Gary Coleman Dead, 42

Gary Coleman has died at the age of 42. Coleman's death comes as a tragic end to a tragic life.

Coleman is best known for his role as the lovable Arnold in the 1970s-80s television show Diff'rent Strokes. He made the show a huge hit.

Coleman starred in other television shows and in movies while on Diff'rent Strokes, but he could not sustain that success. After the show ended, his career effectively ended as well. Unfortunately, Coleman's parents stole most of the millions of dollars he earned as a child star, which left him broke during much of his adult life.

Coleman had several problems with criminality, and his life seems to have imploded. Nonetheless, millions of people will remember him for the laughter he brought into our homes. RIP.

LAT: BP Has Oil Leak Under Control

The Los Angeles Times is reporting that BP has the oil leak under control. Cement to follow. . . .

See details here.

Rightwing in Gay Panic Mode Over Don't Ask, Don't Tell

Social conservatives are in gay panic mode over the prospect that Congress will eventually repeal Don't Ask, Don't Tell. The National Research Council released a bogus report warning that "gay rape" will surge in the military if Congress repeals the policy. I guess NRC is only worried about "gay" as opposed to "heterosexual" rape. Besides, rape is really about violence and domination, not sexual identity.

In addition, Think Progress reports that the socially conservative group America's Survival has produced a video proclaiming its opposition to allowing the threat of "disease-tainted gay blood" in the military. The group believes that gays will spread HIV in the military, even though the virus has no sexual boundaries. Furthermore, the military already conducts HIV screenings and excludes HIV-positive individuals from service.

In an effort to attract social conservatives, Senator John McCain is having a nervous breakdown over the prospect that Congress will lift the ban. As someone who was captured and tortured during war, McCain should realize that gayness is not the enemy of the nation's troops. Instead, he is shamelessly seeking votes by any means necessary.

Of course, the Democrats are making themselves vulnerable to some Republican criticism, including from McCain. Because Obama has moved painfully slow on this issue, he has faced condemnation from his liberal base. Representative Patrick Murphy and Senator Joe Lieberman tried to speed up the process by proposing legislation repealing the ban. Obama, however, announced a year-long study of the policy and asked Murphy and Lieberman to alter the bill to delay any repeal until the review is complete and the military has decided that the repeal should actually occur. Now, the legislation is in tension with itself. Still, the rightwing deceit and homophobia are reprehensible.

Despite Vietnam Flap, Blumenthal Still Has Wide Lead in Senate Race

Despite misstating his military service, Richard Blumenthal has a 25-point lead among Connecticut voters in the upcoming Senate race, according to a Quinnipiac poll. Recently, the New York Times reported that Blumenthal falsely stated that he had served in Vietnam. Following this report, other news sources uncovered other moments when Blumenthal misrepresented his military service. On several other occasions, however, Blumenthal accurately stated that he did not serve in Vietnam. Sometimes, he even gave conflicting accounts during the same speech.

Despite the controversy, Connecticut voters still support Blumenthal. In addition to showing a huge lead for Blumenthal, the poll also reveals that 57% of voters describe the Vietnam story as "not too important" or "not important at all." I predicted this outcome when the New York Times story first broke. My experience with Connecticut voters leads me to conclude that they are generally unmoved by gotcha politics.

Elena Kagan Gets a Boost from Justice Scalia

To the extent that Elena Kagan was vulnerable to conservative arguments that she lacks judicial experience, the Supreme Court nominee recently received a big boost from Justice Antonin Scalia -- one of the Court's most conservative members. During a speech at Catholic University Columbus School of Law in Washington, DC, Scalia praised Kagan's lack of judicial experience. Jake Tapper has the details. Here is a snip:

“When I first came to the Supreme Court, three of my colleagues had never been a federal judge,” said Scalia who joined the Court in 1986 after being nominated by President Reagan. “William Rehnquist came to the Bench from the Office of Legal Counsel. Byron White was Deputy Attorney General. And Lewis Powell who was a private lawyer in Richmond and had been president of the American Bar
Association.”

“Currently, there is nobody on the Court who has not served as a judge --indeed, as a federal judge -- all nine of us,” he continued. “. . . I am happy to see that this latest nominee is not a federal judge – and not a judge at all.”

President Obama Seeks New Line-Item Veto Power

According to the Washington Post, President Obama wants Congress to pass a new line-item veto statute. Although the article provides only a few details about the proposal, it seems that the president's plan would not really have much force. It is only a line-item veto symbolically.

Under the plan, the president would have 45 days to send a list of rescissions to Congress expressing disagreement with items in budget legislation. Congress would then have 25 day to accept or reject the rescissions.

In 1998, the Supreme Court invalidated a line-item veto statute enacted during the Clinton administration. That law allowed the president to strike spending or tax benefit provisions from duly enacted legislation. According to the Court, the law impermissably allowed the president to repeal legislation -- which violates the separation of powers doctrine. Obama's proposal, however, would not allow the president to strike any part of existing legislation, which should immunize it from judicial invalidation. But this fact also makes Obama's proposal fairly weak.

Who Benefits from Deal on Don't Ask, Don't Tell?

Several media outlets are reporting that a "deal" has been reached on legislative efforts to repeal Don't Ask, Don't Tell. According to the New York Times, the deal would allow legislation proposed in the House by Representative Patrick Murphy and in the Senate by Joe Lieberman to proceed.

Nonetheless, the legislation would not take effect until after the Department of Defense completes its study on the effects of lifting the antigay ban. Also, the White House would have to confirm that repealing DADT would not harm military effectiveness.

Definitely a Compromise
So - a deal has been reached to repeal DADT after Obama determines whether the ban should in fact be lifted. This is indeed a compromise. It accomplishes several things. Democrats in Congress can claim that they ended DADT, which could score them points in midterm elections (for those who represent liberal states). Nothing tangible, however, will happen to DADT until after the midterm elections, which should protect moderates, including Obama. President Obama's one-year study of the matter will proceed uninterrupted, but he can say (again) that he is on-board with lifting the ban and that he accepts the legislation. Mainstream gay rights groups can claim victory and celebrate their access to the White House, which could lead to new donations. And all can live happily ever after. . . .

Update: I have also blogged on this issue for Concurring Opinions.

DC Rumor Mill Alert: Hillary Clinton to Become Sec. of Defense

In his latest Politico blog post, Ben Smith suggests that Hillary Clinton might replace Robert Gates as Secretary of Defense. It was already ironic enough that Obama picked Clinton as Secretary of State, given his campaign stance on her foreign policy. This rumor, if true, would simply add to the irony.

Rand Paul on the Americans With Disabilities Act Revisited

Last week, I broadly analyzed Rand Paul's take on civil rights -- including the Civil Rights Act of 1964, the Americans With Disabilities Act, and the effort to repeal Don't Ask, Don't Tell. I am happy to see that other media are finally showing how flawed Paul's perspective is regarding areas of law outside of the Civil Rights Act of 1964.

Specifically, several commentators have analyzed Paul's take on the ADA. See, e.g., When Extremism and Ignorance Collide and Rand Paul's civil-rights defense distorts provisions of disabilities law - Yahoo! News.

