Archives: 05/2010

Did Kagan Have a “Disparate Impact” on Military Recruiters?

Perhaps you remember the case of Ricci v. DiStefano, so much discussed during Sonia Sotomayor’s confirmation process?   To recap briefly: The city of New Haven had used a written test to determine which of its local firefighters would be considered for promotions. When the tests came back, it turned out that the high scorers were overwhelmingly Caucasian, and so the city—fearing a lawsuit from black and Latino firefighters who hadn’t made the cut—scrapped the results. Not, mind you, because the test was in any way discriminatory on its face, but because federal law frowns on any test that has a “disparate impact” on minority groups unless it can be shown to be both closely related to the requirements of the job and less uneven in its effects than comparable alternatives. A number of the white firefighters then sued, claiming that it was discriminatory to discard the test after the fact just because the high scorers were too pale.  Bracket the question of how Sotomayor, as a circuit court judge, should have ruled.  Clearly as a policy question, most conservatives seemed disposed to side with the firefighters, and in general conservatives have been highly skeptical of “disparate impact” standards.  If the standards are facially neutral, and were not chosen with any pernicious intent (the argument runs), we should let the chips fall where they may. Sounds fairly compelling to me.

So it’s a little odd to see folks like Weekly Standard editor Bill Kristol casually talk about Elena Kagan’s “discrimination against the military” during her tenure as dean of Harvard Law School. All Kagan did, after all, was enforce Harvard’s preexisting rule requiring firms wishing to recruit through the school’s Office of Career Services to certify that they did not discriminate by sexual orientation. (This is not the same, incidentally, as “banning recruiters from campus”—the military did continue to recruit on campus via a student group.) It was a neutral rule that applied to any company that wished to avail itself of the Office of Career Service’s assistance, from which the military would have required a special exemption.  Kristol clearly didn’t think much of the logic of “disparate impact” in the Ricci case, so why is he so quick to adopt it here? There are many good reasons to be worried about Kagan, not least her apparent fondness for an expansive conception of executive power, but a commitment to even-handed application of the rules is not among them.

Stopping and Searching

Police in New York City conducted 575,000 “stops” in 2009.  The actual number could be higher–depending on the number of stops the police decided not to record on paper.  The ‘stop and search’ is a legally dubious tactic that persists largely because white, middle-class people are mostly unaffected by it.  It is bad enough when the officers are in uniform, but gets worse when the police are in plain clothes and approach people rapidly.  The police “target” may have only seconds to determine whether he/she is facing a mugging or a police stop.  More here.

Getting Serious about Immigration

Today Politico Arena asks:

Does the level of support for Arizona’s  immigration law demonstrate that immigration can be a potent campaign issue in the 2010 midterms?

My response:

Few national issues produce more heat and less light than immigration, as the reaction to Arizona’s recent legislation on the subject demonstrates. And with nearly three-quarters of Americans now saying they approve of allowing police to ask for documents, according to the latest Pew Research Center poll, and the Arizona law’s approval-disapproval rating at nearly 2 to 1, it’s hard to imagine that immigration will not be a factor in the coming elections.

The issues surrounding the immigration debate – criminal, economic, social – are often complex, and not always clear. But the underlying issue is clear: We no longer control our southern border, and Congress seems unable or unwilling to do anything about it. It hardly needs saying that a welfare state, in the age of terrorism, cannot have open borders. If the failure to control is partly a function of our substantive law – the absence of a serious guest-worker program, for example – then that needs to be corrected. But it needs to be done in concert with serious enforcement.

Yet what was President Obama’s response to the Arizona law, which at bottom was a call to Washington to do something? It was to ask the Justice Department to look for any legal problems in the law and to respond accordingly. It was to play the presumed political card, that is, rather than to address the underlying issue, which he’d promised to do during his campaign for the presidency. Well if the Pew numbers are any indication, this “master politician” may have once again, as with ObamaCare, misread his mandate and the public mood. For a growing number of Americans, as recent elections have shown, November can’t come soon enough.

Are You Substituting Worst-Case Thinking for Reason?

Bruce Schneier has a typically good essay on the use of “worst-cases” as a substitute for real analysis. I noticed conspicuous use of “worst-case” in early reporting on the oil spill in the Gulf. It conveniently gins up attention for media outlets keen on getting audience.

