Judicial nominations stalled: Obama demands end to Republican obstructionism

President Obama has written a letter to the Senate leadership demanding action on his pending nominees to the federal courts.  Less than half of President Obama's judicial nominees have been confirmed, compared to 61% of George Bush's nominees at a comparable stage.  Not only is the federal judiciary shorthanded, it is deprived of a highly qualified and generally centrist group of nominees as Alliance for Justice documents.

The Real Entitlement Problem

Working stiff  "just getting by" 

Todd Henderson is a past editor of the University of Chicago Law Review. Before becoming a professor he served as a clerk to the Honorable Dennis Jacobs of the United States Court of Appeals for the Second Circuit, practiced appellate litigation at Kirkland & Ellis in Washington, D.C., and was an Engagement Manager at McKinsey & Company in Boston, where he specialized in counseling telecommunications and high-tech clients on business and regulatory strategy.


The real entitlement problem is not workers who want to hold on to pensions, Social Security and Medicare - rather than the freedom of 401(k) and scavenging for minimum wage, non-union work.  The real entitlement problem is the self-indulgence of people like the now notorious law professor M. Todd Henderson from (of course) the free-marketeers' sheltered workshop at the University of Chicago.  In a post that he has taken down due to the notoriety it brought him, Henderson wrote his crie de coeur.  But before we get into it, let's do the numbers.  Here is the Prof's family income - Unfortunately he did not do the numbers: his taxes would go down $3,700 under Obama's plan, as Michael O'Hare analyzes it. 


As economist Brad Delong said in his devastating takedown here "Is it pathetic that somebody with nine times the median household income thinks of himself as just another average Joe, just another "working American"? Yes. Do I find it embarrassing that somebody whose income is in the top 1% of American households thinks that he is not rich? Yes."


Below is the (estimated) Henderson family budget and the professor's tale of woe.

$455,000 a year of income, of which:

• $60,000 in student loan payments
• $40,000 is employer contributions to 401(k) and similar retirement savings vehicles
• $15,000 is employer contributions to health insurance
• $60,000 is untaxed employee contributions to tax-favored retirement savings vehicles
• $25,000 building equity in their house
• $80,000 in state and federal income taxes
• $15,000 in property taxes
• $10,000 for automobiles
• $55,000 in housing costs for a $1M house (three times the average price in the Hyde Park neighborhood
• $60,000 in private school costs for three children
• $35,000 in other living expenses

WE ARE THE SUPER-RICH

by Prof. M. Todd Henderson

The rhetoric in Washington about taxes is about millionaires and the super rich, but the relevant dividing line between millionaires and the middle class is pegged at family income of $250,000. (I’m not a math professor, but last time I checked $250,000 is less than $1 million.) That makes me super rich and subject to a big tax hike if the president has his way.

I’m the president’s neighbor in Chicago, but we’ve never met. I wish we could, because I would introduce him to my family and our lifestyle, one he believes is capable of financing the vast expansion of government he is planning. A quick look at our family budget, which I will happily share with the White House, will show him that like many Americans, we are just getting by despite seeming to be rich. We aren’t.

I, like the president before me, am a law professor at the University of Chicago Law School, and my wife, like the first lady before her, works at the University of Chicago Hospitals, where she is a doctor who treats children with cancer. Our combined income exceeds the $250,000 threshold for the super rich (but not by that much), and the president plans on raising my taxes. After all, we can afford it, and the world we are now living in has that familiar Marxian tone of those who need take and those who can afford it pay. The problem is, we can’t afford it. Here is why.

The biggest expense for us is financing government. Last year, my wife and I paid nearly $100,000 in federal and state taxes, not even including sales and other taxes. This amount is so high because we can’t afford fancy accountants and lawyers to help us evade taxes and we are penalized by the tax code because we choose to be married and we both work outside the home. (If my wife and I divorced or were never married, the government would write us a check for tens of thousands of dollars. Talk about perverse incentives.)