Why Rand Paul's "Defense" Is Flawed

Faced with growing controversy over his position on civil rights, Paul Rand has stated that he would not seek to repeal the Civil Rights Act of 1964. Rand created a stir when he stated that he believed that the federal government should not prohibit discrimination by private companies. By stating that he would not seek to repeal the legislation, Rand hopes to defend his reputation and his senate campaign.

Rand's defenders have added another dimension to his defense, which Rand touches upon subtly. Rand's defenders stress that he is not a "racist." Also, Rand, in his own defense, says that he opposes racial discrimination, which is another way of saying "I'm not a racist." Neither of these defenses helps Rand, however.

Most of Rand's critics never even said or implied that he would seek to repeal the Civil Rights Act of 1964. Honestly, I have not seen any argument that even implies he would seek to repeal the legislation. Also, during the scattered interviews during which Rand stated his opposition to regulation of private companies, the interviewers did not contend that he wanted to repeal the civil rights statute. Instead, they asked him whether he would have voted for the law. Rand's view of civil rights is troubling whether or not he has the courage to advocate repeal of the legislation.

Rand's position on civil rights is disturbing because it indicates that he probably would not prefer strong enforcement of civil rights laws against private companies and that he definitely would not favor extending these laws to other groups, such as gays and lesbians. Agreeing that the law should remain in place does not mean that he also wants the federal government to prosecute vigorously civil rights violations.

Paul's effort to say he is not a racist is also irrelevant. Regardless of Paul's personal views about persons of color, his ideas about the role of government in the creation of a just society are extreme and dangerous. Personally, I do not care whether Paul is a bigot or not. How he votes on important issues like civil rights matters much more.

Paul has given the country a look at his views on these important issues. Criticizing him is a highly appropriate response.

Uh Oh: Rand Paul Cancels Scheduled Appearance on Meet The Press

Beset with scathing criticism of his position on civil rights, Rand Paul has canceled a scheduled appearance on Meet the Press. Paul generated a lot of controversy this week by repeatedly saying he opposes federal law that prohibits discrimination by private companies. Rand has condemned the media for the stir that his own controversial comments have caused.

Rand Paul on BP Oil Spill: "Sometimes Accidents Happen"

Rand Paul is working hard to convince the country that he is not ready for primetime (or daytime, for that matter). Yesterday, the media feasted on Paul's admission that he disagreed with laws prohibiting private companies from engaging in racial discrimination. Today, Paul is tackling environmental issues, and the results are equally troubling.

Think Progress reports that during an interview with Good Morning America, Paul said that Obama's criticism of BP for its handling of the Gulf of Mexico oil spill was "un-American." He also contended that "maybe sometimes accidents just happen." Scientists, however, have criticized BP for not misrepresenting the size of the spill, which seems worthy of presidential condemnation as well.

Paul also analogized the oil spill to a recent coal mine tragedy in his home state of Kentucky that killed two workers. Paul said described this as just another "accident." The Dotiki mine, however, received numerous citations for falling debris from the Mine Safety and Health Administration. Although experts say that repeated citations indicate a significant problem, the government failed to characterize the violations as dangerous. Toughness, however, seems highly appropriate when corporate behavior threatens lives and the environment.

Rand Paul on Gay Rights and Persons With Disabilities

Perhaps race is the most explosive social issue. Rand Paul's admission that he disagrees with the application of antidiscrimination laws to private companies has set off a firestorm. After an onslaught of criticism, Rand has issued a statement saying that he would not seek to repeal the Civil Rights Act of 1964. Of course, this is somewhat of a strawman argument. During the numerous interviews that led to this controversy, Paul never said he wanted to repeal the legislation, nor did anyone ask him whether he wanted to do so.

I doubt that Paul's "retraction" will settle this issue. Even if it does, this should not preclude scrutiny of some of the other areas of discrimination that Paul addressed during those interviews.

Gay Rights
During an interview with the Louisville Courier-Journal, Paul said that Don't Ask, Don't Tell has "worked relatively well." DADT, however, has resulted in the discharge of thousands of qualified members of the armed forces.

Paul also described DADT as a "nonfraternization policy," which is patently false. Military rules certainly prohibit sexual relations among troops, but Don't Ask, Don't tell prevents any openly or known gay or lesbian person from serving in the military, regardless of whether the individual has violated nonfraternization rules. Paul seems to equate being gay with an individual having sex with his or her colleagues. This is a highly flawed position.

Americans With Disabilities Act
Paul appeared on NPR the day following his primary victory. During the interview, Paul reiterated his arguments regarding the Civil Rights Act of 1964. He also discussed the Americans with Disabilities Act, which prohibits discrimination against persons with disabilities in places of public accommodation, employment and other settings.

With respect to the ADA, Paul said that:

I think that we should try to do everything we can to allow for people with disabilities and handicaps. You know, we do it in our office with wheelchair ramps and things like that. I think if you have a two-story office and you hire someone who's handicapped, it might be reasonable to let him have an office on the first floor rather than the government saying you have to have a $100,000 elevator. And I think when you get to the solutions like that, the more local the better, and the more common sense the decisions are, rather than having a federal government make those decisions.

Paul's portrayal of the ADA is terribly misleading. The statute does not even apply to the setting he describes, unless the building is a shopping center, airport or other transportation facility, or a medical office. As summarized by Department of Justice materials, ADA regulations include the following exemption regarding elevators in buildings:

This section does not require the installation of an elevator in a facility that is less than three stories or has less than 3000 square feet per story, except with respect to any facility that houses one or more of the following:

(i) A shopping center or shopping mall, or a professional office of a health care provider.

(ii) A terminal, depot, or other station used for specified public transportation, or an airport passenger terminal (italics added). . . .

In other words, Paul creates a frightening and misleading hypothetical in order to trash federal antidiscrimination law.

Final Take
Although Paul has tried to run away from his comments about race, he has not even begun to address his troubling statements concerning gay rights and the ADA. The media should not let him off the hook regarding these important issues.

For more on this issue, see: Rand Paul and Civil Rights: MISERABLE and A Conservative Defense of Rand Paul: He Is Telling the Truth; He's Not a Racist.

A Conservative Defense of Rand Paul: He Is Telling the Truth; He's Not a Racist.

Rand Paul is facing tough scrutiny over his views regarding the Civil Rights Act of 1964. Paul has stated in several interviews that he opposes laws that prohibit discrimination by private entities. He would limit antidiscrimination laws to governmental or "publicly funded" entities.

These statements have generated a lot of criticism. One conservative writer, however, has attempted to defend Paul. Washington Post writer David Weigel, for example, praises Paul for his honesty:

He told the truth about his stance on the Civil Rights Act. I've posted the video and transcript below the fold, because I find it fascinating to watch Paul stand by his philosophical and legal stance and refuse to dissemble in a way that would, you know, get people to stop accusing him of some archaic form of racism.

What a ringing endorsement. I too have said that I believe Paul is probably speaking honestly. Nevertheless, I believe his views are "miserable" (for many reasons).

Weigel also defends Paul against a strawman argument. He criticizes people who call Paul a "racist." Although it is likely that some people have called Paul a racist, Weigel does not cite to any of those arguments. More importantly, this is not a necessary element of a critique of Paul's position. Regardless of what Paul feels in his heart about race, his policy perspective on civil rights would have a disastrous effect. This is the most important issue from a policy perspective.

