to fulfill their teaching commitments. This sudden concern for the undergraduates is, shall we say, less than moving.

The charade that went on yesterday afternoon set a terrible precedent for the future of the University. Generally speaking, I am not inclined to punish people, particularly academics, for what they say in a forum that was clearly designed to get people thinking. But when it comes to the president, I can see why people objected forcefully to his remarks, and why even a resolution of censure, such as that offered by Professor Skocpol of the government and sociology departments, may have been appropriate. Yet by passing the stronger motion of no confidence, the faculty signaled that their main objective is to remove Summers. Authority must come from somewhere, especially at an institution as large and decentralized as Harvard. At the end of the day, it is the president's job to run the University, with faculty input to be sure, but not with faculty veto power.

This is not some glorious reprise of the Boston Tea Party, or of the Orange Revolution in Ukraine. The University exists to serve the students, not the faculty. The only thing worse than what happened yesterday would be for Summers to resign, which would demonstrate only that an unelected - indeed unaccountable - Faculty can topple their president.

Tuesday, March 15, 2005

Diversity in the Senate

A few days after Senator Paul Sarbanes of Maryland said he was retiring, former NAACP President Kwesi Mfume announced that he was running. I'm glad to hear that he is running because I believe that we need more diversity in the Senate, which currently has only one African American senator. I am not saying that we should elect him for the sake of diversity; rather, I believe that a more diverse Senate will be more responsive to a broader swath of the population. Whatever the controversy over majority-minority districts (whether congressional lines should be drawn to form majority black districts that is likely to elect black congressmen), it is important to have at least some African American representatives who can respond in a nuanced way to concerns that many African Americans may have that white representatives might not quite be able to pick up on, whether it is by building coalitions that include more minority groups or appearing on Sunday talk shows. In short, even if Kwesi Mfume's voting record would not differ materially from that of other Democrats, his election would work to make the Senate a more responsive institution.

Monday, March 14, 2005

Panel on abortion

I got an e-mail about the "Religion, Morality, and Choice" panel to be held on Wednesday and sponosored by the HLS for Choice, American Constitution Society and HLS Democrats; two of the three advertised speakers are definitely pro-choice and the third is a professor who is probably pro-choice by virtue of her speaking on this panel. Though I may just be stereotyping here.

I thought this panel sounded like a waste of time because I do not think anyone's minds will be changed by going; pro-choice advocates will enjoy having their views reinforced by people arguing their views are possibly acceptable on religious and moral planes and pro-life advocates will come away steamed. Then I got this e-mail from the Society for Law, Life & Religion about the event. An excerpt below:
If you attend, please challenge the statements about the Catholic Church and abortion made by one of the panelists, Francis Kissling, the president of Catholics for a Free Choice (CFFC). CFFC is at best a fraud and at worst anti-Catholic. It is a one-person front group for radical pro-abortion foundations and people (e.g., the Playboy Foundation, Ted Turner, and George Soros) that want to distort the Catholic Church's teaching on the sanctity of human life and silence the Church's opposition to abortion (e.g., CFFC led a recent unsuccessful effort to revoke the Church's permanent observer status at the UN).

I know nothing about CFFC, but even so, the references to the Playboy Foundation, Ted Turner and George Soros seem designed to inflame rather than inform. It's plausible that they support CFFC but I find it hard to believe that they "represent" the group; more likely it is ordinary Catholics who disagree with the Church on this issue.

This almost makes me want to go; perhaps I should send a bunny in my place?

Sunday, March 13, 2005

Meet the Press

Condi Rice was on Meet the Press this morning. At the end of the interview, she had this following exchange with Tim Russert:

MR. RUSSERT: Before you go, let me show you some photographs on the screen: Jefferson, Madison, Monroe, Adams, Van Buren, Buchanan. What do those six men have in common?

DR. RICE: Oh, Tim, that's too tough for a Sunday morning.

MR. RUSSERT: They were all presidents of the United States that were at one time secretary of state.

DR. RICE: Ah, OK. All right.

MR. RUSSERT: In light of that, I was up on the Internet last night and found this Web site, And it features these bumper stickers and this song.


Unidentified Man: (Singing) Condoleezza will lead us. Sister, don't you worry about a thing.

(End audiotape)

MR. RUSSERT: Should that Web site be removed?

DR. RICE: Look, it's freedom of speech. But let me say, I don't have any desire or intention of running for president. I've never wanted to run for anything, and I just don't have any desire to do it.

