One of the more frustrating things about being a lawyer is when a very interesting case completely overlooks the larger context in which it is set. Such was the case this week when the Supreme Court heard arguments in a case over whether the government can legally cut federal funding to law schools who have banned military recruiters from campus on the basis that the military discriminates against gay and lesbian students.
The case stems from the Solomon Amendment, a statute that allows the government to restrict federal funding to aid recipients who do not allow equal access to federal recruiters, including the military. In the past, law schools banned military recruiters because the schools do not allow any recruiters who discriminate and because the military’s Don’t Ask, Don’t Tell policy does discriminate against gay and lesbian students. The most recent change to the Solomon Amendment, providing that such action by one part of a university could put in jeopardy federal funding for the entire university, was intended to put the squeeze on the law schools. It worked. Facing a loss of billions of dollars in funding for research and financial aid, universities forced their law schools to allow military recruiters on campus. Unhappy, a group of law schools sued.
The Court of Appeals found for the law schools, concluding that enforcement of the Solomon Amendment forced schools to propagate the military’s message of discrimination, thus violating the law schools’ collective right to free speech. The Supreme Court, however, appears to see things differently. In oral arguments on Tuesday, the justices seemed sympathetic to the government’s claim that they desire equal access, not any endorsement of military policies. Chief Justice John Roberts summed up the government position, “If you want our money, you have to let our recruiters on campus.” The schools could, of course, refuse the federal funding and continue to bar military recruiters, but a stand on this principle, the schools have determined, is not worth the large sums they would forfeit as a result.
Although this case may be interesting to constitutional law scholars, the debate about military access and free speech is really a legalistic offshoot of a separate and more interesting debate about the wisdom of continuing to ban gays from the military. The case provides an opportunity to reevaluate the root of this issue. Since 1993, the military has operated under the supremely silly Don’t Ask, Don’t Tell policy in which gay Americans could serve in the military so long as they do not engage in “homosexual conduct” – a category that includes admitting you are gay. If the military determined that this discriminatory policy were no longer useful, the debate about access to law schools would be rendered moot.
The military has been resistant to admitting gays in the past and remains so today. There is concern that gay soldiers could disrupt a military unit’s cohesion by creating tensions among soldiers and eroding morale. However, in the dozen years since enactment of the Don’t Ask, Don’t Tell policy, public acceptance of homosexuality has come a long way. In those same dozen years, more than 10,000 gay servicemembers have been discharged for being gay. At a time when troop recruitment is slumping and many of our soldiers are facing the prospect of multiple return trips to Iraq, the military may be more open to allowing all willing Americans, regardless of sexuality, the opportunity to serve.
On this issue, the United States is out of step with the majority of NATO militaries as well as that of Israel. In 1999, the United Kingdom lifted a ban on homosexuals and allowed gays to serve. The reaction to lifting the ban has been “less dramatic than expected,” according to Michael Codner of the Royal United Services Institute, a research group with close ties to the British military. Codner did acknowledge that acceptance varied by field: “If you’re a paratrooper and you’re gay, you probably keep your head down, whereas in other units, such as the medical services, it’s less important.”
The American policy has led to the discharge of 54 Arabic translators, an area of desperate need for the military, and an area where acceptance of gay service members would likely be high. Lt. Col. Allen Bishop, a West Point professor who has argued for the law’s repeal, wrote “The war in Iraq highlights the shortsightedness of discharging Arabic linguists who happen to be gay.”
To say that the presence of homosexuals in the military would erode morale underestimates the number of service members who would accept a gay peer and caters to the prejudices of the minority who would not. The military has always been a leader in providing opportunities to a diverse group of Americans. It is time not only to think about whether the military should be allowed to demand access to law schools, but more importantly, to rethink the wisdom of continuing to exclude gay Americans from serving their country.
December 09, 2005
December 02, 2005
'Tis the Season
For the past two and a half years, genocide has been unfolding on our watch. It is not being done with the devastating speed of Rwanda’s 100 days in 1994 or with the machine-like efficiency of the Holocaust, but it is genocide nonetheless. Innocent people are being targeted and killed because of who they are and where they live. Villages are being destroyed. Women are being raped. Children are being slaughtered.
