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Published on Leave a comment on I Guess I Did See This One Coming

About two years ago, I noted that the Los Angeles Superior Court judge in the Vergara v. California case had overreached when he declared that tenure and other job protections for teachers in primary and secondary public schools are unconstitutional. The plaintiffs' logic was that since poor and minority students were more likely to be saddled with ineffective teachers protected by these provisions, there must be a violation of their civil rights. I predicted that this ruling would be overturned on appeal, and last week, that's just what happened.

Echoing the theme of my earlier post, the Appeals Court ruled:

The court’s job is merely to determine whether the statutes are constitutional, not if they are ‘a good idea,’ ... The evidence did not show that the challenged statutes inevitably cause this impact.

Education is like many public policy issues today -- we spend too much, get too little, and either don't yet know how to improve on those outcomes or don't have the leadership skills to implement what we do know.

Published on Leave a comment on The End of Tenure in California Public Schools?

Judge Rolf M. Treu of the Los Angeles Superior Court has ruled in Vergara v. California that tenure and other job protections for teachers in primary and secondary public schools are unconstitutional. I think this is a clear case of judicial overreach -- legislating from the bench.

I don't think it is a hard case to make that the implementation of employment protections in many public school systems is bad policy. However, bad implementation of the policy does not mean that the policy is unconstitutional. The ruling pays lip service to this distinction, but that seems to be all. The key excerpt from the ruling in this case is:

Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students.

Any policy under the purview of the public sector in which the benefits and costs fall unevenly by race would be deemed to violate the civil rights of the disadvantaged group. It is interesting to me that almost all of the tentative decision focuses on how bad the Challenged Statutes are at their worst, only two paragraphs focus on the effect on low-income and minority students in particular, and none of it discusses potential advantages of the job protections in the Challenged Statutes.

Even if those two paragraphs are the essential part of the ruling, the remedy is to ensure that the policy is implemented better, not necessarily to declare the policy unconstitutional. For example, based on what is presented in the ruling, consider a system in which:

  1. The Permanent Employment Statute had a 3-5 year evaluation period (as a defense witness suggested and as is found in most other states), 
  2. The Dismissal Statute had protections only at the level described in the Skelly v. State Personnel Board case cited in the ruling, 
  3. The "Last In, First Out" Statute were relaxed to having seniority considered as one among many factors rather than the only factor (as the ruling notes is the case in 20 other states), and
  4. The State could establish that there was no correlation between a school's incidence of low-income or minority students and the presence of ineffective teachers (where the latter was measured based on performance facing a standardized classroom).

This system would appear to violate no principle identified in the ruling. I don't expect this ruling to survive on appeal. I expect a higher court to require the State to implement a system like what I have outlined here.

Published on Leave a comment on SCOTUS and Diversity

The Supreme Court heard two cases this week related to policies in Seattle and Louisville to promote racial diversity in public schools. (Links are to the oral arguments.)

Findlaw has an overview of the relevant Supreme Court cases for education deriving from the 14th Amendment. One past decision that caught my eye was the Swann (1971) case, described as follows:

Because current attendance patterns may be attributable to past discriminatory actions in site selection and location of school buildings, the Court in Swann determined that it is permissible, and may be required, to resort to altering of attendance boundaries and grouping or pairing schools in noncontiguous fashion in order to promote desegregation and undo past official action; in this remedial process, conscious assignment of students and drawing of boundaries on the basis of race is permissible. Transportation of students--busing--is a permissible tool of educational and desegregation policy, inasmuch as a neighborhood attendance policy may be inadequate due to past discrimination. The soundness of any busing plan must be weighed on the basis of many factors, including the age of the students; when the time or distance of travel is so great as to risk the health of children or significantly impinge on the educational process, the weight shifts.

The Court here was analyzing remedies for past discrimination by school district officials. But what if there has been no past discrimination in the location, quality, and attendance of public schools?

From the descriptions of the case and my quick skimming of the arguments, it seems that some students are denied opportunities available to others solely based on their race. I do not see how this can be reconciled with the Equal Protection Clause as it has developed through the two University of Michigan cases. In the undergraduate case, a majority of the Court ruled that the admissions system (a point system that awarded extra points for members of minority groups) was too "mechanistic." It seems that these two systems are even more mechanistic. I'm guessing this will be 5-4 to strike down both systems.

