Wednesday, August 26, 2009

Sunday, August 16, 2009

common ground on health care

Most of us have one or more of them in our lives. A good friend, a relative, a co-worker. Someone we like and respect – maybe even love – but who has become a victim of the Body Snatchers.

They believe what they hear on FOX News and read on the editorial pages of the Wall Street Journal. They send around emails claiming that Obama is a racist and a fascist and that “ObamaCare” means Sarah Palin’s kid will be euthanized by a “death panel.”

I have a couple of dear friends – great people, smart, well-educated – who have gotten themselves worked up on the issue of health care. After receiving a barrage of email from them on the subject, I took it upon myself to try to define and narrow our differences. The following is a distillation of the ensuing email exchange. If you think it might be useful, feel free to share all or parts of it with your right-wing brother-in-law (alas, I don’t think I had much success dissuading my friends from the belief that Obama is attempting to engineer a “government takeover” of the health care system):

Let’s try to find common ground.

Paul Krugman had a good summary of the core of the health care debate on his blog (“
Health reform made simple”):

Kudos to the Times for a story that, for once, emphasizes the remarkable unity of vision health reformers are showing, rather than the squabbles that are an inevitable part of passing major legislation.

The essence is really quite simple: regulation of insurers, so that they can’t cherry-pick only the healthy, and subsidies, so that all Americans can afford insurance.

Everything else is about making that core work. Individual mandates are a way to prevent gaming of the system by people who don’t sign up until they’re sick; employer mandates a way to hold down the on-budget costs by preventing a rush by employers to drop insurance; the public option a way to create effective competition and hold costs down further.

But what it means for the individual will be that insurers can’t reject you, and if your income is relatively low, the government will help pay your premiums.

That’s it. Any commentator who whines that he just doesn’t understand it is basically saying that he doesn’t want to understand it.

I think there are some things we can agree upon:

1/ The UK has a system of nationalized health care where the government actually employs medical professionals and owns the hospitals, etc. No one is proposing that in the US. We can all agree we don’t want that. So let’s take that off the table. Comparisons to the UK, therefore, are irrelevant.

2/ Canada has a “single-payer” system where the government acts like one big insurance company that pays private health care providers (i.e., government bureaucrats substitute for insurance company bureaucrats but providers remain private). Here is a good piece from the Denver Post on the Canadian health care system (“Debunking Canadian Health Care Myths”). We already have government-run single-payer systems in the US – Medicare (for the elderly) and Medicaid (for the poor) – that cover roughly a third of all Americans. So “single-payer” really isn’t all that radical. And numerous surveys have found that Medicare recipients rate their satisfaction with their quality of care higher than do customers of private health insurance:

A recent Commonwealth Fund survey found that "elderly Medicare beneficiaries reported greater overall satisfaction with their health coverage." Medicare is so popular that most Americans support expanding its coverage to Americans aged 55 to 64. According to a recent Kaiser Family Foundation poll, "over half of Americans (53 percent) 'strongly' support such a proposal and an additional 26 percent say they support it somewhat, totaling 79 percent backing." Similarly, a Health and Human Services Department-commissioned study released in June found that "56 percent of enrollees in traditional fee-for-service Medicare give Medicare a rating of 9 or 10 on a 0-10 scale," while "only 40 percent of Americans enrolled in private health insurance gave their plans a 9 or 10 rating." "The higher scores for Medicare are based on perceptions of better access to care," the National Journal noted, commenting on the surveys, adding that "[m]ore than two thirds (70 percent) of traditional Medicare enrollees say they 'always' get access to needed care (appointments with specialists or other necessary tests and treatment), compared with 63 percent in Medicare managed care plans and only 51 percent of those with private insurance."

But “single-payer” is often portrayed by opponents as a “government takeover” of health care (an official
poll-tested Republican talking point). As a result, many people who consider Medicare sacrosanct simultaneously oppose a “single-payer” system. Krugman recounts this anecdote:
At a recent town-hall meeting in suburban Simpsonville, a man stood up and told Rep. Robert Inglis (R-S.C.) to “keep your government hands off my Medicare.”

“I had to politely explain that, ‘Actually, sir, your health care is being provided by the government,’ ” Inglis recalled. “But he wasn’t having any of it.”

But regardless of whether you support a single-payer system, it was ruled out even before health care reform efforts got underway in Congress. None of the health care reform plans working their way through Congress involves a single-payer system like Medicare for the rest of us. Since no one is proposing a single-payer system, let’s agree to take that off the table, too. Comparisons to Canada, therefore, are irrelevant.

Now, you can argue that any particular health reform proposal is a “slippery slope” to either nationalized health care (#1) or a single-payer system (#2). But the “slippery slope” argument is really a non-argument – there is no logical counter to it because it is not based in logic (which is why it is such a popular rhetorical device). A public option does not inevitably lead to a single-payer system or nationalized health care. In real life, very few things inevitably lead to their logical – or illogical – extreme. (Holding hands doesn’t inevitably lead to a “home run” – much to my frustration earlier in life.) We should deal with actual proposals, not terrifying caricatures of them. Let’s just agree on #1 and #2 and judge individual proposals on their own merits.

3/ We want to find a way to extend health insurance to the nearly 50 million Americans who lack it now.

4/ We want to find a way to reduce waste and inefficiency in the health care system so that we can bring down the long-term growth (“bend the curve”) of health care costs without limiting choice or reducing services. Now obviously that is a bit utopian. It’s hard to reduce the growth in costs without changing anything. If everyone can choose any and all health care services they want, we’re probably not going to make much progress controlling costs. But at least we can all agree that if someone would prefer to have a private insurance company limit their choices instead of a government-run insurance entity limiting their choices, they should have that option. We can all agree that if you like your current insurance plan you shouldn’t be forced by the government to change to something else. And none of the plans working their way through Congress would force you to give up your current insurance plan or your current doctor.

In a lot of the discussions of health care, these points get confused, particularly #3 and #4. They are related in that everyone would like to find a way to pay for expanding coverage, to the extent possible, by reducing waste and controlling costs in the existing system. But they are not the same thing. Both of those goals -- #3 and #4 – are worthy goals by themselves and in theory at least they can be addressed separately – we can come up with some ideas for expanding coverage and other ideas for reducing cost growth. The ideas for expanding coverage don’t necessarily have to reduce cost growth and the ideas for reducing cost growth don’t necessarily have to expand coverage. But, ideally, we want to pursue both goals.

Here again, I think we have broad agreement on the principle that any changes we come up with should be at least deficit-neutral – that is, they should be paid for in some manner (mandates, taxes and/or cost savings) and not add to the long-term deficit (unlike, for example, Medicare Part D which was passed in 2004 with no discussion whatsoever of how to pay for it and is now estimated to contribute almost $8 trillion to our long-term unfunded Medicare liabilities). President Obama has made that commitment.

