Archive for December, 2002

Lotts of Trouble

Sunday, December 15th, 2002

There are many places where politicians can get themselves into trouble. They can stumble in a response while thinking on their feet in a debate. They can misspeak under the pressure of poignant questioning by the press. Good politicians learn to deal with these situations. Politicians rarely commit political suicide at a birthday party. The Republican Senate Leader Trent Lott managed to rhetorically hang himself.

On December 5, friends of Senator Strom Thurmond were gathered to celebrate the retiring Senator’s 100th birthday. It would have been possible to lavish praise on Thurmond for his length of service, for rising up from his segregationist past, for his love of country. No! Lott had to praise Thurmond’s run for president as a Dixiecrat on the platform of continued segregation in 1948. After making a point of the fact that Mississippi voted vote for Thurmond, Lott added, “If the rest of the country had followed our lead we wouldn’t have had all these problems over all these years, either.”

Now, it is possible to argue that perhaps Lott was speaking of Thurmond’s stand on national defense or that Lott was carried away on the occasion of Thurmond’s birthday. However, the key element of Thurmond’s presidential run was his segregationist policies. Intended or not, Lott’s statement implied an endorsement of those ugly policies.

Since that time, Lott has profusely apologized and recognized the error of his statement. I am sure that the Lott of 2002 is not a segregationist. Lott should not be demonized more that his statement warranted. However, that does not mean that Lott should remain the Senate leader. Much of politics is about symbolism. Having someone who is tainted, no matter how indirectly, with segregation and who is apparently politically inept would not serve his Republican colleagues well. Lott should step down from his Senate leadership position.

This may be hard for some Republicans to accept. They could be rightly upset with the apparent double standard of former KKK member and Democratic Senator Robert Byrd using the n-word and not enduring nearly the same amount of negative attention. Senator Edward Kennedy who soundly criticized Lott was silent about Byrd’s remarks. Former President Bill Clinton has many times lavished praise and honors on the segregationist Arkansas Senator William Fullbright whom Clinton viewed as a mentor. Clinton has immunity from such criticism. Most have forgotten that Jessie Jackson used an anti-Semitic epithet. There is much truth in the quip by Rush Limbaugh that the fastest way for Lott to extricate himself from this self-inflicted mess is to switch parties.

How much more ennobling would it have been if some of the leadership in the African-American had accepted Lott’s apology, worked for true reconciliation, and tested Lott sincerity. There was just too much political advantage to be gained from ignoring that course.

Sure, there may be a double standard, but double standards sometimes are a consequence of holding yourself and your allies to higher ones.

Racial Preferences Case to be Heard

Sunday, December 8th, 2002

“”No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” — Fourteenth Amendment to the US Constitution.

In 1974, President Richard Nixon resigned one-step ahead of impeachment by the House of Representatives; Gerald Ford became president; the Symbionese Liberation Army kidnapped Patricia Hearst, the Godfather II won best picture; and Pong was a popular video game. In the same year, the DeFunis case reached the US Supreme Court.

In 1971, Marco DeFunis applied to the University of Washington Law School. DeFunis is white and claimed he was denied admission as a consequence of the school’s disparate treatment of applicants based on race. Defunis sued the law school asserting he had been denied equal protection of the law under the Fourteenth Amendment. The case was particularly interesting in that the University of Washington never had a history of discrimination against minorities, so there was no question of providing compensatory admissions to minorities.

While the case was being decided, DeFunis was admitted to the law school. By the time the case percolated up to the Supreme Court, DeFunis was within one semester of graduation. The University of Washington agreed that DeFunis would be allowed to complete his studies regardless of the outcome of the case. The majority of the Court ruled the case “moot” and therefore declined to render a decision on the merits of the case. The result was that the practice of preferential treatment based on race was allowed to grow despite uncertain legal limitations.

The classically liberal Justice William O. Douglas dissented on the decision not to review the case. He wrote, “…in endeavoring to dispose of this case as moot, the Court clearly disserves the public interest. The constitutional issues which are avoided today concern vast numbers of people, organizations, and colleges and universities, as evidenced by the filing of twenty-six amicus curiae briefs.”

Four years later, the Supreme Court could not so easily avoid its duties. Allan Bakke had twice been denied admission to the University of California-Davis Medical School. Bakke argued that a program that reserved 16 out of 100 seats for minority students violated the Fourteenth Amendment and the 1964 Civil Rights Act. In 1978, the Supreme Court ruled 5-4 that the quotas used by the University of California were indeed illegal. However favorable the result was for Mr. Bakke, the decision did not settle matters. Justice Lewis Powell, writing for the majority, left open a small crack through which a deluge of racial preferences in university admissions have flooded through. While passionately condemning systematic racial preferences, he suggested if two candidates where comparable, tilting toward the minority candidate would be permissible given the states interest in a varied enrollment. Of course, this incremental help has, in practice, degenerated into policies that are little different from quotas.

Those who implement racial preferences on campuses are so uncertain as to the legality of their position that they hide behind euphemisms and deception. For the longest time, the University of Michigan denied that it used race as a criteria for admissions. Information obtained via the Michigan Freedom of Information Act and suits put the facts of the matter to rest. According to Carl Cohen professor of philosophy at the University of Michigan, “sworn depositions revealed the number of [admission] points awarded for minority status … was decided upon by statistically how many points would be needed to insure” that each entering class consisted of 10-12% minority students.

