by Dwight Meredith
Jane Galt recently played the race card. Jane accuses Democrats of racial discrimination in the confirmation of Federal appellate court judges. Specifically, Jane charges that:
Democrats are pretty clearly trying to keep conservative minorities off the appellate bench.
She even suggests that the Democrats would be guilty of violating discrimination laws if their conduct had occurred in the private sector.
I think Jane’s charge is baseless for two reasons. First, the evidence she presents in support of the charge is almost non-existent. Secondly, she fails to explore alternative explanations for the very few examples she provides.
Jane’s evidence for her charge of racial discrimination consists solely of the fact that Democrats blocked the confirmation of Miguel Estrada, a Hispanic male, and may block the confirmation of Janice Brown, an African-American woman. Those two instances are the sum total of all evidence marshaled to support the charge of discrimination.
Mr. Bush has nominated other minorities to the bench. Those nominees are conservatives. As Jane has noted, “George Bush is going to nominate conservative judges because George Bush is a conservative.” Before Democrats are charged with “trying to keep conservative minorities off the appellate bench” those other nominations should be considered. In Jane’s comments, Alkali sets the record straight, listing the minority nominations to the Federal bench:
Confirmed, Hispanic: Christina Armijo (NM), Phillip Martinez (TX), Randy Crane (TX), Jose Martinez (FL), Alia Ludlum (TX), Jose Linares (NJ), Edward Prado (5th Circuit), Consuelo Callahan (9th Circuit), S. James Otero (CA), Cecilia Altonaga (FL), Xavier Rodriguez (TX), Frank Rodriguez Montalvo (TX)Not confirmed, Hispanic: Miguel Estrada (DC Circuit)
Confirmed, African-American(*): Beggie B. Walton (DC), Julie A. Robinson (KS), Legrome D. Davis Pennsylvania (PA), Percy Anderson (CA), Lavenski R. Smith (8th Circuit), Henry Edward Autry (MO), Morrison C. England, Jr. (CA)
Not confirmed, African-American: Janice Rogers Brown (DC Circuit) (at least not yet)
(*) Does not include two nominees which were originally nominated by Pres. Clinton. Also omitted are two African-American nominees who are expected to be confirmed shortly.
By my count, that is 19 minority nominees confirmed, two more likely to be confirmed, one defeated, and one pending. In fairness, though, Jane’s charge was limited to nominees to the Circuit (appellate) Court bench while Alkali’s list includes nominees to the trial (District) courts.
Assuming Alkali’s list to be accurate, when only Circuit Court nominations are considered, Edward Prado (5th Circuit), Consuelo Callahan (9th Circuit) and Lavenski R. Smith (8th Circuit) have been confirmed while Estrada and Brown have not.
Now in most circumstances, Jane would be the first to tell you that drawing conclusions from a data set as small of five is inappropriate. Not so long ago, I looked at economic performance by party of the President. The period studied covered thirteen presidents and about 75 years. In comments to that post, Jane wrote:
No statistician would use a data set this small, since random variance is likely to be much more powerful than any effect you're trying to measure in a data set with seven members. I can't even begin to go into the number of ways in which this data is totally meaningless -- using it is the worst sort of cargo cult science.
The data set Jane is considering (minority nominees to the Circuit Courts) has a data set of five members. Jane ignores the three instances that do not support her hypothesis. She then draws a sweeping conclusion of racial discrimination from the two data points she chooses to consider. If that is not the “worst sort of cargo cult science,” it surely must be the best sort.
Jane also fails to consider non-racial explanations for Democrats’ opposition to Estrada and Brown before playing her race card. She has previously noted that it is appropriate to consider alternative explanations before concluding that actions are rooted in racial discrimination.
Last year a study showed that job applicants with “black names” were far less likely to be called back for an interview than applicants with identical resumes but with “white names.” Before concluding that the disparity was racially motivated, Jane thought it necessary to ask “Are there alternate explanations to racism?”
That is an appropriate inquiry. Before charging Democrats with discriminating against minority nominees, did Jane look for alternative explanations? She did not. If she had looked for alternative explanations, she would have found plenty.