MR. RUSSERT: Desire or intention?

DR. RICE: Both.

MR. RUSSERT: There was a great American named General William Sherman. and this is what he said, "If nominated, I will not accept. If elected, I will not serve." Will you issue a Shermanesque statement?

DR. RICE: Tim, I don't want to run for president of the United States.

MR. RUSSERT: "I will not run"?

DR. RICE: I do not intend to run for--no. I will not run for president of the United States. How is that? I don't know how many ways to say "no" in this town. I really don't.

MR. RUSSERT: Period? Period? I will not run as president of the United States.

DR. RICE: I have no intention. I don't want to run.

MR. RUSSERT: "I will not run."

DR. RICE: I think people who run are great. I don't want to run.

MR. RUSSERT: That is a Shermanesque statement?

DR. RICE: Shermanesque statement.

MR. RUSSERT: You're done. You're out.

DR. RICE: I'm done.

MR. RUSSERT: There's news.

DR. RICE: I hope not.

MR. RUSSERT: Secretary of State Condoleezza Rice who just said she will never run for president, correct?

DR. RICE: Tim, why do you keep pressing me to make these statements?

MR. RUSSERT: Well, because if you're secretary of state, will it affect your ability...

DR. RICE: I don't want to run for president of United States. I have no intention of doing so. I don't think I will be president of the United States ever. Is that good enough?

MR. RUSSERT: And you will never run?

DR. RICE: I don't intend to run.

MR. RUSSERT: But it's different.

DR. RICE: I won't run.

MR. RUSSERT: Oh, we got it.

DR. RICE: All right. There you go.

MR. RUSSERT: Thanks very much.

What she says is mildly plausible given her willingness to be frank about abortion. But I wouldn't rule out the possibility that she might change her mind. This show, after all, is an opportunity to meet the press to cheat the people: mtp to ctp.

Saturday, March 12, 2005

Courthouse safety

There is a thoughtful discussion going on in the comments under the Condi Rice post. I will just say that I don't think that the fact that the deputy overcome was a woman is relevant; that she was carrying a gun was the problem. As I understand it, criminal defendants are strip-searched to ensure they are not carrying weapons. It is hard to imagine why deputies would need guns in this environment; what happened in Atlanta suggests that carrying such guns can result in greater danger to safety, not less.

On a related issue, compare what two people had to say to CNN.
"The security in the Fulton County Courthouse, the way they deal with prisoners, is absolutely atrocious," attorney Dennis Scheib told CNN. "I said this was going to happen."

Hindsight is 20/20, so it is to be expected that someone would say that. What came as a surprise, was the following excerpt:

Fulton County State Court Judge Craig Schwall, however, described security at the courthouse as "phenomenal."

The only way to explain this quote is some sort of self-interest that suggests a desire to believe that this was a one-time event only. It may be, but to say that security is "phenomenal" just after three people were killed is a stretch.

Friday, March 11, 2005

Condi Rice

What is Condi Rice trying to do? First, she tells the Washington Times that she won't rule out a run for the White House in 2008. Then she tells them that she has a "mildly pro-choice" stance. Talk about shooting oneself in the foot; a run for the White House and a pro-choice stance, however qualified, just don't mix in the Republican primaries.

The politics of chess

Garry Kasparov, long-time world chess champion, has announced that he is retiring from professional play. In a statement, he explained:
As a chess player, I did everything I could, even more. Now I want to use my intellect and strategic thinking in Russian politics.

I will do everything in my power to resist Putin's dictatorship. It is very difficult to play for a country whose authorities are antidemocratic.

The irony is that the Soviet Union used chess for political purposes, even ordering Russian grandmasters to throw games to favored players like Boris Spassky. Spassky, of course, went on to lose to Bobby Fischer in the 1972 world championship that drew widespread public attention during the height of the Cold War.

Now Kasparov wants to use his chess fame against Putin. I know nothing about Kasparov's political talents, except that he wasn't very successful in unifying the divided world of chess despite his best efforts. But at minimum, he'll get press coverage the first few times he speaks. What happens after that depends of course on how Kasparov makes of his opportunity. My guess is that Putin, who I blogged about a few weeks ago, will largely ignore him unless he begins to pose anything resembling a real threat.

