Wednesday, September 30, 2015

The Same Liberal Reacts to the Democratic Presidential Drama, Part II

by Neil H. Buchanan

Last week here on Dorf on Law, I wrote two posts in which I discussed the current situation in the Republican and Democratic presidential nominating contests.  Even though we are still more than thirteen months away from Election Day 2016, and more than four months away from the Iowa caucuses (which are not really where Iowa's delegates are chosen, as far as I can tell). there has already been a surprisingly large amount of movement in both parties' fields.

Near the end of last Tuesday's post, "A Liberal Reacts to the Republican Presidential Circus," I wrote: "I thus reluctantly conclude that there is no scenario in which any Republican presidential win in 2016 is anything short of a disaster.  There are extra-extreme worst cases, but even the supposedly reasonable possibilities present no opening for policies that a liberal like me would consider less than horrible."  I then closed with a comment about Supreme Court appointments.

On Thursday, in "The Same Liberal Reacts to the Democratic Presidential Drama, Part I," I focused almost exclusively on Hillary Clinton's campaign, noting that I am actually starting to like her, despite my deep reservations about her over the years.  She is certainly being treated ridiculously unfairly by her opponents, the press, and even by some of her supposed allies.  The controversy about the private email server has, as I grimly anticipated this past Spring, not gone away, and it has turned into a serious albatross for her campaign.

The interesting question now is whether it is true that, as I summarized it at the time, "there really is no alternative to Hillary Clinton as the Democratic nominee."

To be clear, the analysis that I was summarizing was most definitely not a normative claim about the quality of Clinton's possible opponents.  The issue was whether any opponent could mount a serious challenge to the nomination, which meant not just that she or he could burst onto the scene and become a popular alternative to Clinton, but that the insurgent could put together the kind of campaign organization that would allow a serious run deep into the primaries.  By Spring of 2007, then-presumptive nominee Clinton was not nearly as well positioned as now-presumptive nominee Clinton is in 2015, as far as having everyone and everything who matters locked down.

That, at least, was the story as I understood it this part March.  Five-plus months further along, has anything changed?  Can the non-Clinton candidates be taken seriously?  In Part I of this two-part series, I deferred discussion of the remaining field of Democrats, saying only that "Bernie Sanders is surging and surprising everyone along the way; Joe Biden is deciding; Martin O'Malley is there; and the others are Democratic versions of George Pataki and Jim Gilmore."  Let me work backward through that list.

Who are the people whom I have dismissed in a Gilligan's Island-esque "and the rest"?  Their names are Jim Webb, Lincoln Chafee, and Lawrence Lessig.  Having now named these two former Republicans and one single-issue professor, I have nothing to say about them, other than that there is no scenario in which I can imagine any of them having even a moment in which he becomes plausible as the party's presidential nominee, or even as the vice presidential nominee.  That may be good or bad, but as a predictive matter, it seems more than safe.

Former Maryland governor Martin O'Malley in some ways also belongs in the afterthought category, but for two factors.  First, he is quite obviously a plausible choice for vice president.  Not an odds-on choice, since he is from a reliably blue state and would not seem to have even the ability to leverage regional appeal in a way that would help the ticket, especially since the only purplish states nearby are Pennsylvania and Virginia, which will be safe states for Democrats in any scenario in which they have a serious chance to win the presidency.  Still, O'Malley is younger (52), personable, and a good campaigner, by all accounts.

On the merits, O'Malley has no particular "Maryland success story" to tell.  That is not a bad thing.  Having lived in his state for much of his governorship, I can say that things here are better than in most states, and they appear generally to be moving in the right direction.  Long-festering problems like race relations in Baltimore are troubling, but (even though he was mayor of Charm City before becoming governor) O'Malley's record on race relations is good.

The problem is that governors are essentially invisible, even the governors and former governors who claim that their executive experience proves how great they are (see Jeb? Bush, Rick Perry, Bobby Jindal, and John Kasich).  The only governors who were notably "effective" are more notorious than admirable, including most obviously Chris Christie and the dearly departed Scott Walker.  O'Malley was a fine mayor and governor, which puts him way ahead of the three current front-runners for the Republican nomination, but that is a low bar indeed.

O'Malley's policy views are solidly liberal, including calls for public financing of congressional campaigns, reinstating the repealed Glass-Steagall barrier between commercial and investment banks, a plan to address student loan debt, and so on.  As a liberal, I see nothing objectionable about O'Malley, but nothing that uniquely excites me.

The same can be said of Joe Biden, as a matter of policy.  Nothing great, but nothing to worry about.  He hired a truly progressive chief economic advisor when he took office as Vice President, which says a lot.  He is currently the subject of much (well deserved) admiration for the dignified way in which he is thinking through whether to run, but if he runs, history suggests that he will be a somewhat unpredictable candidate.

Bernie Sanders should excite me to my progressive core.  And as a matter of policy, as well as his no-nonsense demeanor, he does.  I cannot think of a single statement that Sanders has made with which I have disagreed.  (There are surely a few, but none come to mind.)  Moreover, Sanders is wildly popular with younger voters, who were so essential to Obama's rise and successful challenge to Clinton in 2008.  (On the other hand, I must add a "Get off my lawn, you kids!" comment that Obama's youth brigade was disastrously absent in the midterms, when Democrats really needed turnout.  Short attention spans are bad for political movements.)  What's not to like?

I generally groan when political insiders write about the Democrats' "party leaders," because those leaders are generally the types who end up wanting to settle for Republican-light policies (and who think of people like NYT columnist David Brooks as a target audience for their political calculations).  Even so, I can understand why many Democrats are deathly afraid of Bernie Sanders' potential nomination.  Although the Sanders version of "socialism" is indistinguishable in almost all respects from mainstream center-left views, Democrats' hopes in Senate and House races would take a huge hit if a self-described socialist were to head the ticket.

In essence, then, the dynamic seems to work like this: If Sanders fatally wounds Clinton, the party will turn either to Biden or -- only in the unlikely case that Biden absolutely refused to play the role of party savior -- O'Malley.  By my liberal lights, the ranking of the candidates on policy matters is, from best to least good: Sanders, O'Malley, Biden, and Clinton.  In terms of their likelihood of being nominated, the order is exactly reversed.

Therefore, I will end this series of posts in an echo of my post about the Republicans' circus:

I thus happily conclude that every scenario in which any plausible Democratic presidential candidate wins in 2016 presents reason to hope for good policy outcomes.  There are better and less-good cases, but even Hillary Clinton presents openings for policies that a liberal like me would applaud.  Add in the likelihood that the next president will be able to fill multiple Supreme Court vacancies, and it is important that Democrats come out of their nominating process with a candidate -- no matter who that nominee is -- who is as undamaged as possible.

Tuesday, September 29, 2015

The Tea Party as the Haqqani Network

by Michael Dorf

As the shock of John Boehner's resignation from the Speaker's chair turns to dread, the main story line is one of appreciation and grim foreboding. From the Democrats' perspective, yes, Boehner was conservative but he was a pragmatic conservative who did a decent job holding things together so that the government could function (mostly) by alternatively reining in the Tea Party/extreme right of the Republican Party and giving them just enough to make them, if not happy, at least unsuccessful in their efforts to sabotage the government.

There is undoubtedly some truth in that characterization. Judged at least by the tactical standards of the modern GOP, Boehner is a moderate. One can imagine having a rational conversation with Boehner about government spending and taxes, even if his substantive positions would be conservative by the standards of the Democratic Party and nearly every left, center-left, and even center-right party in the world. By contrast, given the sorts of things that come out of the mouths of many of the Tea Partiers in Congress and most of the current Republican presidential candidates, it is hard to imagine a conversation with any of them on nearly any topic that wouldn't lead one to marvel that they're not wearing tin-foil hats.

Yet despite the truth to the story of Boehner as the hero we don't really appreciate until he's gone, focusing on this story obscures the larger truth about the GOP over the last four and a half decades but especially since the emergence of the Tea Party in 2010. Even as the ostensible grownups in the Republican leadership tried to prevent the the hard right from driving the Party and the country over a cliff, that same leadership was (mostly) perfectly happy to win congressional elections by courting hard-right support.

The dangerous game that the GOP leadership played over this period is perhaps most aptly analogized to Pakistani policy with respect to terrorism.