Can we agree on all four of those points?

Making things more complicated is that from a practical political and economic standpoint, it seems we need to preserve and build upon our existing employer-based health insurance system. In theory, if you were starting from scratch, you probably wouldn’t tie health insurance coverage to employment (few other countries do – our system is really a legacy of big business and big unions after WWII coming together and agreeing on a system that makes it difficult for employees to leave their jobs, thereby increasing the power of big business and big unions over those employees). There are proposals out there that would have us evolve away from our current employer-based system in favor of a system of individual insurance policies. The Wyden-Bennett Bill (the so-called “

Healthy Americans Act”) is one of them. And John McCain proposed one during the 2008 campaign. But these proposals are extraordinarily complex (while I understand the general concept behind the Wyden-Bennett Bill, I have never been able to fully comprehend the details). And they would constitute a radical departure from our current system. If even the incremental reforms being proposed to our current employer-based system lend themselves to fear-mongering distortions and misrepresentation, imagine trying to sell the idea that the government will take away your employer-based coverage.

In any event, from a political standpoint, there is just too much opposition from major business organizations and unions to any changes that would undermine the current employer-based system. And from an economic standpoint, shifting all the costs of health care coverage from business to government would require new taxes that few politicians would be willing to impose (even if it would take a big burden off American employers). So we’re trying to modify the existing employer-based system, not replace it.

The current employer-based system is strongly reinforced by the current tax system, which creates a huge subsidy for employer-based health insurance. Employers can deduct the cost, as they do wages and salaries, but employees don’t have to report the value of their employer-provided health care as income. (The big losers are people like me who buy their health insurance in the private market. We have to pay with after-tax dollars. Either everyone should get tax-free health care or no one should.) Most economists agree that the best way to pay for extending coverage would probably be to tax employer-provided coverage. It would make the ultimate consumers of health insurance – the employees – more sensitive to its cost. But as McCain found out during the last election, it is a big loser politically. So much so it is, as a practical matter, off the table (except, perhaps, for very high-value, “gold-plated” policies above some ridiculously high amount, like $25,000/year).

Since we’re building off the existing employer-based system, most proposals entail some kind of employer mandate to prevent employers from dropping their insurance and shifting the cost to the government. The House proposal would exempt small businesses with payrolls of less than $500,000, which would
exempt 87% of all businesses (the 13% that would be subject to the mandate employ 81% of the country’s workers). While there is some opposition to an employer mandate, there is pretty broad consensus on it – even Wal-Mart supports it. The alternative is more and more employees losing their health insurance or those insurance obligations being dumped on the government.

There is also pretty broad bipartisan agreement on the need for health insurance reform. As the
New York Times put it recently:
Lawmakers of both parties agree on the need to rein in private insurance companies by banning underwriting practices that have prevented millions of Americans from obtaining affordable insurance. Insurers would, for example, have to accept all applicants and could not charge higher premiums because of a person’s medical history or current illness. All insurers would have to offer a minimum package of benefits, to be defined by the federal government, and nearly all Americans would be required to have insurance. …

“There is wide agreement on the two elements of the legislation that the public cares about most: insurance market reforms and the expansion of coverage, with subsidies,” said Drew E. Altman, the president of the Kaiser Family Foundation, which focuses on health policy.

Some of the consumer protections in the House plan are:

• Prohibits rescission except in provable cases of fraud, provides for independent appeals process.

• Prohibits exclusions for pre-existing conditions or limitations of benefits based on health-related factors.

• Provides for standardized electronic claims filing

• Provides for standardized electronic eligibility determination at point of service

• Requires timely payment of claims.

• Requires disclosure of plan terms and conditions, financial disclosures, enrollment data, claims denials, rating practices, and cost-sharing in "plain language."

• Guarantees renewability

I think we can probably agree these are all good things.

There is also pretty broad agreement on the idea of some sort of government-run insurance exchange where consumers could go to engage in comparative shopping for health insurance.

Here is where we get to a major difference. President Obama, and most Congressional Democrats support the idea of a “public option” that would compete with private insurance companies. (There is a wide disparity in poll results on the popularity of a “public option” depending on how the question is worded and whether some explanation is given as to what exactly a “public option” is. I’ve seen it favored by as many as 76% and 72% of Americans.) According to the current House bill, this public option would have to be fully financed through premiums and co-pays with no subsidies other than the individual subsidies that would be available to private insurers. And the public option would not be available to the employees of most large employers. And it couldn't even piggyback on the existing Medicare infrastructure and provider agreements (a really stupid restriction, if you ask me -- it would just unnecessarily add to the cost structure of a public option providing no value in return other than to hobble it). A public option is most important for competition in the individual insurance market where there is very little competition today.

Despite all the talk of free markets,
most health insurance markets are highly concentrated :
Various studies have found that health insurance is one of the most concentrated markets in the U.S., and that the lack of competition may be one factor behind sharply rising premiums. Each year, the American Medical Association surveys the competitive landscape for commercial health insurers; the latest report found that out of 314 metropolitan areas across the nation, 94 percent can be defined as highly concentrated, with two companies or even a single provider dominating the market. In 15 states, one insurer has half or more of the entire market, and in seven states, a single insurer has 75 percent or more.

The hope is that a public insurance option could offer lower prices because it would be non-profit and would be able to cut down on the roughly 30% of all health care dollars bpent on overhead, administration, profits, etc. (much of it spent trying to select out customers who might actually need health care or to shift health care costs to other parties). A public option could provide some competition in the vast majority of markets where there is little or no effective competition (particularly for individual health insurance policies).

Unfortunately, it appears the insurance companies may have already won the battle over a public option. It is looking increasingly unlikely that a public option will survive deliberations in the Senate. As BusinessWeek wrote in a cover article (“
The Health Insurers Have Already Won ”) last week:
As the health reform fight shifts this month from a vacationing Washington to congressional districts and local airwaves around the country, much more of the battle than most people realize is already over. The likely victors are insurance giants such as UnitedHealth Group (UNH), Aetna (AET), and WellPoint (WLP). The carriers have succeeded in redefining the terms of the reform debate to such a
degree that no matter what specifics emerge in the voluminous bill Congress may
send to President Obama this fall, the insurance industry will emerge more
profitable. Health reform could come with a $1 trillion price tag over the next decade, and it may complicate matters for some large employers. But insurance CEOs ought to be smiling. …

The industry has already accomplished its main goal of at least curbing, and maybe blocking altogether, any new publicly administered insurance program that could grab market share from the corporations that dominate the business. UnitedHealth has distinguished itself by more deftly and aggressively feeding sophisticated pricing and actuarial data to information-starved congressional staff members. With its rivals, the carrier has also achieved a secondary aim of constraining the new benefits that will become available to tens of millions of people who are currently uninsured. That will make the new customers more lucrative to the industry.