Thursday, March 10, 2005

New York City and the road to the White House

The primary to nominate the Democratic challenger to Mayor Bloomberg is just starting. Frontronner Fernando Ferrer uttered this incredible line yesterday:
I want to earn your support because I do believe, Democrats, I do believe this is the year we take back City Hall. This is the year we send the message coast to coast: It starts here in New York City. Then we go to Albany, and then we take back the White House for Democrats, but most importantly for Democratic values.
This sounds eerily like what another past frontronner said just as he imploded. Here's what Howard Dean's "I have a scream" speech:
Not only are we going to New Hampshire. We're going to South Carolina and Oklahoma and Arizona and North Dakota and New Mexico, and we're going to California and Texas and New York. And we're going to South Dakota and Oregon and Washington and Michigan. And then we're going to Washington, D.C., to take back the White House. Yeeaaaah!
Did I mention that Ferrer lost the primaries in his first two tries?

Not only that, but the road to the White House for the Democratic Party does not begin in New York City, which is already pretty much as Democratic as a city can be. Although Mayor Bloomberg is nominally a Republican, he is really a Democrat in disguise. Party domination at the local level does not necessarily translate into national domination: Kansas has a Democratic governor but is among the reddest of states nationally, and the converse is true for Massachusetts, which has a Republican governor but is the bluest.

But don't let all that detract from the spectacle of the upcoming mayoral race. It promises to amuse!

Wednesday, March 09, 2005

Blog polarization

Jack Balkin, a professor at Yale Law School, points to a study showing that liberal and conservative bloggers tend to link within their own circles and not to each other, resulting in the polarization of liberal and conservative blogospheres.

I've wondered about this myself with respect to HLS bloggers. As far as I can tell, I'm the only openly liberal blogger out there. The other HLS bloggers that I know about, Class Maledictorian, Jenn Carter, Waddling Thunder, and Red and Blue are all conservative, even if they do not always agree with each other. There are other HLS blogs out there, but as far as I know, they tend to be of the more personal type; though I suspect that Jeremy may be liberal, he tends not to blog about politics.

Maybe there's something about conservative students that makes them more susceptible to blogging about politics. At the risk of hopeless stereotyping, they tend to be louder about politics on campus, and quicker to complain about liberals. Then again, I wouldn't necessarily characterize any of the blogs I listed above as fitting into this stereotype.

Or maybe I just happened to wander into the conservative blogosphere; if so, perhaps someone could point me to the liberal bloggers so I can go join the chorus?

A poem

Inspiration struck during constitutional law class. Perhaps a poem for those who believe in judicial restraint? With due credit to Langston Hughes:
What happens to a legislative will not deferred to?

Does it dry up
like a raisin in the sun?

Or fester like a sore--
and then run?

Does it stink like rotten meat?
Or crust and sugar over--
like a syrupy sweet?

Maybe it just sags
like a heavy load

Or does it just explode?

Italian justice

CNN reports that the notoriously slow Italian courts told a man given six months to live to come back in 14 months to hear the outcome of his insurance coverage case.

Talk about justice delayed being justice denied.

Tuesday, March 08, 2005

The politics of difference

I handed in a paper today in which I discussed racial, ethnic and cultural identity politics. I argued that this form of politics faces the irony of trying to maintain the integrity of culture formed on the fault lines of prejudice. This may be the case because prejudice forces diversity by carving out islands of people and leaving groups in their isolation to form their own cultures apart from the dominant culture, e.g., shunned African-Americans and Jewish people formed their own cultures quite distinct from the white Christian culture. As prejudice weakens, group identity may become porous as people become freer to choose their cultural and even racial identities: no longer insular, the group may cease to be discrete.

Assimilation is a danger to groups seeking to preserve the uniqueness of their identities. But this fear of assimilation may leave little space for people who want to identify with both the dominant and minority cultures, pressuring them to make radical choices identifying wholly with one culture or the other but not both. Those who choose to identify wholly with the minority status may ridicule those who have not as selling out. Derogatory terms such as “oreos” to describe people who are “black on the outside” and “white on the inside” and “twinkies,” to describe Asians who identify or act as “white” are commonplace. Many Orthodox Jews do not consider their less religious brethren real Jews at all. This polarizing effect, in a way, duplicates the impact of prejudice in segregating dominant and minority cultures by drawing artificial boundaries on which people should plant themselves firmly on one side or the other.

In short, group identity politics may merely seek to keep in place the racial and cultural divisions founded on prejudice. As we move away from prejudice, we deserve something better, where individuals are free to identify however as they wish, even if it bucks traditional categories. Group identity can be useful, but not if it is presented to individuals as an either/or choice.