This genocide is happening – and has been happening – in Darfur, a Texas-sized region in western Sudan. Darfur is made up of peasants of African descent and nomadic herders of Arabic descent. African rebels, fed up with the economic and political suppression from the national government in Khartoum, rose up several years ago. The government’s response has been criminal. Rather than engage the rebels – either militarily or in dialogue – the government enlisted the services of an Arab militia, the Janjaweed, to simply wipe out the African tribes in their entirety. Often with logistical support from the national military, the Janjaweed have obliterated hundreds of African villages and displaced millions of people. The displaced live in unsecured refugee camps under the constant threat of a return of the Janjaweed. Several hundred thousand have been murdered already. It is a desperate tragedy.
And we are allowing it to continue. By “we” I do not mean our government, but each of us individually. Certainly our government could do more. So could we.
We are all, of course, against genocide. The deliberate targeting of one segment of a population for destruction is loathsome to us all. Yet, few of us take action consistent with these near-universal humanitarian sentiments. When it comes to taking action, we are struck by a host of paralyzing feelings. We feel separated (Sudan is far and I know nothing about the victims) and confused (I don’t know who is truly at fault in this complex situation). We feel helpless (I cannot make much of a difference anyway) and overwhelmed (there are so many organizations already taking action and I do not know which is best). These emotions combine to freeze us into collective inaction. This is part of the reason genocide persists: the good people of the world do not act to stop it.
Samantha Power, author of A Problem from Hell, the definitive account of American responses to genocide in the 20th century, and the best professor I ever had, often talks about a toolbox of potential responses to genocide. She notes that the American government could use the military intervention tool or the economic sanctions tool or the diplomatic pressure tool. Too often, however, the government makes an all-or-nothing decision on the military intervention tool and takes all the other tools off the table. Since we cannot take military action that would really stop genocide, the government seems to be saying, we cannot take any action at all.
As private citizens, we face the same dilemma. Since we cannot stop the genocide on our own – and none of us can – we do not feel that we can do anything at all. Writing a letter or giving a small donation seems a paltry and wholly insignificant response to the brutal murder of thousands of human beings. But it is not. We each have our own toolbox containing a wide spectrum of possible action. From one end of that spectrum, we could volunteer for an aid organization and actually go to Sudan to take action, but that is a highly unrealistic option for most of us. Alternatively, we could simply support financially the organizations who are doing good work in Darfur. Still, most of us do not have unlimited budgets to give endlessly. But we can all visit the websites of these organizations or sign up for their monthly newsletters. This allows the organizations to show leaders that there is a constituency of concerned citizens they are lobbying on behalf of.
We have political tools. We can write letters to our government representatives alerting them to our outrage that our government has not put more pressure on the Sudanese government to end the massacres or on the international community to take more forceful action, such as sanctions. We can vote those who do not act out of office. We have economic tools. We can support efforts to divest money away from companies doing business with the Sudanese government, sending the signal that if they will work with murderers, we will no longer work with them. We have social tools. We can write letters to our local newspapers expressing surprise that the genocide is not being adequately covered. We can learn more ourselves and inform our friends about this quiet genocide. Education and publicity are so important to keeping the pressure on our leaders to act.
In Ohio, Ginghamsburg Church created its own tool. Last year, the church began a remarkable campaign to spend less of Christmas presents and donate the savings to aid for Darfur. They raised $327,000 and are continuing the effort this year. In that spirit, I am donating a full night of Chanukah to Darfur advocacy. I have selected two organizations I will donate to and I will write to my representatives and the President voicing my outrage. As a Jewish person, I am particularly sensitive to the threat of genocide and I feel a special responsibility to ensure that this happens never again. During the Holocaust, it was the acts of individuals – not of slow-footed governments – that saved lives. We must follow in the tradition of those courageous citizens who provided hiding places or overlooked false passports to help fellow human beings survive. Taking a stand against the decimation of any group is important to us all. So long as genocide can happen to anybody, it can happen to anybody.
I am happy to provide resources or sample letters to anyone who would like to join in this effort this holiday season.
This genocide is happening – and has been happening – in Darfur, a Texas-sized region in western Sudan. Darfur is made up of peasants of African descent and nomadic herders of Arabic descent. African rebels, fed up with the economic and political suppression from the national government in Khartoum, rose up several years ago. The government’s response has been criminal. Rather than engage the rebels – either militarily or in dialogue – the government enlisted the services of an Arab militia, the Janjaweed, to simply wipe out the African tribes in their entirety. Often with logistical support from the national military, the Janjaweed have obliterated hundreds of African villages and displaced millions of people. The displaced live in unsecured refugee camps under the constant threat of a return of the Janjaweed. Several hundred thousand have been murdered already. It is a desperate tragedy.
