About That Umpire Analogy…

In the charade labeled “hearings” on Brett Kavanaugh’s nomination to the Supreme Court, we have once again been treated to the facile comparison of judging and “umpiring,” first used to great effect by now-Chief Justice John Roberts.

There has been plenty to criticize about these hearings, even if the unconscionable and un-American treatment of Merrick Garland isn’t still sticking in your craw. Like so much of federal governance, which has abandoned even the pretense of concern for the common good, the process of selecting a Supreme Court Justice has devolved from a consideration of the candidate’s character and qualifications into a battle for partisan dominance.

Even before the late-breaking allegations that he tried to rape a young woman while in high school–allegations that appear more credible by the day (why else would Senator Grassley have previously secured and pocketed that letter by 65 women saying Kavanaugh was a nice guy), and considerable evidence that he had perjured himself during his prior confirmation hearings, Kavanaugh had emerged as a (very accomplished, clearly intelligent) partisan hack.

We shouldn’t be surprised by either the extreme partisanship or the lack of candor; that’s why he was nominated.

His unwillingness to really engage Senators’ questions, and his pat (non)responses have been par for the course, as the process has become more superficial over the years. The “umpire” analogy is of a piece with the smug responses we’ve come to expect, but my cousin–a doctor with a blog of his own that I quote from time to time–had a perfect reaction to that bit of sophistry:

I usually devote time to exposing health frauds and quackery. But now, I can’t resist bigger prey, namely the U.S. Supreme Court. Recently candidate judge Brett Kavanaugh stated that he likened his Judicial position to that of an “umpire,” an opinion previously attributed also to Chief Justice Roberts during his early hearings in 2005. This assertion, while seeming to express purity and impartiality, is patently false!Why? Because we can first use the example of a real umpire, who works individually in a baseball game and makes binary decisions such as “safe” or “out.” Although usually easily decided, borderline decisions can be resolved by instant video replay, again observed by a single person, usually the umpire himself.

Now let’s extend this analogy to the supreme court: Using the baseball analogy, we place nine justices, or “umpires,” near first base, in order to judge outcomes. A ground ball results in a close call at this base, and our justices then, after thorough discussion, decide that, by a vote of 5 to 4, the runner is out. But the minority of 4 think, possibly correctly, that he is safe. Sound ridiculous? It is!

Here is what makes this scenario so ridiculous. Out of necessity, judges make complex decisions that are subjective, vulnerable to individual bias, education and background, usually require more than one person, and are subject to later reversal by other courts or, in the case of the Supreme Court, even the same court in later years. Examples of reversals are manifold and include such issues as legitimacy of slavery, equal access to public restaurants and schools, etc., etc. Does that description sound even remotely like an umpire? I think not!

I’d say that’s an excellent diagnosis!

 

Picture This

There’s an old saying arguing that one picture is worth a thousand words. An activist named Joe Quint is testing that thesis.

The promotional postcard reproduced below describes the project, sponsored by the “Faith, Justice and the Arts” program of St. Paul’s church.

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On the website giving additional information about the project, Quint explains what motivated him to produce graphic representations of the consequences of gun violence.

It was mid-2014 – right after the University of California at Santa Barbara shooting – and I happened to glance at that weeks’ issue of PEOPLE magazine. The cover story was about some Kardashian wedding and there was a little blurb in the upper right corner about the shooting… with a subhead saying ‘How could this happen – again?’. Setting aside the disproportionality in importance of these two stories, I was struck by both the naivety and irresponsiblity of that copy….

I became increasingly frustrated by inaction – my own and the inaction of my country. I could no longer pay lip service to the importance of reducing the over 36,000 senseless and preventable deaths that take place every year. I could no longer just sign petitions or – worse – scratch my head in amazement every time there was a national tragedy and wonder what it was going to take to change society for the better.

The result of his frustration was It Takes Us, a long-term documentary project about the impact of gun violence on the survivors, their family members , and on witnesses to these horrific acts.

One of the unfortunate consequences of the turmoil generated by Trump and his administration is the sheer number of important issues competing for our attention. Gun violence and our need to address its causes must compete with assaults on women’s equality, efforts to undo environmental protections, defund public education, eviscerate the ACA…the list goes on. But as the teenage survivors of Parkland have reminded us, America’s gun culture can no longer be ignored.

If you live in or around Indianapolis, or another venue listed on the website, go see the exhibit.

If All Your Friends Jumped Off A Cliff, Would You Jump Too?

My mother used to throw that line at me when I protested that “all the kids” were doing whatever it was she disapproved of.  Despite promising myself that I would treat my children differently–I used that same line with mine. It made a point.

Let’s face it–we all know that just because your co-worker is stealing from the till doesn’t give you a pass to do likewise.

That homely truth applies even more urgently to our political system. One of the reasons so many of us are so concerned (okay, frantic) about the current willingness of the GOP to ignore time-honored norms–to “play dirty”– is that damaging behaviors by one party are too often seen by the other party as permission to act just as badly.

As I have repeatedly maintained, the nation needs two responsible, ethical, adult political parties. When one party is off the rails, it’s harder for the other party to maintain discipline and enforce ethical and responsible behavior.