… Perhaps more than any other insurer, UnitedHealth is poised to profit from health
reform. Its decade-long series of acquisitions has made the company a coast-to-coast Leviathan enmeshed in the lives of 70 million Americans.

After all, we wouldn’t want a non-profit public option to limit the profits of UnitedHealth. Here are some stats on the
compensation of its CEO, Stephen J. Hemsley:
2007 Compensation: $13.2 million
2008 Compensation (Forbes): $3,241,042
Total Value of Unexercised Stock Options (Forbes): $744,232,068
2009 Options Exercise: $127,001,281
Articles: Hemsley returns $190 million in stock options acquired as a result of practices found to be fraudulent by the SEC (American Medical News)

Last month,UnitedHealth reported that its second quarter profits doubled from the previous year, even in the midst of the current recession, to $859 million. It paid out only 83% of its premium dollars to doctors, hospitals and other health care providers.

One proposed solution, other than the public option, to address the problem of lack of competition in the private insurance markets is the idea of letting insurance companies compete across state lines. The problem with that is that all insurance companies would incorporate in the state with the most lax regulation. It would be, effectively, total deregulation of the health insurance market. One reason insurance is highly regulated is because you want to be sure the companies taking your premiums have the ability to pay off the risks they are assuming (as well as providing various consumer protections).

I think we learned last fall the dangers of deregulation in the financial markets. AIG, for the most part a financially-sound, heavily-regulated insurance company, had one part of the company that was almost entirely deregulated – essentially a hedge fund attached to an AAA-rated insurance company that took on something like $1.6 trillion in derivatives exposure and almost brought down the global financial system. When companies can choose their regulators, it is a race to the bottom. An alternative is national insurance regulation. And to some extent most of the health care proposals would have a core of national consumer protections. But a complete abandonment of state regulation of insurance companies in favor of national regulation is probably not in the cards politically. The insurance companies and the states would both oppose it.

Another battleground is attempts to repeal the current prohibition on Medicare negotiating drug prices (as any private insurer does). Back in 2004, when a Republican Congress (with very few Democratic votes) passed the Medicare Part D prescription drug benefit, Republican Senator Billy Tauzin (who took the lead in drafting the bill) made sure to make it ILLEGAL for Medicare to negotiate drug prices, saddling American taxpayers and elderly Americans with much higher costs. (Just weeks after the bill passed, Tauzin resigned from the Senate in the middle of his term to become the chief lobbyist for the pharmaceutical industry at a salary of $2 million/year, where he continues to do his dirty work to this day.) There is certain to be a big fight over attempts to repeal this guarantee of the profits of the drug companies.

Health care reform is a complex subject and I couldn’t hope to cover all the issues. My basic point is that the areas of general agreement greatly overwhelm the areas of disagreement – to a remarkable degree. But you would never know that from all the over-heated political rhetoric (intended to create disagreement where it doesn’t necessarily exist). There aren’t easy answers to everything, but there certainly isn’t anything like the fundamental disagreement that opponents are trying to stoke. Rather than making wild accusations and engaging in partisan battle, let’s begin by trying to identify the areas of agreement and build on those. Then, when areas of disagreement are identified, we can try to figure out where and why we differ.

Talk of “socialized medicine” or a “government takeover” of health care is a smoke screen. No one is proposing even a single-payer plan (like Medicare and Canada where the government acts as an insurer paying private providers) let alone government-run health care (as in the UK where the government is actually the employer of health care professionals). And certainly no one is proposing euthanasia or “death panels” or about 90% of the other nonsense that is being spread around in an attempt to scare people.

I don’t know how you could get much more “incremental” than current reform proposals unless you abandoned reform efforts altogether. From the beginning, single-payer was off the table. Same thing with any proposal that would evolve the system away from employer-provided insurance toward individual policies (as the Wyden-Bennett proposal and McCain’s 2008 campaign proposals would have). It looks increasingly like the insurance companies won’t have their profits and oligopolistic hold on individual markets threatened by a public insurance option (which would give consumers, especially those in the individual market, an additional choice where they don’t now).

What, then, is really so radical about current reform proposals? Refer back to the Krugman summary at the top of this post. I can see why progressives would be disappointed at the modest, watered-down direction of current reform proposals. Loss of a public option would be a big blow to real reform efforts. But it’s hard to understand the intensity of the right-wing opposition (apart from the fact that they are always angry and especially so with a popular African-American president in the White House).

It’s been 97 years since Teddy Roosevelt ran for a third presidential term on a
Progressive Party platform that included as a key plank universal health care. And it’s been 64 years since Harry Truman proposed a government-run national health insurance plan almost identical to the “public option” currently under consideration. (“The American Medical Association (AMA) launched a spirited attack against theTruman proposal, capitalizing on fears of Communism in the public mind. The AMA characterized the bill as "socialized medicine", and in a forerunner to the rhetoric of the McCarthy era, called Truman White House staffers "followers of the Moscow party line".) It’s been 16 years since the last attempt at health care reform was killed through a campaign of lies and distortions. Meanwhile, our “system” has only gotten worse. And this time around, even the AMA is on board with reform. The AMA is certainly not a radical organization bent on nationalization of the health care system.

It is also essential to compare reform proposals with the alternative – which is an untenable status quo. That is, effectively, the Republican alternative.

We are the only industrialized country in the world without universal health care. The number of Americans without health insurance is approaching 50 million. Our current system is bankrupting the country and American businesses. Let’s preserve the best of what works and fix what doesn’t.
“Just a broader point — if somebody told you that there is a plan out there that is guaranteed to double your health care costs over the next 10 years, that’s guaranteed to result in more Americans losing their health care, and that is by far the biggest contributor to our federal deficit. I think most people would be opposed to that. Well, that’s the status quo. That’s what we have right now.”

President Obama
July 22, 2009

Saturday, August 8, 2009

sotomayor, ricci and "judicial activism"

Today Sonya Sotomayor was sworn in as the 111th Justice of the US Supreme Court and its first Hispanic member. (Of the previous 110, all but four were white males.) She was confirmed by the Senate on Thursday by a vote of 68 to 31. The Republican opposition to her confirmation (no Democratic Senator voted against her confirmation) was based on the notion that she is a “racist” and a “judicial activist.”

Those accusations came together in the case of
Ricci v. DeStefano. It’s worth taking a look at that case both for what it says about Justice Sotomayor and what it says about the concept of “judicial activism.”