"You can't keep snakes in your backyard and expect them only to bite your neighbors," then-Secretary of State Hillary Clinton famously told the Pakistani government in 2011. Her complaint was that Pakistan was supporting the Afghan Taliban and giving safe harbor to the Haqqani network based on an understanding that these groups would attack U.S. troops in Afghanistan but not Pakistani targets in Pakistan. As the chief diplomat of the U.S., Clinton's chief concern was for U.S. troops and interests, but her statement was also a warning about blowback: Pakistan would not be able to control the radical fundamentalists it was supporting; they would eventually turn (indeed many had already turned) on Pakistan.

Similar warnings have been issued to  the Wall Street wing of the Republican Party for years: You can't keep winning congressional elections based on support from socially conservative, anti-Federal Reserve, anti-corporate Tea Partiers and expect them to fall into line when the party elders insist on some measure on sanity to avoid shutting down the government, sending markets into a tailspin, and doing permanent damage to the global economy along with GOP brand. Or at least you shouldn't be surprised when the snakes don't fall into line.

Memorial Service for Marvin Chirelstein

by Michael Dorf

For readers in or near the NYC-area, please note that a memorial service for Marvin Chirelstein will be held tomorrow evening (Wed. Sept. 30) at Columbia Law School. Details can be found here. (I do not ordinarily post announcements of events, but my great fondness for Marvin surely warrants an exception to my usual practice.)

Monday, September 28, 2015

Subtle Sexism

by Sherry F. Colb

It seems odd to describe anything about Donald Trump as subtle, but his sexism may be.  For my Verdict column for this week, I discussed Trump's insult to Carly Fiorina's appearance and her highly effective response at the second Republican presidential debate.  I argued that his insults toward her were sexist and bought into an ideology of women as things to be exploited and to be assessed on their utility as sexual objects.  In this post, I want to talk about the subtle nature of the sexism on exhibition by Donald Trump and why, in my view, such sexism is both subtle and noteworthy.

The unsubtle form of sexism and sex discrimination involves treating a woman or a girl in a way that a man or a boy would not be treated and doing so on the sole basis of the woman's or girl's sex.  The old advertisements for jobs that said "only men need apply" represent one example.  Such unsubtle discrimination acts on the basis of a quality that is shared by all of the members of one sex and none of the members of the other.  Males may apply for the job, while females may not.  It is accordingly uncontroversial to describe what is happening as sex discrimination when an employer fails to promote an employee who is otherwise qualified in virtue of her being a woman.  In such a case, the quality that bars her promotion is her sex, and it accordingly is shared by all members of her sex and none of the members of the opposite sex.  Were she a man, she would have been promoted.  Sex is a clear and uncomplicated causal factor in her mistreatment.

The more subtle form of sexism and sex discrimination involves treating some people differently from others because they lack qualities that some members of their sex lack but that other members of their sex have.  Take, for example, pregnancy discrimination.  Not all women are pregnant, so one could miss the reality that an employer who discriminates against pregnant women is necessarily discriminating against women as a group.  One could conclude that pregnancy discrimination is not sex discrimination, since a large proportion of the female population would not suffer from its effects.

I mentioned this possibility to my 11-year-old daughter, and she said "that's stupid."  Perhaps it is, but the U.S. Supreme Court held in two separate decisions, Geduldig v. Aiello and General Elec. Co. v. Gilbert, that pregnancy discrimination does not count as sex discrimination, precisely because the class of non-pregnant people includes both women and men, and correspondingly, the class of pregnant people includes only a subset of women.  So long as a characteristic (here pregnancy) fails to overlap with 100% of women and with 0% of men, one could deny that it is sexist or sex-discriminatory to use that characteristic as a basis for differentially bestowing or denying benefits.

The same could be said of Trump's comments about the appearances of women (including that of Carly Fiorina, prior to the second Republican presidential debate).  So long as he insults the appearances of both men and women, and so long as it is possible for both men and women to be unattractive or attractive, one could argue that Trump is not behaving in a sexist or discriminatory fashion.

The reality, however, is that if one deliberately singles out a physical condition (such as pregnancy) that occurs in only one sex (women) and mistreats people on the basis of that physical condition, then one is intentionally discriminating against women, even if one has allowed some women to avoid the discrimination (those who avoid pregnancy).  The outcome, moreover, for women under a regime of pregnancy discrimination is an inferior set of choices and opportunities, relative to those that men encounter.  Men can decide whether or not to have a family unhampered by the impact of one or the other choice on his career; women cannot.

For similar reasons, appearance discrimination tends to disfavor women more than men, even though (1) men are as likely as women to be ugly, (2) men do sometimes suffer from looks-oriented distribution of benefits, and (3) many women are pretty and therefore do not suffer the effects of appearance-based discrimination.  Looks discrimination harms women as a sex because, as I describe in my column with respect to Trump, such discrimination tends to demand more of women and to demand it of women in more situations than it does of men.  Men, in other words, do suffer the effects of looks discrimination, but women suffer more.  We can see this most dramatically in the film industry, where men--including many unattractive men--play a whole range of roles throughout their lives, and women on the screen tend to be those who are beautiful, slim, and young, other than in exceptional cases.

In one sense, what I am describing is disparate impact--the type of discrimination that may not be intentional or conscious but that results in a disproportionate disadvantage to one group over another. Requiring that everyone applying for a job be capable of lifting over a hundred pounds, for example, would have a disparate impact on women applicants (and would therefore be subject to a type of business necessity test applicable under federal employment discrimination law).  In another sense, however, what I describe has greater intentionality than we typically ascribe to disparate impact. Someone (such as Donald Trump) is deliberately singling out women for derision; it's just that the way he does so makes the damage less obviously sex-based (in an individual case) than it would be if he just said "women should not be allowed to run for public office."  We might need to look at the collective impact of such behavior on women to see its sex-based results.  What we are examining, then, is not quite disparate impact; it is subtle disparate treatment whose impact is likely to be most striking across the run of cases.

Because of its potential subtlety, I was especially pleased to see Republican men and women condemning Donald Trump for his mistreatment of women in his remarks.   Despite their subtlety (and his obsession with being opposed to "political correctness"), people on both sides of the political aisle showed themselves capable of identifying sexism and taking issue with it.  I am glad that we have reached a point at which the kind of discrimination overlooked by the Supreme Court in Geduldig can now be understood as a true and noteworthy form of sex discrimination.

Friday, September 25, 2015

The End of the Holocaust as Other Than Metaphor

by Michael Dorf

Reasonable people can disagree about whether German authorities' filing of murder charges against a 91-year-old woman for her work as a telegraph operator at Auschwitz comes too late. Because of the defendant's advanced age, even if she is deemed sufficiently competent to stand trial and to withstand imprisonment, the horrific acts she allegedly committed (where "allegedly" signals only the question of whether she committed these acts, not some sort of Holocaust skepticism) occurred so long ago as to raise the possibility that she is a different person now. Yet there is no statute of limitations for murder and there is something admirable about the German government's relentless pursuit of Holocaust perpetrators. In any event, the question whether to continue to bring such cases will be mooted by the actuarial tables soon enough.

Indeed, in some important sense, the Holocaust has entered history already. With the exception of the soon-to-be-no-more trials of nonagenarians, discussions of the Holocaust these days almost always have some other purpose. It is invoked--or the invocation is resisted--in connection with the Israel/Palestine conflict. Dictators with alleged territorial and/or genocidal ambitions are compared to Hitler. And perpetrators of other injustices, both substantial and insubstantial, are compared to Nazis, with offense-taking usually following. For a particularly sensitive investigation of that last phenomenon, I recommend Professor Colb's essay on the use of Holocaust comparisons to the treatment of non-human animals.

In general, new accounts and depictions of the Holocaust and its aftermath are difficult to see as making simply a historical point. Consider Christian Petzold's terrific 2014 film Phoenix (only recently released in the U.S. with English subtitles). Nelly Lenz, a concentration camp survivor, has facial reconstruction surgery that makes her unrecognizable to her husband Johnny, who, she comes to suspect, may have betrayed her to the Nazis in the first place. It's a gripping story told in a film noir style that makes a number of points worth examining.