And we are allowing it to continue. By “we” I do not mean our government, but each of us individually. Certainly our government could do more. So could we.
We are all, of course, against genocide. The deliberate targeting of one segment of a population for destruction is loathsome to us all. Yet, few of us take action consistent with these near-universal humanitarian sentiments. When it comes to taking action, we are struck by a host of paralyzing feelings. We feel separated (Sudan is far and I know nothing about the victims) and confused (I don’t know who is truly at fault in this complex situation). We feel helpless (I cannot make much of a difference anyway) and overwhelmed (there are so many organizations already taking action and I do not know which is best). These emotions combine to freeze us into collective inaction. This is part of the reason genocide persists: the good people of the world do not act to stop it.
Samantha Power, author of A Problem from Hell, the definitive account of American responses to genocide in the 20th century, and the best professor I ever had, often talks about a toolbox of potential responses to genocide. She notes that the American government could use the military intervention tool or the economic sanctions tool or the diplomatic pressure tool. Too often, however, the government makes an all-or-nothing decision on the military intervention tool and takes all the other tools off the table. Since we cannot take military action that would really stop genocide, the government seems to be saying, we cannot take any action at all.
As private citizens, we face the same dilemma. Since we cannot stop the genocide on our own – and none of us can – we do not feel that we can do anything at all. Writing a letter or giving a small donation seems a paltry and wholly insignificant response to the brutal murder of thousands of human beings. But it is not. We each have our own toolbox containing a wide spectrum of possible action. From one end of that spectrum, we could volunteer for an aid organization and actually go to Sudan to take action, but that is a highly unrealistic option for most of us. Alternatively, we could simply support financially the organizations who are doing good work in Darfur. Still, most of us do not have unlimited budgets to give endlessly. But we can all visit the websites of these organizations or sign up for their monthly newsletters. This allows the organizations to show leaders that there is a constituency of concerned citizens they are lobbying on behalf of.
We have political tools. We can write letters to our government representatives alerting them to our outrage that our government has not put more pressure on the Sudanese government to end the massacres or on the international community to take more forceful action, such as sanctions. We can vote those who do not act out of office. We have economic tools. We can support efforts to divest money away from companies doing business with the Sudanese government, sending the signal that if they will work with murderers, we will no longer work with them. We have social tools. We can write letters to our local newspapers expressing surprise that the genocide is not being adequately covered. We can learn more ourselves and inform our friends about this quiet genocide. Education and publicity are so important to keeping the pressure on our leaders to act.
In Ohio, Ginghamsburg Church created its own tool. Last year, the church began a remarkable campaign to spend less of Christmas presents and donate the savings to aid for Darfur. They raised $327,000 and are continuing the effort this year. In that spirit, I am donating a full night of Chanukah to Darfur advocacy. I have selected two organizations I will donate to and I will write to my representatives and the President voicing my outrage. As a Jewish person, I am particularly sensitive to the threat of genocide and I feel a special responsibility to ensure that this happens never again. During the Holocaust, it was the acts of individuals – not of slow-footed governments – that saved lives. We must follow in the tradition of those courageous citizens who provided hiding places or overlooked false passports to help fellow human beings survive. Taking a stand against the decimation of any group is important to us all. So long as genocide can happen to anybody, it can happen to anybody.
I am happy to provide resources or sample letters to anyone who would like to join in this effort this holiday season.
November 18, 2005
Tort Reform 101
When you hear the word “torte” you probably think: Mmm. Yummy.
When you hear the words “tort reform” you probably think: Change the channel.
Tort reform is not a very delicious issue and it is one about which few Americans are well-informed. The tort system is important because it represents our effort as a civilization to address the wrongs, intentional and unintentional, that we inflict on one another from time to time. As some would say more crudely, “stuff happens.” The tort system is how we deal with it after stuff happens, balancing the needs of victims with practical considerations of the injuring party.
