Monday, June 1, 2009

Majestic Equality

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.-- Anatole France, The Red Lily, 1894

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. -- Justice Henry B. Brown, Plessy v. Ferguson, 1896.

In this week's Sift:
  • The Ideas Behind the Sotomayor Debate. The various objections and defenses of Sonia Sotomayor's nomination are all parts of one big objection and one big defense.
  • Do We Need Another Sputnik? The sorry state of American math and science education may not be news, but it's probably more important than a lot of things that are.
  • Prop 8 Upheld -- Sort Of. The California Supreme Court upheld Proposition 8 by interpreting it to mean as little as possible.
  • Short Notes. Advertising for assassins. 100 days of Fox News reduced to five-and-a-half minutes. The downward trend in Afghanistan and maybe Iraq. What doctors' attitudes have to do with health-care costs. And right-wing terrorism in a Wichita church.

The Ideas Behind the Sotomayor Debate
By far the biggest story this week was President Obama's nomination of Sonia Sotomayor to the Supreme Court. I doubt you missed that story, and on all the specific points raised against her, Sotomayor's defenders -- see Rachel Maddow here and here, for example, or TPM -- are doing fine without me, so I think the Sift's time would be better spent trying to make some kind of larger sense out of the discussion.

The pro-Sotomayor and anti-Sotomayor arguments are based on two very different pictures of how the law works and what the courts should be trying to do. That's why each side is more likely to react to the other's points with a you-don't-get-it headshake than with reasoned discussion. I'm far from neutral myself, but let me at least try to lay out the differences.

Conservatives are arguing from what we might call a modernist perspective. Modernists believe that a text like the Constitution has a clear and unique meaning. What they want in a judge, then, is a legal calculating machine who can work that meaning out and apply it objectively to the case at hand, uninfluenced by emotions or personal experiences. Their ideal Supreme Court is the nine "best qualified individuals" -- the country's nine best legal calculators.

Liberals are arguing from a post-modern perspective. Post-modernists believe that interpreting the Constitution is a more of an art than a science. There isn't a unique meaning in the text, waiting for you to pull it out, because the text is often being applied to situations the authors could not have imagined, and is being asked to resolve questions the authors never considered. So rather than deducing the text's unique meaning, an interpreter has to make reasonable choices among many possible meanings. Over time, the meaning of the text evolves through the choices that interpreters make. That's why liberals will sometimes talk about a "living Constitution" -- one whose meaning evolves through a dialog between the text and its interpreters.

Evolving phrases. That all sounds very abstract until you look at examples. Think about the Second Amendment's "right of the people to keep and bear arms". What are arms? Probably in their own day, the Founders would not all have answered that question the same way. But even if they had, what do you do with weapons they couldn't have imagined, like Stinger shoulder-fired surface-to-air missiles? Does the Second Amendment entitle me to keep and bear a Stinger near Logan Airport? There's not one unique and obvious way to calculate an answer to that question directly from the text. But an answer (no) has evolved through a gradual process of interpretation.

Or when the authors of the 14th amendment said "nor shall any State deprive any person of life, liberty, or property, without due process of law" did they intend person to include fetuses still in the womb? Many pro-lifers think so; pro-choicers disagree. Can we really compute a right answer? Or do we have to accept that the authors weren't thinking about that question and just make a choice?

Experience and the post-modern Court. Taking things one step further, people with different experiences will have different opinions about what interpretation is most reasonable. In 1896, for example, the Supreme Court thought separate-but-equal facilities for whites and coloreds was a reasonable way to fulfill the 14th Amendment's promise of "equal protection of the laws". But in 1954, the Court decided it wasn't. What changed? Not the 14th Amendment. But the nine white men of the 1954 Court lived in a different world than the nine white men of the 1896 Court. They brought different experiences to bear, and it led them to a different answer.