Our next biggest expense, like most people, is our mortgage. Homes near our work in Chicago aren’t cheap and we do not have friends who were willing to help us finance the deal. We chose to invest in the University community and renovate and old property, but we did so at an inopportune time.

We pay about $15,000 in property taxes, about half of which goes to fund public education in Chicago. Since we care the education of our three children, this means we also have to pay to send them to private school. My wife has school loans of nearly $250,000 and I do too, although becoming a lawyer is significantly cheaper. We try to invest in our retirement by putting some money in the stock market, something that these days sounds like a patriotic act. Our account isn’t worth much, and is worth a lot less than it used to be.

Like most working Americans, insurance, doctors’ bills, utilities, two cars, daycare, groceries, gasoline, cell phones, and cable TV (no movie channels) round out our monthly expenses. We also have someone who cuts our grass, cleans our house, and watches our new baby so we can both work outside the home. At the end of all this, we have less than a few hundred dollars per month of discretionary income. We occasionally eat out but with a baby sitter, these nights take a toll on our budget. Life in America is wonderful, but expensive.

If our taxes rise significantly, as they seem likely to, we can cut back on some things. The (legal) immigrant from Mexico who owns the lawn service we employ will suffer, as will the (legal) immigrant from Poland who cleans our house a few times a month. We can cancel our cell phones and some cable channels, as well as take our daughter from her art class at the community art center, but these are only a few hundred dollars per month in total. But more importantly, what is the theory under which collecting this money in taxes and deciding in Washington how to spend it is superior to our decisions? Ask the entrepreneurs we employ and the new arrivals they employ in turn whether they prefer to work for us or get a government handout.

If these cuts don’t work, we will sell our house – into an already spiraling market of declining asset values – and our cars, assuming someone will buy them. The irony here, of course, is that the government is working to save both of these industries despite the impact that increasing taxes will have.

The problem with the president’s plan is that the super rich don’t pay taxes – they hide in the Cayman Islands or use fancy investment vehicles to shelter their income. We aren’t rich enough to afford this – I use Turbo Tax. But we are rich enough to be hurt by the president’s plan. The next time the president comes home to Chicago, he has a standing invitation to come to my house (two blocks from his) and judge for himself whether the Xxxxxxxxxs are as rich as he thinks

Erwin Chemerinsky: Conservative Attacks on Constitution Have Upper Hand Now

Erwin Chemerinsky, founding Dean of University of California Law School at Irvine, is what Fox News commentators might call - in a  restrained moment - an unapologetic liberal.  Not that there is anything there to apologize for.  But polite discourse in law schools requires assuming the good faith and truth-seeking character of judges - all judges.  Effectiveness as a lawyer also requires restraint: why make an enemy of someone who might decide your client's fate.  Don't make yourself an issue - it could hurt your client.  


So it is noteworthy when someone like Chemerinsky waves the battle flag in this recent Op-Ed piece:

Young lawyers who served in the Reagan administration and were deeply committed to its conservative agenda, such as John Roberts Jr. and Samuel Alito Jr., came to be U.S. Supreme Court justices. It is a mistake to see the policies of the Bush administration or the Roberts Court in isolation from a larger conservative movement that has sought to alter basic precepts of constitutional law — and in many areas succeeded in doing so.

Looking at many different areas helps to show that the conservative assault on the Constitution is not a product of a neutral method of interpretation or a commitment to judicial restraint. Quite the contrary: Conservative justices are willing to be activist in striking down laws and overturning precedents with regard to affirmative action programs, or invalidating gun control laws, or imposing new limits on punitive damages awards to injured individuals. They espouse a need to be true to the framers' intent but are willing to abandon it when it does not support the results they want.

The conservative assault on the Constitution is driven not by methodology or interpretive philosophy but by ideology. Antonin Scalia, one of the prime architects of the Court's conservatism, finds in the Constitution no limits on government aid to parochial schools. He believes that the Constitution allows prayers in public schools. He rejects a constitutional right to abortion, but finds a right of individuals to have handguns. He wants to strictly limit the ability of federal courts to order desegregation of elementary and secondary schools, but refuses to allow colleges and universities to engage in affirmative action to remedy the great disparities in the U.S. educational system.