The university has been reduced to making two contradictory claims: the preferences they award minorities are small and only affect decisions in a few close cases and without such preferences there would be drastic reductions in the number of minorities enrolled.

Any state activity that treats people differently based on race must undergo strict judicial scrutiny. Not only must the state must have a compelling interest in engaging in such discrimination, but the discrimination must be very narrowly tailored to addressing this interest. Racial preferences as commonly practiced by universities do not come close to meeting these tests.

The University of Michigan has presented heavily disputed evidence that students benefit academically from a diverse student body and therefore the state has a strong interest in seeking one. However, even if this could be unequivocally demonstrated, is not likely that discriminating against non-minorities is a narrowly tailored solution to the problem.

To understand why, imagine a different fact situation. Let us assume that it could be proven without serious doubt that segregated classrooms helped the pedagogical process. Would that be sufficient to justify the ugly practice of treating people differently based on skin color? Most certainly not.

Over thirty years since DeFunis was first denied admission to the University of Washington Law School, the US Supreme Court again seems on a collision course with this issue. The Court has agreed to hear a class action suit against the University of Michigan this term brought by plaintiffs Jennifer Gratz and Patrick Hamacher. However, the Court has shifted to the right since the Bakke case. Justices William Rehnquist and John Paul Stevens are the only two judges remaining who participated in the Bakke decision.

On the present Court, there are five strong voices against racial preferences, Justices Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Conner. Those five are enough to end racial preferences in academic admissions. In handicapping the court decision in this case, one would have to bet that in the end, Justice Stevens would also find against racial preferences, though he is certainly a wild card. Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer can be counted on to engage in the mental gymnastics of arguing that the words of the Fourteenth Amendment and the Civil Rights Act do not mean what they plainly say and racial preferences are legal. The prediction here is that racial preferences, at least as practiced by the University of Michigan, will be ruled illegal 5-4 or 6-3. Moreover, if Justices Scalia or Thomas write the majority opinion, the opinion will be an unequivocal, sweeping, and stinging renunciation of the state-sponsored use of race to separate people, regardless of how benevolent the motive.

Should the President Ever Lie?

Sunday, December 1st, 2002

Recently, an interesting question was been posed here:

“Is it ever justified for a President to lie? If so, when?”

The question is deceptively simple. However, it is complex and depends heavily on what one means by “justified” or “to lie.”

The American Heritage Dictionary defines a lie as “a false statement deliberately presented as being true; a falsehood.” Webster similarly defines a to lie as “to make an untrue statement with intent to deceive.” These are both consistent with St Augustine’s definition of a lie as a “false statement uttered with intent to deceive.”

However, these definitions are too narrow. They depend on a lie as being a false statement. It is possible to make technically true statements that taken together are used to convey a false impression, to make the listener have a false belief or understanding. The technical truth of a statement is not a sufficient defense against the charge of lying. Indeed, the statement need not have been uttered at all. It is possible to mislead someone with a wink, a nod or even a carefully selected silence.

Webster’s second definition of a lie is broader and better, “Something meant to deceive or give a wrong impression.” For our purposes here let us posit five necessary components of a lie:

  1. The act involves communication, whether written, oral, or by some other act.
  2. The act is a serious one, not simply a joke or part of a game.
  3. The person acting intends the communication to be taken as the truth, while knowing it is false.
  4. The person is not acting under duress.
  5. The recipient of the information has a right to the truth.

Most would probably have little problem with accepting the first three components as being necessary for an act to be considered a lie. The fourth condition is meant to excuse the situation where a person has a gun to one’s head and is forced to utter false statements. For an act to be morally judged, the person must be acting freely. It could probably be argued that in such a situation there is no intent to deceive so there is no lie, but I want to make this exception explicit.

The final condition is a little more problematic. There are situations when silence is not sufficient to protect a trust and making a false statement is necessary to protect it. For example, John comes to his friend Joe and discusses medical problems in confidence. A third person, James, later comes to Joe and says, John is acting strangely and inquires as to whether John is having medical problems. James really has no right to the information. If Joe indicates that he is not free to speak about the issue, he will convey to James the impression that his initial guess is true. This is a situation where Joe’s silence is not sufficient to protect a trust. If Joe makes the false statement that he knows nothing of such problems, in this case, he protects a trust with John, without really breaking his trust to James. James had no right to the information to begin with.

What then about a president? A president has a broad moral trust with the public. In meeting this trust, his obligation is to act in the public interest and not necessarily in his own personal interests. Given the definitions of a lie given above, I can see no situations where a lie is justified. For most matters that involve national security, silence would seem to be sufficient most of the time.

However, it is possible to imagine in a national emergency where a president might release false information for the purpose of deceiving an enemy and indirectly also deceive Americans. Such an act would not be a lie because there is no intent to deceive anyone with a legitimate right to the information. It would be acting in fidelity to another higher trust. Ultimately, the truth would come out and it would be up to the people to decide if their trust had been violated.

The answer to the originally posited question is no. There is no reason for a president to lie, if the concept of a lie is properly understood