Monthly Archives: November 2016

Legitimacy Cannot Be Stolen

Power can be stolen. Legitimacy must be earned.

I was reminded of the difference by a recent Huffington Post article by Geoffrey Stone. Stone is an eminent Constitutional scholar who teaches at the University of Chicago; I’ve used his texts on constitutional history and analysis both as a law student and more recently as a professor. As he writes,

Throughout my career, I have honored the fundamental role the Supreme Court plays in our system of government. There have, of course, been many Supreme Court decisions with which I’ve disagreed over the years, but I have always respected the essential legitimacy and integrity of the Supreme Court as an indispensable institution in our American democracy.

But now, for the first time in my career, I find myself hesitating. This is not a reflection on the judgment or integrity of any of the current or former justices. It is, rather, a reflection on what the Senate Republicans have done to the fundamental legitimacy of the Supreme Court in the future. By refusing to confirm President Barack Obama’s appointment of Chief Judge Merrick Garland to the Supreme Court, Senators Mitch McConnell, Charles Grassley, and their Republican cronies betrayed our constitutional traditions and undermined a central principle of American democracy. Although they maintained that their unconscionable behavior was “justified” by the fact that the vacancy arose during President Obama’s final year in office, this was a blatantly dishonest assertion. In fact, a long line of presidents have made appointments to the Supreme Court in the final year of their terms, including such historic figures as George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Ronald Reagan.

Those of us in the legal community–Republican and Democrat alike–have pointed to this unprecedented obstruction as additional evidence that American government is broken–that it has become deeply dysfunctional.  As Stone notes, this profoundly un-American behavior was based upon “rank partisanship”–the hope that a Republican President would appoint a judge more to their ideological liking.

In the great tradition of “be careful what you wish for,” however, the actions of these Senators will have had a very unfortunate effect: they will permanently  undermine the legitimacy of anyone who ultimately joins the Court.

Their unconscionable behavior will rightly cast severe doubt on the legitimacy of whatever individual President Trump appoints in place of Chief Judge Garland. Every vote that justice casts in the future will be called into question, because that justice will be sitting on the Supreme Court bench because of nothing less than a constitutional coup d’etat. Through no fault of his or her own, that justice will be seen as an interloper who should never have been appointed to the Court.

Stone reminds readers that the last effort to do a political “end run” around a Court was FDR’s “court packing” scheme, a response to the then-Court’s invalidation of progressive legislation intended to ease the Depression. Even though the Democratic base deeply disapproved of the Court’s rulings, however, Democratic Senators rejected Roosevelt’s plan.

Indeed, even Roosevelt’s Vice-President, John Nance Garner, publicly scorned the plan as unprincipled. In short, those Democrats – those principled public servants – understood that even a crisis like the Depression could not justify so craven a distortion of the traditional procedures and practices of government in order to achieve politically desired ends.

It’s hard to find fault with Stone’s concluding paragraph:

As a sign of the moral corruption that now plagues our nation, though, in this instance Senate Republicans, caring more about outcomes than principles, ruthlessly distorted the advice and consent process in order to attain partisan political ends. That this happened is nothing short of disgraceful. Let us not forget their shameful abuse of authority. And let us not forget that President Trump’s first appointment to the Supreme Court will in fact be an illegitimate interloper who has absolutely no business being the decisive vote in critical Supreme Court decisions in the years and decades to come. By this act, Senate Republicans have undermined the credibility and the legitimacy of an essential branch of our national government. Shame on them.

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Another Disastrous Appointment

If Americans agree about anything, it’s probably about the importance of education. Although there is substantial disagreement on what a “good” education looks like (guiding intellectual enlightenment ? teaching marketplace skills?), it is widely assumed that better education is an important part of any solution to our social ills, especially poverty.

There can be no equality of opportunity so long as disadvantaged children are trapped in substandard schools, especially under-resourced urban schools in majority-minority districts. Education reform efforts are recognition of that reality.

Despite the number of such reform efforts over the past several years, no one has yet developed a magic formula that consistently turns underperforming schools into academic success stories. We do, however, have a lot of experience with reform efforts that haven’t worked—several of which have made things worse.

Which brings me to President-elect Trump’s choice of Betsy DeVos for Education Secretary.

Douglas Harris, an economics professor at Tulane, has been a proponent of charter schools and a researcher of school reform. Friday, he published a scathing column in the New York Times, titled “Betsy DeVos and the Wrong Way to Fix Schools.”

The choice of Ms. DeVos might not seem surprising. Mr. Trump has, after all, proposed $20 billion to finance “school choice” initiatives and Ms. DeVos supports these ideas. Yet of all the candidates the transition team was apparently considering, Ms. DeVos has easily the worst record.