Two of these concern the grandchildren's generation of Germans' continuing processing of the Second World War. First, the very fact that the film is set in the immediate post-war period marks the film as distinctively German. In American memory, after we won the war, we brought the Marshall Plan to Europe and everything worked out well. But Germans remember (or have been taught about) the substantial period of post-war suffering. Phoenix shows bombed-out buildings everywhere, the breakdown of law and order, and American soldiers behaving not so much badly as obliviously.

Phoenix also makes a point that is in some sense at odds with the German post-war experience seen in broader perspective. More so than nearly any other country to have perpetrated crimes against humanity, post-war Germany has sought to deal honestly with its past. The repudiation of Nazism is the central organizing principle of the modern German state. And yet, Phoenix serves as a reminder that the honest reckoning did not occur overnight. At one point in the film, a character who is asked to impersonate a survivor of the camps as part of a financial scam asks her co-conspirator how she will be able to get away with this. Won't people ask her what her experience in a concentration camp was like? No, she is told. No one will ask. And no one does. To ask would be to acknowledge complicity.

But while Phoenix is an important piece of German memory, it is not just that. A child who was ten years old when the war ended is now 80. Most Germans alive today, and even a greater proportion of movie-going Germans alive today, are too young to remember the Second World War or its immediate aftermath. For some substantial number of these Germans, I suspect, Phoenix raises issues of somewhat more recent vintage.

In particular, the film's focus on the question of whether Johnny betrayed Nellie to the Nazis can be read through the East German experience. The Stasi did not invent the concept of people owing a duty to betray their close family members as enemies of the state. The tactic was borrowed from the Gestapo. But the Stasi perfected the tactic, creating a state of perpetual paranoia. (Since I'm talking about German film, a reference to the outstanding The Lives of Others is obligatory here.) At least for Germans who remember living under communist rule in East Germany, it is hard to imagine that Phoenix does not connect to that experience.

Historians decry presentism--the idea of recounting the past for its lessons about the present--and they have a point. Viewing the past through present-day concerns will often provide a distorted picture of the past. As a constitutional lawyer, I am familiar with the perils of law-office history.

But people in their everyday lives will tend to be interested in the past, if at all, chiefly because of what it tells them about the present, or at least about themselves. And so it is with the German government's continuing efforts to prosecute the last surviving Nazis. Germany does so to communicate--to others but also to itself--that it takes its repudiation of Nazism extremely seriously.

Postscript: In the foregoing, I have obscured some plot points of Phoenix to avoid spoiling the film, which I highly recommend to readers.

Thursday, September 24, 2015

The Same Liberal Reacts to the Democratic Presidential Drama, Part I

by Neil H. Buchanan

Two days ago, I wrote "A Liberal Reacts to the Republican Presidential Circus" here on Dorf on Law.  In that post, I tried my hardest to find a way to say that at least one of the 14 remaining Republican candidates would be notably less bad as a president than the others.  Although there is a subgroup that is in a different category of scary-awful, I could not find a way to convince myself that any of the others would be meaningfully "moderate" (a word that I place in scare quotes because it has been so degraded over the last couple of decades) or who might somehow represent a break from the relentless rightward lurch of that party.  When Jeb! Bush, Marco Rubio, and John Kasich are your purportedly moderate candidates, words have lost all meaning.

In any event, I also have some interest in the race on the Democrats' side.  Indeed, given how disturbing all of the Republicans are, it matters all the more that the Democrats nominate a strong candidate.  However, as we have seen during the Obama years, electing a not-Republican candidate who holds many center-right views (especially on economic issues) can lead to baseless claims that "liberal policies don't work."  For example, even though President Obama followed the center-right orthodoxy on both deficits and health care, liberals have been left defending policies that we would otherwise have no inclination to defend.

But this is not the time to think about substance, at least if one follows any of the written or televised political narratives.  This is all about horse-race politics, and arguing about who can convince the world that their candidacies are heading in the right direction.  Even following these stories as sparingly as I do, the narrative on the Democratic side is rather easy to discern: Hillary Clinton is in trouble; Bernie Sanders is surging and surprising everyone along the way; Joe Biden is deciding; Martin O'Malley is there; and the others are Democratic versions of George Pataki and Jim Gilmore.

With the caveat that none of this really matters, because the election is still more than thirteen months away, I hereby offer some thoughts about Hillary Clinton and her candidacy.  I will return to the others another day.

I have never been a fan of the Clintons, and I have generally believed that the female Clinton was even less liberal than her triangulating male partner.  Six months ago, in the immediate aftermath of the revelation that Clinton's emails during her term as Secretary of State were run through a private server, I suggested that liberals like me should simply get used to the idea that this level of entitlement and secrecy were part of the Clinton package, and we might as well accept that fact and learn to live with it.

Even so, I recognize unfair attacks when I see them.  Moreover, even though I argued that "nothing will ever change, when it comes to the Clintons," I only meant that the infuriating rules-don't-apply-to-us-and-true-loyalty-means-defending-us-at-all-costs default mentality of the Clinton machine would never change.  On matters of policy, people can change (within limits), and it is possible that Hillary Clinton has updated her views over time.

Indeed, Clinton might be the best example available to support the claim that we should want our leaders to be followers.  She does seem to have some core liberal beliefs, which she was very willing to ignore in the 1980's and 1990's when the power in the Democratic Party was clearly gravitating toward the neoliberal union-bashing types.  Her fateful vote in favor of the Iraq war while she was a senator clearly communicated her depressing willingness to make decisions on the basis of perceived political costs rather than principles.

Still, there is at least some reason to think that Clinton would act like a liberal (within limits) if she were president.  She herself has said that as the times change, she changes with them.  In the current context, she is suddenly in favor of anti-inequality measures that would have been unimaginable coming out of her mouth not too long ago.  If the voters elected Clinton, and the Republicans stayed true to form in opposing her at every turn, she is at least strategically savvy enough to learn from Obama's ill-fated efforts to be bipartisan.

Even so, a person who blows with the wind is an unreliable ally, making this defense of Clinton more in the nature of saying, "Well, her history of taking bad policy stands might not mean anything, if she now has political motives for taking good policy stands."  At best, this would merely be a way to make myself feel less wretched while reminding myself that she is still better than any Republican.

I do, however, actually have some positive things to say about Clinton.  One is that she is an amazing fighter who knows how to stand up against relentless attacks.  Also, I saw a commentary recently that noted how Clinton is remarkably good at not committing gaffes.  Think about how easy it would be for her to make some unguarded remark, especially given the scrutiny that she endures day after day.  No matter how hard her opponents try, however, she does not give them ammunition.

Some argue that this merely means that she is scripted.  One cannot commit a gaffe when one merely repeats talking points, or so the story goes.  But Clinton actually does talk about issues, and if she is reading from a script, it is a pretty complicated one.  Inasmuch as there is any truth to the charge that Clinton is robotic, however, her backstage confrontation with a Black Lives Matter activist last month showed how good she can be when she is not giving a canned speech.

After I watched that video, I felt actual admiration for Hillary Clinton, for the first time in my life.  Soon after the video emerged (transcript here), NY Times columnist Charles Blow (with whom I often agree) surprised me by excoriating Clinton for her response, claiming that she had engaged in diversionary tactics, and saying that she was "agile and evasive."  I strongly disagree.  I saw a political leader, unexpectedly confronted by an aggressive questioner, who genuinely tried to engage in a serious conversation.  Most importantly, when the activist told her that it was really a problem with the attitudes of white people, she pointed out the logical implication of that assertion: "Well, respectfully, if that is your position then I will talk only to white people about how we are going to deal with the very real problems ..."

When the questioner clarified his point, Clinton was "agile" in a good way, saying that changing people's hearts is not a meaningful political strategy.  She may be a technocrat, but she showed that she understands why technocratic things matter.  It is all about changing laws, allocation of resources, and so on.  It is, in its most stripped down form, about winning elections in an environment where many hearts have gone cold, and then using the power that comes from winning elections to do good.

As I noted above, watching that exchange was transformative for me.  Clinton is still not my idea of a great candidate, although (as Charles Blow himself pointed out more recently) much of the narrative about Clinton's supposed weaknesses is driven by the pundits' prime directive: Political stories have to be about rises and falls, and Clinton was so far up that the only possible direction was down.  Whereas I used to buy into the notion that she has nothing but ambition, it is now obvious to me that there is real intelligence at work, and that her version of being realistic can be more idealistic than I previously realized.