For instance, when Judge Brown was being considered for a position on the California Supreme Court, the California Bar gave her an “unqualified” rating. When nominated for the appellate bench, the American Bar Association gave her a split rating of “qualified/unqualified.”
Secondly, Judge Brown favors a return the Lochner era jurisprudence of substantive due process. As the Washington Post has noted:
In speeches, she has openly embraced the Supreme Court's so-called "Lochner" era, during which the justices struck down numerous worker protection laws on grounds that they violated the supposed right of free contract. Across the spectrum of constitutional law scholarship, there are few points of greater consensus than that this period is a blot on the Supreme Court's history. The very word "Lochner" -- named for the 1905 case that forged the doctrine -- has come to be used as a pejorative shorthand for judicial usurpation of legislative authority. Yet Justice Brown has insisted that without such usurpation, "a democracy is inevitably transformed into a Kleptocracy -- a license to steal, a warrant for oppression."
As Alan Brill has written, a return to Lochner era jurisprudence would permit such things as child labor in the name of “freedom to contract.” Is it possible that Democratic opposition to Judge Brown arises from opposition to that position rather than racial discrimination? Jane chooses not to explore that question.
Perhaps most disturbing is Judge Brown’s position with regard to the applicability of the Bill of Rights to the States. The Atlanta Journal Constitution says that:
Brown's views, as espoused in speeches to ultraconservative groups, are far out of the mainstream of accepted legal principles. For example, she has disputed whether the Bill of Rights, as incorporated in the U.S. Constitution, should have been applied to the states.
It is hard to overstate how radical a position that is. The First Amendment, for instance, says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
By its very terms, that provision only prohibits conduct by Congress. It does not protect freedom of speech or religion from actions taken at the state level.
The U.S. Constitution prohibits states from engaging in conduct that violates the First Amendment only because the Supreme Court has long held that the 14th Amendment incorporates those rights and makes them applicable to the states. It is that incorporation doctrine that Judge Brown opposes.
If the Journal Constitution is right about Judge’s Brown’s position, then she would see no federal constitutional problem with a state law requiring that all newspapers seek approval of the state government before publishing a story.
In addition, suppose a state passed a law adopting Islam as its official religion. The law might ban the publication, ownership and reading of the Bible. It might also require each and every citizen to bow towards Mecca and pray to Allah five times a day. The penalty for violating the law might be incarceration. In the jurisprudence of Judge Brown, no federal constitutional provision would prohibit such a law.
Is it possible, just barely possible mind you, that Democrats oppose the confirmation of Judge Brown because she is viewed a radical nut case whose jurisprudence would set the clock back many decades rather than because of her race? Jane ignores that issue in her haste to play the race card.
Charges of racial discrimination are always serious. Charging more than forty of our top political leaders with racial discrimination is even more serious. Such charges require a great deal more evidence than has yet been presented.
If that is not the “worst sort of cargo cult science,” it surely must be the best sort.
[applause]
Posted by: julia at November 3, 2003 02:33 PMI think Jane’s charge is baseless for two reasons.
I think it's baseless for one reason - it's made by Jane Galt.
Posted by: dave at November 3, 2003 03:51 PM"worst sort of cargo cult science"
such incivility. tsk tsk
Posted by: Atrios at November 3, 2003 03:53 PMI heard that Jane Galt has a friend who's done some pretty heavy statistical work on racial discrimination by Democrats in the Senate that's not published yet, but it totally proves her point, and since she's not really a scientist, it's kind of silly to hold her to the scientific standards that she holds other non-scientists do anyway, and anyway you're the cargo cult scientist you silly person.
Posted by: david at November 3, 2003 04:02 PMYou are correct when you say that it must be the best sort of cargo cult science. It is clear from observation that, to the strange species of Republican hack that has come to dominate our politics and discourse, "the worst kind of cargo cult science" is any science, sound or flawed, that supports a progressive policy or view. The best sort is anything that can be distorted to support a regressive, kleptocratic, or hateful view.
Posted by: libdevil at November 3, 2003 04:02 PMHey I know that friend of Jane Galt's. It's hard to keep track, I know. Her name is Megan McArdle, and Jane is the best professor she ever had.
