“Juries And Racial Bias”: The Supreme Court Cracks Down On Racist Prosecutors
The Supreme Court tends to expend more energy detangling questions of law than it does sorting through questions of fact. But on May 23rd, in a decision that could spare the life of a death-row inmate in Georgia, the justices took a microscope to the jury selection process in the trial of Timothy Tyrone Foster, a black man sentenced to die by an all-white jury in 1987 for murdering an elderly woman a year earlier. After examining evidence that emerged in 2006, the justices decided, by a 7-1 vote, that prosecutors were illicitly motivated by racial bias when they struck two blacks from Mr Foster’s jury pool. Justice Clarence Thomas, the lone dissenter, wrote that there were “credible” non-racist reasons for dismissing them from the list of potential jurors; his colleagues’ dive into a three-decade-old trial, Justice Thomas charged, was “flabbergasting”.
In his majority opinion in Foster v Chatman, Chief Justice John Roberts methodically marched through rather damning evidence that the men prosecuting Mr Foster were hell-bent on keeping black people off the jury. The prosecutors’ notes during voir dire (jury selection) showed certain names highlighted in green, a colour that, the legend helpfully explains, “represents blacks”. The prospective black jurors were labelled “B#1”, “B#2” and “B#3” with capital letter “N” (meaning “no”) written next to each. All of the prospective jurors were asked to fill out a questionnaire including a question about their race; on the black individuals’ answer sheets, prosecutors drew attention to their race by circling the answer. And one of the lawyers scribbled out this sentiment: “If it comes down to having to pick one of the black jurors, [this one] might be okay”.
All of this, Mr Foster’s lawyer said at the November oral argument, adds up to “an arsenal of smoking guns” that race was at the forefront of the prosecutors’ minds. Such bias, the Supreme Court decided in Batson v Kentucky, a ruling that came down a year before Mr Foster’s trial, is impermissible during jury selection. When eliminating potential jurors via peremptory challenges (as opposed to challenges “for cause”), lawyers can be called upon to present a race-neutral explanation for their strikes. Mr Roberts wrote that the Georgia Supreme Court had “clearly erred” when it determined that racial considerations played no part in the selection of the jury. The host of reasons cited for nixing the black jurors—too young to care about a 79-year-old victim, too (apparently) bored, too shifty-eyed, too biased by relatives who were social workers—were not persuasive, as they applied just as readily to several non-black prospective jurors who were not challenged. These justifications, the court held, were mere pretext. Add to this “the shifting explanations, the misrepresentations of the record and the persistent focus on race in the prosecution’s file” and the justices are “left with the firm conviction that the strikes…were motivated in substantial part by discriminatory intent”.
Very late in the game, and in the face of all those smoking guns, Georgia tried to defend the apparently racist strikes with a brazenly duplicitous mind-game defence. The prosecutors were keenly aware that they would be held to a higher standard since Batson had been decided just a year earlier. They called such flamboyant attention to the race of the prospective jurors only so they could keep track of the black jurors in the event they were called upon to supply a race-neutral reason for their dismissal. This argument, Mr Roberts wrote, “falls flat” and “reeks of afterthought”, since it had not been made “in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the state’s brief in opposition to Foster’s petition for certiorari”. All the lights and whistles flagging the individuals’ race, he wrote, “plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”
That the sole African American member of the Supreme Court bench saw the case so differently is less surprising than it might seem. In recent rulings, Justice Thomas has found himself increasingly alienated from his seven colleagues. Three times in the past two weeks, he has cast a lonely dissenting vote from an otherwise unanimous decision. But the implications of his colleagues’ ruling in Foster v Chatman remain to be seen. Mr Foster can ask for a new sentencing trial, but he has no guarantee another jury will be more lenient. And it’s unclear how much of a constraint Foster will be moving forward. Prosecutors are on notice that incriminating notations during jury selection are a very bad idea. That may lead, on the margins, to less racial discrimination in the criminal justice system—but it will do little to curtail subtler methods of jury manipulation.
By: Steve Mazie, The Economist, May 23, 2016
“Reporters Now Face A Choice”: Can Donald Trump Win By Duping Young Voters With ‘90s Conspiracy Theories?
The final week of the Republican primary was essentially a formality, but in hindsight an exceptionally important formality.
As long as Donald Trump still had to go through the motions to fend off candidates whose campaigns had been reduced to simulacra, and as long as his opponents were clinging to the hope of defeating him at the GOP convention, their combat served as a kind of permission for reporters to treat Trump’s campaign as the anomaly that it was.
