Wednesday, May 27, 2009

Sotomayor in Context:

From Nominee Sotomayor's speech delivered at the University of California, Berkeley, School of Law and published in 2002 in the Berkeley La Raza Law Journal.  

I have bolded the relevant passages showing that Sotomayor was speaking about the fact that background does make a difference, and that a Latina woman will have an understanding of racism that a white man does not simply out of personal experience. It's interesting to note, however, that she also concludes white men can and have been empathetic enough to make good decisions regardless. 

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. 
Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. 
I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. 
Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

It is also interesting to note that when Justice Thomas was nominated, John Yoo, (yes, that Yoo what wrote them really bad legal opinions), defended Thomas on identical grounds

Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

Thursday, May 14, 2009

A letter to Norris

My small town has two papers, and whilst I cartoon for the Telegraph, I sometimes write letters to the editor to submit to the other one. The following is just such a beast:

Norris Rose’s letter decrying the Obama administration’s much needed housecleaning is representative of many letters recently posted. Kudos to Norris for making rational assertions, but I respectfully disagree with everything he said.  

Factually, Rose’s arguments are classic disinformation. The Heritage Foundation is a recognized partisan institution. Rose’s reliance on this source colors his entire letter. IE: The Administration has indeed cut 1.4 billion from missile defense, but the programs cut are expensive duds. R&D into rogue missile threats is being continued, and the cuts being made are on consultation and recommendation from Secretary Gates and the Joint Chiefs. Obama is keeping his promise to trim the fat from government, something I would have thought conservatives approved of. 

 Some more inconvenient facts for Rose:


• While fighting is sometimes unavoidable, history shows that talking to despots actually has averted disaster: witness the Cuban Missile Crisis.
• Fannie May and Freddie Mac’s bad loans did not cause the meltdown. Only around 1 of 4 defaulted loans originated with those companies. 
• The Cap and Trade plan will tax energy companies around $366 billion a year, not $644 trillion. Estimated cost per consumer by 2015 is $7.00 per month. For that, we begin mitigating global warming, encourage conservation, and produce new jobs in a green economy.
• Granting citizenship to illegal immigrants will generate $66 billion in taxes oven ten years, while costing us $54 billion in welfare, a net gain. 
• Obama has “assumed control” over some banks because they were insolvent. The FDIC “assumes control” over smaller bankrupt institutions in the same way, then sells them back to the private sector. 
• We are suffering an economic crisis due to systemic deregulation over 30 years of GOP philosophical dominance. Capitalism stays healthy only if kept on a reasonable leash.

I implore Rose to retire his ideological blinders and realize government is not a boogie man. Government is us, and it is only as good as we make it. Obama is not perfect, but his election gave us an opportunity to build a better future. That is what a clear majority voted for in 2008, and that is what we are starting to get. Why not help out? There is much to do.

Monday, May 4, 2009

Sub-prime 101

I'm on a kick to write about revisionism. 

Last week's post about FDR got me thinking and researching another popular meme, specifically that the Sub-prime crisis is primarily the fault of Democrats. This theory is based the belief that the Community Reinvestment Act, (CRA), enacted in 1977 and amended by Bill Clinton in the 90's, required the quasi-federal lending institutions Fannie Mae and Freddie Mac to make bad loans to unqualified poor folks which resulted in the current crisis. 

While this is a gross simplification of a complicated series of events, it is true that there were bad loans were made, and as a result, both institutions have had to be bailed out by the US government. 

That said, there are three basic distortions here:

1. Confusing pressure from Democrats, who clearly wanted an expansion of loans to the poor, with the bad decisions made by the CEO's of Fannie and Freddie(conservative Republicans appointed by President Bush, by the way.) The CEO's fell victim to the same greed-fueled gold-rush mentality that wrecked everyone else. In order to make a lot of money, they purged whistle-blowers, relaxed regulatory standards, and bought up bad, "Alt A" loans. Now, while this activity contributed to the overall sub-prime crash, it was not the "match that lit the subprime crisis", as Senator the economy is healthy McCain proclaimed during the 2008 election. Fannie and Freddy were more like ships steered into a hurricane by greedy Ahabs riding a wave of unethical profiteering. And where are the roots of such activity found?  Why, in conservative anti-regulatory ideology. 

2. Bad loans made by the Fannie and Freddie caused the crisis. In actuality, 80% of the subprime loans were made by institutions NOT regulated by the Community Reinvestment Act. In other words, only about one out of four bad loans originated with Fannie Mae or Freddie Mac. 

3.  Democrats killed off the 2005 Federal Housing Reform Act, a bill that if passed, would have prevented the whole meltdown hoohah. The bill died in the majority Republican Senate, despite passing the House, 331 to 90. It perished from a the lack of an effective Senate champion. Mostly likely this was due to a troika of hostility to the bill from the Bush Administration, the Fed, and the Treasury, who saw privatization as the only solution. Add staunch resistance from the minority Dems who thought they were defending the poor, and the bill was DOA. 

So are the D's to blame for anything? Sure- besides congressional Democrats doing their best doe-eyed naive doofus impressions about what was actually happing over on the decks of HMS Frannie and Freddie, Bill Clinton, being the great triangulator that he is, signed into law the Financial Services Modernization Act of 1999. This rather odious piece of Republican legislation is most often blamed for allowing the spiral of deregulation that allowed financial organizations from Banks to Insurance Companies swap tens of trillions of dollars worth of transactions in the dark, and grow "too big to fail." Of course, ol Bubba is nowhere near ready to admit he messed up, but in all fairness, the national tide was running pretty strongly against him on that one. 

A careful reader will note that far from being a Democratic Party pooch-screwing, the whole Sub-Prime crisis emerges from almost thirty years of ideologically fueled deregulatory practices, including defanging the folks who were supposed to be watching the store. And deregulation, that same reader may note, is a tune the GOP cats love to riff on.