So what are school systems supposed to do to ensure Equal Protection? In a degenerate way, having only one school in each district would do it, as would having completely random assignments if there are multiple schools. Beyond that, we could start with a system of schools constructed and staffed as similarly as possible and allow choice, requiring that every school accept all applicants. As long as those two requirements were maintained--identical offerings and a requirement to take all applicants--then there should be the presumption that everyone has the same opportunities. But this would do nothing to ensure "diversity" as it is being used in this context.

Published on Leave a comment on Justice Alito

The Senate voted 58-42 to confirm Samuel Alito's nomination to the Supreme Court, with one Republican voting against and four Democrats voting in favor.

David Kirkpatrick of the New York Times provides an interesting analysis, in "Two Nominee Strategies. One Worked," particularly with respect to Monday-morning quarterbacking by the Democrats:

As the last obstacles to confirmation faded away Monday, Democratic aides said their party had initially expected Judge Alito to live up to his reputation as "Scalito," suggesting a conservative firebrand in the mold of Justice Antonin Scalia. Failing to adjust to his meekness, Democratic aides admit they searched too hard for scandal in Judge Alito's past.

And some gloating by the White House:

The White House, meanwhile, sought to take advantage of Judge Alito's low-key, almost shy demeanor to build sympathy for him. They say they succeeded beyond all expectations when Judge Alito's wife, Martha-Ann, walked out in tears from his confirmation hearings.

"Any time they are yelling, preaching, lecturing, and you are cool and calm and breathing deep, you are winning," the administration official said the White House team told Judge Alito. "What that means on television sets where the American people are watching this is, you look good and they look bad. It was the central operating premise."

And what seems to be an accurate assessment by Senator Reid's spokesman:

Jim Manley, a spokesman for Senator Harry Reid of Nevada, the Democratic leader, agreed. "It was a classic rope-a-dope," Mr. Manley said, referring to the boxing tactic of leaning against the ropes to let an opponent exhaust himself punching.

In light of my last two posts on the topic, I don't think that there was much that the Democrats could have productively done here. This confirmation process is broken and needs to be repaired. Toward that end, perhaps another "centrist" group of Senators will coalesce around the idea of agreeing to vote against the confirmation of any nominee who refuses to answer sensible questions about prior about the opinions in prior Supreme Court cases.

Published on Leave a comment on Democrats and Alito

On Thursday, the Rockefeller Center was pleased to welcome Nan Aron, President of the Alliance for Justice to speak about "The Politics of Judicial Selection and the Future of the Supreme Court." With the Alito hearings concluded but the vote not yet taken, we timed this one right. (See this article in The Dartmouth for news coverage.) It was a pleasure to meet her and to hear her ideas. As much as I disagree with most of them, I certainly respect the influence she has in the judicial nomination and confirmation process. She's a fine example for our students of entrepreneurship in the public sector.

As I listened to her presentation, I couldn't help but be reminded of the old quote about the 1972 election, in which a McGovern supporter says, "I can't believe Nixon won. I don't know anyone who voted for him." Her assertions that the people of the country would prefer that Alito not be confirmed just don't square with the observations we can make about the process:

  1. Judge Alito fits the profile of the nominee that we expect from President Bush.

  2. John Kerry did not win the 2004 election.

  3. Polling data suggest support for Alito's confirmation that is in keeping with the 2004 election results.

  4. Democratic Senators in states that could go either way in the next elections are voting for Alito's confirmation, like Byrd (WV), Johnson (SD), Nelson (NE).

(h/t to Powerline for the links in the last two points)

Wisely, I think, she did not advise the Democrats to filibuster. We leave that for those Democrats who don't expect to face strong competition for re-election. And it's fine for them, but it will be rough on their fellow Democrats if they go ahead with it. I cannot say it any better (and I certainly say it with less credibility) than Andrew Seal, writing at The Little Green Blog:

Just when will it be ok to say that the liberals from the generation of the 1960s have no idea what they're doing and never did?

When can it be said that Democrats are the minority party because we never tried to be the majority, post-New Deal? We did everything to win short of convince 50.1% of America that our ideals are worth voting for. And now we wonder why they don't.

