“Race And The Supreme Court”: Furthuring The Racial Divide In Our Two Americas
When the United States Supreme Court upheld Michigan’s ban on affirmative action in higher education Tuesday, the justices weren’t just endorsing similar bans in seven other states and inviting future ones. They were, fundamentally, continuing a painful conversation among themselves, and between themselves and the rest of us, on the topic of race in America.
It is a conversation that has been ongoing in its present iteration since the Court’s ideological core shifted to the right almost a decade ago, following the resignation of Justice Sandra Day O’Connor in July 2005. She was replaced by a far more conservative jurist, Justice Samuel Alito, the Court’s center of gravity then shifted from Justice O’Connor to the more conservative Justice Anthony Kennedy, and the ascent of Chief Justice John Roberts, who replaced his friend and mentor Chief Justice William Rehnquist, made the Court’s transition complete.
And it’s a conversation that, judging from the past few related decisions, isn’t bridging the racial divide in this country but rather splintering it further apart. The Court’s ruling in Schuette v. Coalition to Defend would not have happened 10 years ago. We know this because Justice O’Connor herself, in Grutter v. Bollinger, another case out of Michigan, crafted a 5-4 ruling that gave such remedial programs another shaky decade of life. But now they are as good as dead and, as Justice John Paul Stevens said in another context, the Court’s majority didn’t even have the courtesy to give them a proper burial.
Instead, they will be killed over time by what Justice Anthony Kennedy labeled as the procedural necessity of allowing state voters to impose their will upon minorities. We aren’t ruling on the merits of affirmative action, the justice wrote, instead we are merely allowing the voters of Michigan to render their own judgment about affirmative action. And even though that action commands university administrators not to consider race as a factor in admissions, and even though everyone understands that the Michigan measure was passed to preclude what supporters called “racial preferences,” this democratic choice somehow does not offend equal protection principles under the Constitution.
Also unthinkable before the Roberts Court kicked into gear would have been its Court’s decision last June in Shelby County v. Holder to strike down the preclearance provision of the Voting Rights Act. And it would be a mistake today not to connect that ruling to the one in Schuette. They are different sides of the same coin. Shelby County told white politicians in the South that they could now more freely change voting rules to make it harder for minorities to vote. Tuesday’s decision tells white voters that they can move via the ballot box to restrict remedies designed to help minority students and, by extension, communities of color. In each case, the Court sought to somehow extract race out of racial problems.
In Shelby County, the Court’s majority refused to acknowledge the will of the people as expressed through Congress, which repeatedly had renewed Section 4 of the Voting Rights Act with large bipartisan majorities. Yet in Schuette, the Court’s majority rushed to embrace the will of the people of Michigan as expressed in their rejection of affirmative action. Contradiction? Sure. But what these cases have in common is clear: this Court is hostile to the idea that the nation’s racial problems are going to be resolved by policies and programs that treat the races differently. This is what the Chief Justice means when he says, as he did in 2007, that “the way to stop discriminating on the basis of race is to stop discrimination on the basis of race.”
In a perfect world– a post-racial world, you might say—the Chief Justice would be absolutely correct. But the problem with his formula is that he seeks to declare it at a time when there is still in this country widespread discrimination, official and otherwise, based upon race. It is present in our criminal justice systems. It is present still in our election systems. It is present economically and politically even though, as conservatives like the Chief Justice like to point out, far more minorities participate in the political process then did half a century ago. And so the idea that now is the time to stop reflecting this reality in constitutional doctrine is to me a dubious one. “Enough is enough,” the essence of Justice Antonin Scalia’s argument, is neither a solution nor a just way in which to end the experiment in racial justice we’ve experienced in America for the past 50 years. Enough may be enough for white Americans. But it’s not nearly enough for citizens of color.
And this surely is what Justice Sotomayor had in mind when she wrote her dissent in Schuette. What is the role of the federal judiciary if not to protect the rights of minorities against the tyranny of majority rule?