This is not to say that I am now a Hillary Clinton supporter.  In future posts -- we do have many more months of this ahead, after all -- I will comment on the other Democrats, both as a matter of substance and politics.

Wednesday, September 23, 2015

Trump, Political Correctness, and the Public/Private Distinction

by Michael Dorf

My latest Verdict column discusses some constitutional issues raised during and by last week's Republican presidential debate. I don't say much about most of the substance of the debate, which seems to have gelled into the following storyline: Carly Fiorina "won" the debate and is now climbing in the polls, mostly at the expense of Donald Trump, who nonetheless remains the frontrunner--although sophisticated political observers beleive that Marco Rubio is the plausible candidate who benefited most from the debate and from the general torpor of the Jeb Bush campaign and the exit of Scott Walker from the race. Despite the fact that I think the chance of Trump securing the Republican nomination, much less becoming president, is quite small, I continue to find the Trump phenomenon interesting. Here I'll use the latest Trump controversy as the launchpad for some observations about so-called political correctness.

As was widely reported, at a Trump rally last week, a supporter stated that Muslims in America--including Preisdent Obama, who is "not even an American"--are "a problem." The questioner then said that "we have training camps" and asked Trump "when can we get rid of them?".  Trump responded that he's been hearing similar things and he's looking into it. Trump was widely criticized for failing to correct the questioner's assertions about Obama's religion and nationality, though was subject to less criticism for seeming to take seriously the questioner's policy suggestion to "get rid" of American Muslims.

How? By mass deportation? Genocide? I suppose the questioner could have meant--and/or Trump could have understood him to mean--that the U.S. ought to be getting rid of terrorist training camps (where?) rather than getting rid of Muslim Americans. Still, the questioner opened that "we have a problem in this country; it's called Muslims," and so a candidate who was interested in opposing rather than courting bigotry would certainly have clarified that he's against painting with the broad brush that the questioner was using.

Needles to say, Trump did no such thing. Instead, Trump quickly resorted to his go-to move when someone objects to the latest offensive thing he has said: He labeled the complaint "political correctness." Here is an n-gram chart I created for the term "politcally correct" using Google Books.

A nearly identical graph appears for "political correctness." As you can see, the term "politically correct" doesn't really exist until 1980, then skyrockets into the 1990s, peaking in 1997. A similar pattern appears for "politically incorrect" but it continues to rise for a few more years before falling, perhaps because of conflation caused by the Bill Maher show "Politically Incorrect." In any event, it is clear that by complaining about political correctness, Trump is making a somewhat stale charge.

Perhaps recent controversies over so-called "trigger warnings" (criticized here by one of my Verdict colleagues and discussed sympathetically here by one of my Cornell philosophy department colleagues) give it new salience, but I don't think that Trump's core audience has even heard about, much less is reacting to, the trigger warning controversy. Given the demographics, I think it much more likely that anyone for whom the Trump anti-political correctness message resonates has a more traditional, i.e., 1990s-style, objection to political correctness: They don't like that they can't say offensive things about women and members of minority groups.

But of course they can say whatever they want. Unlike other constitutional democracies, the U.S. doesn't restrict hate-speech and cannot do so under the First Amendment (as construed by the Supreme Court). When people complain about political correctness they don't mean that the government is censoring their speech. They mean that private actors are.

In most other contexts, however, conservatives reject the notion of allowing people to assert against private actors the same sorts of rights that they can assert against the government. For example, if private protesters intimidate doctors so that abortion becomes effectively unavailable in a state or region, conservatives (and for the most part the case law) will say that this is not a violation of the right to abortion because that is a right against state action, not private action. Likewise, old-fashioned conservatives (and hard-core libertarians) oppose public accommodations laws that extend public anti-discrimination norms to private businesses.

Some progressives (but not all liberals) have sometimes criticized the tendency of American law to draw a sharp public/private distinction. Threats to rights (or at least to the interests that give rise to those rights) can come from private actors, they say, and in a complex society such as ours, all private action occurs against a backdrop of regulation that at least facilitates it. At least since the Progressive era (fittingly enough), progressives have argued for extending many of the norms we apply to limit the state so that they also limit private actors.

Seen in the light of progressive efforts to explode the public/private distinction, the right's complaints against political correctness can thus be seen as progessive--even though in substance they are anything but.

Postscript: Although this post is going up at 7 am on Wed., Sept. 23, I wrote it earlier. I'll be atoning for my (many) sins today, so I won't respond to comments.

Tuesday, September 22, 2015

A Liberal Reacts to the Republican Presidential Circus

by Neil H. Buchanan

The pruning of the Republican field has begun.  Less than two weeks after former Texas governor Rick Perry took off his smart-guy glasses for good, current Wisconsin governor Scott Walker avoided the ignominy of moving to the kids' table at future Republican debates.  Polling well below one percent nationwide -- in a party full of voters who were thought to be his kind of people -- Walker gave up the ghost on Monday.

Speeches by losing politicians are almost always pathetic affairs.  There are a few notable exceptions, most memorably Al Gore's eloquent exit in 2000, but more typically we watch as self-delusion meets reality in a final death match.  Joe Lieberman's game effort to turn a fifth place finish in New Hampshire in 2004 into a "three-way split decision for third place" was especially detached from reality, but only as a matter of degree, rather than kind.  Walker was similarly unwilling to simply say, "Despite being a front-runner several months ago, I'm now flat-lining, and there is no point in going on."  Instead, he tried to take his last turn at the spin machine and came up with this:
"Today I believe that I am being called to lead by helping to clear the field in this race so that a positive, conservative message can rise to the top of the field.  With this in mind, I will suspend my campaign immediately. I encourage other Republican presidential candidates to consider doing the same, so that the voters can focus on a limited number of candidates who can offer a positive, conservative alternative to the current front-runner."
Even clinging to the notion of "suspending" a campaign is quietly sad, but I understand that this has become the standard approach.  What is bizarre, however, is Walker's stated conviction that he has been "called to lead" a parade out the door.  "Hey, come on, guys.  You're losers, too, so follow me as we make room for people who aren't as pathetic as we are.  See, Mom, I'm a leader!"

That is not to say that the field does not need to be winnowed down, of course.  The question is who Walker thinks the candidates are who "can offer a positive, conservative alternative to the current front-runner," and what that positive message might be.  Other than everyone else being "not Trump," what might Walker -- the guy who managed to poison what had been a genuinely positive political culture in Wisconsin -- think the remaining candidates are going to say to America that is going to make them look good?

In July of this year, I wrote a post here on Dorf on Law, "Republicans Can Now Return to Their Other Unpopular Positions," in which I confronted a similar question.  The narrative then was that the Supreme Court had done the Republicans a favor by taking same-sex marriage off the political radar screen (ahem), allowing the party finally to stop shooting itself in the foot with all of those culture war issues that alienate younger and more moderate voters.  But what was the positive conservative message that the supposed fixation on SSM had obscured?  Opposition to the minimum wage?  Tax cuts for the rich?  Attacks on environmental laws?  Shutting down the government over a Republican-inspired health plan that is based on privately provided insurance and pharmaceuticals?  Starting a war with Iran rather than negotiating with them?

And now Scott Walker, called to lead a parade that Rick Perry had already started, says that he is out the door so that we can focus on the "limited number of candidates" with a positive, conservative message?  Well, I suppose that zero is a limited number.

Seriously, however, one of the most fascinating aspects of this ridiculously long slog that might not end until the convention next summer is in trying to decide whether a liberal like me has any rooting interest at all in the Republican race.  In January 2014, I discussed N.J. governor Chris Christie's implosion as a plausible candidate, and I was willing at least to take seriously the idea that Christie would -- through sheer dint of will, which in this context simply means being an even bigger jerk than the people who are even more conservative than he is -- somehow have been less of a disaster than his opponents would be.  (I eagerly anticipate Christie's concession speech.  I suspect that "operatic" will not begin to describe the event.)