Monday, March 07, 2005

More on the filibuster

Jenn Carter responds that she opposes the filibuster regardless of who the parties are. She also expresses admirable candor that she has written about the controversy only because of the present controversy and that she would like to see many of President Bush's nominees confirmed.

She also offers an argument rooted in the constitutional text that the framers must have intended for only a simple majority in the Senate for it to consent to the President's nominees because the framers elsewhere specified that a two-thirds majority is required for Senate approval of a treaty, but did not so require such a supermajority in the appointments context. I agree that the framers offer more specificity in the treaty context, but I also don't see why this provision can't be interpreted as giving the Senate more leeway in determining house rules in the appointments context (the framers, after all, were particularly worried about treaties and may have wanted to constrain Senate flexibility in that respect). Because the text is susceptible to multiple interpretations, it does not clearly say that the filibuster is either constitutional or unconstitutional.

As for past institutional practice, the history of the practice seems to suggest its constitutionality, since it has been around since the early congresses, and in fact it used to be much harder to override filibusters than it is today. But then again, is institutional practice really an appropriate tool to use when interpreting the Constitution? Again, it is up in the air.

Because it is within the bounds of reasonable disagreement, Ms. Carter's argument has merit; I just dispute that it is dispositive. But I find it puzzling when she writes:
You ask whether I'm willing to condemn the 1990s Republican Senate for holding up President Clinton's judicial nominees. Although I think that what the Republicans did to Judges Paez, Berzon, and Fletcher was awful, it was all fair game in the political give-and-take that the Framers anticipated in this majoritarian system. Had the Senate Republicans been the minority, and had they resorted to filibustering Clinton's nominees, I would condemn that as unconstitutional. But that's not what they did, and I think the difference is crucial from a majoritarian perspective.

This distinction that Ms. Carter draws between the hold and the filibuster does not follow on majoritarian grounds. If anything, the filibuster is far more majoritarian than the hold is, because it takes 41 senators to launch a successful filibuster, but only one senator to place a hold, perhaps to the irritation of the other 99 senators. If this difference is "crucial from a majoritarian perspective," then it would seem that the filibuster is "more constitutional" than the hold. At the very least, if she is going to condemn the filibuster on majoritarian grounds, she has to also condemn the use of the hold. (Also, what if Democrats placed a hold on all nominees instead of filibustering -- would she be for that?)

The filibuster

Federalist Society member Jenn Carter today issued an impassionate plea to Senator Frist to change the filibuster rules.

I understand that there are strong arguments both for and against the filibuster, whether one looks at the constitutional text or institutional practice. I also understand that this issue is the ultimate inkblot: your stance on the issue is probably determined by whether your favorite party has been victimized by the filibuster or is using the filibuster to great effect to stall the efforts of your least favorite party to "stack the judiciary." Today, Democrats love the filibuster while Republicans hate it. In the 1990s, it was the opposite, though Republicans didn't need the filibuster then because they controlled the Senate and simply refused to hold votes for President Clinton's nominees.

So I ask Ms. Carter: would you still oppose the filibuster if Democrats had the White House and a Senate majority (but not a filibuster-proof one)?

That one might be too easy, since it is probably costless to say yes since that scenario will probably never come to pass again in our lifetimes.

So how about this one: are you willing to condemn the Republican efforts in the 1990s to block President Clinton's judicial nominees? Remember that the reason that President Bush had so many vacancies to fill was because Republicans held open the vacancies for him. Also consider that the hold is even less accountable than the filibuster because often the identity of the senator placing the hold is secret.

If your answer is yes, that you're willing to condemn the Republican efforts in the 1990s, and that your condemndation of that effort is just as strong as your opposition to the Democratic filibuster today and that when you condemn one you will also condemn the other, then I'm impressed: you have established yourself as a principled conservative!

Warren Buffett

Warren Buffett on the trade deficit:
A country that is now aspiring to an “Ownership Society” will not find happiness in – and I’ll use hyperbole here for emphasis – a “Sharecropper’s Society." But that’s precisely where our trade policies, supported by Republicans and Democrats alike, are taking us.

The upshot is that in such a society, people might be able grow their own Social Security accounts.

Sunday, March 06, 2005

Name that politician

Can you name the world leader shaking hands with President Bush?

Still no idea? I thought so.

Though the flag in the background might give it away.

What this relative obscurity means, I leave to you to decide.