First of all, it should be said that Ricci was a hard case and there is an old saying that, “hard cases make bad law.” It is not surprising that the 23 federal judges (including the nine US Supreme Court Justices, thirteen Second Circuit judges and one district court judge) who ruled on the case split 12-11 (with Judge Sotomayor in the majority). I won’t try to go into all the factual detail of the Ricci case. But the law is relatively clear – or at least it was before the Supreme Court’s ruling in Ricci.

The Ricci case was not an affirmative action case. It was a case brought under Title VII of the Civil Rights Act of 1964 which prohibits discrimination in employment. In 1971, in
Griggs v. Duke, the US Supreme Court ruled that, because it is not always possible to prove discriminatory intent, Title VII prohibits an employment test with a “disparate impact” on members of a protected class unless that test is a “reasonable measure of job performance” regardless of actual intent to discriminate. The burden is on the employer to produce evidence that the test is “job related for the position in question and consistent with business necessity.” (The “disparate impact” test was later codified by the Civil Rights Act of 1991.)

That was the law prior to Ricci that Judge Sotomayor was bound to uphold as an appeals court judge.

Let’s take a relatively easy set of facts. An employer is seeking to promote people into sales management positions. He has noticed that all his best sales managers in the past have been excellent golfers. He concludes that the social skills developed on the golf course and the discipline and concentration required to master the game are good measures of probable success in sales. So he decides to promote sales people based on how they do in a golf tournament. It turns out that all the best golfers are white men. This employment test had a “disparate impact” on women and minorities and it’s unlikely the employer could justify it as a “reasonable measure of job performance.” He would probably lose a Title VII suit.

So let’s say after the employer sees the results of the golf tournament he (or his lawyer) realizes that he had probably made a mistake and that the golf tournament was a bad employment test. So he decides not to promote anyone based on their golf scores and instead to come up with a new test. But before he can come up with a new test and before he promotes anyone, the good golfers sue him under Title VII claiming “reverse discrimination” and that they are legally entitled to promotions. Now the employer is really in a tough position. If he uses the results of the golf tournament to promote the white men, the women and minorities may sue him and almost certainly would a Title VII suit. But if he doesn’t, the white men will pursue their suit against him under the same statute. Legally, is the employer free to disregard the results of the golf tournament and start over before anyone was promoted? Or did the white golfers acquire some kind of vested right to promotion once the tournament was conducted?

That is basically the legal question in Ricci, but with a harder set of facts than my example. In my example, it was almost certain that the employer would lose a Title VII suit challenging the employment test. In Ricci, it was less clear that the City of New Haven would lose a suit challenging the written test it used for the promotion of firefighters. But the corporation counsel for New Haven thought it was likely they would be sued and that they might lose, so he advised the City to discard the test and start over with a better measure of job performance. That was not an unfounded conclusion. As Slate’s Emily Bazelon
put it:

In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact—it affects one racial group more than others—must truly be job-related in order to be legal. You can see why New Haven's black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It's like granting a driver's license based solely on the written test, only with much higher stakes.

But when the City discarded the test results, the white firefighters who would have been promoted based on the test results sued. The legal question was whether the City was free, on its own, to discard the test results and start over before anyone had been promoted. Was the City was bound by the test results unless or until it lost a Title VII suit challenging the test results? Did the white firefighters acquire some kind of vested right to promotion once the test was administered and without regard to whatever alternative test for promotion the City might subsequently adopt?

Under prior Second Circuit precedent, it was pretty clear that the City of New Haven could decide for itself to start over. Under this precedent, the intent to remedy a disparate impact is not equivalent to intent to discriminate against non-minority applicants. New Haven’s decision to set aside the test results was race-neutral in the sense that all the test results were set aside, no one was given a promotion and all firefighters of every race would have the same opportunity to participate in whatever selection process was ultimately adopted. There was no racial quota or racial set-aside where candidates were treated differently based on their race.

The Supreme Court overturned the Second Circuit in the Ricci case and ruled that the City of New Haven was guilty of unlawful racial discrimination. The 5-4 split fell along the usual “conservative/liberal” divide. Justice Kennedy writing for the majority ruled that setting aside employment test results because they have a disparate racial impact itself constitutes racial discrimination. Voiding the test results was “disparate treatment” based on race. This set up a conflict between two different forms of discrimination under Title VII – “disparate treatment” (i.e., overt racial discrimination) versus “disparate impact” (i.e., implicit racial discrimination). According to Kennedy, the former trumps the latter unless the employer can show a “strong basis in evidence” that it would be subject to disparate-impact liability if it did not discard the test results. (Justice Scalia would have gone further and invalidated the “disparate impact” test of the 1991 Civil Rights Act altogether under the Equal Protection Clause of the Constitution.)

In dissent, Justice Ginsburg found that the white firefighters, “had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results.” According to Ginsburg and the other dissenters, an employer who is engaged in a reasonable effort to comply with Congress’s prohibition against employment practices that have a “disparate impact” does not violate the “disparate treatment” prohibition if it has “good cause” to believe the practices “would not withstand examination for business necessity” (the statutory test).

As a legal matter, the difference between the majority and the dissenters in Ricci boils down to whether the employer has a “strong basis in evidence” for believing it would be subject to disparate impact liability if it didn’t discard the test results versus whether it has “good cause” for such a belief. That doesn’t sound like a very substantial difference. But the majority test leaves employers in a difficult position once they discover that a test has a disparate impact. The “strong basis in evidence” test is a tough one to meet and doesn’t give employers much maneuvering room.

Perhaps the biggest weakness – and the most “activist” element – of the majority decision is the finding of liability on the part of the City even before it had a chance to adopt new selection criteria and before anyone had been promoted. According to the majority, the rights of the white firefighters to promotion vested as soon as the test was administered. Normal considerations of judicial restraint and “ripeness” would have had the court wait until the City had actually promoted someone before deciding that someone else had been illegally denied a promotion. The white firefighters who brought suit very well might have been promoted under whatever criteria the City adopted, making the litigation moot.

Under the majority test in Ricci employers who realize their employment practices have a disparate impact and conclude that those practices are less than ideal could end up getting sued – and found liable – regardless of what they do in response. The dissenter’s test gives employers the benefit of the doubt to work matters out for themselves as long as there is “good cause” for believing they might incur liability for a disparate impact. The dissenters would also wait to see what the employer actually decides to do, and who is impacted, before finding the employer liable for illegal discrimination.

It is worth noting that the various opinions in Ricci ran to over 90 pages. Kennedy, Alito, and Ginsburg all delved deeply into the facts of the case. As I said, “hard cases make bad law,” and this was a hard case. The majority, concurring and dissenting opinions are all persuasive. But I would have joined the dissent for practical legal reasons.