Christie's supposed moderation relative to the rest of the field carries over to the others who are deemed to be acceptable to the so-called party elites.  (Who are these elites?  As far as I can tell, they are the people who care enough about winning elections to hope that the craziest candidates will not be nominated, but not so much that they actually are willing to find a candidate who truly is moderate in any meaningful way.)  At this point, that list apparently includes Jeb! Bush, Marco Rubio, and John Kasich.  It appears that no one quite knows what to think about Carly Fiorina, who managed to transform herself in the last debate from the person with a (badly failed) business resume to the person who is willing to lie most egregiously about Planned Parenthood.

The threshold question, of course, is whether any of this matters.  Would any president who ran on the Republican ticket (and who would try to be reelected by that party) act any differently than any other?  Certainly, it is hard to imagine a difference in terms of the under-the-radar issues that end up mattering quite a bit.  There have been plenty of times when the Obama Administration has used its appointment and executive powers in even the most pedestrian ways (that is, not by testing the limits of presidential power, such as the admirable attempt to limit deportations of some immigrants, but simply by doing the usual things that presidents do) that have made me quite happy.  Recent efforts to change overtime rules are a good example.

Simply knowing that the hiring and firing of federal prosecutors is not being run by a religious zealot with no relevant experience is comforting.  Yet it is difficult to imagine that any Republican president would bother to resist the pull of that kind of nonsense.  Even Donald Trump, whose recent brandishing of a Bible at a campaign event cannot hide his obvious irreligious core, would not care a bit if he presided over a White House in which all the details were being handled by fundamentalists.

Although there are remaining candidates who are extra crazy (Cruz, Huckabee, Carson, Santorum), it is difficult to take seriously the notion that the supposed moderates would be anything but awful.  When Walker was being taken seriously as a candidate, his calling card read: "Bashed labor, will do so again."  And he was viewed as somehow moderate!  Now that we know that Jeb! is not actually smarter than his brother, and is simply in it because his family has built an infrastructure within the party that will keep him in the running, it is even more obvious not only that he would never fight the under-the-radar people but that he would also never think of anything that was not absolutely within Republican orthodoxy.  He and Rubio have both learned that there is no upside to being willing to work in a reality-based world.

Which, weirdly, leads to Ohio governor John Kasich.  Kasich received some surprised reactions from liberals when he expanded Medicaid in his state (accepting funding that was authorized by the Affordable Care Act), and he even managed to sound like someone with a conscience while doing so.  But Kasich had a long career in the House as a lieutenant in the Gingrich Revolution in the 1990's, and he is hardly a reasonable guy.  In particular, he continues to be obsessed with passing a balanced-budget amendment, which is still among the worst ideas in Washington that somehow are taken seriously.

Kasich, in other words, is viewed as moderate because he has a crazy, unworkable and disastrous big policy idea that is not based on religion, whereas his opponents have no particularly obvious policy ideas other than to base their policies on extreme religious views.  Again, we have no reason to think that Kasich is interested in fighting his party on anything, so his supposedly moderate views suggest at best that he might not wake up in the morning having dreamed of doing the insane things that, say, Rand Paul would dearly love to do.

Where does this finally lead us?  Republicans are hoping that they can convince their straying, angry base that Trump is really a liberal.  He is not, but what Republican insiders appear to fear most is that Trump would not toe the party line.  Even his exceedingly awful ideas, most obviously his plan to build an impermeable border fence and then move eleven million or more people to the other side, are so preposterous that it is difficult to believe that he would maintain any interest in them after it became obvious that he cannot simply will things to happen.

Does this make Trump the least-bad candidate, from the standpoint of a liberal like me?  Absolutely not.  He could certainly do a lot of damage in the process of figuring out that his ideas are doomed to fail (and then denying that they had failed).  After all, even forced deportations of "only" one million people would be a disaster of historic proportions.  Moreover, Trump's poisonous rhetoric is already altering the political landscape in dangerous ways.  He is a truly dangerous loose cannon whose lack of conscience would only guarantee that his presidency would lurch from one terribly damaging failure to another.

I thus reluctantly conclude that there is no scenario in which any Republican presidential win in 2016 is anything short of a disaster.  There are extra-extreme worst cases, but even the supposedly reasonable possibilities present no opening for policies that a liberal like me would consider less than horrible.  Add in the likelihood that the next president will be able to fill multiple Supreme Court vacancies, and it is difficult to sleep at night.

Monday, September 21, 2015

Kim Davis and the Nature of the Fundamental Right to Marry

by Michael Dorf

In a useful update on the Kim Davis case on Balkinization, Marty Lederman raises the question whether the improvised forms that are now being used to issue marriage licenses in Rowan County, Kentucky--insofar as they differ substantially from the forms used in other counties--violate the equal protection rights of applicants for marriage licenses in Rowan County, even if the forms suffice to make the ensuing marriages legal under state law. Marty asks (in his question 5):
Do the Davis-amended licenses violate the 14th Amendment, as plaintiffs suggest, even if they do not affect the legality of the resultant marriages under Kentucky law, and even if same-sex and opposite-sex couples are treated equally within Rowan County?  The theory here presumably would be that Rowan County is symbolically disfavoring same-sex marriage by virtue of appending an effective asterisk, or "issued under protest" message, to all licenses in Rowan County (same-sex and opposite-sex alike).
Marty then provides a cautious non-answer: "I'll need to think about this further if and when plaintiffs offer the argument.  Cf. Palmer v. Thompson."

Palmer, recall, is the case in which Jackson, Mississippi closed all of its public swimming pools rather than integrate them. The Supreme Court, in a 5-4 ruling, held that the city did not thereby violate the Equal Protection Clause. Jackson, after all, was under no obligation to establish or operate public swimming pools, and so by closing them for people of all races it did not discriminate on the basis of race.

While Marty thinks about Palmer, let me suggest that there is a potentially crucial difference between swimming pools and marriage licenses--namely, there is, under the SCOTUS cases, a fundamental right to marry but no fundamental right to swim in a government-operated pool. The cases recognize that even when the government does not draw any distinctions based on any illicit criteria, discriminatory classifications with regard to fundamental rights trigger strict scrutiny.

The relevant case law includes two categories of fundamental rights: (1) those that are recognized as fundamental for substantive due process purposes are, ipso facto, also fundamental for equal protection purposes, so that distinctions drawn regarding their exercise must satisfy strict scrutiny; and (2) rights that are fundamental only for equal protection purposes, such as the right to vote. A state need not have an elected attorney general at all--and thus there is no substantive due process right to vote for the office of attorney general--but if the state does have an elected attorney general, then inequalities in the distribution of the franchise with regard to attorney general elections are strictly scrutinized.

One fair objection to Obergefell v. Hodges--and indeed to the entire line of the Supreme Court's right-to-marry cases--is that the right to marry ought to be the second kind of fundamental right. Under this approach, a state would not be obligated to create a civil institution of marriage at all, but if it does, then inequalities with respect to marriage are strictly scrutinized. In this view, Obergefell is rightly decided as an equal protection fundamental right case, because all of the states did have an institution of marriage and their reasons for denying marriage to same-sex couples were barely rational, much less compelling; but if marriage is the second kind of fundamental right, then Justice Kennedy and the rest of the Obergefell majority oughtn't to have relied on the Due Process Clause. Marriage would be a fundamental right "in" equal protection, just as voting is.

One obvious advantage of this approach would be that it would answer an objection raised by the dissenters: The Constitution, they said, generally protects negative rights against state interference, not affirmative rights to state recognition or assistance; yet the marriage right looks like the latter; when the government denies recognition to a same-sex couple's marriage (or to an opposite-sex couple's marriage), it does not do anything to them; it fails to do something for them.

That is a sound objection in principle but it is not fairly lodged against the Obergefell majority. The Court in Loving v. Virginia quite clearly rested its holding on the alternative ground (endorsed by eight justices) that, in addition to the equal protection violation occasioned by the use of a race-based classification, the Viriginia laws at issue were invalid because they "deprive[d] the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment." Zablocki v. Redhail also relied on a substantive due process right to marry as well as equal protection. (The other main right-to-marry case, Turner v. Safley, arose in the prison context, so the standard for evaluation was somewhat different, although even then, the Court found the infringement on the right to marry unconstitutional.)