Time Magazine recently made that point. 

The article pointed to incidents in which Senate Democrats ignored longstanding norms during the recent Kavanaugh hearings. I will admit that I cheered many of those norm-breaking efforts; after all, we stand to lose a half-century of settled jurisprudence that has expanded and confirmed individual rights if this partisan warrior is confirmed, but it’s hard to argue with Time’s observation that the behaviors of Senators Harris, Booker and Warren, among others, was inconsistent with the decorum and comity we expect in such hearings.

The article wasn’t a hatchet job on the Democrats; far from it. It conceded that the relatively minor deviations of the Democrats during the hearings paled in comparison to the daily offenses perpetrated by the occupant of the Oval Office:

After all, this is a president who argued a judge couldn’t be fair because of his Mexican ancestry, criticized a Gold Star family, called for violence against protesters, threatened to jail his opponent, declined to release his tax returns,hired his daughter and son-in-law to work in the White House, declined to disentangle himself from a D.C. hotel and other businesses,conducted official business from his private golf club, chastised his own attorney general for allowing investigations into himand two Republican lawmakers, repeatedly called reporters “the enemy of the people”and regularly attacked the FBI and the judiciary.

The point of the article was not to castigate the Democrats’ newly aggressive behavior; the point was to identify an undeniable problem: once partisans start down this path, with each side justifying inappropriate behavior by the equivalent of “well, he started it!” we are in danger of losing critically important, if unwritten, rules that safeguard reasoned democratic deliberation and make government accountable.

In his speech on September 7th, former President Barack Obama called on Democrats to show up at the polls in November and restore “honesty and decency and lawfulness” to government– to take the high road back to power. Obama is urging Democrats to play fair despite the fact that neither the President nor his GOP has shown any interest in playing by the rules.

During the Obama Administration, a Republican in the House shouted that the president was a liar during a State of the Union while the grassroots — including then private citizen Trump — spread conspiracy theories about his birth certificate. Republicans in the Senate blocked his judicial nominees at a higher rate, leading then-Senate Majority Leader Harry Reid to change the Senate rules to end the filibuster on most nominees. Republicans then refused to vote on Obama’s nomination of Merrick Garland to the Supreme Court, then ended the filibuster on Supreme Court nominees to allow Trump to appoint Neil Gorsuch.

The real test will come when Democrats return to power (hopefully after the upcoming midterm elections). If they decide to exact revenge by acting as dishonorably as the GOP has acted, we may well see an ugly race to the bottom and a further erosion of civility and  willingness to work together to get the people’s business done. As the Times article concluded:

One day, Trump will no longer be in office, but by then it may be that breaking norms is the new normal.

If the Democrats jump off that cliff just because the Republicans jumped before them, we will all be the real losers.

Define “A Great Economy”

Our demented President continues to brag about the economy, claiming sole credit for producing good numbers, and (as usual) fabricating many of them.

That said, according to the metrics used by most economists and pundits, the economy is doing quite well.

Republicans running for the House and Senate are trying hard to emphasize that economic “good news,” and one of the more puzzling aspects of the midterm campaigns has been the lack of traction those efforts have generated. Usually, when the economy is humming along, that’s good news for the incumbents; this time, economic arguments don’t seem to be convincing many voters.

The “chattering classes” attribute this to a variety of factors– Trump’s extreme unpopularity, concerns about the negative effects of Trump’s tariffs and the escalating trade war with China. Those things clearly matter, but I have a different explanation: we are using the wrong metrics to measure economic performance . I’ve misplaced the link, but I copied the following paragraph from an MSN website that makes the same point.

A humming national aggregate economy does not necessarily translate into improved livelihoods for most workers. Since the recession, nominal wage growth has been anemic compared to past business cycle peaks. Health-care and education costs keep rising while job benefits disappear. Most households are still in rather precarious financial straits. And there’s still a large population of “shadow” unemployed the official unemployment rate isn’t catching.

According to official statistics, the net worth of the typical American household is still about 20 percent below where it was when Lehman Brothers’ failure triggered the financial crisis. It is true that the gross domestic product is now substantially higher than it was — but a majority of Americans have not seen their incomes improve. And as the above quote notes, the admittedly very good unemployment rate ignores people who have given up looking for work.

If a “good economy” is measured by stock market performance and corporate profitability, then yes, we currently have a good economy. If, however, it is measured both by aggregate indicators and the degree to which citizens share in the prosperity, our economic performance doesn’t look quite so good.

A recent analysis from the Brookings Institution addresses that disconnect. After conceding the positive indicators, the report notes that the labor market continues to struggle.

 Wage growth is still sluggish, with modest gains offset by inflation. Despite recent increases, the share of prime-age Americans in the labor force is still slightly below the pre-Recession level. Levels of unemployment vary widely across places and the population by key demographic characteristics.

The report was generated as part of Brookings annual update of the employment rate gap (which, as the authors explained, differs from the jobs gap), calculating each indicator  by race/ethnicity and level of education. The employment rate gap is the  difference between the demographically adjusted 2007 employment-to-population ratio and the same ratio at other points in time.

