Ricci v. New Haven Roundup

1. George Will has penned an excellent evaluation of the Supreme Court's opinion in the Ricci v. New Haven case. Among other things Will notes:

"It is deeply depressing [that] they [the plaintiffs] won narrowly;"
Depressing, Will says, because the City's "Egregious conduct . . .did not seem legally suspect to even one of the court's four liberals, whose harmony seemed to reflect result-oriented rather than law-driven reasoning."

Moreover, Will highlights the Court's conclusions that:

"All the evidence demonstrates that the City rejected the test results because the higher
scoring candidates were white."

The city's criticisms of the exam "are blatantly contradicted by the record."

"[T]he City turned a blind eye to evidence supporting the exams' validity" (emphases
added).

In other words, the language Will highlights required the conclusion, diametrically opposed to that of the court below, that no reasonable jury could find for the City and against the petitioners. (The court below, by contrast, had found that no reasonable jury could find for the petitioners.)

Will then concludes:

"The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they
"remedy" discrimination that no one has intended). This is the predictable price of faing
to simply insist that government cannot take cognizance of race."

Here is Will's piece.

http://jewishworldreview.com/cols/will063009.php3

By contrast, Professor Scott Powe, at the University of Texas, has authored a piece on Cnn.com regarding the Ricci opinion with which I must respectfully disagree, at least in part.

http://www.cnn.com/2009/POLITICS/06/29/powe.new.haven/index.html

Among other things, Powe attributes the result to a purely political distaste amoRepublicans for affirmative action, an odd statement given that 2 out of the 4 dissenters were Republicans. Powe does not mention the possibility that the five justices in the majority were simply faithfully following the law --- Title VII --- (which, after all, forbids discrimination based on race, including discrimination against whites, and does make by its terms make any exception for racial discrimination that furthers "affirmative action"). Nor does he consider the possibility that the dissenters, by contrast, were letting THEIR ideology influence their judgment (as George Will argues). Indeed, Powe does not seem to offer any LEGAL analysis of the competing opinions, but instead simply interprets them as one might interpret the votes or Senators or, for that matter, members of a City Council.

Powe also claims that "the court acquired a majority that appears more concerned about discrimination against whites than about racial equality in American society." This statement only makes sense, however, if one assumes that "racial equality" means throwing out a test whenever members of one or more identifiable racial groups does not do as well as, say, the Mayor of a small town had hoped. One would have thought that the American ideal of equality would have required something quite different, namely, equal opportunity for everyone to be judged by the same open and transparent criteria, as was apparently the case here, at least before the city threw out the criteria and started anew.

http://www.cnn.com/2009/POLITICS/06/29/powe.new.haven/index.html

Finally, it is notable that Justice Ginsburg's dissent begins to veer off course even earlier than usual, this time in the second paragraph. There her opinion claims that the petitioners had no vested right to promotion. She is wrong. The City threw out the test at issue precisely because, had the City implemented the results of the test, Mr. Ricci would have been promoted to one of the open positions. Justice Ginsburg's assertion to the contrary seems to be entirely circular, resting, as it does, on her ultimate conclusion that the City was entitled to disregard the results of the test because it was not happy about the ethnicity of those who had received the top scores. Only in this (meaningless) sense did the petitioners not possess a vested right.

http://www.law.cornell.edu/supct/html/07-1428.ZD.html

Finally, over at the National Journal, Stuart Taylor, whose work I admire greatly, argues that a close reasing of the various opinions shows that all 9 Justices rejected the standard that had been propounded by the court below.

http://ninthjustice.nationaljournal.com/2009/06/justices-reject-sotomayor-posi.php

Obama Deploys "Unproven" Weapons He is Cutting

Unproven (circa 1939) Weapons Systems Pictured Above

During the Presidential campaign then-Senator Obama promised his liberal base that he would not deploy what he called "unproven" missile defense systems, though he did not specify which of our various systems he deemed "unproven." More recently, his administration announced plans to cut $1.2 Billion from the Pentagon's Missile Defense Budget. See this story.

What a difference a crazy North Korean dictator (shown above on the left) can make !

The Wall Street Journal reports that the Department of Defense is "fortifying" Hawaii in the event of a missile attack by North Korea. The fortifications include a floating mobile anti-missile radar and anti-missile interceptors.