Saturday, March 05, 2005

Kim Jung Il

I can't quite figure out what caption should go with this decidedly memorable photo, so I've come up with some possibilities. I also invite you to submit some captions of your own.

The North Korean dictator Kim Jung Il is:

a) storing nuclear weapons chipmunk-style

b) eschewing the spider hole for a fish tank

c) about to blow, nuclear-style

d) sucking it in like President Bush told him to

e) [Insert your own caption here.]

Friday, March 04, 2005


Senate Minority Leader Harry Reid called Alan Greenspan a "partisan hack" in a Thursday appearance on CNN. It's unclear whether this label reflects poor political judgment on the senator's part (it's not clear that a lot has been made out of this, at least not yet), or whether he is merely going after the wounded. It may just be me, but I have not heard a whole lot of respect for Greenspan in the last few years. At least nothing like in the 1990s, when he could send the markets plunging hundreds of points with a single phrase like "irrational exuberance." I don't think Greenspan has lost his touch; it may just be that he looked like a genius when times were good and now looks merely human after several rough years for the market.

On this slow news day, I have a proposal that could resolve this apparently newfound animosity between the two while spiffing up the news cycle: have a boxing match! CNN could bounce back from its abysmal ratings war with Fox News with a pay-per-view option. Then again, Reid used to be a boxer in his days, so it might not exactly be fair. But then again, life is not fair. And it's not like I have better material anyway.

Thursday, March 03, 2005

Wandering in the desert

I'm on the e-mail list for almost all politically oriented student organizations, just so that I can keep tabs on all the conspiracies in the air.

I got this interesting e-mail today:

The HLS Democrats invite you to a cocktail-hour introduction to the Campaign for a National Majority (CNM)

Thursday, March 3rd
7 PM
Pound 335

CNM is a pragmatic political action committee supporting Democratic candidates for State Executive Offices across the country. It was founded in early 2004 by Harvard Law School students and now enjoys a presence in several major cities nationwide.

Open bar and snacks will be provided!

It sounds like a worthy enough a cause; one that I might actually attend if I weren't so cynical about student political groups. My only complaint is that the group should have called itself the Coalition for a National Minority, because that is what Democrats are today and will be for many years to come. Republicans know that minority status can last decades; they were in the minority for 40 years before they roared back to power in 1994. I just hope Democrats won't spend as many years in the desert, but I know that it will be for many years nonetheless.

Women presidents

Drudge reports that ABC is developing a new show featuring a woman president, with Geena Davis starring as the commander-in-chief. Although the country seems ready for a woman president, I'm not sure they're ready for a woman who looks as young as Geena Davis appears to be. though I just googled her age, and I can''t believe she is 49. But in any case, having this show can only help break any lingering stereotypes that women are not cut out for the presidency. Hopefully it is a good show that will break the recent run of bad shows that force me to watch Nick at Nite.

Wednesday, March 02, 2005

Google searches

Some people have been happening upon this blog by chance, blown here by the gentle winds that are the Google and Yahoo search engines.

1. Thanks to you, "put on your specs" is now the number one result when you search that term on Google. However, it's not like you should have to google to find their way here. The address is not that complicated. The name of this blog. Out, out damn blog spot! And there you have it: Lincoln and Shakespeare make a good blog. Or I might even be touched if you were to reserve a special place in your computer just for me.

2. Someone was directed here after googling "Senator Frist"; "February 2005"; and "autism." No, I don't think he is autistic. He seems too good a politician with a touch for connecting with people to have such a social disorder. Larry Summers, on the other hand...

3. For those of you searching for "sex poys": sorry to disappoint, but I list no products designed to increase sexual enjoyment (maybe if you thought this site had such information, you don't deserve such toys in the first place). But while we're on the subject of sex toys, I might as well offer my two cents on the topic. I think that the right to use them falls within a constitutionally protected sphere of sexual privacy. If condom use is protected, why not sex toys as well? Finally, there is always this delightful response to those who would interfere: "fuck off."

Keeping judges safe

Justice is supposed to be blind, but now it is getting personal. The mother and husband of a Chicago judge were murdered; the judge was presiding over the criminal trial of a controversial figure with a large following. In unrelated but eerily similar news, two members of the tribunal to try Saddam Hussein were assassinated today. This is understating the obvious, but it is hard to see how this won't have a chilling effect on judges, if only to make them fear for the safety of themselves and their loved ones whenever they have even remotely controversial cases. It is at least a small comfort, however, to know that most if not all of our judges will continue bravely to do their day-to-day work.

