Monthly Archives: November 2017

A (Sort Of) Defense Of Jerks

The public reaction to allegations against Harvey Weinstein, Louis C.K. and so many others is welcome and long overdue. The public revulsion to the disclosures, the almost daily revelations about other prominent figures, and especially the #metoo movement that encouraged women to add their own experiences of harassment to the public discourse have caused a lot of men to review their past behaviors, and to consider whether and when they may have gone over the line.

That said, if this particular moment in time is going to usher in a lasting, positive change to both private behaviors and public reactions to those behaviors, it is important that we recognize that a line exists and agree about where it should be drawn. As Ruth Marcus cautioned, in a column for the Washington Post, having under-reacted for so long, we need to take care not to over-react now.

It isn’t really over-reaction that is the danger; we clearly need to act–firmly and punitively–when we are faced with evidence of sexual harassment or worse. The danger lies in neglecting to make important distinctions. We are really dealing with three categories of (mostly male) conduct: people who are engaging in criminal behaviors, people who are abusing positions of power, and still others who are simply behaving like jerks.

Some of the allegations against Roy Moore fall in the first category.  His reported encounter with the 14-year-old is textbook molestation. His other behaviors probably rose to the level of stalking. Those actions aren’t simply wrong, they’re illegal. Similarly, the unwelcome touching Donald Trump bragged about on that notorious tape are sexual assault, not “locker room talk.” (Unfortunately, when you’re a “star”–excuse me while I puke–“letting you” do it means they don’t bring charges.)

Sexual harassment occurs when a person in a position of power or authority abuses that power in order to get some sort of sexual satisfaction. The satisfaction may “just” be bullying– creating what lawyers call a hostile workplace, and taking some sort of sick enjoyment from making a subordinate uncomfortable. (I recall a case where several male employees constantly posted raunchy posters and told foul jokes in order to torment the lone embarrassed female employee.) More often, harassment is a demand for a sexual quid pro quo–if you want that raise, that promotion, that film role, here’s what you need to do…The key to sexual harassment is disparity of power. If the person acting inappropriately is in a position to help or harm the object of his advances, the line is definitely crossed.

That leaves us with “jerk” behavior. This is the category where changing cultural norms really do play a part. When I was the sole female partner in a small law firm in the early 1980s,  two of my male partners occasionally engaged in “joking around” that would undoubtedly be considered offensive today. But we were peers, we exercised equal authority, and I’m confident that had I been offended, they would have apologized and stopped. The culture at the time encouraged verbal banter that would be frowned upon today. (Emphasis on verbal.)

Today, in most places, the culture has changed. As women have participated in the workforce and civic life in greater numbers, we’ve stopped making excuses for jerk behaviors–verbal or physical– that “gross out” or diminish the women who experience them. This post is certainly not intended to defend jerks who engage in boorish, sexist conduct.

What I am defending is the importance of distinguishing between categories of transgression.

There are reasons to be careful before equating jerk behavior with rape, or with Harvey Weinstein masturbating in front of unwilling women. There is a significant difference between Roy Moore asking a 14-year-old to touch his erect penis, or our reality “star” President grabbing a woman’s private parts, and an unwanted pat on the butt from someone  you can call out loudly and publicly without fear of repercussion.

I repeat: none of these behaviors are acceptable. A “good old boy” culture that permits or encourages any of these kinds of conduct needs to be changed–and it is, finally, being changed. But if we fail to distinguish between the boorish and the unforgivable, if we fail to calibrate the sanctions to the gravity of the offense, we risk trivializing the meaning of inexcusable.

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I Don’t Think That Word Means What You Think It Means…

Not every policy change is a reform, and I’m getting more than a little annoyed by efforts to paint things like tax cuts and voucher programs as “reforms.”

I’ve explained in previous posts why the abominable tax bill currently being rushed through Congress isn’t “reform.”  In several states, including Indiana, theocrats intent upon taking tax dollars from public school systems and directing those dollars to religious schools have employed a similar tactic, cloaking those efforts in the rhetoric of “educational reform.”

Betsy DeVos has frequently referred to one such program, in a county in Colorado, in glowing terms, so it was really satisfying to learn the results of a recent school board election in that county.