As one of the architects of Detroit’s charter school system, she is partly responsible for what even charter advocates acknowledge is the biggest school reform disaster in the country….

Detroit is not only the lowest in this group of lowest-performing districts on the math and reading scores, it is the lowest by far…. The situation is so bad that national philanthropists interested in school reform refuse to work in Detroit….Michigan has the dubious distinction of being one of five states with declining reading scores.

In contrast, Harris points to New Orleans. In the wake of Hurricane Katrina, the city replaced most of its schools with charters; after a poor start, the state took over a third of them and revamped the system, increasing oversight and preventing cherry-picking of students.

After the reforms, the city’s standardized test scores have increased by eight to 15 percentile points and moved the district from the bottom to almost the state average on many measures. High school graduation and college entry rates also seem to have improved significantly, even while suspensions, expulsions and the rate of students switching schools have all dropped. Detroit and New Orleans represent radically different versions of school choice — and the one that seems to work is the one that uses the state oversight that Ms. DeVos opposes.

Harris notes that New Orleans is also important because it is the only city in the country in which charter school results can be compared to results for school vouchers, the approach Ms. DeVos prefers.

In a study my center released this year, researchers found that the statewide Louisiana voucher program had exactly the opposite result as the New Orleans charter reforms. Students who participated in the voucher program had declines in achievement tests scores of eight to 16 percentile points. Since many of these students received vouchers through a lottery, these results are especially telling.

Ms. DeVos is a long-time financial supporter of the extreme Right, believes schools should teach Creationism, and has been a generous donor to anti-LGBT groups. She is a rich ideologue who has been described as “an enemy of public education.”

Michigan blogger Ed Brayton, who has observed her at close range for several years, is blunt; “Putting her in charge of the Department of Education is like making Al Capone the chief of police.”

This choice is a disaster for schoolchildren—and especially for low-income children.

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Telling It Like It Is

In the wake of the election, those of us who opposed Donald Trump are being told to “get over it.” News organizations are doing puff pieces that “normalize” a decidedly abnormal President-elect. Uncharitable descriptions of Trump voters are met with the sort of admonitions that liberals typically (and appropriately) offer when unpleasant characteristics are ascribed to an entire group of people.

If we had just emerged from a hard-fought election contest between sane candidates with different policy prescriptions, those responses would be appropriate. If a significant number of Trump voters could somehow have remained unaware of his core message, you could argue that economic distress or partisan loyalty prompted their support (although research confirms that most Trump voters were not economically disadvantaged, and that educated Republicans deserted him in droves.)

But this election was decidedly not normal, and refusing to acknowledge its implications is dangerous.

I think Jamelle Bouie, Slate’s political correspondent, got it right, when he wrote that there is “no such thing as a good Trump voter.”

Donald Trump ran a campaign of racist demagoguery against Muslim Americans, Hispanic immigrants, and black protesters. He indulged the worst instincts of the American psyche and winked to the stream of white nationalists and anti-Semites who backed his bid for the White House. Millions of Americans voted for this campaign, thus elevating white nationalism and white reaction to the Oval Office.

When Trump voters are accused of responding to racist demagoguery, nice people clutch their pearls. Michael Lerner, for example, wrote in the New York Times that “Many Trump supporters very legitimately feel that it is they who have been facing an unfair reality.” Lerner attributed the vote to  “people’s inner pain and fear,” and blamed liberals for failing to sympathize with those emotions. He acknowledged the racism, sexism and xenophobia employed by Trump, but insisted that the vote didn’t reveal “an inherent malice in the majority of Americans.”

I beg to differ. As Bouie points out,

Millions of Americans are justifiably afraid of what they’ll face under a Trump administration. If any group demands our support and sympathy, it’s these people, not the Americans who backed Trump and his threat of state-sanctioned violence against Hispanic immigrants and Muslim Americans. All the solicitude, outrage, and moral telepathy being deployed in defense of Trump supporters—who voted for a racist who promised racist outcomes—is perverse, bordering on abhorrent.

It’s worth repeating what Trump said throughout the election. His campaign indulged in hateful rhetoric against Hispanics and condemned Muslim Americans with the collective guilt of anyone who would commit terror. It treated black America as a lawless dystopia and spoke of black Americans as dupes and fools. And to his supporters, Trump promised mass deportations, a ban on Muslim entry to the United States, and strict “law and order” as applied to those black communities.

A voter would have to have been blind and deaf not to hear and understand Trump’s central message.

A vote for Donald Trump represented one of two things, both reprehensible: either the voter was attracted to Trump because of the bigotry, or s/he didn’t find it sufficiently offensive or problematic to justify withholding support. There is no other category.