The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
This is the language that future historians will cite when they cite this cynical decision and this troubling era in America’s racial history. What’s the best evidence that the Supreme Court has it all wrong? Just consider how the two Americas, the two solitudes, reacted to the news of Schuette. The Chief Justice, in his short and defensive concurrence, accused Justice Sotomayor of “doing more harm than good to question the openness and candor of those on either side of the debate.” But to Justice Sotomayor, and to those who share her view, there is no debate. It’s already over. And the side that usually wins in America clearly has won again.
By: Andrew Cohen, Fellow, The Brennan Center For Justice at New York University School of Law; April 23, 2014
“GOP To Latinos, Drop Dead”: ‘It’s Over, Don’t Call Me And Have A Nice Life’
Breakups are rough — regrets, pain and bitter memories. As Republicans in the House block immigration reform time after time, American Latinos get the message: It’s over, don’t call me. Have a nice life.
Incapable of producing even one GOP vote in favor of the Democrats’ last-ditch gamble at forcing an open vote of the House, the message to Latinos is crystalline. Whatever goodwill the clutch of pro-immigration reform House Republicans won in the last year since the Senate passed its bipartisan comprehensive immigration reform bill has now evaporated.
What remains are the weekly flip-flops by Speaker John Boehner (R-Ohio), the yelps of “amnesty” coming from a seemingly frightened Majority Leader Eric Cantor (R-Va.), the tiny fig leaf provided by Rep. Bob Goodlatte’s (R-Va.) seven bills he’s been talking about for a year and the shameful action to deport all Dreamers through the recently unanimous vote of the House Republican caucus’s fantasy bill, the Enforce Act.
Some 15 months after former Gov. Mitt Romney’s (R-Mass.) “self-deportation” turkey handed the Latino vote (not to mention the Asian-American electorate) to the Democrats, Republicans are still incapable of effectively dealing with an issue that commands big majorities of Americans — including Republicans.
Great analyses have been written by Greg Sargent, Charlie Cook, and Juan Williams, among others, about the “paranoia” inherent in the Republican Party’s refusal put forward a coherent immigration reform policy. Setting the political calculus aside, most Republicans on Capitol Hill seem to have no clue about what immigration reform actually represents to Latino voters.
As I’ve written previously, immigration reform is not a policy debate for Hispanics. It stands as a proxy for societal respect — even though most Latinos are either American-born, naturalized citizens or have a green card and will not benefit from any reform. While it’s not fair to judge the GOP based on people like Rep. Steve King (R-Iowa) and his anti-immigrant logorrhea, he and other anti-immigrant Republicans have become the effective spokespeople of the GOP on this issue.
Whatever good intentions may exist in the GOP House to move forward with a bill, the lack of any action by Boehner (not to mention right-wing extremists’ wholesale rejection of a reasonable compromise) is now officially the Republican position.
This is what Latinos think.
On my radio show every day, and on social media 24/7, I am part of a conversation where responsibility for both the failure of comprehensive reform, and the acrid discourse surrounding it, is laid at the feet of Republicans exclusively.
New to American politics, organic groups of American Latinos have formed online with the express purpose of increasing Latino turnout in November and dealing the GOP a blow. No longer tied to the traditional activist organizations, still espousing 1960s tactics and attitudes, these new groups are savvy Facebookers and tweeters that can spread a political message across the country with the click of the mouse — reaching tens of thousands of people in an instant, hundreds of thousands per day.
This political battle is now personal. Just like the tea party fervor of 2010, driven by a single-minded focus to oppose President Obama, these online Latino groups share a similar obsession with throwing Republicans out of office.
One such group, organized primarily through the hashtag #TNTweeters, has attracted thousands of active social media “warriors” that engage in a robust political debate — principally calling for a GOP defeat in November.