First, a refresher from the first year of law school. A tort is an injury to a person or property, not a layered cake (unless, that is, the cake is filled with shards of glass as one creative Torts professor allegedly served to effectively drive home the homonym). Without knowing it, we are all very familiar with torts. An auto accident injury, a medical malpractice claim, a suit against a tobacco company, a claim against McDonald’s for too hot coffee – these are all torts, and there are many more.
The debate on tort reform pits tort reformers, those who feel too many meritless suits are burdening our judicial system and too large jury awards are bankrupting good companies, against tort crusaders who see tort practice as a noble battle to gain deserved compensation to victims of wrongdoing or negligence. Currently, legislatures nationwide are considering tort reform efforts that may cap jury awards or immunize entire industries from suits. These efforts are throwing out the baby with the bathwater. Effective tort reform would seek to address the problems with the system while recognizing its strengths.
For strengths, tort crusaders cite the field of defective consumer products, where the tort system and the potential for heavy penalties encourages a high degree of care for consumer safety (some would say not high enough) and does a good job of making the consumers who do bring suits whole again. Although some would argue that the costs of defending these suits is debilitating to business, if a company is unable to affordably create a product that is safe enough to not harm people, maybe that company should not be making the product in the first place.
Tort reformers, meanwhile, can point to the field of medical malpractice as particularly illustrative of the problems with the system. When doctors make mistakes, patients’ first instinct is not typically to sue. Instead, they want to know what went wrong and why, and they do not want to worry about paying to fix the mistake. The tort system completely fails to address these concerns. Doctors, spooked that any acknowledgement of fault will translate into a future massive jury award, are reluctant to communicate openly when mistakes are made, making the apology and explanation the patient wants highly unlikely. Since, as Dr. Atul Gawande notes in this week’s New Yorker, the medical profession has come up with no alternative, patients’ next step is to find a lawyer. In the end, often both winner and loser finish the process dissatisfied.
Lawyers themselves are also part of the problem. Because of lawyers and the divergence in the interests of lawyers, their clients, and society at large, the current tort system suffers from a paradoxical problem – there are both too many and too few tort suits. Why too many? Lawyers, knowing the high cost of a suit to any defendant, count on the defendant’s willingness to settle even where wrongdoing is far from clear. Such lawyers bring faulty suits fishing for deep pockets. Conversely, lawyers refuse to bring many smaller, valid claims. Despite the outcry that doctors are overrun by meritless suits, 98% of patients actually harmed by doctors never bring suit. Lawyers will not take such cases because they are not interested unless the potential recovery is enormous. This situation leaves a large segment of the population with legitimate claims and without any means of addressing their grievances.
So, how to reform the system? Here are three suggestions:
- Discourage meritless suits without discouraging suits with merit. In England, losing litigants pay the winner’s legal fees. This system highly discourages bringing suits that simply fish for deep pockets since such plaintiffs may be stuck with the defendant’s legal bills, but it goes too far. “Loser pays” removes any incentive for a plaintiff, such as one harmed by an untested but well-marketed drug, to take a chance on filing a claim. A modified loser pays system recognizing that some losing cases are brought with merit could help both discourage meritless suits and pave a smoother road for cases that deserve to be heard.
- Line up the incentives of lawyers with the incentives of their clients. Lawyers should be rewarded for bringing cases of merit even where a large award is unlikely. Providing juries with the flexibility to assess a standard “lawyer’s award” for even small recovery cases would help provide access to tort victims who cannot currently find representation and must simply swallow their losses.
- Discourage litigation and encourage less adversarial mediation. This is probably the most important step. Dr. Gawande notes that this has been done with respect to vaccines, where a small surcharge is added to every dose of a vaccine, money that goes to a fund to help pay for the expenses of the few victims whose vaccines go awry. Because victims’ needs are met up front, there is no impulse to sue and relations between parties remain cordial and productive.
The tort system needs revamping, but efforts to cap awards and immunize industries from suit only benefit defendants without recognizing the good that the system serves. A more thoughtful debate on tort reform is worth having – perhaps over a delicious layered cake (hopefully without glass).
When you hear the words “tort reform” you probably think: Change the channel.
Tort reform is not a very delicious issue and it is one about which few Americans are well-informed. The tort system is important because it represents our effort as a civilization to address the wrongs, intentional and unintentional, that we inflict on one another from time to time. As some would say more crudely, “stuff happens.” The tort system is how we deal with it after stuff happens, balancing the needs of victims with practical considerations of the injuring party.