On the eve of the fateful Indiana primary, when Trump infamously and speciously linked Ted Cruz’s father, Rafael, to the assassination of John F. Kennedy, The Washington Post ran a story headlined, “How on earth is the media supposed to cover Trump’s wacky JFK-Cruz conspiracy theory?” Glenn Kessler, who writes the Post’s fact checker column, gave Trump all four of his dreaded Pinocchios. Even the Post’s straight news piece about the supposed Cruz/Lee Harvey Oswald connection lead with an incredulous dependent clause, describing Trump as “Never one to shy away from discussing unsubstantiated tabloid fodder …”
In theory, debunking political whoppers is what the press is supposed to do, but in practice, things aren’t usually so straightforward. Politicians control access to themselves and their privileged information, which gives them outsize control over who breaks news. With their parties and supporters behind them, they can freeze out adversarial reporters and dismiss accusations of dishonesty as media bias. But in Trump’s case, reporters weren’t the lone arbiters of truth during the primaries. Other Republicans participated, too. Ted Cruz called Trump an “utterly amoral” “pathological liar,” a “narcissist” and a “bully.” The press wasn’t adjudicating Trump’s claims so much as they were relaying a cross-ideological consensus that Trump was unglued.
Just a few hours after he addressed the JFK conspiracy theory, Cruz suspended his campaign and the dynamic between the press and Trump changed. Leading Republicans stopped calling Trump a liar and trying to deny him their party’s nomination. In embracing Trump, they essentially rescinded their permission to the press to treat him as an outlier.
Reporters now face a choice between reimagining Trump as a partisan mirror image of Hillary Clinton, or drawing the ire of the broader GOP. Trump can’t become president unless he comes to be seen as on a par with Clinton, and that can’t happen without the assent of the media. So far the media hasn’t granted it, but we’ve seen scattered indicia of how it might happen.
Trump can’t become president unless he comes to be seen as on a par with Clinton, and that can’t happen without the assent of the media.
When Trump swung into general-election mode and indulged the horrific lie, fixated upon by conservative media more than twenty years ago, that the Clintons may have murdered Vince Foster (a Clinton ally who killed himself shortly after joining the White House counsel’s office), the Post rightly described Foster’s suicide as “the focus of intense and far-fetched conspiracy theories on the Internet.” But the same article essentially baptized Trump’s tactics as part of the normal give-and-take of partisan campaigning:
The presumptive Republican nominee and his associates hope that his tactics will bring fresh scrutiny to the Clintons’ long record in public life, which conservatives characterize as defined by scandals that her allies view as witch hunts. Through social media and Trump’s ability to garner unfiltered attention on the Internet and the airwaves, political strategists believe he could revitalize the controversies among voters who do not remember them well or are too young to have lived through them.
Trump’s approach would be perfectly reasonable but for the fact that the “scandals” he has resurfaced have all been either roundly debunked or, in the case of Hillary supposedly enabling Bill’s sexual indiscretions, merited no respectful hearing to begin with.
What Trump and his allies really hope is that they can hoodwink first-time voters or people who weren’t paying close attention back in the 1990s into believing known lies. Only the media can prevent this—but with Trump as GOP nominee, and party leaders rallying behind him, the media suddenly faces fresh incentives not to intervene, and they will become harder to resist over time.
It is possible, even in the context of a general-election campaign, to treat Trump’s embrace of widely discredited Clinton attacks responsibly. The Post, even as it was presenting Trump’s myth-based campaign strategy as a neutral matter in its news pages, ran a story by Foster’s sister, scolding Trump for revisiting “untold pain” on the Foster family, and Kessler gave Trump another four Pinocchios.
Meanwhile, CNN’s Jake Tapper set a standard for reporters who have to cover Trump’s pronouncements, but don’t want to lend credence to false claims, by calling the Foster insinuations “ridiculous and frankly shameful.”
“This is not an anti-Trump position or a pro-Clinton position,” Tapper said. “It’s a pro-truth position.”
The trouble is that unless a critical mass of media figures agrees to treat the things Trump exhumes from the fever swamps of the 1990s with the appropriate contempt, Trump will enjoy the benefit of the doubt most major-party nominees expect. It was easy for reporters to treat Trump adversarially, without fear or favor, when other Republicans were begging them to scrutinize him. Just three weeks later, the same kind of scrutiny presents those reporters with a collective action problem—by admonishing Trump, they might find themselves at a disadvantage to peers who choose to remain in the good graces of both campaigns. And if enough of them are cowed into treating the 20-year-old contents of The American Spectator as fair-game politics, Trump’s plan to dupe the young and forgetful will succeed.
By: Brian Beutler, The New Republic, May 27, 2016
“The Power Of Sisterhood”: Trump, Clinton Could Post Record Numbers With Opposite Corners Of White America
The stereotypical Donald Trump voter is a non-college-educated white man. Hillary Clinton’s base of support is much more diverse, but in terms of general election swing voters, her stereotypical voter is probably a professional white woman. Stereotypes are always over-generalizations and are sometimes misleading. But depending on how the general election develops, the impressive strength of the major-party candidates among downscale white men and upscale white women could prove to be the key match-up.