On Tuesday night, the longstanding fight over a controversial voucher program in Douglas County, Colorado, appeared to have come to an end. In a local school board election that has found its way into the national debate over voucher programs, four anti-voucher candidates—Chris Schor, Kevin Leung, Anthony Graziano, and Krista Holtzmann—defeated reform-supporting candidates in a landslide.

According to the story in Mother Jones, Douglas County is one of the wealthiest counties in the country. The school district is large, with 67,000 students.

As Politico has put it, the county “has gone further than any district in the nation to reshape public education into a competitive, free-market enterprise.” Since 2009, the board has successfully ended a collective bargaining agreement with the local teachers union and enacted a “pay for performance” salary system for teachers.

Its most controversial move, though, came in 2011, when it approved a sweeping school voucher program that aimed to give up to 500 students publicly-funded scholarships to attend participating private schools. The county’s voucher program was the first district-created program in the country. Ninety-three percent of the pilot class of scholarship recipients enrolled in religious schools, according to court documents. It sparked outcry from those who argued that it was a diversion of public money away from public schools. Over the next few years, the suburban district in many ways become a model for conservatives looking to reform education nationwide and the group of reform-minded board members received support from national right-wing groups like the Koch brothers’ Americans for Prosperity.

That generous financial support kept pro-voucher commissioners on the school board until an election in 2015, when three members were ousted by opponents of the program. The Board was still majority pro-voucher, 4-3, but their power was weakened.

This month, after a campaign that saw hundreds of thousands of dollars pour in from the Koch brothers, a Republican political committee on behalf of pro-voucher candidates and the teachers’ union on behalf of the anti-voucher candidates, the anti-voucher candidates swept to decisive victories in all seven races.

That voters were not swayed by the influx of money and rejected the voucher program was a great outcome. But here’s my beef. A spokesperson for the winning slate was quoted as follows:

“Students at every school, students at every grade level and students with varying needs, all of them won tonight because our schools can now continue the return to excellence that began two years ago, after it became clear that reform had failed our children.”

Reform didn’t fail. An effort to enrich religious schools at the expense of public ones failed.

If I learned one thing in law school and in the practice, it was this: he who frames the issue wins the debate. When political activists accept the other side’s framing, they are agreeing to fight on the other guy’s turf.

The word “reform” denotes improvement. Tax cuts for rich people at the expense of middle-class Americans isn’t “reform.” Robbing public schools in order to benefit religious schools isn’t “reform.” In both cases, it’s theft, and with respect to vouchers, it’s an effort to circumvent the First Amendment’s Separation of Church and State.

Call it what it is.

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Easy To Destroy, How Long To Repair?

A friend who lives in Wisconsin occasionally sends me items from newspapers in that state that he thinks will interest me. Most have obvious implications for other states–and since Scott Walker became Governor, those implications have tended to range from worrisome to terrifying.

The most recent news from what I’ve come to call “the frontier of shooting yourself in the foot” was a report about the University of Wisconsin’s loss of thousands of engineering students.

The story began by explaining why engineering is “more than classrooms and theory: It’s a hands-on discipline for turning ideas into prototypes and products that help people.” The university should have a number of advantages when it comes to attracting engineering students–most recently, it has used private grant funds to create an innovative “maker space” appealing to both in-state and out-of-state applicants.

Accommodating those applicants is a different issue.

There are roughly 4,500 undergraduate students in UW-Madison’s engineering sequence today. About 6,600 applied last year, including many qualified applicants from outside Wisconsin who could add to the state’s talent base.

The main barrier to taking more is a lack of faculty to educate more students without diminishing the quality of the experience for all. Private gifts help, but the core funding for faculty hires comes from state government support and student tuition.

As the article delicately puts it, those funding sources “haven’t grown.” That’s a rather massive understatement: the Walker Administration’s cuts to funding for the university can only be characterized as savage. In the wake of those cuts, and other measures inimical to higher education, the once-storied University of Wisconsin has seen faculty depart and rankings slip.

Walker not only engineered (no pun intended) an enormous $250 million cut to the University of Wisconsin’s budget, just when other state universities were finally emerging from the recession. He also proposed to get rid of academic tenure.

As one observer wrote at the time,

With his draconian budget cuts and his assault on the tenure system, Walker is sending a message that professors at Wisconsin should sit down and shut up. Some of them–those most able to move, which likely includes some of their best talent–might now be looking for greener pastures elsewhere.