Will this new kind of political activists succeed in altering the electoral math in the midterms? No one can say, of course. Latinos have historically sat out non-presidential elections. But history is not always prologue. The level of frustration, even anger, now focused on the GOP, combined with the frictionless power of social media, represents a fundamentally new political dynamic in American politics.
Come this November 4, Republicans may just wake up to the ugly reality that breaking up with American Latinos over immigration was an easily avoidable and ultimately very costly divorce.
By: Fernando Espuelas, The Huffington Post Blog, April 25, 2014
“John Boehner Is A Ridiculous Man”: Lacking Political Courage, The Republican Establishment Has A Problem
As soon as I saw what John Boehner had done, I knew that the folks at Red State would lose their minds. While speaking at the Middletown, Ohio, Rotary Club, Speaker Boehner dismissed the possibility of truly repealing ObamaCare and mocked his colleagues in the House who lack the political courage to pass some kind of immigration reform.
On ObamaCare, Boehner said repeal wasn’t even the goal. The goal was to “repeal and replace.” But, as soon as he began to describe what replacing would mean, he made it clear that much of what had been done could not be undone:
“The challenge is that Obamacare is the law of the land. It is there and it has driven all types of changes in our health care delivery system. You can’t recreate an insurance market over night.
“Secondly, you’ve got the big hospital organizations buying up doctor’s groups because hospitals get reimbursed two or three times doctor’s do for the same procedure just because it’s a hospital. Those kinds of changes can’t be redone.
“So the biggest challenge we are going to have is — I do think at some point we’ll get there — is the transition of Obamacare back to a system that empowers patients and doctors to make choices that are good for their own health as opposed to doing what the government is dictating they should do.”
In other words, repeal is out of the question and “replace” means “tinker.”
Over at Red State, Daniel Horowitz is apoplectic:
Which means that he has no intention to repeal it.
It’s funny how we warned those who opposed the effort to defund Obamacare that they would never repeal it at a later date. They denied the charge at the time; now they are embracing it.
Maybe even more troubling to the base is Boehner’s attitude about immigration reform.
“Here’s the attitude. Ohhhh. Don’t make me do this. Ohhhh. This is too hard,” Boehner whined before a luncheon crowd at Brown’s Run County Club in Madison Township.
“We get elected to make choices. We get elected to solve problems and it’s remarkable to me how many of my colleagues just don’t want to … They’ll take the path of least resistance.”
Boehner said he’s been working for 16 or 17 months trying to push Congress to deal with immigration reform.
“I’ve had every brick and bat and arrow shot at me over this issue just because I wanted to deal with it. I didn’t say it was going to be easy,” he said.
Of course, a majority in the House wants to pass immigration reform, so Boehner could do it tomorrow if he was willing to put up with the grumbling in his own party. If he thinks it would cost him his leadership position, then he’s lacking political courage, too.
Here’s Horowitz’s response:
Yes, Mr. Boehner. We actually want to solve the immigration problem.
We want to deal with the problem of criminals being let out of jail.
We want to deal with the problem of Obama suspending deportations.
We want to deal with birthright citizenship and other magnets that allow foreigners to violate our sovereignty and take advantage of the welfare state.
We want to make immigration work for the American people, not for your donors.
Sadly, you have no interest in joining us in combating the President’s malfeasance. You are the one who is too scared to make hard decisions. It’s a lot easier to go along with the political class and cowardly hide behind the misleading canard of “reform” just for the purpose of pushing the same failed amnesty that has engendered endless cycles of illegal immigration and that is already spawning a new wave. It’s akin to saying conservatives are cowards for not dealing with “healthcare reform” because they don’t support Obamacare.