First, a refresher from the first year of law school. A tort is an injury to a person or property, not a layered cake (unless, that is, the cake is filled with shards of glass as one creative Torts professor allegedly served to effectively drive home the homonym). Without knowing it, we are all very familiar with torts. An auto accident injury, a medical malpractice claim, a suit against a tobacco company, a claim against McDonald’s for too hot coffee – these are all torts, and there are many more.
The debate on tort reform pits tort reformers, those who feel too many meritless suits are burdening our judicial system and too large jury awards are bankrupting good companies, against tort crusaders who see tort practice as a noble battle to gain deserved compensation to victims of wrongdoing or negligence. Currently, legislatures nationwide are considering tort reform efforts that may cap jury awards or immunize entire industries from suits. These efforts are throwing out the baby with the bathwater. Effective tort reform would seek to address the problems with the system while recognizing its strengths.
For strengths, tort crusaders cite the field of defective consumer products, where the tort system and the potential for heavy penalties encourages a high degree of care for consumer safety (some would say not high enough) and does a good job of making the consumers who do bring suits whole again. Although some would argue that the costs of defending these suits is debilitating to business, if a company is unable to affordably create a product that is safe enough to not harm people, maybe that company should not be making the product in the first place.
Tort reformers, meanwhile, can point to the field of medical malpractice as particularly illustrative of the problems with the system. When doctors make mistakes, patients’ first instinct is not typically to sue. Instead, they want to know what went wrong and why, and they do not want to worry about paying to fix the mistake. The tort system completely fails to address these concerns. Doctors, spooked that any acknowledgement of fault will translate into a future massive jury award, are reluctant to communicate openly when mistakes are made, making the apology and explanation the patient wants highly unlikely. Since, as Dr. Atul Gawande notes in this week’s New Yorker, the medical profession has come up with no alternative, patients’ next step is to find a lawyer. In the end, often both winner and loser finish the process dissatisfied.
Lawyers themselves are also part of the problem. Because of lawyers and the divergence in the interests of lawyers, their clients, and society at large, the current tort system suffers from a paradoxical problem – there are both too many and too few tort suits. Why too many? Lawyers, knowing the high cost of a suit to any defendant, count on the defendant’s willingness to settle even where wrongdoing is far from clear. Such lawyers bring faulty suits fishing for deep pockets. Conversely, lawyers refuse to bring many smaller, valid claims. Despite the outcry that doctors are overrun by meritless suits, 98% of patients actually harmed by doctors never bring suit. Lawyers will not take such cases because they are not interested unless the potential recovery is enormous. This situation leaves a large segment of the population with legitimate claims and without any means of addressing their grievances.
So, how to reform the system? Here are three suggestions:
- Discourage meritless suits without discouraging suits with merit. In England, losing litigants pay the winner’s legal fees. This system highly discourages bringing suits that simply fish for deep pockets since such plaintiffs may be stuck with the defendant’s legal bills, but it goes too far. “Loser pays” removes any incentive for a plaintiff, such as one harmed by an untested but well-marketed drug, to take a chance on filing a claim. A modified loser pays system recognizing that some losing cases are brought with merit could help both discourage meritless suits and pave a smoother road for cases that deserve to be heard.
- Line up the incentives of lawyers with the incentives of their clients. Lawyers should be rewarded for bringing cases of merit even where a large award is unlikely. Providing juries with the flexibility to assess a standard “lawyer’s award” for even small recovery cases would help provide access to tort victims who cannot currently find representation and must simply swallow their losses.
- Discourage litigation and encourage less adversarial mediation. This is probably the most important step. Dr. Gawande notes that this has been done with respect to vaccines, where a small surcharge is added to every dose of a vaccine, money that goes to a fund to help pay for the expenses of the few victims whose vaccines go awry. Because victims’ needs are met up front, there is no impulse to sue and relations between parties remain cordial and productive.
The tort system needs revamping, but efforts to cap awards and immunize industries from suit only benefit defendants without recognizing the good that the system serves. A more thoughtful debate on tort reform is worth having – perhaps over a delicious layered cake (hopefully without glass).
November 11, 2005
Missed Opportunities on "Elections"
Once upon a time, Americans mocked the elections taking place in the single-party Soviet Union by referring to them as “elections,” rather than elections. The quotation marks implied that the removal of choice from an election stained such an election as inadequate or even fraudulent.