An article in Slate a year later considered the consequences of these changes in funding and tenure protections. Several highly-regarded professors had left; others at risk of being “poached” were retained (at least temporarily) at a cost of some $9 million dollars in pay raises and research support. As the Slate article explained:

Academics, whether they have it or not, want some form of tenure to exist to protect the integrity of the knowledge that is produced, preserved, and disseminated.

Wisconsin professors simply do not want research limited by the whims of 18 people appointed by a governor with an openly stated anti-education agenda. And you shouldn’t, either. Think university research doesn’t affect you? You’re wrong. Hundreds of technological and social advances that you depend upon have been made thanks to the research of some brainiac at some university somewhere: what kind of cities to plan; how (and where) to alleviate poverty and hunger; what kind of diseases to treat; what kind of drugs to invent (or make obsolete); what kind of bridges and roads to build (and where). If professors are not protected from disagreeing with the agenda of their “bosses”—whether that be Dow Chemical, Gov. Walker, or President Trump—the consequences will go far beyond one person’s paycheck.

What is happening in Wisconsin is tragic: Scott’s vendetta against intellectual “elitists” is affecting everything from the quality of the state’s workforce  to its reputation and its ability to attract new employers. Last year, the state ranked 33d in job creation–not dead last (Kansas has that distinction) but nothing to brag about.

What is happening in Wisconsin is also where Donald Trump and today’s rabidly anti-intellectual GOP want to take the rest of us. And that is truly terrifying. It’s relatively easy to destroy an asset; rebuilding it, and restoring a sullied reputation is a far dicier proposition.

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Going Courting

I know there’s a fierce competition for the title of “most harmful consequence” of the Trump Administration. There’s so much to choose from: sabotaging the Affordable Care Act, waging war on public education, reviving the racist and ineffective drug war,  ensuring that new environmental regulations aren’t informed by science (and older ones aren’t enforced), drastically diminishing America’s role in world affairs (and making us a laughingstock among sentient people)…well, choosing just one assault on good government seems impossible.

That said, I want to make the case for Trump’s corruption of the federal judiciary.

Assuming Democrats take back (at least) the House in 2018, and further assuming Trump’s presidency won’t last the full four years (an assumption I make, given Muller’s investigation and Trump’s petulance), we can call a halt to most of the administration’s March to Armageddon and begin to repair the considerable damage done by the Confederacy of Dunces who currently hold sway in the Cabinet and White House.

The Courts, however, are another matter. Federal Judges have lifetime appointments, and what is particularly unnerving is the rapidity with which Trump is placing truly horrific nominees in vacancies that a destructive and partisan Congress prevented the Obama Administration from filling.

Readers who follow the news–which is most of those who come to this site–have probably heard about one of Trump’s most recent nominees, who is not only an unqualified whack job, but ethically challenged; he “neglected” to mention that his wife is employed by the Administration as Chief of Staff of the office that selects judicial nominees. As El Jefe reports at the World’s Most Dangerous Beauty Shop, Inc.,

This nominee is a 36 year old young man, 3 years out of law school who has never argued a case in court.  Hell, he’s never even argued a motion in court.  He’s a blogger who writes highly partisan posts, likes to call the last Democratic candidate Hillary Rotten Clinton, and wrote a piece during the last administration about how Barack Obama was destroying the Constitution by introducing legislation for background checks after the Newtown massacre.  He was a speechwriter for Mitt Romney in 2012, and an aide to Luther Strange when he was appointed to be senator after Granny Sessions was named attorney general.

Who is this candidate, and what’s he nominated for?  Why he is Brett Talley, and he’s been nominated to a lifetime position as a federal judge in the Middle District of Alabama.  Oh, and it gets better; after coming to Washington with Luther Strange, he then took a job in the Justice Department in the office that does…wait for it…appointments to federal judgeships.  Can you spell inside track?  And one last little tidbit…he was unanimously rated by the American Bar Association as “not qualified” for this appointment.

Trump’s other nominees are equally horrific: Salon recently reported on some of them in an article titled “Trump’s Judicial nominees are so ludicrous, he may just be trolling us.”The ABA unanimously evaluated nominee Steven Grasz unqualified, explaining that Grasz’ “professional peers” reported that the nominee “puts his right-wing political views ahead of the law — and is “gratuitously rude” to boot.”