The majority opinion leaves employers in a difficult “damned-if-you-do/damned-if-you-don’t” position where they are liable to end up in court regardless of what they do. In that sense, the majority opinion is highly impractical and almost certain to result in more employment-related discrimination litigation. I would hate to be an employer trying to navigate the narrow isthmus of legal behavior defined by the majority test. How you feel emotionally about this case depends largely on how you read the facts. But do you really want a legal test that requires an in-depth examination of the facts of each case by judges and juries – even before an employer makes a final decision? This is exactly the kind of case that calls for judicial restraint rather than having courts second-guess employment decisions even before they are final.

The white New Haven firefighters had a sympathetic case. As the Second Circuit panel that included Judge Sotomayor

In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

It is easy to feel “empathy” with Ricci and the other white firefighters. But in this case, I think practicality trumps empathy.

And that is the ultimate irony of this case in the context of the Sotomayor confirmation fight. Sotomayor’s detractors fear she will decide cases based on “empathy” over the law. Yet in this case she is damned for deciding on the basis of the law rather than empathy. There was Second Circuit precedent right on point (
Hayden v. Count of Nassau and Bushey v. New York State Civil Service Commission). Disregarding those precedents and deciding Ricci based on “feelings” about the facts of that case would have been the very “judicial activism” conservatives supposedly decry.

Of course, those who have been using the Ricci case to bludgeon Sotomayor really don’t care about the legal issues raised in the case. Rather, the case was picked out from the hundreds she has decided in order to make the case that Sotomayor hates white people and to inflame racial emotions. (I dealt with those charges of racism in my previous post, “
serious bad craziness”.)

But the Ricci case does raise the whole question of what is “judicial activism” – the sin of which all “liberal” judges are accused.

Probably the most common description of “judicial activism” is judges substituting their judgment for that of elected officials by striking down laws or regulations. By that measure, it is the “conservatives” on the Supreme Court who are the most “activist.”

Back in 2005, two Yale Law School scholars looked at all the rulings of the court as it existed after Ginsburg and Breyer joined the Court in 1994 and prior to Roberts and Alito joining that year. By their count, the Court upheld or struck down 64 Congressional provisions during that time. They looked at how each justice ruled in each of those cases, regardless of whether they were in the majority or in dissent. They found a
wide variance among the justices when it came to their willingness to strike down an act of Congress:

Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %

Kennedy 64.06 %

Scalia 56.25 %

Rehnquist 46.88 %

O’Connor 46.77 %

Souter 42.19 %

Stevens 39.34 %

Ginsburg 39.06 %

Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

Pretty much the same conclusion was reached in a study undertaken by Harvard Law School professor Cass Sunstein and University of Chicago economist and law professor Thomas Miles. Instead of looking at the Supreme Court striking down acts of Congress they looked at the
Court’s invalidation of agency actions:

It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia. Here are the results:

Activism and on the Supreme Court

Rate of upholding agency decisions (percentage

Breyer 82
Souter 77
Ginsburg 74
Stevens 71
O’Connor 68
Kennedy 67
Rehnquist 64
Thomas 54
Scalia 52

Of course, there may be good reasons for striking down an act of Congress or an agency action. But it is nonetheless “judicial activism,” as that term is most often used.

I should disclose that Stephen Breyer was my administrative law professor. And I am not at all surprised that he is the least activist justice on the Supreme Court. He is a process-oriented guy who tends to be deferential to the other branches of government. He is almost certainly the justice most inclined to sign on to a result that he personally disagrees with as a substantive matter but nonetheless feels compelled to find as a matter of law. He is not ideological or results-oriented – unlike, for example, Scalia and Thomas. (I expect Sotomayor will be much like Breyer and will actually be more conservative than the Republican appointee, Souter, she is replacing.)

By contrast with Breyer, Scalia is an ideologue who is positively eager to reach out and decide cases that will steer the law in his preferred direction. And that gets to another element of “judicial activism” – the extent to which a justice actively seeks to decide broad legal issues rather than ruling narrowly on the specific issues raised in a particular case. (You will recall from the Ricci case above, for example, that Scalia wanted to go further than any of the other justices and find the “disparate impact” test to be unconstitutional.)

In this sense, the current “conservative” majority on the Supreme Court is very “activist.” I will give one example from personal experience.

I am on the board of American Rivers. Back in 2005, we were surprised when the Supreme Court agreed to hear a case,
Rapanos v. United States, challenging certain regulations under the Clean Water Act. We were surprised because the case did not present the kind of significant unsettled legal question that would typically find its way to the Supreme Court. To the contrary, the law at issue seemed to have been well-settled for 30 years. The only possible reason for taking the case, we feared, would be that the activist “conservatives” on the court wanted to reverse that law. As it turned out, we were right.

The appellant in Rapanos was a developer who engaged in particularly outrageous defiance of the law by filling in wetlands for a shopping center without even applying for the permit that the state and even his own wetlands consultant said was required. Rapanos threatened to “destroy” his consultant if he didn’t destroy his report, he prevented state inspectors from entering his land, and he ignored cease and desist orders. He engaged in the same behavior at two other sites. He was convicted of two felonies as a result. The “conservative” majority of the Court reversed those convictions and in the process gutted the wetlands protections of the Clean Water Act. The majority effectively overruled a prior Supreme Court precedent right on point (
US v. Riverside Bayview Homes) and threw the law into disarray, making enforcement of the Act in each case depend on a complex hydrological study of the “nexus” of the wetland to “navigable waters.” The practical result was to make much of the wetland protections of the Clean Water Act effectively unenforceable.

The “conservative” activist majority of the Court has been so aggressive in seeking to reverse existing environmental law that no environmentalist in his or her right mind would appeal a case to the Supreme Court today. The New York Times recently had a
good piece on this subject:

The Supreme Court heard five environmental law cases in the term that ended Monday, and environmental groups lost every time. It was, said Richard J. Lazarus, a director of the Supreme Court Institute at Georgetown University, “the worst term ever” for environmental interests.

The big change resulted from Justice Alito, a rigidly-doctrinaire “conservative”, replacing Justice O’Connor, who grew up on a ranch in Arizona and New Mexico and tended to view environmental law fairly even-handedly.

This reflects a particularly disturbing element of the “judicial activism” on the current Court, which is the ideological predictability of at least the four most “conservative” members of the Court. Justice Sotomayor was criticized for noting that her background and life experiences would help her make better decisions on the Court. This was taken by her opponents as meaning she would decide cases based on her subjective preferences rather than based on the law. Yet Sotomayor’s observation was no different than that made by others, including the last justice to be confirmed, Sam Alito, who
said at his confirmation hearings:

…[W]hen a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

…[W]hen I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

…[W]hen I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

Justice Alito said that he thinks about “people in my own family” when he hears a discrimination case. Does that mean he was biased in favor of the white Italian-American plaintiff in the Ricci discrimination case?