As the report concluded,

The Great Recession inflicted economic pain on many American families, but its burden was not equally distributed. Ultimately, the brunt of the Great Recession was borne by those without the protection of postsecondary education. College raises average lifetime earnings, and it also helps insulate workers from economic downturns, providing economic security in the times they need it most. Finally, racial disparities have been less severe in recovery than in the worst years of the Great Recession, though differences in employment rates persist. For the American labor market to be truly healthy, it needs to work for all people—not just some.

A truly “great” economy distributes its largesse widely. It is that often-referenced rising tide that lifts all boats.

When most of the benefits generated by economic productivity enrich only the top 1%–or even the top 10%–that economy is only “great” for the pigs who have monopolized access to the trough.

 

For-Profit Education Is About Profit, Not Education

It will come as a surprise to exactly no one that Betsy DeVos is a fan of for-profit colleges. After all, she has championed voucher programs that take funding from public schools and send it to private ones, many of which are run or managed as for-profit enterprises. Unfortunately, her support is not shaken either by the data rebutting the belief that such schools actually provide an education (let alone a superior education), or by the documented fraudulent behavior of for-profit “colleges.”

The New York Times editorial board recently weighed in on DeVos’ roll-back of efforts to protect college students against that fraud.

Say this for Betsy DeVos: The secretary of education has shown an impressive commitment to rescuing her friends in the for-profit college business from pesky measures to rein in their predatory behavior. As pet projects go, it lacks the sulfurous originality of her emerging idea to let states use federal dollars to put guns in schools. But it is a scandal nonetheless. Given the choice between protecting low-income students — and, by extension, American taxpayers — and facilitating the buck-raking of a scandal-ridden industry, Ms. DeVos aggressively pursues Option B.

The Obama-era regulations basically required “truth in advertising.” If too many students at the for-profit school racked up massive student debt–financed, after-all, by We the Taxpayers– and then were unable to qualify for decent jobs, and if the ratio of such failures exceeded a certain level for two out of three years, those schools became ineligible to receive taxpayer-backed loans and grants. The regulation also required for-profit programs to include whether or not they meet federal job-placement standards in their promotional materials.

DeVos said the regulation unfairly targeted for-profit schools, even though–as the Times reported-

A recent review of “borrower defense claims” — requests for loan relief filed with the Education Department by students asserting they were defrauded or misled by their schools — found that almost 99 percent involved for-profit institutions.

There is, in fact, plenty of evidence that for-profit educational institutions are much more interested in profit than in education. DeVos herself doesn’t seem very educated about data, education or the department she presumably runs. Nor is she winning many converts.

A federal court has ruled against her effort to delay implementation of the Obama rules, calling it “arbitrary and capricious.” And California just became the first state in the nation to ban for-profit charter schools. The law was inspired by a newspaper investigation confirming allegations of profiteering at the expense of children’s educations. For-profit charter schools currently operating in California “must convert to non-profit management prior to each school’s renewal deadline.”

Although I absolutely support both the regulations DeVos is attacking and California’s  requirement that for-profit institutions become nonprofit,  the problem isn’t limited to institutions that are organized as private, for-profit enterprises. Any business lawyer can explain the ways in which the line between for-profit and non-profit can be blurred. Create a corporation to provide an arguably publicly- beneficial purpose, and distribute what would otherwise be “profits” as salaries, and voila! (Take a look at some of your local “nonprofit” hospitals…)

And that brings me to Purdue University’s recent acquisition of Kaplan University, a for-profit enterprise now re-branded as public.  I think the Century Foundation got it right, when it charged that Purdue University Global Is a For-Profit College Masquerading as a Public University.

In April, the for-profit Kaplan University officially became an arm of Indiana’s public university system. With its new home and new name, Purdue University Global is the first public university to share control with a for-profit company answerable to investors. When the deal was announced last year, Purdue’s president said that critics of for-profit colleges “should be happy” that Purdue was turning Kaplan into a public rather than for-profit institution. Critics, however, wondered whether the for-profit company’s large ongoing role meant, instead, that Kaplan’s history of predatory practices would simply re-emerge under a “public” moniker.

One answer to that question arrived last week, when Purdue faculty members revealed that the online school is requiring instructors to sign a four-page nondisclosure agreement. The pledge, required for Purdue Global employees, prohibits professors and staff from discussing anything they know about the university’s operations with anyone else, including their colleagues (unless those people already have access to the information). Officials at the American Association of University Professors (AAUP) describe the pledge as “unprecedented for a public, non-profit university” and “breathtakingly inappropriate in higher education.”

Now, The Century Foundation has new documents showing that predatory practices at Purdue Global were baked into the plan from the very beginning.

Those documents–described in detail at the linked article–reveal a number of ways in which Purdue Global was designed to be much more of a for-profit college obligated to its investors than a public institution serving students.

I am a big believer in markets, profits, and capitalism…in the economic sectors where markets and profits are appropriate. Education is not one of those sectors.

Rather than strengthening performance of education’s public function, rather than recognizing the critically important role of education in producing a literate and informed polity, the Republicans running our government–and the Republican running Purdue University–are elevating profit over purpose, and moving us in precisely the wrong direction.