When can it be said that some of the ways we fought for the liberties we now strive to protect created the very attacks we now attempt to repel?

When can it be said that a NASCAR dad can be trusted as much as a college professor to know what's good for himself?

When can it be said that if we do not have faith in the American people, we cannot expect or demand their faith in us?

When can it be said with conviction that America will overcome the challenges and threats—domestic and foreign—that it faces, as it always has? That Americans as citizens have an unshakeable bedrock of civic commitment and democratic ideals that we, as Democrats, can and must rely on rather than try to circumvent?

The second point is particularly important--in electoral politics, all that matters is winning a majority in a majority of the contests. The Senators contemplating a filibuster would do well to remember that they could elevate their station from "Ranking Minority Member" of their committees if they made it easier for enough of their fellow Democrats to win their Senate elections, too.

Published on Leave a comment on Scrapping the Hearings

Finally, a sensible idea about confirmation hearings:

Supreme Court nominees are so mum about the major legal issues at their Senate confirmation hearings that the hearings serve little purpose and should probably be abandoned, Democratic Sen. Joe Biden said Thursday.

"The system's kind of broken," said Biden, a member of the Judiciary Committee considering the nomination of Judge Samuel Alito.

"Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues," such as a president's authority to go to war, said Biden.

As the committee headed into its fourth day of hearings on the Alito nomination, Biden told NBC's "Today" show that a better solution might be to skip hearings and send nominations straight to the Senate floor for a vote.

"Just go to the Senate floor and debate the nominee's statements," the Delaware senator said, "instead of this game."

That was once standard practice. Until 1925, Supreme Court nominees were not expected to testify before a committee, and their nominations were sent straight to the floor, according to the Senate Historical Office.

Given the way the hearings are currently conducted, that would be an improvement. If a process that is supposed to reveal information does not reveal information, then by all means, don't waste everyone's time. However, it would be fairly straightforward to fix the system. It would just take bipartisan agreement that any nominee who failed to answer questions of the form:

In recent case X, which of the opinions offered do you believe to be the best legal reasoning and why?

would not be voted out of the Judiciary committee. That question is completely legitimate--it places prospective petitioners before the Court at no disadvantage, since sitting Justices have had to answer the same questions and write those opinions.

Published on Leave a comment on More on Alito

I came across two interesting pieces about the Alito nomination that I think are worth a recommendation.

The first is by John Hinderaker at Powerline, addressing Alito's dissent in the Casey decision and what it may or may not tell us about what type of Justice he would be:

If you are an abortion opponent and read Alito's dissent, you will likely be disappointed. It is technical and dispassionate; the issue on which Alito differed with his colleagues was whether the notification requirement constituted an "undue burden" on the right to abortion, under the Supreme Court's jurisprudence as it then existed. The opinion conveys no hint of Alito's own views on the topic of abortion, or even of his opinion as to how (if at all) the Constitution should bear on the subject of abortion. Rather, and somewhat ironically, his dissent is an effort to follow the twists and turns of Justice O'Connor's various opinions on the topic of "undue burden," and apply them to the record before him. The most one can fairly say, I think, is that Judge Alito's dissent in Casey does not evince any reflexive hostility to restrictions on abortion, and does reflect what most conservatives would regard as an appropriate deference to the legislature's role as arbiter of public policy. Anyone looking for the sort of fiery language that sometimes enlivens, say, Janice Rogers Brown's opinions, will be disappointed.

A judge on the Court of Appeals, like a District Court judge, takes Supreme Court jurisprudence as he finds it. His opinion as to whether the Supreme Court's rulings are right or wrong is entirely irrelevant. His duty is to apply the relevant Supreme Court decisions to the case before him, as best he can. Thus, in an area like abortion where Supreme Court precedent is relatively plentiful, reading an appellate judge's opinions is like reading tea leaves: one is unlikely to pick up more than obscure hints as to the judge's own views.

The other piece is by Norman Ornstein of AEI, in Roll Call, writing about Alito in comparison to Chief Justice Roberts:

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce--and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.” Whatever it is, it’s not judicial restraint.

