Kennedy and Ideological Drift

Adam puts up another post that sums up the Supreme Court’s term and links to the TNR piece about Kennedy that demonstrates he’s not the moderate swing vote on the Court at all.

The TNR article references Epstein et al. which found that Kennedy has not drifted at all ideologically and is one of the most consistent judges on the Court.

2 of the four authors used to live with me and Lee was at Wash U while I was in residence.

Obama: Supreme Court ruling an obstacle to opportunity

WASHINGTON, D.C. – U.S. Senator Barack Obama today released the following statement on the Supreme Court’s diversity ruling.

“Today’s Supreme Court ruling has placed a serious obstacle in the way of achieving the vision of America first outlined in the landmark case of Brown v. Board of Education, where we see racially integrated education as the best way to reflect our great diversity, unite our nation, and make real our promise of equal opportunity for all.

“Though we have come a long way in those fifty years since Brown, our schools remain segregated by race, as well as resources and opportunities.  Three-quarters of black and Latino school children attend predominantly minority schools and white children are even more likely to attend racially isolated schools.  And yet, hundreds of school districts across the country have taken noble, yet modest, steps to address this problem, while still accommodating parental and student choice.  They have done so because they too believe that our nation’s prosperity depends on our children learning to understand each other better, work together, and solve problems together

“This wrong-headed ruling underscores the critical importance of a President’s appointments to the Supreme Court and a Justice Department’s commitment to civil rights enforcement.  It is the but the latest in a string of decisions by this conservative bloc of Justices that turn back the clock on decades of advancement and progress in the struggle for equality.  Chief Justice Robert’s opinion reflects a disturbing view of the Constitution that equates voluntary integration with Jim Crow segregation – a view that is both legally and morally wrong.  The policies that led to racially diverse schools in Seattle and Louisville are a far cry from the policies of racial subordination that led to blacks-only and whites-only schools in the pre-Brown era.  To equate the two is to turn a blind eye to our nation’s history.  

“I filed a brief in these cases, along with several of my colleagues in the Senate, which explained to the Court that a racially diverse learning environment has a profoundly positive educational impact on all students, and I remain devoted to working toward this goal.  The Congress has the constitutional power and responsibility to address the resegregation of our schools, and I am committed to using that authority.  I will immediately call for hearings to determine the most effective steps that Congress can take to move forward.  And as President, I will appoint Supreme Court justices who understand the constitutional importance of Brown.  Those Justices will ultimately vindicate Brown’s promise, as Justice Breyer and today’s dissenters put it, of “one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

The Pointlessness of Kennedy’s Concurrence

Is well captured by Scott Lemiuex

The opinion was predictably narrowed by Kennedy, who provided the swing vote but (exactly as Dahlia Lithwick predicted) holding out that a future program may theoretically take race into account. This probably won’t be terribly meaningful in practice (particularly since the federal courts are rapidly abandoning the desegregation orders necessary for Kennedy’s distinction to be relevant.)

The ruling regarding Louisville is that the system has no vestiges of segregation and thus the standard for those places covered by past desegregation efforts are pretty much gone. Even with past discrimination, modest efforts at integration will be restricted since almost all of the cases have settled or ended.

Oh, and since I’m linking to LGM, I should share what it’s like going to a ballgame with 2/3 of Lefarkins (Farley and djw). We were in Daytona for the AP Government and Politics Reading and took in a game of the Daytona Cubs managed by Jody Davis!

[kml_flashembed movie="" width="425" height="350" wmode="transparent" /]

That was pretty much most of the evening. It was quite fun.

More of Breyer’s Dissent

Indeed, the consequences of the approach the Court takes today are serious. Yesterday, the plans under review were lawful. Today, they are not. Yesterday, the citizens of this Nation could look for guidance to this Court’s unanimous pronouncements concerning desegregation. Today, they cannot. Yesterday, school boards had available to them a full range of means to combat segregated schools. Today, they do not.

The Court’s decision undermines other basic institutional principles as well. What has happened to stare decisis? The history of the plans before us, their educational importance, their highly limited use of race.all these and more.make clear that the compelling interest here is stronger than in Grutter. The plans here are more narrowly tailored than the law school admissions program there at issue. Hence, applying Grutter’s strict test, their lawfulness follows a fortiori. To hold to the contrary is to transform that test from ‘strict. to .fatal in fact..the very opposite of what Grutter said. And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist. No. 1? After decades of vibrant life, they would all, under the plurality’s logic, be written out of the law.

And what of respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon Swann’s basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope with the difficult problems they face (including resegregation) deprived of one means they may find necessary.

And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people? Instead of accommodating different good-faith visions of our country and our Constitution, today’s holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race related conflict.