What Jane said is absolutely true. We are trying to keep two conservative minorities off the bench. It just so happens that it's for a reason entirely unrelated to race.
And she was joking! Her Delta Force "friend" said it...well, you're attacking a conservative woman because you can't stand anything that deviates from your little liberal-left perspective, like nonsense and hogwash.
Posted by: jesse at November 3, 2003 04:17 PMI'm waiting for the allegations that Democrats are now anti-Anglo for holding up the nomination of Charles Pickering to the bench.
Posted by: Tim Francis-Wright at November 3, 2003 04:26 PMNope. They're religious bigots.
anti-, that is
Posted by: Atrios at November 3, 2003 04:29 PMThe official line on Pickering is that it shows the Dems are anti-Southern.
No, seriously.
But I do have to give props for the "cargo cult science" line, assuming Galt originated it. Not many folks in this country know about cargo cults, but they're a great analogy to drawing "scientific" conclusions based on limited data and an absence of experimental testing--though I never thought of them that way.
p
Posted by: Arnold Publius California at November 3, 2003 04:30 PMIt is Bill Pryor's nomination that proves Dems are anti-religious; specifically anti-Catholic.
The Republicans are trotting out one extremist nominee from each demographic group to be filibustered, so that each can serve as poster child of Democrats' racism, sexism, or whatever-ism in 2004.
Looked at collectively, of course, the one thing they have in common is being right-wing activists. Occam's Razor would suggest the correct interpretation of the Dems' motives, even if the racism etc. charges weren't such obvious B.S. on their face.
Yuck; how gross to have B.S. on one's face.
p
Posted by: Arnold Publius California at November 3, 2003 04:33 PMdavid, you should have signed off, "Mary Rosh."
Jane Galt is a discredit to Cargo Cults everywhere.
Posted by: David Ehrenstein at November 3, 2003 04:37 PMI think "cargo cult science" is a terrific metaphor for being so buffaloed by a desperate search for symbols that you lose touch with reality in an endless spiral of insane rituals that bear no relationship to the world outside your hoodoo-believing head.
Although on dit she thinks Ayn Rand sucks big pointy rocks and she just calls herself that to piss off the liberals who hound her every step, frightened of the towering selfhood which sets her astride the world, crashing trains and subsistence farming in the verdant valleys of midtown.
Posted by: julia at November 3, 2003 04:40 PMIt's such a rare opportunity to say this, but...
Speaking of cargo cults, has anyone here ever read "Island of the Sequined Love Nun"? One of the best books on cargo cults ever...
As for the actual subject at hand, the GOP's race-baiting is absurdist, they're playing a card they don't even have a right to play. A bunch of white Republicans are accusing the Democrats of being racist because they don't like Bush's nominees? Look no further than the Congressional Black Congress to see that race isn't what Democrats are objecting to, just take a look at the CBC's rejection of Janice Rogers Brown-- a black woman.
But I suppose the CBC is untrusworthy because they're just a bunch of black Democrats. Hmmm, why are they all Democrats? Is it because the CBC is anti-GOP and won't let all the black Republicans in? Or perhaps it has more to do with the fact that GOP doesn't have any black congress members. (Not to mention when they do try to create a black conservative group to counter the CBC, it doesn't even have any black members!)
Posted by: zoe kentucky at November 3, 2003 05:21 PMJust a slight addition to your legal analysis:
Article VI, clause 2 of the constitution holds that the constitution "shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Since the bill of rights is an addendum to the constitution, it carries the full legal weight of the constitution. Given Article VI, clause 2, i don't see any way the bill of rights can be construed as not applicable to the states. I'm not a lawyer, but I'm not certain that amendment 14 is what's important here.
At any rate, Brown really is a nutjob, no matter what her race.
Posted by: Dave at November 3, 2003 05:47 PMDave,
The Supreme Court ruled in Barron v. Baltimore--a decision written by uberFederalist John Marshall--that the Bill of Rights was inapplicable to the states, and I think he was right. (As Dwight points out, certainly the 1st Amendment--which specifically refers only to Congress--would not.) The 14th Amendment, though, certainly applies the Bill of Rights to the states. (I actually agree with Hugo Black that the Court has not gone far enough; the priveleges and immunities clause should have been read to immediately apply the Bill of Rights to the states. Even if this would incorporate the 2nd Amendment, which currently isn't.)