Finally, Weigel provides a link to a Rachel Maddow interview during which Paul discusses his views on civil rights (see below). Paul claims that only one of the ten substantive provisions in the Civil Rights Act of 1964 regulates private behavior. That is absolutely false. One provision bans discrimination in privately owned places of public accommodation -- like hotels and restaurants. Another provision bans discrimination by employers (private or governmental). A third provision bans discrimination by entities that receive federal funding (whether they are governmental or private). It seems that Paul might agree with this provision.

Several of the other provisions create and strengthen enforcement mechanisms -- including those that respond to private discrimination. The remaining provisions address various forms of governmental discrimination. Although he attempts to reduce his opposition to one singular provision, Paul's argument would negate a significant portion of the Civil Rights Act of 1964. That is disturbing regardless of his personal feelings about persons of color.

For more discussion of this issue, see: Rand Paul and Civil Rights: MISERABLE and Rand Paul on Gay Rights and Persons With Disabilities.


The Maddow interview is posted below. Paul performs miserably:

Visit msnbc.com for breaking news, world news, and news about the economy

Now, New York Times In Flap Over Blumenthal's Vietnam Comments

How quickly things can change. Earlier this week, the New York Times ran a bombshell article, which revealed that Connecticut Attorney General Richard Blumenthal has misstated his military record. During a filmed presentation (and on other ocassions), Blumenthal said that he served in Vietnam, but he never did.

The article created quite a stir. Democratic politicians, however, continue to support Blumenthal, and the controversy might not cost him the upcoming senate election.

The New York Times, however, is now receiving criticism. Apparently, the New York Times failed to disclose potentially exculpatory statements by Blumenthal from the same taped speech in which he falsely stated that he served in Vietnam. During the taped speech, Blumental said that he served during Vietnam in the Marine Corp. reserves; later, however, he referenced his service in Vietnam. The New York Times only presented the most damaging statement.

It is unclear why Blumenthal would make potentially contradictory statements during the same speech (perhaps he truly misspoke). It is equally baffling that the New York Times would eliminate such an important part of the speech.

The New York Times, however, has defended its failure to present the entire context, stating that the earlier portion of the speech is not necessarily exculpatory ("during" does not exclude "in"). To some extent, this is true, but readers should have had the opportunity to evaluate the entire context of the story -- not simply the most damning parts.

Rand Paul and Civil Rights: MISERABLE

Hello, Tea Party. Welcome to the General Election
The media continue to repeat the flawed headline that a deep wave of resentment against incumbents exists. I have argued (as have others), that incumbents who are in jeopardy are vulnerable due to ideological reasons -- rather than mere incumbency. Likewise, many of the upstart candidates who have been successful represent an ideological alternative to the incumbent or opposing candidate. Rand Paul's success in Kentucky is a great example of this theory in action.

Paul won the Republican senate primary by catering to the political demands of the Tea Party movement. He captured the Tea Party and other conservative voters by embracing socially and fiscally conservative opinions. Although he portrayed himself as an "outsider," his main substantive message was conservatism.

Paul and Civil Rights
Now that primary has ended, Paul faces broader scrutiny. Some commentators have argued that Democrats actually prefer Paul as the Republican nominee because they believe his ideas will not appeal to a majority of Kentucky voters.

Several political commentators have started to examine some of Paul's policy positions (see here, here, here, here, and here). As the general campaign begins, Paul is particularly vulnerable on civil rights issues. His views on this subject could place him outside of the mainstream in Kentucky.

Gay Rights
During an April 2010 interview with the Louisville Courier-Journal, Paul said that Don't Ask, Don't Tell, the military's anti-gay policy, "worked relatively well." Paul also repeatedly described DADT as a "nonfraternization policy," which is patently false. Paul likened DADT to other military policies, such as rules banning adultery or campaigning in uniform. Paul, however, said that he liked recent "modifications" to the enforcement of DADT, such as the decision not to pursue individuals who are outed by third parties.

Civil Rights Act of 1964
During the same April 2010 interview with the Louisville Courier-Journal, an interviewer asked Paul whether he would have voted for the Civil Rights Act of 1964. In response, Paul said "I like the civil rights act" because it ended discrimination in "public domains." Paul, however, said that he does not agree with telling "private" businesses what they can or cannot do. Paul said that the government should only concern itself with discrimination in settings that are "publicly funded."

Paul's logic would wipe out a substantial portion of the Civil Rights Act of 1964. The statute certainly addresses discrimination by publicly funded entities, but it also prohibits discrimination in private employment and privately owned places of public accommodation (e.g., hotels and restaurants).

One interviewer asked Paul a loaded question -- whether in his view, private businesses could deny service to Dr. Martin Luther King. Paul said that standing up for freedom means accepting people's "abhorrent" views and "behaviors" (translation: yes).

Paul also made the tired assertion (which began in slavery) that racial justice and individual liberty are opposing concepts. Congress, the Supreme Court, the President, and a majority of the American public generally reject this argument.

The Louisville Courier-Journal had harsh words for Paul. The newspaper published an editorial that refused to endorse either Paul or his Republican challenger Trey Grayson on the grounds that both candidates are too extreme. With respect to Paul and civil rights, the editors made the following observation:

The trouble with Dr. Paul is that despite his independent thinking, much of what he stands for is repulsive to people in the mainstream. For instance, he holds an unacceptable view of civil rights, saying that while the federal government can enforce integration of government jobs and facilities, private business people should be able to decide whether they want to serve black people, or gays, or any other minority group. He quickly emphasizes that he personally would not agree with any form of discrimination, but he just doesn't think it should be legislated.

NPR Interview: More Civil Wrongs
Yesterday (the day after his primary victory), Paul spoke on NPR. During the interview, Paul said he opposed "institutional racism." Paul also said that he believes he would have marched with Dr. King, which led the interviewer to ask in disbelief: "You would have marched with Martin Luther King but voted with Barry Goldwater?"

Paul also said that many problems with discrimination could be handled locally. Of course, local and federal laws prohibit discrimination. The most despicable aspect of this comment, however, is that it shows either deep ignorance or callousness regarding the historical context in which Congress enacted the Civil Rights Act of 1964. At that time, many local governments, particularly in the South, were not enforcing civil rights, and many of them were actively facilitating, mandating, and engaging in racial discrimination. Paul's "local" solution argument is extremely dangerous from an historical perspective.

Paul's local argument also contradicts his stance that discrimination is an individual right. "Infringing" this "right" does not become permissble when states do it rather than Congress.

Final Take
As November approaches, Paul will receive more scrutiny. His ability to handle topics beyond the rhetoric of fiscal conservatism will face additional testing. So far, Paul has performed miserably.

For more analysis of this issue, see: A Conservative Defense of Rand Paul: He Is Telling the Truth; He's Not a Racist and Rand Paul on Gay Rights and Persons With Disabilities.


UPDATE: For an interesting argument that explores in greater detail how Paul's position contradicts libertarianism, see: More on Rand Paul, Civil Rights and Balancing Choices over Liberty.

Chicago CVS Worker Kills Shoplifter Over Toothpaste, While Cop Watches

Now that's a weird headline. Here's a blurb from the Findlaw article:

The Chicago police and CVS Pharmacies are under fire after a CVS manager chased a shoplifter and choked him to death, even as an off-duty sheriff's officer stood on the scene with a loaded handgun drawn at her side. Anthony Kyser, 35, was killed after stealing toothpaste and crayons from a CVS store. The officer shouted "stop resisting," but did not otherwise intervene.