In the aftermath of the 2012 election, the Republican National Committee did a study to figure out why they lost and what they needed to do differently to win in the future. They basically concluded that they lost because they sounded too much like Red State. They couldn’t ignore the need for immigration reform anymore. They couldn’t continue to oppose gay equality. The New York Times’ Tom Edsall described the problem this way:
There is at least one crucial problem that the authors, all members of the establishment wing of the party, address only peripherally and with kid gloves: the extreme conservatism of the party’s primary and caucus voters — the people who actually pick nominees. For over three decades, these voters have episodically shown an inclination to go off the deep end and nominate general election losers in House and Senate races — or, in the case of very conservative states and districts, general election winners who push the party in the House and Senate to become an instrument of obstruction.
Ironically, it was Senate Minority Leader Mitch McConnell who conceived of the Party of No strategy that the GOP has followed with almost psychotic glee. President Obama’s reelection did not alter that strategy one iota. Somehow, the folks at Red State took the strategy seriously, as if it were about principle instead of a failed attempt to destroy Obama’s presidency.
So, now the Republican Establishment has a problem. They cannot govern according to their own lights. They literally cannot lead their own caucuses. When they whine about the results, they invite nothing more than simple ridicule.
By: Martin Longman, Washington Monthly, Ten Miles Square, April 25, 2014
“Bedfellows Of Bigotry”: Bundy Saga Reveals The Risk Of Cozying Up To Extremists
Nevada cattle rancher Cliven Bundy knows how to start a stampede.
After Bundy, who became a right-wing hero for his refusal to acknowledge the authority of the federal government, wondered aloud about whether “Negro” people were “better off as slaves,” conservative figures who had celebrated his cause rushed to distance themselves from him.
Sen. Rand Paul (R-Ky.), who had condemned the federal government’s attempt to enforce court orders against Bundy: “Offensive.”
Sen. Dean Heller (R-Nev.), who had declared Bundy’s followers “patriots”: “Appalling and racist.”
And Sean Hannity, who had led a Fox News campaign that made a hero of Bundy: “Beyond repugnant.”
Bundy boosters are right to be appalled, but they should not be shocked.
The anti-government strain of thought that Bundy advanced has been intertwined with racist and anti-Semitic views over several decades. Not all people who resist the authority of the federal government are motivated by race, of course, and not all racists are anti-government. But there is a long symbiosis between the two.
Among those who rallied to Bundy’s defense in Bunkerville, Nev. — the supporters Heller labeled patriots — was Wiley Drake, an Internet preacher affiliated with the “Oath Keepers” movement. According to reports from the scene, Drake told a crowd of Bundy supporters that they shouldn’t bow to the “half-breed” President Obama.
In general terms, Bundy’s notion of state supremacy — “I don’t recognize the United States government as even existing” — is a variant of states’-rights claims that go back to the Civil War and were revived in the segregationists’ opposition to civil rights laws. Because the federal government has been the protector of minority rights, states’ rights have long been used to justify discrimination.
Specifically, the Southern Poverty Law Center, which tracks anti-government and hate groups, says that Bundy’s sentiments align closely with those of the “Posse Comitatus” movement, founded by William Potter Gale in the 1970s. That movement based its anti-tax position — and its belief in the primacy of county and state authority over the federal government — on a belief that the levers of national power were controlled by Jewish bankers. “Most of the ideas that bolster positions like Cliven’s that the federal government doesn’t exist come from Posse Comitatus ideology,” the SPLC’s Ryan Lenz argues. And that ideology is rooted in bigotry.
The SPLC puts “patriot” groups in a separate category from white supremacists and others organized around hate. The patriots make a constitutional argument to justify antipathy toward the federal government; this can be seen in the noise about secession, nullification, “state sovereignty” and the primacy of the 10th Amendment. But the two categories have some overlap — and that’s why politicians and commentators who try to harness the energy of the “patriot” movement got burned this week. If you flirt with extremists, you’re eventually going to end up with strange bedfellows.
Chris McDaniel, opposing Sen. Thad Cochran in Mississippi’s Republican primary, withdrew from being the keynote speaker at next month’s “Firearm Freedom Day/Tea Party Music Fest” conference when it was reported that the same conference was also touting the participation of a seller of “white pride” merchandise. Likewise, Greg Abbott, the GOP gubernatorial candidate in Texas, campaigned with Ted Nugent and got caught in an uproar over the rock musician labeling Obama a “subhuman mongrel.”