The Los Angeles Times provides more detail on the type of interceptors deployed. Apparently there are three categories of interceptor: (1) theater interceptors, which intercept a missile in the early boost phase, while it is still under power; (2) mid course interceptors, which can intercept a missile after the boost phase, during ascent or descent; and (3) terminal phase interceptors, which intercept a missile as it descends vertically toward its target. According to the Times, the U.S. is deploying the third category of interceptors to Hawaii. Moreover, the U.S. also deploys mid-course interceptors in Alaska and California that could intercept a missile aimed at Hawaii.

Finally, other reports suggest that the U.S. and Japan could also deploy ships off the coast of North Korea capable of intercepting a missile in the boost phase. Indeed, Japan successfully tested such a capability in late 2007, according to the AFP, using a U.S.-designed SM-3 interceptor, the same weapon the U.S. used in February, 2008 to destroy an American Sattelite that was in low earth orbit. All three systems are now deployed to interdict a North Korean launch, if necessary.

Here is an AFP story on Japan's successful test.

Let's hope that the North Koreans come to their senses and decline to launch such a missile or, if they do, that it implodes and falls harmlessly into the Pacific Ocean, like some of their previous launches.

At the same time, let's also remember that, as President Obama now apparently realizes, the deployment of "unproven" weapons is sometime prudent. Indeed, such deployments can sometimes turn the tide of history. Exhibit A would would be Britain's deployment of an "unproven" system, known as "radar," during the Battle of Britain. The so-called "Chain Home" system, which the German Luftwaffe did not entirely understand, allowed the British the detect incoming German bombers (and, later, V-1 Rockets) in time to vector interceptors to meet them. (A surviving Chain Home tower is pictured above.)  Most of these fighters were also "unproven," based as they were on new-fangled "monoplane" fighters, compared to the "tried and true" biplanes deployed in the mid-1930s.  One such fighter "unproven" in 1939, the Hawker Hurricaine, is pictured above. The plane pictured above (photo from Wikipedia Commons) flew 49 sorties in the Battle of Britain and shot down three enemy aircraft.

Miranda Goes Abroad/Will L. Wilkerson Apologize to Cheney?

Author of the Miranda Warnings, supra.

Reports in the press have suggested that the FBI is reading some battlefield prisoners in Afghanistan "their" Miranda warnings. Indeed, a member of Congress, himself a former FBI Special Agent, after returning from that country, confirms exactly that, according to this story on Fox News. http://www.foxnews.com/politics/2009/06/10/lawmaker-says-obama-ordered-fbi-read-rights-detainees/ Moreover, some news outlets confirm that the FBI is, in fact, reading Miranda warnings to at least some detainees there.

See http://www.cnsnews.com/public/content/article.aspx?RsrcID=49738


Back in April Lawrence Wilkerson bristled at Dick Cheney's suggestion that the Obama administration would read Miranda warnings to terrorists, and even claimed that Cheney was knowingly "stoking" 10 million "half-baked nuts" who listen to Rush Limbaugh. Here is what Wilkerson said on the subject:

"As for the fear-mongering: 'When we get people who are more interested in reading the rights to an Al Qaeda (sic) terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry,' Cheney said. Who in the Obama administration has insisted on reading any al-Qa’ida terrorist his rights? More to the point, who in that administration is not interested in protecting the United States—a clear implication of Cheney’s remarks. But far worse is the unmistakable stoking of the 20 million listeners of Rush Limbaugh, half of whom we could label, judiciously, as half-baked nuts. Such remarks as those of the former vice president’s are like waving a red flag in front of an incensed bull. And Cheney of course knows that.

Cheney went on to say in his McLean interview that 'Protecting the country’s security is a tough, mean, dirty, nasty business. These are evil people and we are not going to win this fight by turning the other cheek.' I have to agree but the other way around. Cheney and his like are the evil people and we certainly are not going to prevail in the struggle with radical religion if we listen to people such as he. [sic]"

Lest you think I am making this up, here is a link to Wilkerson's screed:

http://web.wm.edu/so/acs/?p=846

Now that it seems clear that the FBI is reading Miranda rights to some unlawful combatants overseas --- a practice with even less justification than reading warnings to detainees at, say, Gitmo (which the Supreme Court has held is American soil) --- I wonder if Wilkerson will apologize to Vice President Cheney, not to mention the 10 million listeners of Rush Limbaugh who, in my experience, are regular Americans from many walks of life, who like a little entertainment with their politics or vice versa. Finally, does Wilkerson really believe that claims, like VP Cheney's, that a President has made us less safe are somehow inappropriate? What, then about Wilkerson's statement that Cheney is "evil" or statements by then-candidate Obama, 2004 candidate John Kerry, etc. that Bush policies had made us less safe ?? Were they (and Wilkerson) also "stoking" anger and hatred among, say, the tiny sliver of Americans glued to the Keith Olberman show each night ?