Witness statements indicated that Anthony Kyser cried, "I can't breathe, I can't breathe!" while he was held in a chokehold for several minutes. The Chicago Police have confirmed that a Cook County sheriff's officer was present, however police did not identify the name of the officer or the CVS manager.

The off-duty officer left the scene before uniformed officers arrived, and the medical examiner found that the death was a homicide. Video footage shows the officer holding a gun at the victim, while the CVS worker choked him to death. Still, police have declined to file any charges in the case.

Very Little Evidence of Voter Anger Towards Incumbents

Many news outlets contend that the results of Tuesday's elections indicate voter anger against incumbents (see, e.g., here, here, here and here). But it is not clear that this is true.

Because no exit poll data exist, no one can truly document that a substantial number of voters acted out of hostility towards incumbents -- or even towards perceived "Washington insiders." Furthermore, other factors, such as ideology, were clearly relevant in some of the contests. Moreover, despite the pervasive rhetoric regarding an anti-incumbent fervor, only one incumbent actually lost a reelection bid yesterday.

Pennsylvania
In Pennsylvania, Joe Sestak defeated veteran Senator Arlen Specter in the Democratic primary. Specter is the only actual incumbent politician who lost a re-election bid on Tuesday.

Specter's defeat, however, probably has a lot to do with him running for the first time as a Democratic candidate. In 2009, Specter switched to the Democratic Party after it became clear that he would probably lose the Republican primary -- due to his support for the stimulus package.

Although Sestak characterized Specter as a career politician, Specter's previous party affiliation and political record probably played a large role in his defeat. A political party's base typically has more power in primaries than in general election contests. Specter simply could not convince faithful Democrats to choose him over a lifetime Democrat. This does not mean that Specter's incumbent status was irrelevant to his defeat, but it probably means that the media commentators are overstating the significance of incumbency to his loss.

Pennsylvania also held a special election to fill the House seat of the late John Murtha. Democrats, the incumbent party, kept this seat. Mark Critz, a former aide to Murtha, defeated challenger Tim Burns.

Kentucky
In Kentucky, Rand Paul won the Republican senate primary, defeating Trey Grayson. Paul, the son of Texas representative Ron Paul, is a doctor, while Grayson is the Kentucky Secretary of State. Neither candidate was even an incumbent -- although Kentucky Senator Mitch McConnell endorsed Grayson. This has led many commentators to describe Paul's victory as a defeat of the Washington establishment.

The Kentucky Republican contest, however, likely turned primarily on ideological grounds. The Tea Party movement, which has more pull among Republican primary voters than among the general electorate, endorsed Paul, who ran to the right of Grayson. Some Democrats even wanted Paul to win, believing that the majority of voters in the state will not endorse his political views in November.

On the Democratic side, Attorney General Jim Conway defeated Lt. Governor Daniel Mongiardo in a tight senate primary. This contest simply does not fit within the anti-incumbent narrative, and most media have not tried to describe the race in those terms.

Oregon
In Oregon, incumbent Representatives David Wu and Ron Wyden won their primary elections by wide margins. Incumbent House Democrat Kurt Schrader was unopposed. No incumbents lost in Oregon.

Arkansas
Arkansas provides the only other possible evidence of anti-incumbent fervor. Democratic Senator Blanche Lincoln faces a run-off election against challenger Lt. Governor Bill Halter. Lincoln had support from former President Bill Clinton and President Obama. Lincoln, however, could not get a majority of the votes in the 3-way contest -- although currently she has won more votes than her challengers.

This race does not represent the defeat of an incumbent because Lincoln has not lost. Furthermore, the results have a lot to do with ideology and political organizing. Halter ran to the left of Lincoln, who became the target of liberal anger due to her centrist positions. Labor unions, in particular, fought hard to defeat Lincoln by pumping a substantial amount of money into the state. These factors undoubtedly influenced the results of the election.

On the Republican side, a 9-year House Republican defeated 7 challengers to take the Republican nomination. This race simply does not substantiate the popular anti-incumbent narrative, nor does it prove voter anger against establishment candidates. The "Washington insider" won.

Final Take
If very little evidence connects Tuesday's election results with anti-incumbent fervor, why are so many media outlets running with the idea? Well, this narrative probably sounds more exciting than the truth. It is also easier to explain -- even if it is unsupportable by facts. Many persons in the news media have proven their ability to trade truth for excitement in the past. There they go again.

Update: Other bloggers have expressed dissenting opinions on this subject. See: The Death Of Independence and Anti-Incumbency Not the Issue.

Blumenthal In Flap Over Vietnam Deceit, But Will It Hurt Him?

Richard Blumenthal, the Connecticut Attorney General and Democratic candidate for U.S. Senate, got into a bit of hot water today. The New York Times revealed that Blumenthal has repeatedly said that he served in Vietnam. Blumenthal, however, never served in Vietnam, and he apparently benefited from calculated efforts to avoid deployment. Additional media accounts, however, show Blumenthal on several other occasions being honest about his past military service, including the fact that he did not serve in Vietnam.

Although this story has occupied a lot of space in the media today, it is unclear whether it will cost Blumenthal the race. Connecticut voters seem to shrug off these things -- even though a colleague of mine close to politics in the state said that corruption and lying are two different things. Nonetheless, I am not sure if voters will parse the difference, particularly in light of the documented instances when Blumenthal admitted that he never served in Vietnam and the full support he has received from other Democrats. Greg Sargent seems to agree: The Plum Line - Richard Blumenthal will survive.

Update: The New Haven Register has already published an editorial that defends Blumenthal.

I Didn't Know So Many People Cared About Beauty Pageants

I thought beauty pageants were an outmoded relic. Apparently, they still spark passions. Rightwing bloggers have become unhinged because the Miss USA crown went to Rima Fakih, an Arab-American from Detroit. For the record, I was seriously baffled in 2008 when liberals had a meltdown over Miss California's conservative views regarding same-sex marriage.

Another Bush-Like Proposal From the Obama Administration?

According to New York Times sources, the Obama administration is floating a proposal to delay presenting terrorism suspects to judges for an initial hearing. The initial hearing is a formal legal process during which a criminal suspect comes before a judge and learns of the charges against him or her and about the right to remain silent and to have an attorney. A judge could also set bail or require the detainee to remain incarcerated.

Recently, Eric Holder said that the Obama administration would ask Congress to change exceptions to the Miranda rule, which would likely violate current Supreme Court doctrine. The New York Times reports that changes to Miranda and to the initial hearing process could come in the same legislative proposal:

President Obama’s legal advisers are considering asking Congress to allow the government to detain terrorism suspects longer after their arrests before presenting them to a judge for an initial hearing, according to administration officials familiar with the discussions.

If approved, the idea to delay hearings would be attached to broader legislation to allow interrogators to withhold Miranda warnings from terrorism suspects for lengthy periods, as Attorney General Eric H. Holder Jr. proposed last week.

The devil is always in the details, but on the surface, this sounds does not sound good.

Black Harvard Law Professor Charles Ogletree Defends Kagan, But Questions Remain

Charles Ogletree recently posted a passionate defense of Elena Kagan on The Root. Ogletree is a former professor of and an adviser to President Obama.