Although it would be an overstatement to characterize the key portions of the cases recognizing a substantive due process right to marry as mere dicta, it is true that in each of the cases equal protection would suffice for the result. Thus, critics who think that there is something highly problematic about a substantive constitutional right to government recognition (as opposed to non-interference) could argue in some future case that the right to marry ought to be reconceptualized as simply a type-2 fundamental right: one that, like voting for state AG, cannot be distributed unequally if the state recognizes it, but that the state need not recognize at all.

Despite efforts in Oklahoma and elswhere to eliminate civil marriage, it seems unlikely that a test case will actually arise in which the Supreme Court will be asked to consider "demoting" marriage from a fundamental right for substantive due process purposes to a fundamental right only for equal protection purposes. But even if that were to happen--and even if one were to think that marriage is already best understood as fundamental only for equal protection purposes--it wouldn't make a difference in the Rowan County case. Whichever kind of fundamental right marriage is, state laws that treat some people differently from others with respect to marriage trigger strict scrutiny.

All such laws? Well, no. As the Court said in Zablocki:
By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.
So, what kinds of inter-county variations in the form of a marriage license either don't trigger any heightened judicial scrutiny or, if they do trigger such scrutiny, readily satisfy it?

Certainly there are a whole range of unimportant variations. If some counties issue licenses on 8x11 paper while other issue licenses on 8x14 paper, no one would--and certainly no one should--care. Likewise, if in some counties the license is signed by the clerk while in others it is signed by the deputy clerk, it is hard to see any harm. And even if there is some small symbolic harm, if the reason for the variation is to accommodate the religious beliefs of the clerks, that would seem to suffice.

At the other end of the spectrum, suppose that the clerk takes the view that her religion requires her to ensure that any same-sex licenses issued from her office bear some mark of disapproval from her (even if they do not contain her name), and that she chooses to implement this policy by confiscating the regular license forms and substituting for them license forms that are scrawled in green crayon on soiled paper towels. Even assuming such licenses would be valid under state law, and even assuming that both same-sex couples and opposite-sex couples receive these ugly licenses, it strikes me that any couple issued such a license would have a plausible constitutional claim. The official disapproval of marriage in the county could be counted as significant interference with the decision to enter the marital relationship.

Thus I conclude with a question: How different are the hypothetical crayon-on-soiled-paper-towel licenses from the irregular license forms that Kim Davis has provided to her deputy clerk in Rowan County?

Friday, September 18, 2015

The Past and Future of Stealth SCOTUS Nominees

by Michael Dorf

Near the end of the seemingly interminable Republican Presidential Debate on Wednesday night, former Florida Governor Jeb Bush indicated that if he were president, he would nominate conservatives with an established track record to the Supreme Court. There ensued sniping between Bush and Senator Ted Cruz over whether the latter had supported John Roberts for Chief Justice, punctuated by former Arkansas Governor Mike Huckabee's vow to apply a litmus test (that was the phrasing of the question and he embraced it) on abortion for his nominees. Rather than evaluate who "won" that particular round of the debate, I want to examine the premises behind Bush's initial statement.

Bush made his comment in response to a question from one of the moderators, Dana Bash, who noted that Cruz had criticized President George W. Bush for appointing John Roberts as Chief Justice, in light of the latter's votes to uphold the Affordable Care Act and to construe it as permitting subsidies on federally operated exchanges. (Bash actually said that Chief Justice Roberts "voted to uphold Obamacare twice," even though the second time, in King v. Burwell, the issue was not whether to strike it down, but her meaning was plain enough.) Here is what Bush said, taken from the WaPo transcript and cleaned up a bit by me (as indicated by brackets and ellipses) to smooth over the inevitable problem of transcribing anyone's spoken words as compounded by the Bush family's notorious difficulty stringing together a linear sentence:
We need to make sure that we have justices . . . with a proven experienced record of respect for upholding the constitution. That is what we need. [T]he history in [the] recent past is [for presidents to] appoint people that have no experience so that you can't get attacked. And, that makes it harder for people to have confidence that [the appointees] won't veer off [in a liberal direction.] John Roberts has made some really good decisions . . . but he did not have a proven, extensive record that would have made [it clear that he would be a reliable conservative] and [such] clarity [is] the important thing, and [so] what we need to do [is nominate proven conservatives]. And, I'm willing to fight for those nominees to make sure that they get passed. You can't do it the politically expedient way anymore. This is the culture in Washington. You have to fight hard for these appointments. This is perhaps the most important thing that the next president will do.
In at least a tacit criticism of his father (for nominating Justice Souter) and his brother (for nominating Chief Justice Roberts), Jeb Bush appeared to be making the following claims:

1) In the past, Republican presidents have nominated people without an extensive public record of conservative rulings as lower court judges or conservative positions taken in other fora. [This is what Jeb Bush apparently meant by "no experience", which is a fairly uncharitable way to describe the pre-SCOTUS career of either Souter or Roberts.]

2) This practice was "politically expedient" because the absence of an extensive conservative public record defanged potential liberal opposition, thus ensuring Senate confirmation.

3) However, a stealth nominee is a double-edged sword, because he or she could end up voting in a less conservative way than a known conservative would.

4) Therefore, a president determined to move the SCOTUS in a conservative direction should nominate well-known high-profile conservatives and spend the political capital to get them confirmed.

5) I, Jeb Bush, am determined to act in this way, and so that's what I'll do if elected president.

The controversial parts are items 1 and 4. I agree with the conventional wisdom that Justice Souter was a stealth candidate in the sense that he did not have an extensive paper trail AND that President George H.W. Bush's administration did not have inside information that ensured insiders of Souter's committed conservatism. As is well-known, Souter was close with New Hampshire Sen. Warren Rudman and so Bush I Chief of Staff John H. Sununu, a former New Hampshire governor, assumed that Souter was reliably conservative, but Sununu lacked an adequate basis for this assumption--especially given that Rudman himself was a moderate (at least on social issues).

John Roberts, however, was different and, in many ways, the ideal candidate in an era of a closely divided Senate because, although he lacked an extensive paper trail (other than briefs filed on behalf of clients, including the government), his long service in the executive branch during Republican administrations made him a known entity to conservatives. And sure enough, Roberts has been a quite conservative justice. On the issues of fundamental importance to the members of the Republican base who care about judicial appointments--guns, affirmative action, gay rights, voting rights, religion in public life, and more--Roberts has been quite conservative. I sincerely wish that the fact that he didn't vote against the Obama administration in the two ACA cases were a portent of a turn to the center, but there's no real evidence of anything like that.

Accordingly, if I were an advisor to the next Republican administration, I would suggest continuing with the policy of one-way stealth candidates--distinguished charismatic lawyers with light paper trails who are nonetheless known to administration insiders to be deeply conservative. Likewise, it should be possible for a Democratic administration to find liberal one-way stealth nominees, and arguably Justice Kagan is an example. Her academic writing did not touch on very many hot-button topics but her stints in government during Democratic administrations gave the party inside information.

Thus, it strikes me that former Governor Bush is wrong to think that a president bent on making ideological appointments to the SCOTUS needs to abandon the one-way stealth candidate strategy. Moreover, the strategy with which he plans to replace it is likely to fail except when the president's party has 60 votes in the Senate.

Suppose that the president's party has a majority but not a filibuster-proof majority in the Senate. Nominating a one-way stealth candidate is a good strategy because, absent a public record of strong ideological commitment, at least a few moderate Senators of the other party will conclude that the nominee is not so extreme as to warrant a filibuster. By contrast, if the president nominates a well-known reliable ideologue of his own party, the nominee will get less support from the other party.

Presumably this is why former Governor Bush said that he would be willing to "fight hard" for his clearly conservative nominees, but it's not at all obvious how he could do that. The clearer it is that his nominee is a committed conservative, the more pressure there will be on Democratic Senators from their base to oppose the nominee. Perhaps it would be possible to win over a handful of Senators from the opposite party in swing states with a media blitz, but all of this is much more difficult with a nominee with clear ideological leanings than with a nominee who can be presented to the public as a cypher even as he or she is known to administration insiders.

Thus, the Bush/Cruz strategy (for they agreed upon it ultimately) of nominating proven conservatives should be unappealing even to conservatives--unless, like Senator Cruz in general, they are more concerned about taking a stand for its own sake than about moving the dial closer to their preferred outcome.