The implication in much of the attacks on Justice Sotomayor is that the “neutral” state of mind is that of the white male. Yet the most predictable member of the current court is probably Chief Justice Roberts. He spent his career as a corporate lawyer and can be relied upon to rule in favor of corporate interests whenever they are stake before the Court. Indeed, you can pretty much predict how Roberts will rule based on the identity of the parties alone. Back in May, James Tobin had an
excellent article on Roberts in The New Yorker, where he observes:

After four years on the Court, however, Roberts’s record is not that of a humble
moderate but, rather, that of a doctrinaire conservative. The kind of humility
that Roberts favors reflects a view that the Court should almost always defer to
the existing power relationships in society. In every major case since he became
the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution
over the defendant, the state over the condemned, the executive branch over the
legislative, and the corporate defendant over the individual plaintiff. Even
more than Scalia, who has embodied judicial conservatism during a generation of
service on the Supreme Court, Roberts has served the interests, and reflected
the values, of the contemporary Republican Party.

What does it say when you can predict how a justice will rule based almost entirely based on the identity of the parties to a case? Roberts could probably benefit from the perspective of a “wise Latina” in the Court’s deliberations.

It was Roberts during his own confirmation hearings who helped create the
myth of the justice as an “umpire” who just “calls balls and strikes.” That assumes, among other things, that the law is always clear. Anyone who is familiar with the legislative process, for example, knows well that the language of a statute is not always clear and self-executing. Often, ambiguity is the intentional result of a legislative compromise. A good example of ambiguity in statutory interpretation is the infamous Lilly Ledbetter case.

In that case (
Ledbetter v. Goodyear Tire & Rubber Co.) a jury found that Ms. Ledbetter had been the subject of pay discrimination for almost 20 years. She only found out that she had been paid between 15 and 40% less than her male counterparts when confidential pay information was provided to her anonymously by a co-worker. The “conservative” majority of the Supreme Court overturned the jury award in her favor based on the statute of limitations in Title VII of the Civil Rights Act, which says, "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” In the case of on-going discrimination taking place over almost 20 years, does that mean the case must be brought within 180 days of when the discrimination first occurred? When it last occurred? What if the employee had no way of knowing the discrimination was taking place at the time because the payroll information was kept confidential by the employer? Does it mean the plaintiff can only be awarded damages for the pay discrimination occurring within 180 days of the time the suit was filed? The statute on its face doesn’t answer those questions. It’s not a simple matter of the “umpire” calling “balls and strikes.”

There is a well-established principle of statutory interpretation that if there are two (or more) possible interpretations of a statute, the judge should adopt the interpretation which is most consistent with, and that would further, the purposes of the statute over another interpretation which would frustrate the objectives of the statute or render it meaningless. In the Ledbetter case, the “conservative” majority required that a suit be brought within 180 days of the time a discriminatory employment act was first adopted, rather than when it was last applicable. The practical effect was to make it impossible to sue under the Act in cases like that of Lilly Ledbetter.

Justice Ginsburg noted in her dissent (joined by Breyer, Souter and Stevens), that "[p]ay disparities often occur, as they did in Ledbetter's case, in small increments; only over time is there strong cause to suspect that discrimination is at work." Moreover, the victim of the pay discrimination often has no way of knowing that it is taking place. Justice Ginsburg was so upset with the majority decision that she took the extraordinary step of reading her dissent aloud from the bench. She subsequently went public with her
growing frustration at being the only woman on the Supreme Court, citing the Ledbetter case as among those that would have benefitted from the perspective of another woman.

According the author of the majority opinion in Ledbetter, Justice Alito, the case was easily decided based on the statute “as written.” I guess that would be the “neutral” white male perspective. Congress disagreed and, in the first piece of legislation signed into law by President Obama, reversed the Court. (Attempts are also being made to reverse the Court’s gutting of the Clean Water Act in the Rapanos case.) This is another case where the perspective of a “wise Latina” might have been helpful.

I won’t rehash
Bush v. Gore other than to note that it is certainly the most “activist” Supreme Court decision of my lifetime – perhaps in the nation’s history. Never before had the Court taken upon itself to decide the ultimate “political question” – the outcome of a presidential election. To do so, it had to violate one of the central tenets of states’ rights, which is that a state’s supreme court is the final arbiter of the meaning of that state’s law. It also created an entirely new Equal Protection doctrine just for that case, which the “conservative” majority went on to say it couldn’t see applying to any other set of facts in the future.

E.J. Dionne recently had an excellent piece (“
The Real Court Radicals”) in the Washington Post on the activism of the Supreme Court’s current “conservative” majority. He points to latest “activist” move by that majority – the likely reversal of almost 100 years of restrictions on corporate activity in elections:

[T]he argument that began 40 years ago over the political and philosophical direction of the judiciary has reached a critical moment. Under Chief Justice John Roberts, conservatives have finally established a majority on the court that is beginning to work its will.

Republican senators know that Sotomayor's accession to the high court will not change this, since she is replacing Justice David Souter, a member of the court's liberal minority. But they want to use the hearings to paint the moderately liberal Sotomayor as, at best, the outer limit of what is acceptable on the bench to justify the new conservative activism that is about to become the rule.

"They have more or less given up on defeating her, so they are going to engage in a framing exercise," Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary
Committee, said in an interview. "They're trying to define a Republican worldview imported into the judiciary as the judicial norm for the country."

The goal, Whitehouse added, "is to define the political ideology" of the new conservative judiciary as "representing the mainstream and to tarnish any judges
who are outside that mark."

If you wonder what judicial activism looks like, consider one of the court's final moves in its spring term.

The justices had before them a simple case, involving a group called Citizens United that could have been disposed of on narrow grounds. The organization had asked to be exempt from the restrictions embodied in the 2002 McCain-Feingold campaign-finance law for a movie critical of Hillary Clinton that it produced during last year's
presidential campaign. Citizens United says it should not have to disclose who paid for the film.

Rather than decide the case before it, the court engaged in a remarkable exercise of judicial overreach. It postponed its decision, called for new briefs and scheduled a hearing this September on the broader question of whether corporations should be allowed to spend money to elect or defeat particular candidates.

What the court was saying was that it wanted to revisit a 19-year-old precedent that barred such corporate interference in the electoral process. That 1990 ruling upheld what has been the law of the land since 1947, when the Taft-Hartley Act banned independent expenditures by both corporations and labor unions.

To get a sense of just how extreme (and, yes, activist) such an approach would be, consider that laws restricting corporate activity in elections go all the way back to the Tillman Act of 1907, which prohibited corporations from giving directly to political campaigns.