In the Henry Brown quote at the top of the page, you can hear echoes across the vast gulf that separated him from "the colored race". The whole Plessy v. Ferguson case was a conversation among white men. Even the plaintiff, Homer Plessy, was only 1/8th black.

But by 1954, in thousands of ways great and small, the distance between the races had lessened. Willie Mays was having an MVP season; all over the country white boys were running out from under their caps and making basket catches like Willie did. The races had fought together in Korea, because President Truman had integrated the military in 1948. Most important of all, the 1954 justices had to look into the eyes of Thurgood Marshall, the NAACP attorney who argued Brown v. Board of Education. Maybe the justices couldn't forsee that in 1967 Marshall would join the Court himself, but none of them could deny that Marshall was a human being with thoughts, feelings, and desires not so different from their own.

The 14th Amendment hadn't changed, but the 1954 justices were beginning to be able to imagine black experience. It made a difference. In the post-modern view, it should have made a difference.

So the ideal post-modern Court is not the nine best individual legal calculators. It's a team of justices who (in addition to having fine legal minds and good training) collectively have a wide range of experiences and individually have empathy -- the ability to imagine and take seriously the experiences of others. In easy cases, where law and precedent are clear, this Court makes the same decisions as the modernist Court. But when new interpretations are necessary, its intuitions about what is reasonable should more closely reflect the nation, rather than the parochial interests of a single race, class, religion, or ethnic group.

Sotomayor. With that background, we can make more sense out of the Sotomayor debate. Conservatives are jumping on Obama's statement that he was looking for a nominee with empathy, as well as two of Sotomayor's statements. In a 2001 speech she said:
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
And in a 2005 panel discussion at Duke (in which judges answered law students' questions about legal clerkships) [sound bite, larger context, full 51-minute session] she said:
Court of appeals is where policy is made.
From a conservative modernist point of view, this all wraps together into a horror story: Sotomayor isn't even trying to calculate the outcome of the law impartially. Instead, she's going to ignore the law and "make policy" to favor the groups she empathizes with (women and Hispanics) over white males. The Ricci case -- which we'll get to in a minute -- is supposed to show her doing just that.

Charles Krauthammer made this argument on Fox News:
Her job on the court is to be an impartial adjudicator. And if she is not, if her empathy and her concern for certain ethnicities overrides the idea of justice and equal justice, I think that is a troubling concern.
In his WaPo column, Krauthammer called Sotomayor's appointment an example of "the racial spoils system". Her wise-Latina quote is "identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society." John Yoo (we're supposed to listen to John Yoo? about law? really?) wrote: "Empathy has won out over excellence."

But from a liberal post-modern point of view, the same Obama and Sotomayor quotes look not only harmless, but (if you read them in context) obvious. Courts "make policy" whenever they choose one possible intepretation over others. The experiences that the justices have or can imagine (through empathy) affect those choices, whether the justices want them to or not. (Another Anatole France quote: "He flattered himself on being a man without any prejudices; and this pretension itself is a very great prejudice.") The current Court is overweighted with white males and light on everything else. Consequently, Sotomayor's Latina experience can only enrich the Court, and her mere presence is bound to change the discussion -- particularly in cases involving discrimination (which was the subject of the section of the speech where her "wise Latina" quote appeared).

Without that broad base of experience, it is far too easy for the Court to accept a status quo that favors people like the justices themselves -- to make, in other words, more decisions like Plessy v. Ferguson.

For an example of such status-quo thinking today, check out Friday's Michael Gerson column. As a senator, he says, Barack Obama
opposed John Roberts for using his skills "on behalf of the strong in opposition to the weak." He criticized Samuel Alito for siding with "the powerful against the powerless." Obama made these distinguished judges sound monstrous because they stood for the impartial application of the law.
Gerson's column doesn't even address the possibility that "siding with the powerful against the powerless" might not be "impartial application of the law". I'll bet if he wouldn't have oversights like that if he teamed with a Latina who grew up a housing project.