These days, even as we export democracy to Iraq and celebrate the elections taking place there, our own elections may not be quite adequate themselves. Nathanial Persity, an election law expert at Penn Law School, pointed out earlier this year that the turnover in the U.S. House of Representatives is actually lower than the turnover in the Soviet Politburo.
Indeed, according to the government reform group Common Cause, in 2004, only 7 of the 399 incumbents running for the House were defeated. That’s a 98.2% victory rate for incumbents, and 4 of the 7 who were defeated came from Texas where a supremely sketchy mid-decade Tom DeLay-inspired redistricting led to the ouster of Democrats. And the incumbents did not win competitively – 85% of them won by more than 60 points.
Shocking, isn’t it? Elections in the House, the body imagined to be closest and most accountable to the people, may be nothing more than “elections.” By removing the barrier of contested elections, an oligarchy of permanent politicians has taken an enormous bite out of government accountability. The result is greater concern for the donors who fill incumbents’ coffers to ensure that the next “election” will turn out exactly like the last. Given this situation, it should be no surprise that it is special interests and not voter interests that move the ball in Washington.
How did we get to this point? In 1812, Massachusetts Governor William Gerry transformed the Essex County district to a shape vaguely reminiscent of a salamander, birthing the term “gerrymandering,” and providing what would become the tool-of-choice for politicians to entrench themselves and their parties in office.
Although generally thought of in a negative light, gerrymandering has its upside. It can be an extremely useful method to maintain minority representation in government. In the South and Southwest, gerrymandered districts have been used to assure Black and Hispanic Americans a seat at the political table and to prevent minority interests from being ignored by the tyranny of the majority. However, more often, gerrymandering is used not to benefit the voters, but the politicians themselves. State legislatures are generally given the responsibility of drawing the very district lines they depend on for their positions. Leaving the inherently political task of redistricting to those with the most at stake in hope that they will not exploit that power defies centuries of human experience.
Voters this week in Ohio and California had the opportunity to consider reforms to redistricting, but the measures in neither state passed. The two plans were met with considerable disdain from both parties. Redistricting for selfish political gain, after all, is a nonpartisan issue – both parties gain from eliminating competitive elections.
In California, the measure was proposed by a Republican governor in an effort to break a Democratic lock on the state legislature. Governor Schwarzeneggar proposed that the task of redistricting be handed over to a panel of retired judges, but ran up against heavy Democratic opposition. The sides were reversed, but the result the same, in Ohio, where labor unions and moveon.org pushed for a measure creating an independent panel to redraw districts and break Republican control of the state assembly.
Both measures would have maintained the necessary human involvement in redistricting in order to keep the good of gerrymandering (minority representation), while eliminating the bad (partisan strangleholds). The defeats were a setback for the election reform movement, though the fight moves on to states like Florida and Massachusetts.
The self-dealing of redistricting is truly repugnant to most Americans. With voter accountability slowly being removed from the political process, referendums like those in Ohio and California provide the rare opportunity to halt partisan redistricting. Unfortunately, voters failed to capitalize on the opportunity this week and ensured that at least in two states, elections will be more like “elections.”
These days, even as we export democracy to Iraq and celebrate the elections taking place there, our own elections may not be quite adequate themselves. Nathanial Persity, an election law expert at Penn Law School, pointed out earlier this year that the turnover in the U.S. House of Representatives is actually lower than the turnover in the Soviet Politburo.
Indeed, according to the government reform group Common Cause, in 2004, only 7 of the 399 incumbents running for the House were defeated. That’s a 98.2% victory rate for incumbents, and 4 of the 7 who were defeated came from Texas where a supremely sketchy mid-decade Tom DeLay-inspired redistricting led to the ouster of Democrats. And the incumbents did not win competitively – 85% of them won by more than 60 points.
Shocking, isn’t it? Elections in the House, the body imagined to be closest and most accountable to the people, may be nothing more than “elections.” By removing the barrier of contested elections, an oligarchy of permanent politicians has taken an enormous bite out of government accountability. The result is greater concern for the donors who fill incumbents’ coffers to ensure that the next “election” will turn out exactly like the last. Given this situation, it should be no surprise that it is special interests and not voter interests that move the ball in Washington.