In Florida, Rep. Ted Yoho (R) had to backtrack after telling constituents that he couldn’t say with “100 percent” certainty that the Civil Rights Act is constitutional because “a lot of things that were passed are not constitutional.” Yoho later issued a statement saying the act “is one of the most significant, and constitutional, pieces of legislation in the past 100 years.” Yoho’s flap was reminiscent of Paul’s 2010 questioning of the act’s constitutionality and subsequent climb-down.
Paul, as it happens, was among those undermined by Bundy when the New York Times’s Adam Nagourney reported the rancher’s racist monologue Wednesday night. Paul had sided with Bundy in the standoff, saying “the federal government shouldn’t violate the law, nor should we have 48 federal agencies carrying weapons and having SWAT teams.”
Various others, including Nevada’s Republican governor, Brian Sandoval, had been similarly critical of the federal government. Sen. Ted Cruz (R-Tex.) on Tuesday said the federal government was “using the jackboot of authoritarianism to come against the citizens.”
By Thursday, Cruz’s office was calling Bundy’s racism “completely unacceptable.”
And yet completely unsurprising.
By: Dana Milbank, Opinion Writer, the Washington Post, April 25, 2014
“Sad But True”: The Only Way To Save The Open Internet Requires Sucking Up To Corporate Titans
The Internet as we know it will permanently change if new rules proposed this week by the Federal Communications Commission (FCC) allow Comcast or AT&T to create a “fast lane” on the Web for companies that pay a fee. Content providers who buy off telecoms for faster speeds would simply outmuscle their counterparts, stifling innovation from startups that can’t afford to compete. If my local McDonald’s opened a special lane to their register that was closed to all competing traffic, while reaching the Burger King down the street required hacking through a mile of jungle, I’ll probably just get a Big Mac instead of a Whopper.
The FCC had to act, because of an appellate court ruling in January blocking their previous open Internet rules. But net neutrality advocates wanted the agency to reclassify broadband Internet as a common carrier service, as they do with telephones, preventing discrimination on whatever passes through the pipe. Instead, FCC Chair Tom Wheeler, a former cable industry lobbyist, opted for an alternative that will enrich Internet service providers (ISPs) and lead to a permanent digital divide. Wheeler’s justification, that no content would face discrimination, but telecoms can charge for faster service, has been roundly criticized, and with good reason. But will anyone be able to mobilize against the powerful interests pushing through the proposed rules?
There’s a recent precedent for Internet-based mobilization actually bringing down a corporate giveaway that initially looked inevitable. In 2011, Congress appeared close to sneaking through the Stop Online Piracy Act (SOPA) just before the Christmas holidays. The bill would have empowered the government to compel ISPs to shut down websites based on subjective audio or video copyright claims. It was a giant wet kiss to the movie and music industries, a bill that would have effectively eliminated user-generated content on the Web (could Facebook be expected to police their entire site minute-by-minute for copyright infringement?) and allowed media conglomerates to take over. You won’t be surprised that the staffers in House Judiciary Committee chair Lamar Smith’s office who wrote the bill left right afterward to become entertainment industry lobbyists.
But the Internet, in a coordinated pushback, beat SOPA, amid virtual silence from broadcast media, whose parent companies supported the bill. Web users of all political stripes bombarded Congress. At one point, Tumblr announced they were generating 3.6 calls per second. On January 18, 2012, hundreds of websites, including Wikipedia, participated in the largest Internet strike in history, redacting their content and posting links to help people register constituent complaints. Lawmakers walked away from the bill in droves; in the end, it never even got a vote.