OK, the Ricci case. Frank Ricci is a white New Haven firefighter who got the top score on a written test-for-promotion in spite of being dyslexic. He studied hard and spent $1000 on tutoring, but the test was thrown out when it would have resulted in no blacks and only one Hispanic being eligible for promotion. Along with some other high-scoring white firefighters, he sued the city.

The district court found against Ricci, and Sotomayor was part of a panel that upheld the district court ruling. The case has since been heard by the Supreme Court, which should rule this month.

The best account I've found is by Stanford law professor Richard Thompson Ford. According to him, current affirmative action law says this: If an employment test produces an adverse effect on a discriminated-against group, the burden of proof is on the employer to show that the test faithfully reflects the requirements of the job. Ford gives a hypothetical example in which a weight-lifting test screens women out of a job where strength is not that important. Even if the test is applied fairly and the discriminatory effect is unintentional, the employer needs to do something else.

When the firefighters' test results came back with an adverse effect on non-whites, New Haven figured it couldn't meet that burden of proof, so it started over. That's what current law says it should do. You've got to feel for Ricci -- just like you'd feel for a guy in Ford's hypothetical who worked out until he could bench-press 300 pounds -- but it makes sense.

So basically, this is an example of Sotomayor doing what conservatives claim they want: applying the law in spite of the fact that the plaintiff has a sympathetic story. But it's a white guy with a sympathetic story, so that changes everything.

The Sotomayor nomination is making Republicans choose between the white racists in their base and the Hispanic voters they'll need in the future.

Sane Republicans have got to be pulling their hair out whenever former Colorado congressman and presidential candidate Tom Tancredo goes on TV. Thursday he compared the Hispanic civil-rights group La Raza to the KKK, and interpreted La Raza as "the Race". (It actually means "the People"; you get "the Race" out of it by assuming that Spanish is some kind of mispronounced English. And radio talk-show host Gordon Liddy can't even say the word Spanish. He talks about what La Raza means "in illegal alien".) When asked Friday whether he agreed with Rush Limbaugh that the Obama administration "hates white people", Tancredo replied: "I don't know."

Do We Need Another Sputnik?
A lot of important issues don't get the attention they deserve because they hardly ever make "news". For example: the sad state of math and science education in the United States.

Day-to-day, nothing reportable happens. (Picture it: "This just in: Today 5,433 American fifth-graders gave up and decided that they will never understand fractions. Details at 11.") Occasionally a blue-ribbon panel will issue a report or we'll hear about SAT math scores going up or down, but even those events can't compete with missing co-eds, celebrity drunk-driving arrests, or the latest offensive slip-of-the-tongue by some public figure.

Gadgets or pictures from outer space sometimes make news, but those things get covered as if they were magic. Rocket scientist has become slang for somebody who understands mysteries unapproachable by mere mortals, and it's almost always used in the negative: "He's no rocket scientist." (In the movie Roxanne, it's a little jarring when Steve Martin says, "Well, actually, she is a rocket scientist.")

Recently in the Boston Globe, Boston College math professor Solomon Friedberg tried to call attention to this non-news-making subject. [Full disclosure: Sol and I were graduate students together at the University of Chicago. We once shared the bonding experience of driving from Chicago to San Diego in a $200 car.] Among other issues, he calls attention to the way that our educational culture replicates failure: If a kid is no good at math, what do you tell him or her to go into? Education.

It's as if there were a disease that caused infected people to go into nursing. How many second- and third-grade teachers transmit the vibe that math is something hard and scary, and that you just need to get through it before you can move on to something fun like reading? I ran into a lot of their students years later when I was teaching calculus to freshmen. These were smart people -- they got into the University of Chicago -- but often my hardest task was to convince them that they could think about math, that they didn't have to just memorize something and perform by rote. Where did they get that?