Thursday, September 17, 2015

The Schmalbeck Non-Hail Mary

by Neil H. Buchanan

My annual contribution to Jotwell: The Journal of Things We Like (Lots) is now up on the journal's website: "Using the Tax Code to Help Universities Put Big-Time College Sports In (Some) Perspective."  There, I review an excellent recent article by Professor Richard Schmalbeck of Duke Law School: "Ending the Sweetheart Deal between Big-Time College Sports and the Tax System."  (Readers can find the previous Dorf on Law posts in which I describe (and link to) my previous Jotwell contributions here: 2014, 2013, 2012, 2011, and 2010.)

Professor Schmalbeck's article offers a modest approach (hence the "non-Hail Mary" in the title of this post) to reducing the growing, problematic influence of football (and, to a much lesser degree, men's basketball) at major American universities.  He focuses on two aspects of federal tax law: (1) the indefensible practice of not requiring universities to pay the Unrelated Business Income Tax” (UBIT) on their sports-related profits, and (2) an almost comical allowance for a partial deduction for barely disguised added charges for admission to games.

Professor Schmalbeck shows that both of those provisions are distortions of the tax law, and he emphasizes that undoing those provisions would enhance the tax code's "coherence and fairness."  My main concern, by contrast, is with the deleterious effects that such provisions have on universities.  This is not to say that I am uninterested in adding a bit of coherence and fairness to the tax code, nor that Schmalbeck is uninterested in how sports mania has distorted universities' priorities.  Our difference is only a matter of emphasis.

In any event, one of the principal reasons that I chose the Schmalbeck piece as the subject of my annual Jotwell contribution is that he is not trying to solve the problems of college sports with a single grand policy proposal.  He convincingly suggests that the way to tame this behemoth is by putting it on a diet, and those two tax provisions are inappropriately pushing large amounts of money into the maw of college sports.

Interested readers will find more detailed arguments in the Jotwell piece, which is not lengthy (about the same number of words as a typical post on this blog).  In the remainder of this post, I will briefly comment on a recent article in The New York Times profiling the president of the University of Notre Dame, Rev. John I. Jenkins.  Despite some unnecessary snark by the writer (see below), the piece is definitely worth reading.

In this context, I must begin by pointing out that I generally find Notre Dame's football program to be highly objectionable, though mostly as a matter of rooting interest.  However, beyond simply not being my team (and occasionally beating my team over the years), my objective problem with Notre Dame is the unbridled arrogance that drips from the program.  A few years ago, for example, the school's athletic director actually said in a press conference that "college football is better off when Notre Dame is good," or words to that self-flattering effect.  In any event, this is not a program or a university to which I typically point and say, "Yeah, I like them!"

Having dutifully noted all of that, however, I must admit that President Jenkins is a truly admirable leader in college sports.  In the Times article, he says what needs to be said about the importance of education as an essential part of college sports.  The man has his priorities straight.

Importantly, Jenkins points out that the money from big-time football is not essential to running his university.  Even though Notre Dame is one of the very few universities that actually does make money from its football program -- and importantly, that money is used to support a full slate of womens' and mens' sports programs that do not generate revenue, witht the remainder going into the university's general fund to support financial aid -- it is still an $80 million drop in a $1.4 billion annual bucket.  A bit less than six percent of the university's operating budget is not trivial, of course, but losing it would be very manageable.

Although many people find it unthinkable, therefore, President Jenkins is saying quite clearly that even a school like Notre Dame could at some point decide that the tradeoffs of big-time college sports have finally become unacceptable.  He describes an unlikely, but still imaginable, future in which the other football factories go toward a fully professionalized approach to football and men's basketball, and Notre Dame opts out (presumably with some other schools that manage to keep their priorities straight).  Yes, this is a negotiating strategy, because Jenkins is hoping to prevent the other powers from making those fateful choices that he (and I, obviously) strongly oppose.  For Notre Dame's president to say, "Yes, we are the face of college football, but we would refuse to be the face of that kind of pro football league," is enormously important.

The writer for the Times generally gave President Jenkins a respectful hearing.  Even so, his point of view (favoring professionalizing college sports) crept into the story.  For example, at one point in the article Jenkins offers a simple response to the possibility that courts could force universities to pay players whose jerseys are sold to the public.  (This is part of the unrelated business income tax story that Professor Schmalbeck describes.)  The university would simply sell jerseys without numbers on them.  Even so, the article ends by noting that the (subsequently injured) starting quarterback's jersey is "available for sale in the bookstore," as if that is somehow an indictment of everything that went before.  Yeesh.

Wednesday, September 16, 2015

Does "Life" Begin At Conception?

by Sherry F. Colb

In my Verdict column this week, I discuss the abortion bill currently under consideration in Ohio, which would ban abortion motivated by the Down Syndrome status of the fetus.  In the column, I discuss four different kinds of abortion restrictions, where this particular bill fits into the typology, and some of the arguments in favor of and against a restriction of this sort.  I ultimately conclude that women should have the right to terminate a pregnancy for any reason at all, because of both the bodily integrity interest at stake and the status of the pre-sentient fetus (one that cannot yet have subjective experiences such as pain and pleasure) as a potential but not an actual person.  In this post, I want to speak directly to an argument that pro-life advocates sometimes make and would likely make in response to my column:  a human embryo (or fetus) is made up of human rather than giraffe or orangutan DNA; a human embryo is a separate organism rather than a part of another organism's body; a human embryo is therefore a human being from the moment of conception.

Much ink has been spilled on the question of when life begins.  Those who take the pro-life view that life begins at conception argue that there is no better line of demarcation than conception, the moment when a separate human organism comes into being.  This argument has at least one noteworthy problem.  The notions that a one-celled human zygote is a "person," entitled to "human rights" and that it is--in its present state--the equal of a newborn human baby are highly counterintuitive.  None of the special reasons that most of us would give for granting "human rights" to a person (or animal rights to an animal) would appear to apply at all to a zygote.

A zygote is incapable of having any of the feelings that distinguish a human being from, say, a tomato.  Assuming (as the evidence appears overwhelmingly to support) that tomatoes and other plants have no feelings (of pain, pleasure, satisfaction, etc.), their inability to feel anything is an important reason for not extending rights to plants.  It would make no sense to say that you may not inflict torture or captivity on a plant, since a plant would be unable to experience "torture" (lacking the capacity to feel pain), and a plant would not know that it is in a captive environment, and it could not, in any event, run around or otherwise enjoy the freedom of an open and unrestricted environment.  It lacks the basic foundation for rights:  sentience.  This is why people who believe in the rights of sentient beings are comfortable consuming plants while avoiding the consumption of animals and their involuntarily induced and extracted bodily secretions.

To some degree, the question of when human life begins is unanswerable on its own.  For what purpose are we asking?  If we are asking when the odds dramatically increase of there ultimately being a newborn baby at the end of the process, then the answer would depend very much on whether a zygote is conceived inside a person or whether it is conceived, as many currently are, in a petri dish in a laboratory.  If the latter takes place, then the odds of the zygote growing into a baby depend, among other things, on whether it is selected for implantation into a willing host.  If nature is left to "its own devices," in the case of a laboratory-fertilized egg, then the resulting zygote and embryo will eventually disintegrate and die before it becomes anything resembling a "person."

If, however, one is asking a question about the morality of terminating the life--and thus about the moral status of the life in question--then it would seem completely irrelevant whether the zygote or embryo is located inside a woman or whether it is located in a test-tube inside a laboratory. Either way, we either do or do not have a "person," regardless of what the "odds" are of survival and further development without human intervention.  Likewise, when we have an uncontroversial moral person, such as a three-year-old child, the status of that person as healthy or as very ill and likely to die soon has no bearing on whether the child currently is or is not a person:  he or she unquestionably is.

Biology accordingly cannot definitively answer a moral question until the criteria for answering the moral question have been identified.  What makes a "person" (whether that person is a human person or a moral person of a different species, in virtue of the traits that are morally relevant) entitled to rights against violence, killing, and exploitation?  I would argue (and have argued in my book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans) that the answer is sentience, the capacity to have subjective experiences such as pain and pleasure.  Until an entity gains that capacity, the entity has no welfare, no interests, and accordingly no moral entitlement to be free of harm or to continue existing.