Veteran journalist Ron Brownstein looked at the internals of some recent general election polls and found that adding gender to education levels among white voters produced a shocking gap between the two candidates.
In early polling, the class inversion between Clinton and Trump is scaling unprecedented heights. In the national CBS/NYT poll, Trump led Clinton by 27 percentage points among non-college-educated white men, while she led him by 17 points among college-educated white women, according to figures provided by CBS. The ABC/Washington Post survey recorded an even greater contrast: it gave Trump a staggering 62-point advantage among non-college-educated white men and Clinton a 24-point lead among college-educated white women. State surveys reinforce the pattern. In the Pennsylvania Quinnipiac survey, Trump led among non-college-educated white men by 43 points, but trailed by 23 among college-educated white women. In Quinnipiac’s latest Ohio survey, Clinton’s vote among college-educated white women was 20 points higher than her showing among blue-collar white men.
Brownstein argues that each candidate is reaching or in some cases exceeding the all-time records for their party in these demographics — which means the gap could be larger than ever, too. What makes the trade-off potentially acceptable to Democrats is that college-educated white women are a growing part of the electorate while non-college-educated white men have been steadily declining for decades. What gives Republicans some hope is the theory that blue-collar white men, who are usually somewhat marginal voters, will turn out at record levels for Trump. Sean Trende, the primary author of the “missing white voters” hypothesis explaining a big part of Mitt Romney’s 2012 loss, thinks Trump is a good fit for these voters despite his weaknesses elsewhere in the electorate.
To be very clear: even though these two opposite corners of the white vote are significant, in the end a vote is a vote and there are many dynamics that could matter more. Most notably, if Hillary Clinton can reassemble the “Obama coalition” of young and minority voters with the same percentages and turnout numbers as the president did in 2012 or (even more) 2008, she has a big margin for error among all categories of older white voters. And within the universe of white voters, racial polarization could give Trump a higher share of college-educated voters than currently appears likely, while Democrats have high hopes of doing very well among non-college-educated white women by hammering away at the mogul on both economic and gender issues.
In the end, Democrats have won the popular vote in five of the last six presidential elections and have a coalition that is growing while that of the GOP is shrinking. They also have a nominee who, for all her problems, raises far fewer worries among both swing and base voters than does the Republican. Trump’s carefree attitude about who he offends could be more problematic in a general than in a primary election, and his disdain for the technological tools necessary to carefully target voters could prove to be a strategic handicap.
If the election does come down to a contest between women and men of any race or level of educational achievement, a Clinton victory would be not only historic, but a demonstration of the power of sisterhood against an opponent who’s a cartoon-character representation of The Man.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, May 30, 2016
“Everyday Is A Whining Road”: The Moral Difference Between An Imperfect Democrat And A Dangerous Republican
Is the Hillary Clinton campaign prepared for the possibility that Bernie Sanders may never actually concede?
Even if Clinton wins big in the New Jersey Democratic primary on June 7 and thus reaches 2,383 delegates* (regardless of the outcome in the California primary that night), it’s difficult to see him throwing in the towel prior to the Democratic convention in Philadelphia, where he has already signaled that he will petition superdelegates to hand the nomination over to him, on the grounds that he is (in theory, anyway) a stronger general-election candidate than Clinton. The dream of unity between Clinton and Sanders after the conclusion of the primaries is unlikely to ever come true: the visceral hatred that Sanders so obviously feels for Clinton is simply not going to dissipate.
As the old joke goes, even Stevie Wonder can see that Sanders is going to have an epic meltdown at the convention if superdelegates reject his request for the nomination. The behavior of Sanders, his campaign staff, and some of his supporters is profoundly disappointing to those who wanted Sanders to play a constructive and healthy role in defining the post-Obama Democratic Party. During the 2008 Democratic primary, Clinton may have said a few undiplomatic words about Obama in the final days of her campaign, but it never seemed as though Clinton personally loathed the future president. Things are much different this time around.
I was disturbed watching Sanders’s interview on CNN’s State of the Union last weekend; Sanders seemed to be filled with a dark rage, an intense bitterness, a scornful tone. Sanders came across as a man who believes he is morally entitled to the Democratic nomination, who looks down upon those who think Clinton would be the party’s best representative, whose soul is now filled with palpable jealousy and contempt for Clinton.
Like Kevin Drum, I have to ask: what happened to Sanders? Why didn’t he remain positive? Why didn’t he and his campaign understand that putting Clinton down wouldn’t raise him up?