And what of the long history and moral vision that the Fourteenth Amendment itself embodies? The plurality cites in support those who argued in Brown against segregation, and JUSTICE THOMAS likens the approach that I have taken to that of segregation’s defenders. See ante, at 39.41 (plurality opinion) (comparing Jim Crow segregation to Seattle and Louisville’s integration polices); ante, at 28.32 (THOMAS, J., concurring). But segregation policies did not simply tell schoolchildren .where they could and could not go to school based on the color of their skin,. ante, at 40 (plurality opinion); they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. The lesson of history, see ante, at 39 (plurality opinion), is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950’s to Louisville and Seattle in the modern equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined). This is not to deny that there is a cost in applying .a state-mandated racial label.. Ante, at 17 (KENNEDY, J., concurring in part and concurring in judgment). But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation.

* * *

Finally, what of the hope and promise of Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality.not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

Not everyone welcomed this Court’s decision in Brown. Three years after that decision was handed down, the Governor of Arkansas ordered state militia to block the doors of a white schoolhouse so that black children could not enter. The President of the United States dispatched the 101st Airborne Division to Little Rock, Arkansas, and federal troops were needed to enforce a desegregation decree. See Cooper v. Aaron, 358 U. S. 1 (1958). Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

I must dissent.

Welcome to the Land of the Activist Court

Next time anyone tries to claim the conservative Supreme Court is not activist, you might point people to the decision that just undercut Brown v. Board of Education in two cases where the efforts were instituted by elected School Boards.

Excerpts taken from Adam Bonin’s piece:
From the Majority Opinion:

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again.even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way to achieve a system of determining admission to the public schools on a nonracial basis … is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

The utter disingenuousness of the above is stunning. Race is the last factor in the application process in Seattle and not only does it essentially undercut Brown, it undercuts the use of social science in court cases. Some of the evidence from Brown centered on how African-American children view white dolls as superior to black dolls and thus the point that separate is inherently unequal. The evidence from Brown provides a compelling state interest for integrated schools even when there was not past discrimination. However, this court doesn’t care because it lives in a fantasy land.

Stevens dissenting

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions….

The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.

Breyer’s Dissent:

By way of contrast [to Justice Thomas], I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nation’s children and how best to administer America’s schools to achieve that aim. The Court should leave them to their work. And it is for them to decide, to quote the plurality’s slogan, whether the best “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”… That is why the Equal Protection Clause outlaws invidious discrimination, but does not similarly forbid all use of race-conscious criteria. Until today, this Court understood the Constitution as affording the people, acting through their elected representatives, freedom to select the use of “race-conscious” criteria from among their available options. …  Today, however, the Court restricts (and some Members would eliminate) that leeway. I fear the consequences of doing so for the law, for the schools, for the democratic process, and for America’s efforts to create, out of its diversity, one Nation.

Senator Kotowski Issues Statement on Office Threats

From the Illinois Senate

State Senator Dan Kotowski


Senator Kotowski Issues Statement on Office Threats

SPRINGFIELD, IL Illinois State Senator Dan Kotowski (D- Park Ridge) issued the following statement regarding the recent threats communicated to his legislative office:

I was elected to serve as your voice in Springfield to improve our communities and help families in the 33rd Senate District. I have been thankful for the support of district residents as I have moved forward on a broad array of initiatives to make sure that our children, working families, veterans and seniors receive the support they need from state government. As you are probably aware by now, the Illinois State Rifle Association, which lobbies for gun manufacturers, sellers, and some gun advocates, has chosen to target me for my stand on gun safety measures. That is their right in our democracy. It is even allowable in a democracy like ours, which I believe we are blessed to have, to deceptively portray my work on gun safety. That is part of the political process. They are entitled to their say, and the community is entitled to then sort out the truth from what are the dishonest attacks on my record.
However, when it comes to threats against my staff and family, I will stand up to protect those who are threatened as best I can, as any father, husband and employer would do. Let me share with you one comment on a website, which was inspired by the State Rifle Association’s targeting of me: “Sounds to me like Senator Kotowski deserves to be threatened. Why, if he were to commit suicide by shooting himself in the head three times, it wouldn’t surprise me one bit.” We have also received threatening calls at our office. And I don’t need to remind people that when George Ryan was Lieutenant Governor, gun criminals made an effort to shoot up his Springfield home because he supported protecting our police from assault weapons.