Under the sentience criterion, "life"--a life that is entitled to protection against termination--has not yet begun at the point that an egg is fertilized.  Fertilization of an egg is part of a process through which a morally cognizable life comes into existence, but it is not the completion of that process.  I would hasten to add that one need not wait until birth for the process to be complete.  Like fertilization, birth is an arbitrary point at which to identify the entity (now a baby) as having moral entitlements:  little changes about a baby between the time when labor begins and the time (hours or, in some instances, days later) when he emerges from his mother's body, that would alter his moral status.  If abortion is nonetheless permissible even after sentience, it is not because the fetus is "not yet a person" (though this was the law under Roe v. Wade); it is because a pregnant woman has an interest in restoring her bodily integrity against internal occupation, even when the occupier is a full person, vested with rights.

Thus, a late abortion (including one taking place directly before labor begins) poses a far more difficult moral challenge for the pregnant woman and for people generally considering the issue of abortion than does an early one.  The weakness of the moral claim that "life [as in a moral entitlement to continued existing] begins at conception" helps explain why that is.  And it suggests that someone who sincerely wishes to prevent the most morally troubling abortions will support legislation that removes obstacles from the path of women who wish to terminate early in pregnancy (especially obstacles like waiting periods that delay the abortion).  Like limiting access to contraception, then, many of the measures taken by those who oppose abortion have an ironic tendency to increase the odds of the most morally questionable instances of this procedure.  Of course, there is no irony if one truly believes that a zygote is the moral equal of a late-term fetus or newborn baby.  If one is concerned about the morality of abortion, then, it is important to identify why and to support measures that best accord with one's examined views.

Tuesday, September 15, 2015

Wisdom or Nonsense? This Is What Supposed Moderates Really Look Like

by Neil H. Buchanan

In his New York Times op-ed column yesterday, Paul Krugman used the term "conventional nonsense" as a pointed twist on John Kenneth Galbraith's famous term "conventional wisdom."  (Actually, that term was not coined by Galbraith, at least according to the hive brain at Wikipedia.)  Even though "conventional wisdom" typically indicates ironic disapproval, Krugman's more explicit formulation fits the times.  American punditry has long been filled with calls for moderation against the extremes supposedly represented by both parties, even though it has become increasingly obvious that this is nonsense.

You know that the standard narrative is vacant when the go-to example of the Democrats' supposed extremism is U.S. Rep. Alan Grayson, who supported Ron Paul's efforts to "audit the Fed" and who co-sponsors legislation to "appeal to the libertarian streak in the GOP."  Grayson's being personally intemperate and a Democrat apparently automatically proves that the party is run by left-wing extremists.  Conventional wisdom or conventional nonsense?

Beyond those labeling exercises, it is always perversely interesting to see what counts as unchallenged group knowledge in American punditry, especially when those highly contestable bits of folk wisdom work their way into what are supposed to be straight news pieces.

In August 2012, for example, I wrote a Verdict column and a paired Dorf on Law post in which I puzzled over the accepted narrative in which Newt Gingrich is an ideas guy, and Paul Ryan is a serious policy wonk.  As I noted this past Friday, Ryan is still doing everything possible to prove that he is unserious, but it is unlikely at this point that he could do anything to dislodge the conventional nonsense.  In fact, perhaps because he is the only big-name Republican who resisted the pull to enter the 2016 presidential mosh pit, the usual suspects now seem to take Ryan even more seriously.

What about the current field of Republican presidential candidates?  The front page of yesterday's Times actually included this headline: "Jeb Bush’s Cerebral Debate Style Faces a Test: Donald Trump."  Cerebral.  Cerebral?  If Bush III has proved anything in the last few months, it is that he is not at all cerebral.  But perhaps it is only his "style" that is being described as cerebral, maybe?  Which means only that Trump's "I'll have the best policy on that issue ever" style of non-debate has defined down the concept of cerebral to mean appearing to think at all.

In its online Opinion section yesterday, the Times did run a piece asking "When Did Jeb Bush Become the Smarter Brother?"  The answer, apparently, is that Jeb lacks W's back-slapping social skills, so he was viewed by default as being the more serious brother, which then somehow translated into being thought of as the smarter brother.  According to a sympathetic Bush advisor, Jeb "wanted to talk about issues," but he apparently has always been as bad at doing so as he is today, and he is also as inarticulate as both former Bush presidents.  Or, as The Times's writer put it, Jeb has "his brother’s verbal clumsiness without his social skills."  But this did not stop Bush from receiving positive notices as "cerebral," in the news section of the nation's supposedly liberal newspaper.

Conventional wisdom is not, of course, limited to The Times.  At Vox, an article last month described Trump as "the perfect 'moderate'."  The writer was being deliberately provocative, redefining moderation to mean an odd agglomeration of ideas across the ideological spectrum.  Even that article, however, tried to suggest that Trump holds some extreme liberal views as well as his extreme conservative ones, yet none of the examples of his liberal pronouncements (Trump's noting that single-payer health care works in other countries, or his opposition to cuts in Social Security and Medicare, as well as a few others) is even arguably extreme, and certainly nothing like his views on immigration.

Moreover, even within that somewhat successful effort to upset stereotypes, the Vox article offers this nugget: "[Moderates are] different from loyal Democrats and Republicans. Partisans tend to adopt the positions held by their parties, and parties tend to adopt positions that are popular, achievable, and workable. So voters who follow their parties end up pushing ideas in the political mainstream."  Unless the writer still lives in the world as it existed when  Gerald Ford and Jimmy Carter faced off for the presidency, it is hard to know what to say about that assertion.  As applied to Republican partisans, even calling it nonsense would be charitable.

What makes conventional nonsense especially insidious, however, is that it seeps even into analyses that are focused on other matters entirely.  Back in 2006, a Times op-ed by Adam Clymer chided relatively inexperienced senators for thinking about running for the presidency.  He mentioned Barack Obama by name.  In one sense, this is fair enough, because even Obama's supporters understood that his political resume was relatively short -- at least, by the standards of the time.  But Clymer could not resist the gravitational pull of the conventional nonsense.  Complaining about the political press's obsession with presidential politics, he wrote: "Instead of singling out potential legislators who may someday save Social Security or raise foreign aid to a substantial level, reporters are on the hunt for future presidents."

Who cares that Social Security did not, and still does not, need saving?  Clymer simply thought for a tenth of a second before coming up with two safe examples of serious policy issues that he could use to support his point.  Well, batting .500 is pretty good in other contexts.  Moreover, that is hardly an isolated or outdated example.  In an article last month analyzing Trump's views on immigration, a Times writer who was trying to make the important point that immigrants do not put a burden on public finances wrote: "But scholarly research has shown that undocumented immigrants are much more reluctant to use public health care than Americans. And billions of dollars of Social Security taxes they have paid for benefits they cannot collect have shored up the dwindling funds of that system."

"Dwindling"?  Again, there was nothing requiring that writer to say anything negative (or positive) about Social Security's finances, because she was merely arguing that immigrants are net contributors to public finances, rather than the leeches that Trump's followers believe them to be.  But drive-by snark about Social Security is as safe as it gets.  Nonsense.

Finally, consider the strange case of the "reformocons."  For those readers who are fortunate enough never to have heard of this media-fed creation, some conservative ideologues are supposedly trying to moderate the views of the current Republican Party.  I have said some positive things about one of the leaders of this group, David Frum, lauding him for his willingness to call out the true craziness on the right.  But it is apparently too easy to forget that "not crazy" is not the same thing as "moderate."

A recent piece by Josh Barro in The Upshot captured some of the remaining craziness on the reformocon right.  In particular, he quoted Frum as saying that Republicans could use Trump in the way that Richard Nixon used George Wallace's attempt to induce hysteria about crime in 1968: "Crime was rising fast, and it was not an issue that respectable politicians wanted to talk about. The result was that Richard Nixon stole [Wallace's] issue and deracialized it."  Barro correctly calls Frum on that preposterous claim.

And in what is surely the most unintentionally revealing moment of conservatives' true values, Barro recounts the executive editor of National Review as saying that "Mr. Trump’s ability to lead the polls while attacking Republicans for wanting to cut entitlement programs showed that conservative voters are open to 'government programs that help the right people.'"  Ah yes, the right people.  That is not moderation, but it certainly clarifies matters.