Clinton and the Democratic Party should be quite concerned about the prospect of a disastrous convention, disrupted by Sanders supporters upset over their hero not getting what they believe he was entitled to. (Just because chairs weren’t thrown the last time around doesn’t mean they won’t be thrown the next time.) If Sanders speaks at the convention and begins to make disparaging and disrespectful remarks about Clinton, current Democratic National Committee head Debbie Wasserman Schultz, or the allegedly villainous members of the Democratic “establishment,” will convention organizers feel compelled to cut his microphone?
It’s sad to see Sanders fall into the same intellectual abyss that the progressive radio host Sam Seder fell into three years ago, during the special election to fill the seat left vacant by the passing of New Jersey Senator Frank Lautenberg–the intellectual abyss that prevents one from recognizing the moral difference between a imperfect Democrat and a dangerous Republican. Who would have thought that when Sanders announced his presidential bid last year, he would become the biggest cautionary tale in American politics?
By: D. R. Tucker, Political Animal Blog, The Washington Monthly, May 28, 2016
“Trump’s Delusions Of Competence”: Running A National Economy Is Nothing Like Running A Business
In general, you shouldn’t pay much attention to polls at this point, especially with Republicans unifying around Donald Trump while Bernie Sanders hasn’t conceded the inevitable. Still, I was struck by several recent polls showing Mr. Trump favored over Hillary Clinton on the question of who can best manage the economy.
This is pretty remarkable given the incoherence and wild irresponsibility of Mr. Trump’s policy pronouncements. Granted, most voters probably don’t know anything about that, in part thanks to substance-free news coverage. But if voters don’t know anything about Mr. Trump’s policies, why their favorable impression of his economic management skills?
The answer, I suspect, is that voters see Mr. Trump as a hugely successful businessman, and they believe that business success translates into economic expertise. They are, however, probably wrong about the first, and definitely wrong about the second: Even genuinely brilliant businesspeople are often clueless about economic policy.
An aside: In part this is surely a partisan thing. Over the years, polls have generally, although not universally, shown Republicans trusted over Democrats to manage the economy, even though the economy has consistently performed better under Democratic presidents. But Republicans are much better at promoting legends — for example, by constantly hyping economic and jobs growth under Ronald Reagan, even though the Reagan record was easily surpassed under Bill Clinton.
Back to Mr. Trump: One of the many peculiar things about his run for the White House is that it rests heavily on his claims of being a masterful businessman, yet it’s far from clear how good he really is at the “art of the deal.” Independent estimates suggest that he’s much less wealthy than he says he is, and probably has much lower income than he claims to have, too. But since he has broken with all precedents by refusing to release his tax returns, it’s impossible to resolve such disputes. (And maybe that’s why he won’t release those returns.)
Remember, too, that Mr. Trump is a clear case of someone born on third base who imagines that he hit a triple: He inherited a fortune, and it’s far from clear that he has expanded that fortune any more than he would have if he had simply parked the money in an index fund.
But leave questions about whether Mr. Trump is the business genius he claims to be on one side. Does business success carry with it the knowledge and instincts needed to make good economic policy? No, it doesn’t.
True, the historical record isn’t much of a guide, since only one modern president had a previous successful career in business. And maybe Herbert Hoover was an outlier.
But while we haven’t had many business leaders in the White House, we do know what kind of advice prominent businessmen give on economic policy. And it’s often startlingly bad, for two reasons. One is that wealthy, powerful people sometimes don’t know what they don’t know — and who’s going to tell them? The other is that a country is nothing like a corporation, and running a national economy is nothing like running a business.
Here’s a specific, and relevant, example of the difference. Last fall, the now-presumed Republican nominee declared: “Our wages are too high. We have to compete with other countries.” Then, as has happened often in this campaign, Mr. Trump denied that he had said what he had, in fact, said — straight talker, my toupee. But never mind.
The truth is that wage cuts are the last thing America needs right now: We sell most of what we produce to ourselves, and wage cuts would hurt domestic sales by reducing purchasing power and increasing the burden of private-sector debt. Lower wages probably wouldn’t even help the fraction of the U.S. economy that competes internationally, since they would normally lead to a stronger dollar, negating any competitive advantage.
The point, however, is that these feedback effects from wage cuts aren’t the sort of things even very smart business leaders need to take into account to run their companies. Businesses sell stuff to other people; they don’t need to worry about the effect of their cost-cutting measures on demand for their products. Managing national economic policy, on the other hand, is all about the feedback.
I’m not saying that business success is inherently disqualifying when it comes to policy making. A tycoon who has enough humility to realize that he doesn’t already know all the answers, and is willing to listen to other people even when they contradict him, could do fine as an economic manager. But does this describe anyone currently running for president?
The truth is that the idea that Donald Trump, of all people, knows how to run the U.S. economy is ludicrous. But will voters ever recognize that truth?
By: Paul Krugman, Op-Ed Columnist, The New York Times, May 27, 2016
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