It takes a lot to be so noxious that the ABA will confer this kind of rating. For instance, Trump nominee Jeff Mateer, an appalling bully who says trans children are part of “Satan’s plan” and has suggested that same-sex marriage will lead to “people marrying their pets,” still got a “qualified” rating, though some members of the panel expressed reservations.

Two of Trump’s other district judge nominations, Charles Goodwin and Holly Lou Teeter, also received not-qualified ratings. Part of the issue here is that Trump has decided not to submit his picks to ABA review before a formal nomination, something that has only been done before by George W. Bush. It’s a symbol of the tribalism of the right, and conservatives’ increasing hostility to anyone perceived as not belonging to their tribe. Trump promised during the campaign that he would simply let the far-right Federalist Society pick his nominees for him, and that appears to be exactly what he’s doing. Just as conservatives have opted out of mainstream media, turning instead to Fox News and even more truth-hostile outlets like Breitbart, they’re turning away from mainstream professional organizations and other gatekeepers who seek to maintain a level of proficiency and competence that is seen as inherently threatening to the conservative agenda. If anything, Trump’s judges suggest that he’s thumbing his nose at the very idea of fitness and competence, just to show he can.

Of all his assaults on the rule of law, corrupting the federal judiciary by packing the courts with an assortment of (overwhelmingly white and male) partisan hacks is likely to do the most long-term damage.

Unfortunately, a Senate devoid of Republican statesmen is all too willing to confirm these deeply problematic appointments.

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Corporations Will Use Their Windfalls To Create Jobs. NOT.

Part of the mantra obediently recited by advocates of the mis-named “tax reform” bill is their touching (or feigned) belief that corporations will use the funds being repatriated and/or saved from the tax collector to create jobs.

Brings to mind the old adage about the triumph of hope over experience.

Ed Brayton relays the recent, eye-opening response by corporate CEOs to a speech by Gary Cohn, Trump’s chief economic advisor.

Trump’s chief economic adviser, Gary Cohn, took part in an event hosted by the Wall Street Journal that featured an audience full of CEOs, and when a Journal editor asked for a show of hands by those leaders who would invest in new capacity if their taxes were cut, very few hands went up. Cohn seemed shocked.

Cohn really shouldn’t have been shocked. We’ve been here before, and there is no reason to believe that the fundamentals–or the economic incentives– have changed. As Brayton notes, corporate profits are already at record highs, and credit is very cheap and readily available.

If those businesses believed that investing in new factories or equipment that might create more jobs would result in higher profits for them, they would already be doing it. But they’re not. Indeed, while this poll was an informal one, formal surveys of CEOs find the same result.

This summer, Bank of America Merrill Lynch asked 300 companies what they would do if Congress passed a “tax holiday” that allowed them to bring back massive amounts of money being held overseas at a lower tax rate. 65% said they would pay down their debt. Second most popular option? Stock buyback. Neither of those things creates new jobs. Indeed, when George W. Bush did the same thing in 2004, about $300 billion in cash kept in overseas subsidiaries was brought back at a ridiculous 5.25% tax rate. 80% of it was used to buy back stock. Why? Because it makes the shares of CEOs, which are a huge part of their compensation package, much more valuable. So the rich people benefit but no one else does.

I don’t know whether the lawmakers who continue to push this theory have convinced themselves of its credibility through constant repetition, or whether they are knowingly putting the best possible spin on an economic policy that repeated experience tells us is bogus. It probably doesn’t matter whether they are venal or stupid (not that the two categories are mutually exclusive); the outcome is the same: the rich get richer, and their political donations reward the lawmakers who’ve carried their water. Economic inequality and popular resentments continue to grow, along with political cynicism and social distrust.

It’s a prescription for upheaval, for further splintering of our already strained social fabric–and plenty of wealthy people understand that social unrest shrinks, rather than grows, the economy. As the contours of the tax “reform” bill  have become known, more than 400 American millionaires and billionaires have signed a letter to Congress demanding that Republican lawmakers not cut their taxes.

These wealthy Americans argue that reducing taxes on the richest families at a time when the the nation’s debt is high and inequality is at the worst level since the 1920s would be a colossal mistake.

The letter calls on Congress to not to pass any tax bill that adds to the debt and that “further exacerbates inequality.” Instead of cutting taxes of the wealthy, the letter tells Congress to raises taxes on rich people like them.

If money talks, theirs is the money Congress should listen to.
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