How did we get to this point? In 1812, Massachusetts Governor William Gerry transformed the Essex County district to a shape vaguely reminiscent of a salamander, birthing the term “gerrymandering,” and providing what would become the tool-of-choice for politicians to entrench themselves and their parties in office.
Although generally thought of in a negative light, gerrymandering has its upside. It can be an extremely useful method to maintain minority representation in government. In the South and Southwest, gerrymandered districts have been used to assure Black and Hispanic Americans a seat at the political table and to prevent minority interests from being ignored by the tyranny of the majority. However, more often, gerrymandering is used not to benefit the voters, but the politicians themselves. State legislatures are generally given the responsibility of drawing the very district lines they depend on for their positions. Leaving the inherently political task of redistricting to those with the most at stake in hope that they will not exploit that power defies centuries of human experience.
Voters this week in Ohio and California had the opportunity to consider reforms to redistricting, but the measures in neither state passed. The two plans were met with considerable disdain from both parties. Redistricting for selfish political gain, after all, is a nonpartisan issue – both parties gain from eliminating competitive elections.
In California, the measure was proposed by a Republican governor in an effort to break a Democratic lock on the state legislature. Governor Schwarzeneggar proposed that the task of redistricting be handed over to a panel of retired judges, but ran up against heavy Democratic opposition. The sides were reversed, but the result the same, in Ohio, where labor unions and moveon.org pushed for a measure creating an independent panel to redraw districts and break Republican control of the state assembly.
Both measures would have maintained the necessary human involvement in redistricting in order to keep the good of gerrymandering (minority representation), while eliminating the bad (partisan strangleholds). The defeats were a setback for the election reform movement, though the fight moves on to states like Florida and Massachusetts.
The self-dealing of redistricting is truly repugnant to most Americans. With voter accountability slowly being removed from the political process, referendums like those in Ohio and California provide the rare opportunity to halt partisan redistricting. Unfortunately, voters failed to capitalize on the opportunity this week and ensured that at least in two states, elections will be more like “elections.”
November 04, 2005
Activism Shmactivism
Hardly had the words “Samuel Alito” left President Bush’s lips before conservatives nationwide started gushing about Judge Alito’s judicial philosophy. President Bush insisted that Judge Alito had “a deep understanding of the proper role of judges in our society. He understands that judges are to interpret laws, not to impose their preferences or priorities on the people.” Senate Majority Leader Bill Frist lauded Judge Alito’s judicial restraint and his “respect for the limited role of the judiciary to interpret the law and not legislate from the bench,” a compliment echoed by Roberta Combs, president of the Christian Coalition of America, who called Judge Alito a “strict constructioninst who will not legislate from the bench.”
Apparently, conservatives have a deep aversion to a judge legislating from the bench or imposing his preferences on the people. However, this is not entirely true. What conservatives – and all of us, actually – truly have a problem with are judges who make decisions they do not agree with. There is nothing inherently wrong with a little judicial activism, it seems, so long as it gets to the right result. Pun intended.
The knock against judicial activism is that by interpreting statutes and policies governing touchy social issues, unelected (and unaccountable) judges are able to make decisions that thwart the will of the majority. The fear is that regardless of how the democratically-elected branches craft laws, the judicial branch can step in and impose its own perspective as a sort of super-legislature.
To an extent, this criticism is true: judges do have the power to interpret laws enacted by the elected branches to ensure that such laws are consistent with the Constitution. However, it is precisely because judges are the furthest removed from the people that they are able to do their job without concern for their own popularity or the popularity of their opinions. Interpreting the Constitution, of course, is not a popularity contest but a process requiring much thought and careful consideration.
Were conservatives genuinely concerned with the prospect of a super-legislating judge imposing his will over the judgment of the elected branches, they would undoubtedly be dismayed by a judge who repeatedly declared congressionally-enacted laws invalid. Yet, the two justices conservatives hold up as pillars of judicial restraint – Justice Scalia and Justice Thomas – have voted most often to overturn congressional action, according to a study by Paul Gerwitz of Yale Law School. Justice Thomas was ready to throw out law passed by a democratically-elected Congress two-thirds of the time.
Likewise, Judge Alito himself is guilty of this strand of judicial activism, having repeatedly voted to overturn laws passed by legislatures, including portions of the Violence Against Women Act and a law restricting carrying firearms near schools. The decisions of the legislatures in these cases were thwarted because of Judge Alito’s interpretation of the Constitution.