There’s a certain blindness that comes from worst-case thinking. An extension of the precautionary principle, it involves imagining the worst possible outcome and then acting as if it were a certainty. It substitutes imagination for thinking, speculation for risk analysis and fear for reason. It fosters powerlessness and vulnerability and magnifies social paralysis. And it makes us more vulnerable to the effects of terrorism.

Worst-case thinking—the failure to manage risk through analysis of costs and benefits—is what makes airline security such an expensive nightmare, for example. Schneier concludes:

When someone is proposing a change, the onus should be on them to justify it over the status quo. But worst case thinking is a way of looking at the world that exaggerates the rare and unusual and gives the rare much more credence than it deserves. It isn’t really a principle; it’s a cheap trick to justify what you already believe. It lets lazy or biased people make what seem to be cogent arguments without understanding the whole issue.

It’s not too long for you to read the whole thing.

GM Ads and the FTC: Fred Smith Responds

Last week in this space I criticized my friends at the Competitive Enterprise Institute for siccing the Federal Trade Commission on General Motors over its misleading “we repaid our bailout money” ads. Now CEI founder/president (and old friend) Fred Smith gives his side of the story in a lengthy response. And a new report from Fox News covers the whole controversy.

Jury Acquits Tonya Craft

A Georgia jury has acquitted Tonya Craft of 22 criminal charges relating to child abuse and child molestation. A remarkable outcome given the awful rulings of the judge during the trial.  Previous coverage here and here.   

When so many charges are leveled, the pressure to enter into a plea bargain intensifies–even if the accused is innocent.  The defense attorney will say something like, “Look, some kids are going to say you did something awful.  That’s going to happen.  We might persuade the jury to acquit on most of the charges, but there’s still a chance they will convict you on a few counts.  That could mean several years in jail.  Might be better to plead guilty to one charge, serve six months, and then get on with your life.”   Some people breezily proclaim that they would never plead guilty to a crime they did not commit, but when your own freedom is really on the line, the decision is not so easy.

More on plea bargaining here (pdf).

Who Is Fighting (Or Helping) Whom In Mexico’s Drug Wars?

Are Mexican authorities fighting an all out war against drug cartels or simply helping one drug organization win the battle against other criminal gangs for the most lucrative trafficking route to the United States? Street banners alongside Mexico’s highways—put up by rival drug gangs—have long suggested that the administration of Felipe Calderon is in bed with the Sinaloa cartel, that country’s most powerful drug organization. As The Economist reported earlier this year, the Mexican government’s efforts against drug trafficking have been fairly one-sided:

“The Sinaloa organisation (named after a north-western state) is responsible for around 45% of the drug trade in Mexico, reckons Edgardo Buscaglia, a lawyer and economist at ITAM, a Mexico City university. But using statistics from the security forces, he calculates that only 941 of the 53,174 people arrested for organised crime in the past six years were associated with Sinaloa.”

Leaked documents obtained and reported on Monday by Reforma newspaper suggest that drug corruption reaches the top levels of law-enforcement in that country, adding to the suspicion that the Mexican authorities have indeed sided with (some) drug lords. The documents apparently also show the police sharing DEA intelligence with its drug clients, a troubling development when Mexico is asking for more U.S. cooperation in its fight against some drug cartels.

Surveys indicate that the Mexican people still support the Calderon administration in its drug war. However, patience is running out, especially as the number of innocents killed in the violence soars. The tourism industry is also taking its toll, as shootings become commonplace in resorts such as Acapulco and Cancun, driving away visitors. If Mexicans perceive that all this blood and treasure have been paid just to help one criminal gang over the other ones, support for Calderon’s war will rapidly wane.

Also, these allegations present a conundrum for president Obama, who happens to host Felipe Calderon on Monday for a state dinner at the White House. The administration has been pressed by the Mexican government to substantially increase the level of assistance in the fight against cartels. However, if it becomes clear that high-ranking Mexican law enforcement officials are in bed with one or more criminal organizations (not the first time that something like this has happened) and that U.S. intelligence has ended up in the hands of drug lords, there will be growing resistance within the U.S. government to further aid Mexico. This in turn, will only exacerbate the tension between both governments.

“Plata o plomo” (which literally means “silver or lead” and refers to how officials are either corrupted or killed by drug lords) has long been a common feature of the drug war in Latin America. It is not surprising that multi-billion dollar cartels corrupt the officials who are supposed to fight them. What is surprising is some people in Washington still believe that this is a winnable war.