I don't believe anybody wants a witch-hunt to purge all the math-phobes from the teaching profession. But the balance needs to change. One math-challenged teacher is probably not going to cripple a kid, especially if that teacher has compensating strengths elsewhere. I worry, though, about kids getting the idea that math anxiety is normal, that only a few geeks with a specialized math-module in their heads can understand this stuff. (What if kids got the same idea about reading?)

The solutions are -- I guess I have to say it -- not rocket science. Sol suggests targeting financial aid at math-capable students who go into education, giving more attention to math and science in teacher-training programs, continuing math-and-science opportunities for teachers already in the schools, and higher pay for math and science teachers (who are hard to retain because they could make more money elsewhere).

I've thought about the higher-pay idea before, and the main obstacle is the everybody-is-equal culture of teachers' unions. Maybe we could work around that culture rather than fight it: Let math and science teachers apply for federal grants that have nothing to do with the pay they get from their school districts.

But how will we marshal the political will to make any of those changes happen? Sol finds himself rooting for another Sputnik; rather than this slow-but-steady falling behind, some sudden symbolic wound to our national pride.

Something, in other words, that would be news.

Prop 8 Upheld -- Sort Of
I was disappointed when the California Supreme Court upheld Proposition 8, the constitutional amendment banning same-sex marriage in California. But having looked at the decision, I think the CSC got the law right.

The main issue in the case was whether Prop 8 was a simple amendment, which the voters could pass by majority vote, or a revision of the California Constitution, which would require a more arduous process. Prop 8 opponents argued that taking away one of your neighbors' fundamental rights has to be a revision.

The CSC disagreed, but it did so by interpreting Prop 8 as narrowly as possible -- as
eliminating equal access to the designation of marriage, and as not otherwise affecting the constitutional right of [same-sex] couples to establish an officially recognized family relationship.
The same-sex marriages already performed will stand, and civil unions in California will be marriages in all but name. Given the precedents defining the amendment/revision distinction, I don't see how the CSC could have done more.

Now a suit has been filed in federal court to throw out Prop 8. Like John Dean, I'm skeptical. Same-sex marriage has momentum now among both voters and legislators. Why not see how far that goes before making a game-changing move?

Short Notes
Republicans claim that Democrats hated Bush just as rabidly as they hate Obama now. But I don't remember liberals taking out newspaper ads calling for a presidential assassination.

Media Matters collects 100 Days of "Fair and Balanced" coverage of the Obama administration.

The American death toll in Iraq, which had been drifting downward since the summer of 2007, might be starting back up again. We had 9 troop deaths in March, 19 in April, 22 in May. Three data-points doesn't make a trend, but this bears watching.

The database I follow doesn't break deaths in Afghanistan down by both country and month, so I'll talk about coalition deaths rather than American deaths. Deaths have been up every year since 2003: 57 coalition troops died in 2003, 294 in 2008. So far 2009 is worse. At the end of May in 2008, there were 77 deaths; there are 115 so far in 2009. The big fighting season in Afghanistan, June-through-September, is just starting.

The New Yorker's Atul Gawande tries to figure out why a small, poor town in Texas has the nation's most expensive health care. His conclusion: The biggest factor affecting health-care costs is whether a community's doctors think of themselves as healers or businessmen.

Yesterday an abortion doctor was killed while ushering at church in Wichita, and the suspect belonged to anti-abortion groups. This looks like the kind of incident I've been predicting, and that I think we'll see more of. Violent rhetoric eventually reaches crazy people who will carry it out. In a quick scan of Monday-morning coverage, I don't see any major media outlet calling this incident by its true name: terrorism.


Anonymous said...

The New Yorker article on health care is downright scary. I'm proud to read that the Mayo clinic (I grew up in MN) is still providing outstanding care while keeping the prices down. The McAllen-way of doing medicine makes me sick to my stomach.

ellyodd said...

Ever heard of dyscalculia? "Math dyslexia". Check out