Several commentators have criticized Kagan's record on racial and gender diversity at Harvard, especially with regards to faculty hiring. I thank Ogletree for his letter, because it provides insight into Kagan's time at Harvard. I am very fond of Ogletree's work as a scholar, and I take his views quite seriously. For the reasons stated below, however, his letter does not answer all of the questions I have regarding Kagan's approach to civil rights.

Ogletree's Arguments
Ogletree makes several points. He says that Kagan was supportive of hiring more women and persons of color at Harvard, and that she boosted the percentage of students of color at the school. She also took the Charles Hamilton Houston Chair, named after the famed civil rights attorney and rejected a chair named in honor of a slaveowner. He also argues that Thurgood Marshall, for whom Kagan clerked, spoke of her in glowing terms.

I have no reason to doubt Ogletree's personal observations. I am certain that Kagan, like all Deans, has expressed zealous support for faculty and student diversity. Here is why Ogletree's article does not alleviate all of the concerns I have.

First, nowhere in his essay does Ogletree argue that Harvard's numbers on faculty diversity are great (or even satisfactory). They are, in fact, abysmal. Critics are focusing on the numbers because they are so bad. Kagan's defenders should at least acknowledge this point.

Second, the battle over faculty diversity at Harvard and other law schools has a long history. Concerned students complain, protest, and criticize hiring. Deans form committees (as Kagan did) to seek bright and talented scholars of color. They say that they are doing their best. They may even make some offers, But the numbers are slow to change -- if at all.

Although I doubt that Ogletree intended this, his explanation sounds like the typical things that administrators tell students to explain poor records of diversity. Schools (and law firms) across the country routinely say that they are "committed" to diversity, regardless of their actual hiring records.

I remember my time at Yale Law School. The school had repeatedly given faculty offers almost exclusively to white men, turning down many bright and talented women. Students worked passionately on the issue, along with some faculty members, but the numbers remained the same.

Years later, things have changed tremendously at Yale. Two male deans substantially increased the number of women hired. During Harold Koh's time as Dean, 1/2 of the professors hired were women. These numbers are impressive for most schools (although at my school, all of the candidates hired last year were women, and no one blinked). Harvard and Yale compete for the same professors. Harvard, however, trailed Yale substantially in terms of faculty diversity.

Third, Kagan's decision to take the Houston chair is largely symbolic. Although it is a kind gesture, it cannot replace concrete change.

Fourth, Although Ogletree offers anecdotes from his own personal experiences with Kagan, many liberals want to hear her own views on civil rights issues and to see if she has a trail of accomplishment in this area. The fact that her scholarship and policy work do not reveal much information in this regard will keep the Harvard data in focus.

Other candidates on the Supreme Court shortlist (e.g., Pam Karlan) have long records of actual accomplishment regarding civil rights. If Kagan were in the same position, I believe that liberals would not feel as uncertain about her.

Finally, Ogletree does not discuss matters outside of Harvard that have come to light. For example, Politico reports that Kagan urged President Clinton to ease his effort to eliminate the unjustifiable sentencing disparity between crack and powder cocaine. Civil rights and criminal law scholars have long condemned the disparity on the grounds that it lacks a scientific basis and it produces a nasty racial disparity. Ogletree has devoted his life to solving problems of racism and class oppression in the criminal justice system. I wonder how he would respond to Kagan's work on this particular issue.

Three Reasons Why Elena Kagan Is No Thurgood Marshall

When President Obama introduced Elena Kagan to the public, he attempted to link her to the rich judicial and activist legacy of the late Thurgood Marshall. Obama said that Marshall, for whom Kagan clerked, taught the Supreme Court nominee to appreciate how the law impacts people:

But while Elena had a brilliant career in academia, her passion for the law is anything but academic. She's often referred to Supreme Court Justice Thurgood Marshall, for whom she clerked, as her hero. I understand that he reciprocated by calling her "Shorty." (Laughter.) Nonetheless, she credits him with reminder her that, as she put it, behind law, there are stories -- stories of people's lives as shaped by the law, stories of people's lives as might be changed by the law.

Despite the rhetorical linkage, liberals should not draw any comfort from the effort to connect Kagan and Marshall. Here's why.

First, when President Lyndon Johnson nominated Marshall to the Supreme Court, the public did not have to guess how he would approach the Constitution or questions of inequality. Marshall had already demonstrated that he was a tireless advocate of equality. Marshall believed that the formal guarantee of "equal protection" meant nothing if society embraced, tolerated or mandated oppression. Kagan's stance on the most pressing issues -- particularly surrounding race and poverty -- remains a mystery. For that reason, she is no Thurgood Marshall.

Second, although Kagan's paper trail is light, some details are emerging. The little that exists regarding Kagan's views on race are not inspiring from a progressive perspective.

For example, Politico reported yesterday that Kagan clashed with persons in the Clinton administration who pushed for him to have a freestanding commission to deal with the issue of race. Kagan dismissed the commission as a feel-good effort.

On the surface, Kagan's dismissal of the commission could support a positive racial agenda; perhaps she preferred substantive reforms. Kagan, however, also rejected substantive racial reforms. For example, Kagan (and others) advised Clinton to abandon his efforts to eliminate the 10:1 federal sentencing disparity for crack and powder cocaine. This disparity is not supported by science, and it has an extremely dramatic racial effect upon Latinos and African-Americans. Liberals and progressives have long condemned the disparity, and the Sentencing Commission recommended that Congress eliminate it. Kagan, however, said that Clinton should scale down the effort to get rid of the disparity due to the popularity of tough on crime policies.

Christopher Edley, the Dean of the University of California at Berkeley Law School, worked with Kagan at Harvard and in the Clinton administration. Edley had an important role in advising Clinton on issues of race and civil rights. Edley says that "[t]here were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed." Marshall, by contrast, was not centrist or center-right on issues of race.

Third, law clerks do not become the judges for whom they clerked. It is pretty bizarre to assume that clerks will share the specific ideology or constitutional approach of the judges that employed them. Law clerks approach the law from their own perspectives, shaped by their own experiences, goals and ideology. This applies to Kagan as well. Indeed, Kagan has said that she disagreed with Marshall on big issues.

Charles Ogletree, a professor at Harvard Law School sums up this point nicely: “It’s absurd to compare Elena Kagan’s judicial philosophy to Thurgood Marshall’s philosophy. . . .The reality is that Elena Kagan learned a lot from Justice Marshall, but she will not be overly influenced by Marshall or anyone else. She is her own person.”

Final Take
The Marshall link is simply rhetorical gloss designed to make Kagan attractive to individuals who might doubt her liberal credentials. Substantively, the tie means nothing. Liberals should not conflate symbols with substance.

None of this means that Kagan is unqualified or that would not take liberal positions on issues of race. I look forward to hearing more about her.

See also: Why Elena Kagan is no Thurgood Marshall.

The Kagan Memos: How Will Progressives React?

Politico has reviewed several policy memos that Elena Kagan wrote in her capacity as an adviser to President Clinton. The memos are held at Clinton Presidential Library in Arkansas.

It is difficult to use the memos to predict how Kagan would decide cases as a judge, because she was advising Clinton to do things largely as a part of political strategy. Nonetheless, because Kagan has not expressed a wide range of ideas in her legal scholarship, the memos, along with other materials and the confirmation hearings, will inevitably serve as a rough method for trying to understand her stance on social and political questions.