Posted by: Scott at November 3, 2003 06:09 PMWhat the heck is a "cargo" cult?
Posted by: DavidNYC at November 3, 2003 06:20 PMJane Galt has replied in comments that she meant to say that Democrats are only racist in regards to "the high court".
Posted by: nate-dogg at November 3, 2003 06:42 PMIf anybody saw Brown's testimony before the judiciary committee, her answers re. the supremacy clause were deliciously squirmiferous.
"The... supremacy clause? [long awkward pause] I don't... I'm not sure..." and so forth.
I suffered flashbacks to highschool physics.
And if, like me, you had no idea what a cargo cult is, here's a description and and interesting essay to boot. Googling "cargo cult" also returns a lot of hits for an interesting Richard Feynman address, fwiw.
Well done, Dwight.
Posted by: cerebrocrat at November 3, 2003 06:42 PMThe Democrats are, in fact, quite racist, but it has nothing to do with Judge Brown. I suspect their opposition to the good Justice Brown has more to do with their desire to feel righteous indignation and playing to their interest groups than anything else.
No Classic Liberal, Justice Brown was only nominated so Republicans could feel righteous indignation and play to their interest groups. See wasn't that fun?
Posted by: Rob at November 3, 2003 07:44 PMWhile her remarks in the usual sweet spot of civil rights were interesting, I'm curious what her views on Article II, treaties (surprise). She could be of the view that States, like New York, really are free to ignore the Trade and Intercourse Act of 1790. |Dean, and quite a few other Staties would like her if she'd free them to "Treat with the Tribes".
Heck, even the incoming Governor of California would like to settle some scores -- get those lazy 'skins to pay their fair share ("no special treatment" is Dean's preferred formulation).
Oh well, Jane Galt. Not exactly an authority on Federal Indian Law.
Posted by: Abenaki first, Democrat second at November 3, 2003 08:10 PMDuring WW2, there were islands the US made use of in (I believe) the Pacific which had up to that point been inhabited by pre-industrial cultures and which became comparatively prosperous during the war doing business with servicemen.
After the war, when the servicemen left, the inhabitants supposedly set up and worshipped full-sized models of cargo planes in hopes that they could bring back the prosperity.
Posted by: julia at November 3, 2003 09:23 PMYeah, Rob, it was fun.
Posted by: Classic Liberal at November 3, 2003 09:38 PMCargo cult? Julia is right. Google on "John Frum" or "Jon Frum". You'll also turn up a freeper who has appropriated the name of the focus of the cult; just ignore him.
Posted by: Steve Bates at November 4, 2003 12:20 AMI would also add that the Senate quickly confirmed Alyson Duncan, an african-american woman, to the Fourth Circuit with bipartisan support.
Posted by: Fred at November 4, 2003 09:09 AMAssuming Alkali’s list to be accurate ...
Just for the sake of dropping footnotes, see the relevant page of Senator Leahy's web site, from which I gathered that information:
http://leahy.senate.gov/issues/nominations
Incidentally, Sen. Leahy is more than a great public servant: he is, as they say, a good guy, and the very model of what it means to be a both civil and vigorous advocate. I recommend poking around his Senate web site; his statements on various issues may not be surprising as to substance but are shockingly interesting and readable by the standards of Congressional web sites.
Posted by: alkali at November 4, 2003 06:06 PMAlkali:
I did not doubt the accuracy of your data. Indeed, I was quite sure it was accurate. I put the disclaimer in merely to make sure it was understood that I had not done the research myself and to place a time stamp, if you will, on the data in the event a confirmation happened between your comment and my post.
I agree about Sen Leahy's web site. It is quite an intestesting place just to browse.
I respond here: http://stuartbuck.blogspot.com/2003_11_01_stuartbuck_archive.html#106796407351384917
Posted by: Stuart Buck at November 5, 2003 11:37 AM