On a tangent, I worry sometimes that someone on the Supreme Court will be assassinated. As far as I know, it has never happened before in the Court's history, but as the Court continues to grow more powerful and take on weighty political issues, there could be ever greater incentive for a fanatic to try to "adjust" the composition of the Court. I can only wonder what the appointment process would be like should that happen. Let's just hope that the Secret Service or whoever it is is keeping close tabs.

Tuesday, March 01, 2005

The death penalty

The Supreme Court just handed down a decision that the Constitution bars the execution of juveniles (those who committed their crimes when they were under 18). Three years ago, the Court held the execution of the mentally retarded unconstitutional. I'm now taking bets as to when the death penalty itself will be struck down.

I say not if, but when, because the Court has a history of building up to a momentuous decision. Brown v. Board of Education wasn't built in a day; it was preceded by a series of smaller decisions such as Sweatt v. Painter, which desegregated a public law school in 1948. Why build up precedent? There are many reasons, but one is that the law is inherently conservative because it relies on precedent. When there is no obvious support for a new rule, the Court likes to create the precedent which it can then rely on. This has the advantages of giving the appearance that the new rule came from out of nowhere, and of preparing the public for that new rule.

With regard to the death penalty, the only constitutional provision that seems to bar it is the Eighth Amendment's "cruel and unusual" provision, but other parts of the Constitution contemplate the legality of the death penalty such as the Fifth Amendment's Due Process Clause, which says that life, liberty and property may not be taken without due process, giving rise to the seemingly natural conclusion that life can be taken with due process. At the very least, the Constitution does not clearly forbid the death penalty. One reading, however, is that the Eighth Amendment is one that evolves with the times and may bar practice as "morality" develops. In the context of the death penalty, the Court seems to use the number of states barring the practice as a proxy for the present morality of the practice.

The Court could have just said it was announcing the new rule because the new rule makes good policy, but the Court is rarely honest like that. Witness how the Court achieved its result in today's decision. The Court observes that in 1988, it barred the death penalty for juveniles under the age of 16, citing a trend in the states removing laws permitting capital punishment for such juveniles. The Court then notes that the next year, it refused to strike down the death penalty for juveniles between 16 and 18 or for the mentally retarded, citing a lack of such a trend. Then the Court said that three years ago, it had said the death penalty for the mentally retarded was now unconstitutional because states had started moving away from such laws. Since there wasn't quite the same trend yet for juveniles under 18, the Court drew analogy to the case three years ago and said that the trends were similar enough as were the principles underlying the two cases.

Don't believe that trends had anything to do with it. The Court buried somewhere in its opinion the sentence, taken from the case three years ago:
[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.

Even the proposition that the Constitution "contemplates" that the Court's judgment should be brought to bear on the question is doubtful. But at least here the Court is being honest that in the end it made up the rule. Examining state trends was a charade, all the more so given that if the Court had wanted to rule the otherway, it could have disclaimed the presence of any trend. Finding trends is like picking friends. I don't have a problem with the Court noting on the side the existence of any trend, in order to build up the legitimacy of the decision, but to make this the centerpiece of the analysis is shameful hiding behind the veil. The Court should be open about its reasoning so that supporters and dissenters alike can engage the Court's reasoning in frank manner.

That being said, I fundamentally think that the death penalty is unconstitutional and that the Court is right to take on the death penalty one bit at a time. By addressing capital punishment for the mentally retarded and juveniles first, the Court as a political actor in its own right is helping to shape public opinion on the practice in general. By giving hints of what is to come, the Court also helps to prepare the public for the eventual day when the entire practice will be struck down. Doing it all at once might have provoked a backlash that would have undone the project of removing capital punishment laws from the books.

Of course, those who oppose any judicial role will decry all this altogether: if the trend is towards abolition, why not let the trend work itself out? My only response is that I oppose the death penalty and am happy to see it go by whatever means it goes. I'll be frank that my politics is probably driving my constitutional views here, but at least I'm honest about it. Those who think that the Court should not have taken up this issue at all are probably supporters of the practice. There may be people whose politics and constitutional interpretations diverge, but it's my impression that these people are few and far in between. (That being said, I do think that there are some areas of the law that should be left to the elected branches, but that is for another time.)

Once again, I'm taking bets as to when the Court will outlaw the death penalty altogether. I'm guessing 10 years from now.