Roberts is a very conservative guy, and a strict constructionist--one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

I share much of this view of legislative primacy in the Constitution (it is reflected in my disagreements with Bibamus in the last post's comments, for example). I would like to see more examples from Alito's rulings to figure out how much of an issue this should be in his confirmation.

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Published on Leave a comment on Alito’s Way

I'll join the chorus of people right of center who are pleased that the Miers nomination was withdrawn and that the President nominated Judge Alito for associate justice. Ann Althouse has been making several excellent posts, including one that links to this AP story. My own view on the Miers nomination was that the President tried to deliver a solid conservative vote in the way that has become customary in the post-Bork era--without having to reveal the nominee's judicial philosophy during the confirmation process.

Admirably, and to the benefit of the country, when the conservative base didn't seem to get the message, the President responded by sending it in an unmistakable way, with a judge with solid conservative and intellectual credentials and over a decade of judicial opinions. Let's call that Alito's way. Since these Supreme Court confirmations seem to reduce to the abortion issue, here (quoting from the article) is why the President's message to his base is so clear:

Among his noteworthy opinions was his lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion," Alito wrote.

The Supreme Court, in a 6-3 ruling, struck down the spousal notification, but Chief Justice William Rehnquist quoted from Alito's opinion in his dissent.

That's clarity.

I have to say that I am sympathetic to the reasoning behind Alito's opinion. I firmly believe that no government should have the power to compel a woman to endure childbirth if she decides she doesn't want to. I have wrestled with the competing claims--that one wins. But laws regarding notification don't presume that power. They may have the outcome that an abortion is avoided. If the state legislators in Pennsylvania, on behalf of their constituents, have decided that avoiding that outcome trumps other social considerations, then they should by all means enact such a spousal notification law. This is an issue that should be resolved in Harrisburg, not Washington, DC.

And my belief that with a Justice Alito on the Supreme Court, more issues will be resolved by legislatures rather than courts, is why I hope Alito is confirmed.

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Published on Leave a comment on SCOTUS Confusion

I share the general surprise at the President's nomination of Harriet Miers. I posted a month ago about how I thought O'Connor's replacement would be chosen. I met Ms. Miers while I worked at CEA, when she was Deputy Chief of Staff. I would occasionally substitute for a colleague at so-called "deputies" meetings that she convened, during which the key assistants to the principal Presidential appointees would make sure that all of the offices within the Executive Office of the President were working in concert on the White House's agenda. I never observed her as a "pit bull in size 6 shoes." In fact, quite to the contrary, she was if anything exceedingly deferential in those few meetings I observed. That's no crime--there were some extremely talented people in that room (NEC, Legislative Affairs, NSC, and the Office of the Vice President always stood out). I was quite deferential, too. All of the positive things people are saying about her character ring true.

With no disrespect intended to Ms. Miers, I agree that there are probably a thousand resumes more impressive than hers for this position, and if you are accustomed to thinking of America as a meritocracy, that's enough to generate some disappointment. Stepping back from that initial reaction, I think that Todd Zywicki provides a useful way to think about what her nomination represents:

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law. This is, of course, precisely why Bork was taken down as well. Rehnquist, by contrast, may have changed the voting patterns of the Court but did not change the legal culture through intellectual leadership. Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).

The opportunity that was lost was to help shift the Court through the intellectual argument. That's a fair point. The surprising aspect of this commentary, which is echoed in many places on the political right, is that there is doubt about Miers' likely voting patterns. Are you kidding? She has been on this President's staff for a number of years. How could anyone but a "Bush Conservative" tolerate that proximity for so long without having views that were wholly compatible? The conservatives have something to worry about in charges of cronyism, but I would be shocked to see a Justice Miers anywhere but in the Scalia-Thomas wing of the Court.

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Published on Leave a comment on Chief Justice as Umpire

I liked Judge Roberts' opening remarks, but his analogy comes up short:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

[...]

Mr. Chairman, I come before the committee with no agenda.

I have no platform.

Judges are not politicians who can promise to do certain things in exchange for votes.

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Sometimes, when a player or manager behaves so contemptibly and outside the bounds of decency, it is the umpire's job to run him out of the game. The Chief Justice doesn't quite get to do that. That power resides with the fans, as it should.