I will not hesitate to do whatever it takes to protect people around me from such threats. I also will not stop for a moment to vigorously advance issues of concern to the 33rd Senate District. My job is to work on numerous important issues like providing greater opportunities for veterans, ensuring insurance coverage for women at risk of breast cancer, capping property tax assessments for homeowners, as well as helping improve the lives of neighbors, friends and all the constituents whom I am privileged to represent. No one-issue lobbying group will keep me from continuing to do what I promised when I was elected to the Illinois State Senate: represent the broad needs and interests of the district that I am so proud to serve.”

Froehlich On Switching

Rich gave me permission to post a paragraph of his exclusive interview with Paul Froelich (but still go subscribe)

The state’s newest Democrat said his dissatisfaction with the Bush administration also played a role in his decision. Froehlich claims to have been against the Iraq War since before it began, said he is horrified at President Bush’s abuse of Habeus Corpus (which Froehlich claimed is the thing that “separates a free system from an unfree system”), has been very bothered by the national party’s “harsh rhetoric” on immigration issues and has disagreed with his fellow Republicans on environmental issues.

Immigration, the Iraq War, and the environment can be dismissed as opportunism by the cynics, but I think the point about Habeus Corpus is what sets it apart. No doubt local issues played the primary role in his decision, but the limitations on Habeus Corpus are one of the most shocking abuses of power by this administration. It’s not one that gets you a lot of votes either because most voters don’t know much about so they don’t understand it stands as the key right in developing a fair judicial system in the English speaking world.

I can be wrong, but that struck me as a very telling complaint from a legislator and how much the parties have rotated from just 10-15 years ago in Illinois.

Sirota Responds

In Comments 

Sorry you folks decided not to read the press release or the post, instead saying we “attacked” Obama. Wrong. We urged him to reject the invitation, which he did, and we are now issuing a follow-up release congratulating him. This is known as movement politics, rather than partisan politics. The goal was never to attack Obama – and we didn’t attack him. The goal was to expose ALEC – which we did. Mission accomplished.

No, David. I did read it and it was a cheap ploy made by a lazy political operative who couldn't hold himself back for a few minutes to call the campaign.

If it was movement politics you could have chosen to help a movement by calling the campaign, finding out ALEC was being dishonest by having Obama on their front page and then attacked with the Obama campaign.

Instead you took the cheap shot. As usual. It doesn't benefit any movement to be an ass and put a campaign on the spot for something they had nothing to do with. Outside of your press release page the story has no play because you fucked it up. Congrats!

Daily Dolt—OF THE YEAR

The Illinois State Rifle Association

Several weeks ago, the ISRA was all atwitter after Chicago priest Michael Pfleger called for pro-gun legislators and a gun shop owner to be “snuffed out.”

I seriously doubt that Pfleger wanted to actually kill a pro-gun legislator, but his remarks were irresponsible. Chicago’s Cardinal Francis George was right to publicly rebuke him for his stupid statements.

After complaining about Pfleger, however, the rifle association has not — as of this writing — condemned the threats on Kotowski’s life. It has expressed zero concern for the senator’s safety or the safety of his staff and his family.

The group’s silence is deafening — and informative. It’s Johnny on the spot when a priest makes inflammatory remarks about the group’s own allies, but looks the other way when somebody on the opposite side of the political fence is threatened.

As Pfleger prepared to speak at another antigun rally last week, the ISRA sent out a news release whining that the state police exhibited a “double standard” when they refused to investigate the Catholic priest, but did check in on people who contacted Kotowski’s office. Later in the release, the gun group asked whether Pfleger would show some “dignity” at the antigun rally or once again behave like “an absurd — yet malevolent — cartoon character.”

But over the past several months, when I, and others, repeatedly pointed out that “malevolent” comments were popping up all over the Internet about Kotowski, the rifle association remained mum.

One person wrote on a pro-gun Web site the other day: “Sounds to me like Sen. Kotowski deserves to be threatened. Why, if he were to commit suicide by shooting himself in the head three times, it wouldn’t surprise me one bit.”

The people who run the rifle association ought to look in the mirror the next time they scream about “double standards.”

Check out Rob’s last post on this over at Illinois Reason.  The comments are illustrative of the problem.

When your article speaks of Rich Millers post and thinly veiled threats,Sen.Kotowski’s staffers and their heebie-jeebies (define heebie-jeebies) and other referrences. Why would any non rational and uneducated individual/s not think that the I.S.R.A. of which I am NOT a member is somehow not responsible for any and or all angst regarding Mr.Kowtowski and his blatant disregard for the Constitution….
To me the heebie-jeebies would be a childish feeling much like that which permeats the Left wingers due to their fear of a free populace.

Bill St. Clair

Sounds to me like Sen. Kotowski deserves to be threatened. Why, if he were to commit suicide by shooting himself in the head three times, it wouldn’t surprise me one bit.