Politico's analysis will certainly raise concerns among many progressives. Here are some highlights.

* Kagan advised Clinton to reject a proposal to expand Medicare coverage of abortions. At the time, the health plan covered abortion when the life of the mother was at risk, but pro-choice advocates wanted to loosen the restriction. The expanded coverage would have included cases of rape or incest. Kagan advised Clinton to reject this option.

* Kagan also advised Clinton to support an amendment to a "partial-birth" bill that would allow the procedure only when not doing so would "risk grievous injury" to the mother's health. Congress eventually passed a bill without a health exception, which Clinton vetoed. The grievous injury language was probably unconstitutional under then-existing doctrine. The Supreme Court later invalidated a Nebraska partial-birth law that lacked a health exception, and its abortion cases had forcefully mandated that abortion bans include a general health exception (not limited to grievous injury). After O'Connor retired, however, the Court upheld a federal ban passed during the Bush administration, even though it lacks a health exception.

* Kagan also advised Clinton to retreat from efforts to reduce the sentencing disparity between crack and powder cocaine. The Federal Sentencing Commission recommended invalidating it, and critics had long pointed out that the disparity was not scientifically justifiable and that it led to a pronounced racially discriminatory effect. Kagan, however, advised Clinton to maintain the status quo: “Our more nuanced message will not sell as well as the ‘tough on crime’ opposition message in an age of sound bites. . . .”

* Also related to crime, "[o]ne memo . . . includes easy-to-sell policy ideas" including "broadening police powers to 'stop and frisk suspicious characters' and putting a 'cop in every school.'"

Is the United States Operating a "Secret Prison" in Afghanistan?

According to the BBC, the International Committee of the Red Cross has confirmed that the United States is operating a secret prison in Afghanistan and that at least one detainee has died from abuse at the facility. The US denies that it is operating such a facility.

For the full story, see: BBC News - Red Cross confirms 'second jail' at Bagram, Afghanistan.

Courting Kennedy

President Obama and other supporters of Elena Kagan have argued that she has the capacity to form coalitions with conservatives, especially Justice Anthony Kennedy -- the Supreme Court's lone swing vote. There are a number of underlying assumptions to this argument, including that Kennedy's opinions are malleable on a significant number of issues and that a colleague on the bench can push him on those malleable questions.

There is certainly some legitimacy to these assumptions. Political scientists who research the Court have found that ideological moderates are among the most malleable members of the bench. Furthermore, Sandra Day O'Connor and David Souter most likely influenced Kennedy in the influential case Planned Parenthood v. Casey, which upheld Roe v. Wade -- even as it opened the door to far more intrusive regulations of abortion. These observations, however, do not demonstrate that Kagan or any other future justice can wield influence upon Kennedy (or other conservatives).

First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O'Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy's vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against "partial-birth" abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy's own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy's opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can "flip" Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the "best argument" combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that "conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room." Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.

Note: Other legal commentators have made similar arguments. See:

Is Kennedy Easily Manipulated

Asking "Who can sway Kennedy?" is no way to pick Justice Stevens' replacement.

Are Harvard Law School Hiring Statistics Relevant to Elena Kagan's Nomination?

Last week, Salon.com ran a story regarding the low number of persons of color and women hired by Harvard Law School during Elena Kagan's tenure as Dean. Despite a surge in new hiring by the law school, only a few women and one person of color were hired as full-time faculty during Kagan's deanship. This essay argues that liberals and progressives should consider these statistics relevant to their analysis of Kagan's nomination.

Liberals and Progressives Have Long Considered Racial Diversity Valuable to Higher Education
Liberals and progressives have a long history of advocating racial diversity as an essential dimension of higher education.  The Supreme Court first recognized diversity in higher education as a "compelling" state interest in the 1978 ruling Regents of the University of California v. Bakke.  25 years later, it affirmed the importance of this interest in the ruling Grutter v. Bolinger, which involved a challenge to an affirmative action policy at the University of Michigan Law School. The Court embraced diversity as a necessary part of the educational process, and liberals offered tremendous praise for the ruling.

It is unclear whether the racial and sex statistics at Harvard Law School reflect a lack of commitment to diversity by Kagan.  If they do, then this should absolutely concern liberals and progressives. Because Kagan has never written about affirmative action or racial diversity in an extended fashion, the only way that the public can evaluate her commitment to diversity is to place this issue on the agenda during her confirmation hearings.

Liberals and Progressives Are Suspicious of Hiring Practices That Have a Disparate Impact Against Women and Persons of Color
In addition to praising diversity, liberals and progressives are suspicious of hiring practices that disparately affect women and persons of color. In the 1971 decision Griggs v. Duke Power Co., the Supreme Court held that federal employment discrimination law prohibited not only explicit policies that discriminate on the basis of race or sex, but also facially neutral practices that have a clear discriminatory effect. Even if the policies pursue a legitimate business purpose, Court doctrine allows plaintiffs to demonstrate the availability of a less discriminatory method of achieving the valid goal.

Decisions by the Rehnquist Court effectively nullified the impact standard, but in 1991, Congress made that rule an explicit part of federal law by amending the civil rights legislation. Today, the impact doctrine remains a part of antidiscrimination law -- although it is often extremely difficult to satisfy.

Liberals and progressives have fought to retain the impact standard.  In fact, they recently defended the standard during the confirmation hearings of Justice Sonia Sotomayor.

In Ricci v. DeStefano, Sotomayor was part of a 3-judge panel of the Second Circuit that upheld a decision by the New Haven fire department to withdraw a test used to allocate promotions. The test allocated all but one of the promotions to white employees. Experts testified that other testing methods could have produced a less discriminatory result.

The Second Circuit held that New Haven could withdraw the test because it was trying to avoid liability imposed by the disparate impact standard which liberals have fought to retain in federal antidiscrimination law. Conservatives made Ricci a centerpiece of Sotomayor's confirmation hearings, arguing that the ruling showed that she was biased against white plaintiffs.  Although the Supreme Court reversed the Second Circuit ruling on predictable 5-4 ideological grounds, liberals and progressives defended the Second Circuit ruling as a reasonable interpretation of Court doctrine.

The same factors that caused liberals and progressives to defend Sotomayor's ruling in Ricci, should lead them to question Harvard's hiring statistics.  Even if no particular plaintiff has a discrimination claim against Harvard Law School, statistical patterns of discrimination are meaningful to liberal and progressive politics. Accordingly, it is not unconscionable for liberals and progressives to ask Kagan about her commitment to diversity and to the enforcement of antidiscrimination law. In fact, such a line of inquiry is consistent with liberal and progressive politics and legal theory.

Excuses
Well meaning liberals have attempted to dismiss Harvard's hiring statistics by arguing that other schools have similar numbers.  This is a really bad argument. The fact that other schools have questionable records on race and sex does not excuse Harvard (or Kagan).

Others have pointed out that deans do not dictate hiring; thus, holding Kagan responsible is flawed. I agree that deans do not typically dictate hiring, but they influence the process. Indeed, many of Kagan's supporters praise her for helping to augment ideological diversity on the faculty by extending offers to conservative scholars. If Kagan can take credit for ideological diversity at Harvard, then she can also take blame for the lack of racial and sexual diversity.