It is truly frightening that a conservative Supreme Court is seriously considering
overturning a century-old tradition at the very moment the financial crisis has
brought home the terrible effects of excessive corporate influence on politics.

In the deregulatory wave of the 1980s and '90s, Congress was clearly too solicitous to the demands of finance. Why take a step now that would give corporations even more opportunity to buy influence? With the political winds shifting, do conservatives on the court see an opportunity to fight the trends against their side by altering the rules of the electoral game?

Such an "appalling" ruling, Schumer said in an interview, "would have more political
significance than any case since Bush v. Gore." He added: "It would dramatically
change America at a time when people are feeling that the special interests have
too much influence and the middle class doesn't have enough. It would exacerbate
both of these conditions."

So when conservatives try to paint Sotomayor as some sort of radical, consider that the real radicals are those who now hold a majority on the Supreme Court. In this battle, it is she, not her critics, who represents moderation and judicial restraint.

The Citizens United case, to be argued next month before the Court session formally begins in October, is the first case Justice Sotomayor will hear on the Court. I, for one, am glad we will have a “wise Latina” to help counterbalance the “judicial activists” on the Court.

Wednesday, August 5, 2009

serious bad craziness

It was 48 years ago yesterday – on August 4, 1961 – that our 44th President of the United States, Barack Hussein Obama, was born in Honolulu, Hawai’i. At least that’s what THEY would like you to believe. It’s not entirely clear who “THEY” are. But apparently a solid majority of Republicans in this country believe that there is some kind of conspiracy going on to cover up President Obama’s foreign birth (or at least they haven’t made up their minds on the subject).

That’s remarkable (which, of course, is why I am remarking on it).

Research 2000 poll last week found that only 42% of Republicans believe President Obama was born in the United States (compared with 93% of Democrats). This despite the fact that the State of Hawai’i has repeatedly confirmed his birth in that state and has released a copy of his birth certificate ( examined the actual document and confirmed its authenticity). And the Honolulu Advertiser has confirmed that a birth announcement ran in its paper on August 13, 1961; the Honolulu Star-Bulletin ran an identical announcement the next day.

Since President Obama’s mother was undeniably an American citizen, her child is also undeniably an American citizen – regardless of where he was born. The location of President Obama’s birth is only relevant to the question of whether he is a “natural born Citizen” as required by the Constitution to serve as president. Even on that point, the Constitutional requirement almost certainly requires only that he be born a US citizen – as opposed to being a “naturalized” citizen. (Ironically, the 2008 Republican presidential nominee, John McCain, was unquestionably born outside the United States. He was born in the city of Colon, Panama, which was Panamanian territory outside the US-administered Canal Zone. Yet there was never any serious controversy over whether he was a “natural born Citizen” of the US.)

So if you follow the “logic” (using that term loosely) of this controversy (assuming that any dispute that gets mainstream media attention is a “controversy” regardless of the underlying merits of the positions – see, e.g., “
Shape Of The World – Views Differ”), “THEY” must have anticipated back in 1961 that their “Manchurian Candidate”, the child Barack Obama, would someday run for president, necessitating false birth announcements in a couple of US newspapers (for any other purpose, mere US citizenship would have been sufficient). Wouldn’t it have been easier simply to have the child born in the US? Or maybe choose as your Manchurian Candidate a kid with two white parents instead of only one? You have to admit, back in 1961 electing an African-American president wouldn’t have seemed the most probable path to subverting the US government.

Jon Stewart had a great take on this subject (“
The Born Identity”):

The Daily Show With Jon StewartMon - Thurs 11p / 10c
The Born Identity
Daily Show
Full Episodes
Political HumorSpinal Tap Performance

Bill Maher also
takes on the subject:

"Lou Dobbs said recently that people are asking a lot of questions about the birth certificate. Yes. The same people that want to know where the sun goes at night. And... where to put the stamp on their email. And Lou, you're their new king"

What does it say about the “mainstream” media when this kind of stuff gets major play on CNN? FOX News, sure. And you expect it from a guy like Rush Limbaugh (“What do Obama and God have in common? Neither has a birth certificate.”). But he is a comedian addled on enough OxyContin to kill a race horse who makes no effort to disguise his naked appeal to fear and hatred. But Lou Dobbs pretends to be a serious journalist of some sort. Sure, he really made his career by stoking anti-immigrant nativism. But how are we supposed to engage in a national discussion over something reasonably complex like health care reform when 58% of Republicans can’t even come to grips with the notion that President Obama was born in the US?

[If you want to produce your own fraudulent Kenyan birth certificate, you can
do so here.]

And from
Sean Kelly yesterday, an Obama birthday card:

[click to enlarge]

It’s interesting to note that
69% of those who don’t believe President Obama was born in the United States live in the South. (And 97% of blacks and 87% of Hispanics believe President Obama was born in the US.) David Weigel of the Washington Independent looked at the numbers and calculated that roughly three-quarters of Southern whites have doubts as to whether President Obama was born in the US. In other words, this is largely a Southern white Republican phenomenon. Which makes it pretty hard to avoid the conclusion that this is ultimately about race and the fear of many white Republicans, especially Southern white Republicans, of “The Other” attaining power.

Harold Meyerson put it in the Washington Post today:

When future historians look back at this passage in our nation's history, I suspect they'll conclude that this Obama-isn't-American nuttiness refracted the insecurities and, in some cases, the hatred that a portion of conservative white America felt about having a black president and about the transformation of what many thought of as their white nation into a genuinely multiracial republic.

The South really is different from the rest of the country. And increasingly the Republican Party is a regional Southern party. President Obama actually did OK with white voters nationally. He didn’t win a majority, but he got 43% of the white vote, which was better than Gore and Kerry did (and better than Clinton in 1992 but about the same as Clinton in 1996). But President Obama’s percentage of the overall white vote is particularly remarkable when you factor in how he did with Southern whites: His
percentage of the white vote was only 14% in Mississippi and Louisiana and only 10% in Alabama.

When Lyndon Johnson signed the Civil Rights Act in 1964, he was said to have remarked to an aide as he put down his pen, “
We have lost the South for a generation.” Alas, LBJ actually underestimated the backlash from his fellow Southern whites. The South, which had been solidly Democratic, quickly became solidly Republican. Almost two generations later, it still is. That solid block of Southern electoral votes has been the key to Republican power since Nixon adopted his “Southern Strategy” in 1968. To put it bluntly, Republican success over the past forty has been largely a function of its appeal to Southern whites alienated from the Democratic Party over racial issues.