I think the senator has miscalculated. Instead of intimidating people, he has
incited their anger, and given credence to the “tin foil hat” crowd.* This is
also fodder for the civil libertarians who aren’t necessarily on board with the
second ammendment. Stunts like this could get the ACLU and NRA working
together where normally you couldn’t get them in the same room.


Fat load of good that’ll do. Politics as Soviet there now. The AG will just recommend Blagogewhatever give the Kotowski the Order of Lenin.
Kotowski and dickaDaly are prolly having a great chuckle over the abuse of powers as usual there.
I agree with OTRN vaporize Chicago(get the Dog out first) and the rest of Illinois is pretty nice.
Been there to DeKalb a few times and had good times with decent people…Chicago has to go.

Now, I don’t think the ISRA believes the above.  However, the ISRA has not just been silent on the threats to Kotowski, but actively tried to undermine the claims of Kotowski’s staff that anyone threatened Kotowski.  Bill St. Clair does above.  Yet ISRA cannot condemn the threats as Cardinal George condemned Pfleger’s comment.  It’s not just a double standard, it’s a actively giving dangerous people cover for their behavior.

ISRA doesn’t lose anything by condemning threats of violence. The lose a lot when they try and pretend those threats didn’t happen.

Sirota Jumps the Gun on Obama

The Progressive States Network co-founded by David Sirota jumps on Obama to decline or reject an invitation to ALEC (American Legislative Exchange Council.  In PSN’s defense, ALEC had Obama on their frontpage (removed already) and it is an odious organization. The thing is the campaign confirmed it was not attending within minutes of having seen the press release and could have confirmed that with a quick call.

I don’t mind pressuring Democratic candidates to do the right thing, but we also ought to check to see if ALEC wasn’t just using Obama before jumping on him. They were and a quick phone call or e-mail would have answered the question.

There is a point here about how we interact within Democratic constituencies.  If we want to build up relationships and trust, the way to do that is to communicate.  That didn’t happen hear and it puts everyone in a pissy mood instead of working together to target ALEC’s dishonest use of Obama and their general odiousness.

Ponies For Everyone

Charles Franklin has up the most recent trend estimates for his Presidential Approval estimator and it’s at 29.1 percent. Wow.  There’s some interesting patterns to the different estimators as well. The blue (less sensitive) has been tracking the red (more sensitive) for the recent downturn pretty faithfully.  That’s not unusual and certainly doesn’t tell us how long that will last, but interesting nonetheless.

Charles is interested in public opinion by itself though he has done some great work on how that interacts with institutions.  What fascinates me most though is how elite opinion including officeholders seems to be lagging.  This isn’t a new phenomenon for the Bush Presidency since he’s been below 40 for sometime now, however one would expect Republicans to be running for cover from this guy, yet he’s still able to maintain strong control over the legislative process and especially Republicans in Congress.

Now, one theory is that the base is vital to all Republicans and he is still popular with the base and that is somewhat true, but now that seems to be less true at least.  While we see some grumbling, Members of Congress like Mark Kirk should be running scared.  They really aren’t and this to me is a puzzle.  A key assumption of the literature is that MoCs are single-minded seekers of reelection and as such party discipline isn’t that strong because MoCs see their best chance for reelection to run as individuals to avoid waves.  Everything about the current political situation suggests a second Democratic wave election and perhaps even a stronger one yet elected Republicans are maintaining a remarkable level of party discipline.  Many do not face primaries and certainly not primaries of any importance so this level of party discipline is fascinating to watch.

I Just Don’t Get the Sense of Humor, Tony Snow Does Have Great Musical Taste

Bush to Kermit Ruffins:

I want to thank our Chef, Paul Prudhomme, from New Orleans, Louisiana — one of the great chefs in America. Thanks for coming, Paul. (Applause.) I thank Tony Snow and his bunch of, well, mediocre musicians — (laughter) — no, great musicians. Beats Workin, thanks for coming. (Applause.) Kermit, come up here. Kermit, we’re proud to have you.

MR. RUFFINS: Well, thanks for having us.

THE PRESIDENT: Kermit Ruffins and the Barbeque Swingers, right out of New Orleans, Louisiana. (Applause.)

MR. RUFFINS: Thank you. Thanks for having us. We’re glad to be here.

THE PRESIDENT: Proud you’re here. Thanks for coming. You all enjoy yourself. Make sure you pick up all the trash after it’s over. (Laughter.)

God bless you, and may God bless America. Thanks for coming. (Applause.)

I get that he’s trying to make fun of Snow (who apparently has some excellent taste in music if he brought in Kermit), but it comes off as being kind of cruel to the musicians.  No great overarching message here or deep insight into anyone’s character, just odd.