What is more revealing, however, is that Judge Alito was not always so willing to disregard the decisions of the legislative branch. On that most touchy subject of all, abortion, Judge Alito showed great deference to the Pennsylvania legislature when he voted to uphold an abortion restriction requiring spousal consent. Conveniently, Judge Alito was willing to show deference when he agreed with the legislature, but was less willing to do so when he did not. The will of the people, it seems, receives greater weight when it is in line with Judge Alito’s own personal philosophy.
Not that this is unique to Judge Alito or disqualifies him from a seat on the Supreme Court. It simply disavows the notion that conservatives have anything more than their own self-interest in mind when they scream “Judicial Activism!” These days, it is liberals who are up in arms about judicial activism. Senator Charles Schumer, speaking about the Alito nomination, commented, “What would really bother me is somebody who would want to make law.” Where President Bush and fellow conservatives see a judge who “does not legislate from the bench,” Senator Schumer sees a judge who may want to make law. They are of course looking at the same record of the same person and trying to squeeze politics into what should be (but certainly is not) an apolitical job. Reducing a judicial philosophy to a sound byte is always a misleading oversimplification and serves only the person making such a comment. Judge Alito is obviously very intelligent and honest. It is a shame the conversation surrounding his nomination – from both sides – is not.
Apparently, conservatives have a deep aversion to a judge legislating from the bench or imposing his preferences on the people. However, this is not entirely true. What conservatives – and all of us, actually – truly have a problem with are judges who make decisions they do not agree with. There is nothing inherently wrong with a little judicial activism, it seems, so long as it gets to the right result. Pun intended.
The knock against judicial activism is that by interpreting statutes and policies governing touchy social issues, unelected (and unaccountable) judges are able to make decisions that thwart the will of the majority. The fear is that regardless of how the democratically-elected branches craft laws, the judicial branch can step in and impose its own perspective as a sort of super-legislature.
To an extent, this criticism is true: judges do have the power to interpret laws enacted by the elected branches to ensure that such laws are consistent with the Constitution. However, it is precisely because judges are the furthest removed from the people that they are able to do their job without concern for their own popularity or the popularity of their opinions. Interpreting the Constitution, of course, is not a popularity contest but a process requiring much thought and careful consideration.
Were conservatives genuinely concerned with the prospect of a super-legislating judge imposing his will over the judgment of the elected branches, they would undoubtedly be dismayed by a judge who repeatedly declared congressionally-enacted laws invalid. Yet, the two justices conservatives hold up as pillars of judicial restraint – Justice Scalia and Justice Thomas – have voted most often to overturn congressional action, according to a study by Paul Gerwitz of Yale Law School. Justice Thomas was ready to throw out law passed by a democratically-elected Congress two-thirds of the time.
Likewise, Judge Alito himself is guilty of this strand of judicial activism, having repeatedly voted to overturn laws passed by legislatures, including portions of the Violence Against Women Act and a law restricting carrying firearms near schools. The decisions of the legislatures in these cases were thwarted because of Judge Alito’s interpretation of the Constitution.
What is more revealing, however, is that Judge Alito was not always so willing to disregard the decisions of the legislative branch. On that most touchy subject of all, abortion, Judge Alito showed great deference to the Pennsylvania legislature when he voted to uphold an abortion restriction requiring spousal consent. Conveniently, Judge Alito was willing to show deference when he agreed with the legislature, but was less willing to do so when he did not. The will of the people, it seems, receives greater weight when it is in line with Judge Alito’s own personal philosophy.
Not that this is unique to Judge Alito or disqualifies him from a seat on the Supreme Court. It simply disavows the notion that conservatives have anything more than their own self-interest in mind when they scream “Judicial Activism!” These days, it is liberals who are up in arms about judicial activism. Senator Charles Schumer, speaking about the Alito nomination, commented, “What would really bother me is somebody who would want to make law.” Where President Bush and fellow conservatives see a judge who “does not legislate from the bench,” Senator Schumer sees a judge who may want to make law. They are of course looking at the same record of the same person and trying to squeeze politics into what should be (but certainly is not) an apolitical job. Reducing a judicial philosophy to a sound byte is always a misleading oversimplification and serves only the person making such a comment. Judge Alito is obviously very intelligent and honest. It is a shame the conversation surrounding his nomination – from both sides – is not.
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