Final Point: Consistency
CNN commentator Roland Martin argues that if liberals and progressives want to remain consistent, they should voice concerns regarding Harvard's hiring statistics. I agree.

During the confirmation process for Justice Samuel Alito, several Democrats questioned Alito about his membership in Concerned Alumni of Princeton, a group that opposed the school's efforts to increase enrollment of women and persons of color. Senator Edward Kennedy sought records of the organization, hoping to find information that would link Alito to race and sex discrimination. This effort proved fruitless.

If Democrats believed that Alito's membership in Concerned Alumni of Princeton could shed light on his view of race and sex discrimination, then hiring statistics during Kagan's tenure as Dean of Harvard are even more relevant. Kagan had much more influence on the hiring process at Harvard than Alito had on the admissions process at Princeton.

Kagan = Obama

I find it hard to disagree with Glenn Greenwald's analysis regarding the choice of Elena Kagan to replace Justice Stevens. Regardless of whether one's position on the appropriateness of the choice, as Greenwald argues, Kagan and President Obama have a lot in common that satisfies professional Democratic politicians. Here is a core passage from Greenwald's article:

The New York Times this morning reports that "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

 Great points.

Kagan and Same-Sex Marriage: Unclear, Like Most Issues

William Jacobson, the author of the blog Legal Insurrection, makes a interesting assertion in a recent post.  Jacobson argues that Elena Kagan "clearly believes [same-sex marriage] is a matter for the political process, not a constitutional right." 

Jacobson bases this assertion on a questionnaire that Kagan completed in connection with her confirmation as Solicitor General. One of the questions asked Kagan whether she believed that there was a federal constitutional right to same-sex marriage. Kagan unequivocally stated that "[t]here is no federal constitutional right to same-sex marriage."

Jacobson is probably reading Kagan's answer too broadly.  Kagan could simply mean that no federal right exists because the Supreme Court has not yet decided this issue.  This, however, would not preclude her from arguing that the Constitution confers such a right, when and if the issue came before her as a justice. 

Ann Althouse agrees and has written more on the subject: Althouse: Elena Kagan said "There is no federal constitutional right to same-sex marriage," but does that mean that, as a Supreme Court Justice, she won't find that right?

Obama Administration Wants to Limit Miranda - But Can It?

The New York Times (also - the Washington Post) reports that Attorney General Eric Holder will seek a new law permitting the government to decline from Mirandizing terrorism suspects. Specifically, the New York Times says that:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions.

Conservatives have blasted interrogators for informing terrorism suspects of their constitutional right not to speak to law enforcement officers and to secure legal counsel.. Conservatives, however, have a long history opposing Miranda.

Miranda Is a Constitutional Requirement
In 2000, the Supreme Court rejected the Justice Department's argument that the Miranda requirement was not a constitutional rule. Only two justices dissented.  Former Chief Justice Rehnquist -- a staunch conservative -- authored the ruling.  Given the Court's ruling, it is unclear how Congress can alter and set limits to Miranda by statute. Civil libertarians quoted by the New York Times agree with this assertion:

Still, Anthony D. Romero, executive director of the American Civil Liberties Union, said Congress had no authority to “chip away” at the Miranda ruling because it was based in the Constitution. He predicted that any effort to carve a broader exception would be vigorously contested.

“The irony is that this administration supposedly stands for the rule of law and the restoration of America’s legal standing,” he said. And Virginia E. Sloan, president of the bipartisan Constitution Project, said the existing public safety exception to Miranda seemed to be working, so there was no need to erode constitutional protections in ways that could later be expanded to other kinds of criminal suspects.

“It makes good political theater,” she said, “but we need to have a clear problem that we are addressing and a clear justification for any change. I haven’t seen that yet.”

The Court could, however, validate legislative guidelines if Congress acts upon Holder's recommendation.

Lena Horne: Another Legend Dies

The great Lena Horne died yesterday.  She was 92. 

In addition to being an adored performer, Horne was an activist, and she helped to reshape the image of blacks in the entertainment media. She will be deeply missed.

The Washington Post has published a detailed obituary: Lena Horne dies at 92; dynamic singer and activist broke barriers in Hollywood.

NBC: Obama to Pick Kagan Monday

NBC reports that President Obama will pick Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens.

My Take
Well, I am not surprised that Obama shied away from picking a person with more solid liberal/progressive credentials. Now remind me again why liberals were euphoric over his election?

What Are Kagan's Views on Constitutional Law?

In an op-ed published by The New Republic, Professor Paul Campos persuasively argues that Elena Kagan's views on constitutional law are virtually unknown.  He attributes this to the fact that she has written very little in terms of legal scholarship and has avoided taking public stances on political issues.  According to Campos, because Kagan is a "blank slate," many of her supporters are merely projecting their own ideological views upon her (much like President Obama's supporters did prior to his election):

[T]he support for Kagan's nomination has been based not on her legal views, but almost entirely on her character. Many friends and colleagues from various stages of Kagan's career—the University of Chicago (where she received tenure in 1995), the White House (where she was associate counsel to President Clinton), Harvard Law School (which granted her tenure in 2001 and made her dean two years later), and the Department of Justice (President Obama appointed her Solicitor General)—have stepped forward to support her. They insist that, because of the sterling reputation she's earned in her various roles, Kagan will make a great judge. What's more, various groups who respect Kagan personally and professionally have projected their own views onto her "blank slate"; progressives believe she's a liberal, centrists assume she's a moderate, and conservatives say she isn't a bleeding heart.

With the Supreme Court busy curtailing individual liberty, augmenting corporate power, and restraining the ability of lawmakers to deal with inequality and other social problems, Obama should pick a person whose commitment to progressive values is easily discernible.  Harold Koh and Pamela Karlan are two academics with a long record of progressivism and accomplishment -- as demonstrated by numerous scholarly writings. And Diane Wood is a judge with a long record for voters to scrutinize.

I suspect that Obama is looking to appoint someone without a large written record in order to avoid a fight with Republicans. Well, the Supreme Court is worthy of a fight. The stakes are too great.

Law Professors Attack Kagan and White House on Racial Diversity

Just added:

Courting Kennedy

Are Harvard Law School Hiring Statistics Relevant to Elena Kagan's Nomination?

Four law professors have attacked Elena Kagan's record on diversity. While she was the Dean of Harvard Law School, only 3% of the professors the school hired were persons of color. This is a pretty abysmal record.

The four law professors are Guy-Uriel Charles, Duke Law School; Anupam Chander, University of California-Davis Davis School of Law; Luis Fuentes-Rohwer, Indiana University's School of Law; and Angela Onwuachi-Willig, University of Iowa College of Law. After sending a letter expressing their concerns regarding Kagan to the White House, the Obama administration responded indirectly by circulating a set of talking points that seek to defend Kagan's record. The talking points are fairly weak, as the professors explain in an article posted on Salon.com.

The White House does not dispute the low number of women and persons of color hired to tenure-track positions at Harvard during Kagan's deanship. Instead, the White House says the school hired persons of color and women as visitors and that the school could have extended offers that candidates declined. Visitorships, however, do not reflect a commitment to faculty diversity. Instead, they are typically temporary positions used to fill curricular needs while full-time faculty members are on-leave for various reasons. Also, the White House does not provide data regarding the number of persons of color and women to whom Harvard Law School extended offers (rather than hired) while Kagan was dean, and it seems odd that a large number of women and people of color would turn down offers to teach at Harvard.