Hmmmmm.

By the way, the photo at the outset of this post is of Chief Justice Earl Warren, who authored the Miranda opinion, which, by the way, was 5-4.

Alter Puts Kids First

Jonathan Alter of Newsweek has just published a noteworthy column on the prospects of educational reform under President Obama. The piece, entitled "Obama v. the Educrat Blob" and can be found here:

Alter reveals that, in California at least, the state evaluates its teachers without regard to the success of its students. That is to say, a teacher can apparently receive a stellar evaluation even if all of the students in his or her class regress during the year under the teacher's tutelage. (This is my example, not Alter's.) Alter also highlights a recent report finding that 99 percent of the nation's teachers receive "satisfactory" ratings, thereby contributing to the perception among policymakers and others that teachers are interchangeable/fungible widgets (or, as one of my economics professors in college would have put it "a lump of labor."). In point of fact, Alter notes, teachers are not fungible; some are very good, and some are very bad. In this environment, simply adding more teachers, or paying existing teachers more, is not a particularly efficient method of education "reform." Indeed, one might even say that it is not "reform" at all, but instead a continuation of our nation's binge spending on primary and secondary education. That binge, I should note, has left us spending more per capita on education than any other major country, with "major" defined as those nations with populations of 10 million or more. Indeed, even if one includes all countries in the comparison, the USA is third, behind only Switzerland and Norway. The data, from the Office of Economic Cooperation and Development, via the U.S. Department of Education, are here.

At the same time, Alter notes that some states and localities are attempting to draw finer distinctions between mediocre and high quality teachers so they can reward and encourage the latter, although he does not go into much detail about these efforts.

Alter blames California's bizarre system of evaluations and the more general resistance to teacher accountability on those teachers' unions (not the teachers themselves or even all unions) that fight meaningful reform tooth and nail. (He also notes that some teachers welcome reform.) Although such unions strongly backed then-Senator Obama during his campaign against Senator McCain, Alter expresses hope that now-President Obama will use stimulus funds as a lever to reward and encourage those states and localities that are, in fact, seeking to identify, encourage and reward top teachers. Let's hope that Alter is correct, i.e., that the Administration and Congress will deploy stimulus money, and other spending for that matter, in a manner that rewards successful efforts and declines to prop up failure. But, as Alter himself notes, such an approach will meet resistance in Congress, where Senators and Representatives prefer to spread such money around pro-rata to various states, regardless of desert. Moreover, it appears that the Obama administration will resist one obvious way to encourage reward success --- school vouchers that allow parents to choose where to send their children to school, thereby circumventing the monopoly school systems with which parents of poor children must now contend.

Of course, conservatives might rightly ask why the National government should be second-guessing local decisions about how to evaluate teachers. This is a very good question. One response might be that, by bolstering unions, including teachers unions, the national government has helped create this mess and thus should have a role in getting us out of it. That is to say, the first best solution might be to withdraw federal support for collective bargaining by teachers, thereby diminishing the power of what Alter calls the "Educrat Blob" to influence education policy. Absent such a step, which one cannot expect from this President or Congress, the next best approach might be to influence policy directly by providing a national counter-weight to the disproportionate power wielded by teachers' unions. One might also note that states like California, whose tax and spend policies reduce economic opportunity for their citizens, likely expect their best educated students to depart the state for greener pastures elsewhere. And, in fact, California has been experiencing such emigration lately. In December of 2008, the L.A Times reported that the state had experienced net out migration for four years in a row. If so, the state might have little interest in maintaining a strong system of public education, since many citizens will depart soon after graduation. Finally, a federal tax policy that diverts 20 percent or more of personal income, and thus 20 percent or more of the productivity gains from education, to Washington reduces the incentives of individual citizens to lobby their state governments to develop cost-justified educational policies. Ironically, then, the unwarranted expansion of government and associated taxation can provide a (second best again) rationale for federal involvement in education. These are not the strongest arguments for overriding a system of federalism, though.

Note that Alter is already taking some hits in the Blogosphere, from some who say he is "scapegoating teachers." See here.   I don't read Alter that way. Instead, I read him as expressing frustration that good teachers do not receive sufficient rewards, and teachers who are not so good receive too many rewards. This is hardly teacher bashing. It is, instead, quite 'pro-teacher."

Finally, if you liked this column, you also might like this one, where Alter advocates a "Grand Bargain," i.e., higher pay for teacher, coupled with much tougher accountability.