We have all heard the stories about the good Germans who refused to see that what was happening to their country after Hitler took power was not “politics as usual,” who refused to call out the virulent anti-Semitism, who didn’t want to “rock the boat.”

And then it was too late.

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Botswana, Micronesia and Us

According to the Pew Research Center’s “Fact Tank,” no other democratic nation elects its President quite the way the U.S. does, and only a handful are even similar.

Besides the U.S, the only other democracies that indirectly elect a leader who combines the roles of head of state and head of government (as the U.S. president does) are Botswana, the Federated States of Micronesia, the Marshall Islands, Nauru, South Africa and Suriname. (The Swiss collective presidency also is elected indirectly, by that country’s parliament.)

At this writing, Hillary Clinton looks likely to win the popular vote by over two million; Donald Trump won the electoral votes of the so-called “swing states” by the thinnest of margins–  a collective hundred and seven thousand votes.

The dictionary definition of “democracy” is “rule by the majority.” Although it is certainly true that America’s system was not originally intended to operate by majority rule (it was instead conceived of as a representative democracy), and it (thankfully!) remains true that our Bill of Rights limits what government can do even with the support of popular majorities, we have changed our electoral system over the years, and we have done so in the name of increasing popular democracy.

In two of the last four national elections, the candidate clearly preferred by a majority of citizens has not become President.

We need to ask ourselves whether America truly wants to move in the direction of genuine democracy, or whether we want to continue a system that privileges the votes of more rural citizens over the votes of urban Americans– a system that decides who will win based  not upon the larger number of votes cast, but upon where a candidate’s voters happen to live.

I fully expect that the elevation of a mentally unstable and monumentally unfit man to the Presidency of the most powerful nation on earth will usher in an era of chaos and social upheaval. I have no idea what will emerge in the aftermath–assuming that there is an aftermath, and that a thin-skinned and vengeful ignoramus in possession of the nuclear codes doesn’t destroy the planet.

If and when we do emerge, we need to decide whether we are committed to democratic decision-making or not. If we are, we have a lot of housekeeping to do.

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The Unraveling Begins….

Swastikas on churches. Threatening graffiti in minority neighborhoods. Racist posts on Facebook and Twitter. The Klan and the American Nazi Party celebrating Trump’s “win for the Whites.”

These are very scary times.

Ed Brayton notes that Raw Story is keeping a list of all of the bigoted, criminal and violent attacks on gays, blacks, Muslims, women, Latinos in others since Donald Trump was elected–and that the list is growing by leaps and bounds.

We need to be honest; Trump did not create the bigotry he exploited and encouraged. It was already there, often barely below the surface. It reacted with seething hostility to the election of an African-American President, and was exacerbated by recognition of same-sex marriage, by efforts to provide immigrants with a path to citizenship, and to other legal and cultural changes perceived–primarily by white men– as diminishing the privileged status of white Christian Americans.

NPR recently reported on the rise in hate crimes during 2015.

Hate crimes in 2015 were more than 6 percent more frequent than they were in 2014, with a two-thirds increase in religiously motivated attacks against Muslims.

The FBI’s Hate Crimes Statistics, 2015 report tallied more than 5,850 hate crime incidents in 2015.

Motivations for hate crime incidents, 2015: 56.9 percent were motivated by a race/ethnicity/ancestry bias. 21.4 percent were prompted by religious bias. 18.1 percent resulted from sexual-orientation bias. 2.0 percent were motivated by gender-identity bias. 1.3 percent were prompted by disability bias. 0.4 percent (23 incidents) were motivated by a gender bias.

Most of those — 56.9 percent — were racially motivated, with more than half of race-based attacks targeting African-Americans.

But religiously motivated attacks were a growing share of the tally. Incidents of religious hate crimes rose by nearly 23 percent compared to 2014.

Most hate crimes based on religion targeted Jewish people; anti-Semitic attacks were up more than 9 percent compared to 2014.

Since the Bureau of Justice Statistics estimates that 60 percent of hate crimes are never reported to police, the actual incidence of bias crime is undoubtedly much higher than these statistics suggest.

I’m sure social scientists and mental health professionals have explanations for the loss of civility and increasing nastiness of our times. There’s the disorientation that accompanies rapid social change, the stresses caused by economic uncertainty, the unattractive but very human need to find someone or some group to blame when life isn’t going well. There’s tribalism,  fear of difference, and resentment at perceived loss of status.

I understand that we Americans are never going to come together around the campfire, metaphorically speaking, and sing kumbaya. But we are at risk of losing important norms of mutual respect and civic equality–norms that (while admittedly more honored in the breach than in reality) we have long held to be essential to our national identity.

I keep thinking about Rodney King’s plaintive question, “Can’t we all just get along?”

The answer–at least as provided by those who voted for Trump– seems to be “evidently not.”

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