The net neutrality fight shares some common elements with the SOPA battle. The universe of people affected—everyone who uses the Internet—is sufficiently big to enable a mass coalition. Demand Progress, a group active in the SOPA fight, has already begun to mobilize in conjunction with RootsAction, gathering 26,000 signatures on a petition in a matter of hours.
But the SOPA fight was truly trans-partisan, as conservatives made common cause with progressives against censorship of their websites. That potential doesn’t exist on net neutrality, as Republicans have rejected what they consider government regulation of the Internet. So the fight already begins with a narrower base. In addition, it’s easier to target individual members of Congress over proposed legislation, than rules from independent regulatory agencies (although, considering that the Obama Administration reaffirmed their commitment to net neutrality just two months ago, activists can try to hold them accountable).
Most important, net neutrality advocates likely need buy-in from corporate America. In a recent political science study, Martin Gilens of Princeton and Benjamin Page of Northwestern found that economic elites and organized business interests can have significant impact over public policy, while ordinary citizens just don’t. When the government acts in the interest of citizens at all, it’s often an accidental by-product of public preferences coincidentally matching those of business groups.
Many took this study to mean that the United States now functionally operates as an oligarchy rather than a democracy. It may actually mean that in America, citizens are typically disorganized on most public policy questions, particularly in an age of labor union decline, but can reverse that through mass organizing. Whatever your perspective, the SOPA fight offers a perfect case study. That effort really took off when Google, Reddit, and other major websites decided to join the fight, counterbalancing pressure on the other side from Hollywood. Tech giants knew that their businesses would be damaged by onerous copyright restrictions. The public interest and the interests of at least one set of elites aligned.
It’s not yet clear whether the same coalition will materialize to fight the FCC. The larger incumbent content providers, like Yahoo and Google, may well like paying for a faster Internet pipe, because it narrows competition to those who are already established. Netflix has already started paying for priority speeds, in a deal with Comcast for better back-end transit. In addition, Google is both a content producer and, through Google Fiber, an Internet service provider, and can reap profits by charging tolls for their fast lane. The company has been veering away from net neutrality for quite some time. Notably, the Internet Association, a coalition featuring Google, eBay, Netflix and other tech bigwigs, has said nothing about the FCC’s proposed rules yet, despite nominally supporting net neutrality. Google did not respond to a request for comment for this article.
This transformation by Google and others is common. As formerly upstart companies mature, they suddenly grow comfortable with regulations that favor incumbency—as long as they’re the incumbents. For a movement-based response to the FCC to succeed, activists must peel off companies willing to stay true to their word, and essentially rebuild a new corporate coalition that can engage their user base.
Netflix seems like an obvious choice. Despite their previous dealings, the streaming video giant has lashed out against Comcast for “arbitrary interconnection tolls,” and publicly opposed the merger between Comcast and Time Warner. Surely Netflix executives understand that a telecom industry freed to charge for faster broadband speeds will be able to raise prices over the years, and gouge incumbents. Netflix can go along with the arms race, or help to end it before it begins. Their leadership will attract smaller Internet players that can take more risks, because a pay-to-play Internet really does threaten their survival.
In this case, you can easily recognize the seeds of mass mobilization, which may provide enough political cover for a Netflix or Twitter to act. Tech communities with big audiences have responded to the FCC announcement with outrage. People intuitively know and resist the concentration of power controlling the tools they use every day. Several Democrats have criticized the proposal, from Cory Booker to Bernie Sanders to Nancy Pelosi, who actually urged people to contact the FCC with their criticisms. The ferocity of the backlash may have rocked the FCC back on their heels a bit, but time is short, with a May 15 meeting to move forward on the proposal looming.
But the sad fact of modern political life is that democratic action requires more than mere expressions of dissent, or the expectation that politicians who share our tribal sympathies will work on our behalf. To reach the critical mass necessary to succeed, savvy political organizing in the 21st century now includes convincing the business sector to recognize their interests and when they’re imperiled.
By: David Dayen, The New Republic, April 24, 2014
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