Last week, Ohio Senator George Voinovich, a Republican who is retiring next year, caused a stir when he complained that his party is “
being taken over by southerners.” He has a point: In the United States Senate, Republicans control 19 of the 26 seats in the South but only 21 seats outside the South. By contrast, Democrats control 53 seats – or almost three-quarters – of Senate seats outside the South. The two Republican Senators from Maine, Olympia Snowe and Susan Collins, have made similar comments complaining about the increasingly narrow Republican base, as has Minnesota governor Tim Pawlenty. Nixon’s Southern Strategy has finally run its course.

The country is changing and the new demographics don’t favor the Republican Party.

As Nate Silver

Consider this remarkable statistic. In 1980, 32 percent of the electorate consisted of white Democrats (or at least white Carter voters) -- likewise, in 2008, 32 percent of the electorate consisted of white Obama voters. But whereas, in 1980, just 9 percent of the electorate were nonwhite Carter voters, 21 percent of the electorate were nonwhite Obama voters last year. Thus, Carter went down to a landslide defeat, whereas Obama defeated John McCain by a healthy margin.

In 2008, President Obama won 67% of the Hispanic vote. He also won 68% of voters age 18 to 29. This is the future of the electorate. And it’s only getting worse for Republicans. In the aftermath of the Senate Judiciary Committee hearings on the nomination of Judge Sotomayor to the Supreme Court, the view of the Republican Party among Hispanics has plunged (from already abysmal levels). A
Research 2000 poll in last month found only 6% of Hispanics holding a positive view of the Republican Party. The number was an identical 6% among voters under 30.

The nomination of Judge Sotomayor to the Supreme Court has also brought out the worst in the Republican Party as their attacks on her have been almost entirely racial in nature. All but four of the 110 Supreme Court justices in our country’s history have been white males. But the nomination of the first Hispanic (and only the third woman) has caused white Republican males to go nuts. Just
yesterday, Senator Inhofe (R-Ok) accused Judge Sotomayor of being “racist.” Inhofe was just echoing the rhetoric of Rush Limbaugh, Newt Gringrich, Pat Buchanan, Tom Tancredo and other Republicans. I hope to write a full post on this subject in the next few days. But it is worth noting that Judge Sotomayor has been on the bench for 17 years. She has a record. The outstanding SCOTUSBlog actually looked at that record:
Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury
selection in his case. So Judge Sotomayor rejected discrimination-related claims
by a margin of roughly 8 to 1.

Others have undertaken similar reviews of
her record:

An exhaustive review of all 1,994 constitutional cases decided by the Second Circuit during the decade of Judge Sotomayor’s service found that Sotomayor is solidly in the mainstream of her colleagues. The Brennan Center for Justice report found Sotomayor voted with the majority of the court in 98.2 percent of constitutional cases.

Of all the cases Judge Sotomayor has decided in 17 years on the bench, Republicans have chosen to focus almost all their fire on one – the Ricci case – because it involved the inflammatory issue of race. Specifically, accusations of reverse discrimination against white firefighters. Yet almost no one disputes that her ruling in that case was entirely consistent with binding precedent in the 2nd Circuit. In other words, her critics have protested the fact that she wasn’t a judicial activist who disregarded precedent and substituted her judgment for that of local elected officials. The Supreme Court eventually overruled the 2nd Circuit in a 5-4 vote. But the Supreme Court, unlike an appeals court judge, has the ability to overturn precedent. And as Glenn Greenwald
has noted, 11 of the 21 federal judges who ruled on the Ricci case ruled the same way Judge Sotomayor did. Even the Supreme Court majority more or less acknowledged that it was changing existing law. As a reflection on the career of Judge Sotomayor, the Ricci case is pretty much irrelevant. Yet it was the one case Republicans chose to emphasize, going so far as to bring the white New Haven firefighters to her Senate hearings. The reason is simple: To inflame emotions on the subject of race.

The ability of race to enflame passions was also demonstrated recently with the whole Henry Louis Gates matter.

It seems it should have been pretty obvious that you don’t need to handcuff and haul off to jail a 58-year old Harvard professor who walks with a cane after it had been established that he was legitimately in his own home. I have no reason to doubt that Prof. Gates was arrogant, rude and self-important in his dealings with Officer Crowley. An arrogant Harvard professor? Stop the presses! But does anyone seriously believe that an arrogant white Harvard professor – say, Larry Summers – would have been hauled off to jail in handcuffs for being rude to a police officer in his own home?

No one contends that Prof. Gates assaulted or threatened the officer in any manner. He was charged with “disorderly conduct.” But it is legally impossible to commit the crime of “disorderly conduct” in the privacy of your own home in a one-on-one interaction with a police officer.
Massachusetts law requires that the “public” be involved in some way. The relevant statute requires a “purpose to cause public inconvenience, annoyance or alarm.” If it’s just between you and a police officer, you cannot be guilty of “disorderly conduct.” It is not a crime to be rude or insulting to a police officer – you can be the biggest jerk in the world in your own home. Which is why the charges against Prof. Gates were almost immediately dropped.

Police officers are supposed to de-escalate conflicts. The records in this matter show that it was only about six minutes between the time the 911 call was placed and the time Gates was hauled off in handcuffs. That wouldn’t seem to indicate that much effort was made to de-escalate matters. Once the officer determined Gates was legitimately in his own home he should have excused himself for the intrusion and left. But for whatever reason, Officer Crowley was not willing to take any crap from Prof. Gates. If Prof. Gates had committed an offense, the officer could have cited him. But hauling him off to jail in handcuffs when he presented no threat to anyone was just a power play. Yet in this case, presumably because of the racial element, the actions of the white police officer have been vociferously defended by right-wingers who would have had to have their guns pried out of their cold dead hands if anyone tried to handcuff them in their own homes when they had committed no crime other than being loudmouthed jerks. The intensity of the emotions raised by this incident make it pretty clear that race still has the ability to polarize opinion in this country. It was, as President Obama suggested, a “teachable moment.”

As with the Sotomayor nomination, the Gates matter shows there are a lot of white men who are having trouble dealing with new power structures in an increasingly multicultural country. As with the Obama birth certificate “controversy,” these stories show a Republican Party that is still obsessed with race – and not in a good way. Like
Glenn Beck’s tirade on FOX News, where he said of President Obama, “this guy is a racist.” According to Beck, President Obama “over and over again” has exposed himself to be “a guy who has a deep-seated hatred for white people or the white culture” – presumably including his white mother and white grandparents who raised him as a child.

That focus on race served the Republican Party well for forty years. But it is now proving to be its undoing. America is changing. But there are no signs of the Republican Party changing, as its base is becoming increasingly concentrated among Southern whites. Judging from the whole birth certificate matter, it appears to be a pretty crazy base.

Some serious bad craziness.