Edit: The article was edited to reflect that only 3% of the hires were persons of color/non-white.

View the full essay on Salon.com: The White House's Kagan talking points are wrong.

Update: New post on Kagan -- Kagan and Same-Sex Marriage: Unclear, Like Most Issues

See also: What Are Kagan's Views on Constitutional Law?

Elena Kagan?

Politico reports that President Obama will soon nominate Elena Kagan to the Supreme Court. If this story is true, this would confirm earlier reports which suggested that Obama wanted to avoid a fight with his next Court nominee.

As an academic who received tenure at the University of Chicago and Harvard Law School, Kagan has a surprisingly sparse paper trail. She was not very prolific as a scholar, which means that her record leaves very little room for controversy.

 Professor Paul Campos, however, believes that Kagan's thin record should go against her appointment:

Yesterday, I read everything Elena Kagan has ever published. It didn't take long: in the nearly 20 years since Kagan became a law professor, she's published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago's own faculty—and a short essay in the school's law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it's true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard's dean, and for never having written anything intended for a more general audience, either before or after taking that position.).

That Kagan has not written much legal scholarship does not mean she is not bright or qualified for the bench.  But it is worthy information to consider in an appointee. For Obama, it probably weighs in favor of Kagan.

Glenn Greenwald of Salon.com has written extensively on some of Kagan's more conservative views, especially concerning presidential power during war. During her confirmation hearings for the Solicitor General post, Kagan took a broad view of presidential power and indicated that the president could indefinitely detain suspected terrorism suspects -- an issue against which Obama campaigned. 

The Court nomination process is often so demoralizing, and I refuse to  add to the thicket by demonizing a candidate. I am, however, concerned that in the interest of avoiding a fight or avoiding doing something "liberal," President Obama is caving when he should do the exact opposite.

Two New Polls Show Florida Gov. Charlie Crist Would Win Senate Election

Two new polls show that Florida Governor Charlie Crist would win a 3-way election for US Senate. Rasmussen has the unaffiliated Crist ahead of  Republican Marco Rubio and Democrat Kendrick Meek with 38% of the vote, compared to 34% for Rubio and 17% for Meek.  A Mason-Dixon poll has similar results, with Crist getting 38%, Rubio 32% and Meek 19%. 

Last month, before Crist announced his separation from the Republican Party, a Quinniapiac poll predicted that he would win a 3-way contest. A Rasmussen poll, however, gave Rubio the lead.

These numbers are most disturbing for Democrats. Meek trails badly in all of the recent polls, and Crist continues to get more attention than all of the candidates. The political rumor mill is already asserting that Democratic leaders will quietly back Crist if Meek cannot turn the tide. Because of his moderate-to-liberal positions, Crist will likely steal more Democratic (rather than Republican) votes.

I suspect that Florida and national Republican leaders, however, will continue bashing Crist. Why? He is clearly a political threat.

President Obama and Judicial Activism

During a recent interview, President Obama discussed the Supreme Court appointments process, and he offered a critique of conservative judicial activism. Specifically, President Obama argued that:

It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.

What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.

And so I’m not looking at this particular judicial nomination through that prism alone, but I think it is important for us to understand that judicial — the concept of judicial restraint cuts both ways. And the core understanding of judicial restraint is, is that generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, et cetera, that the administrative process that goes with it is afforded some deference as long as core constitutional values are observed.

President Obama correctly states that judicial activism is typically associated with liberal judges. Many liberal constitutional law scholars, however, have accused conservative judges of being too invasive. Indeed, both liberal and conservative judges have ignored public opinion and the desires of the political branches – starting with the anti-regulatory rulings of the Lochner and New Deal era, the criminal procedure rulings of the Warren Court, and the assault on civil rights during the Rehnquist Court. Commentators across the political spectrum, however, most often use the term “judicial activism” simply to condemn opinions that they find disagreeable.

Obama’s analysis raises two interesting issues. First, it is unclear what rulings he believes were excessive or “activist” during the “’60s and ‘70s.” Conservatives have tossed the activism charge around loosely in order to disparage the Warren Court’s protection of individual liberty and equality. Many of these arguments, however, are inaccurate because from the perspective of national public opinion, the Court’s civil rights rulings enjoyed majoritarian support. Also, the Court did not act vigorously on matters like school desegregation or voting rights until Congress passed comprehensive legislation addressing these concerns.

On other issues, like criminal procedure, that lacked public support, one could make a sound argument that the political process should not enjoy deferential judicial review. Although conservatives and liberals may debate the meaning of the procedural rights protected by the Bill of Rights and the Due Process Clause, these are certainly “core constitutional values.”

Obama’s comments also raise the issue of how the Court should interpret the Constitution. He argues that the Court should extend deference to the political branches so long as they respect constitutional limits. But reasonable jurists can (and often) disagree on the meaning of the Constitution. In fact, the judicial activism rhetoric often masks underlying disagreement over judicial elaboration of constitutional values.

I suspect that Obama offered these comments in order to shape the terms of the debate of his next Supreme Court nomination. If so, the confirmation hearings could cover far more interesting terrain than the last round.

Note: This essay originally appeared on Concurring Opinions, where I am guest-blogging for May 2010.

Did Anti-Gay Homophobe "Rent" A "Boy" for Vacation Travel?

The Miami New Times, an affiliate of the Village Voice, reports that George Alan Rekers, an anti-gay Emeritus Professor at the University of South Carolina, recently traveled to Europe with a male prostitute as his companion.  According to the Miami New Times, Rekers connected with his travel companion through the website "Rent Boy," which prominently features explicit advertisements for gay male escorts.

Normally, I would not deem this story newsworthy.  It does involve the "oldest profession."  But Rekers is one of the most prominent anti-gay advocates in the nation.  Rekers is an officer of NARTH -- the National Association for Research and Therapy of Homosexuality.  NARTH advocates "conversion therapy" for LGBT individuals, pitting the group against the vast majority of mental health professionals who conclude that being gay or lesbian is not a product of mental illness.

Rekers has also testified against gay and lesbian plaintiffs who filed lawsuits challenging state bans on gay adoptions. Rekers believes that gay and lesbian parents are unfit.

Rekers was also a founding member of FRC -- the Family Research Council. FRC is a rightwing advocacy group that vehemently opposes gay rights.  The group's homepage contains articles blasting efforts to repeal Don't Ask, Don't Tell and to pass ENDA -- the Employee Non-Discrimination Act.  ENDA would ban employment discrimination on the basis of sexual orientation and gender identity.

Rekers' "excuses" are very intriguing -- and comical. He said he did not discover that his companion was a male escort until the middle of the trip -- although he did not deny meeting him on Rent Boy, an explicit site for male prostitution.  He also claims that he hired the escort to help him carry his luggage.

Absolutely decadent.

Update: Well, this is all too predictable. According to the blog Joe My God, Rekers says he took the young hustler to Europe in order to teach him the Gospel of Jesus!

Blog News!

For the last two weeks, I have not posted as frequently as I normally do. Why? Classes ended, and I had to host numerous office hours and review sessions to prepare my nervous and excited students for their exam (which is taking place today). Now, I am back to blogging and other matters.

Also, I will be guest-blogging on Concurring Opinions this month. Please stop by to check out the law-related blog.