Scalia professes that he follows the Constitution's original meaning, but his are the views of the 2008 Republican platform, not of the framers.

Remedies: Should U.S. take over the Newark Police Department?

Brown v. Board of Education in 1954 inaugurated the era of the structural injunction.  The United States Court of Appeals for the Fifth Circuit took on the task of forcing recalcitrant southern legislators and school officials to comply with the mandate of desegregation.  Judge John Minor Wisdom's leadership is brilliantly chronicled in Joel Friedman's Champion of Civil Rights (LSU 2009).  The desegregation effort eventually foundered on the rocks of residential segregation, as seen most bitterly in the Boston school busing controversy, discussed in this NPR story. 


But there were successes too.  One was the receivership imposed on the Essex County (NJ) jail by the late District Judge Harold Ackerman.  That litigation - a 25 year effort - ended with the construction of the new Essex County jail.

Essex County executives announce end of federal judicial supervision of county jail in 2007

Now the American Civil Liberties Union of New Jersey has boldly petitioned the United States Department of Justice to effectively take custody of the Newark Police Department whose culture of lawlessness - a triggering factor in the Newark riots of 1967 - continues to impose great financial and personal burdens on the struggling city and its citizens.  
There are many reasons for the Department of Justice to hesitate to engage in the massive civil litigation the ACLU proposes.  One of them is the uncertain result of the New Jersey state takeover of the Newark public schools a decade ago.  Practicality but not federalism is probably the biggest question mark hanging over the effort.

Twin Tapers - the 9/11 memorial lights

via cellphone, 9/11/2010

As we do each year we went down to Battery Park city to see the World Trade Center memorial lights.  This year for the first time there was a public action that was beneath the dignity the day demands.  That was, of course, the protests against erection of a mosque a few blocks away.   Sad.

Tonight's stroll reminded me of this piece I wrote in March 2002 - six months after the catastrophe, when the lights first appeared.


Twin Tapers


Two weeks ago, on a clear night, at 7:00 PM sharp, as I drove home on the George Washington Bridge, two columns, like giant flashlight beams, stood out against the almost blue sky of the city after dusk, at the spot where the WTC  stood.  For now they shine nightly.  Visible for 20 miles, they evoke an ineffable sadness.  They recall but cannot restore the skyline.  They highlight the towers’ absence, and those lost.


The two columns stand apart, quite like the towers.  But they are evanescent, not steel, and the City turns them off at 11:00 PM, or when the FAA flight controllers call to douse them.   Dozens of powerful lamps are needed to create these light shafts that now pierce the city night.   The beams change.  Faint at dusk, they sharpen as the sky darkens, and blur when the city’s competing lights illuminate the night when clouds are low, and the air is thick.  In their light low clouds glow.


As a child my favorite place in church was the votive candle rack.  Perched on a wrought iron frame in ranks like the seats in a stadium, yellow flames flickered in red glass.  Lighting a candle made a prayer special.  The call lasted as long as the candle burned.  These new twin tapers are our votive candles.  Their evanescence captures the loss so palpably that it is both disquieting and reassuring.  Turning a corner in the city, glimpsing the lights, we welcome the new landmark.  They anchor us, as the towers once did, showing us where we stand, like a lighthouse beacon aids the mariner.  The lights remind us that but for chance, there were we.   Ethereal, they express our fragility, our vulnerability.  They assure us that we do remember, that we have neither forgotten, nor forgiven.

The two lights quickly became part of our landscape.  Yet the City says they are a temporary memorial, to be turned off April 13.  But there is little precedent for turning off the lights in New York.  They temporarily lighted the bridges for the New York World Fair 40 years ago but the necklaces of light burn every night on every suspension bridge in the city.  After the Chrysler building got its art deco zig-zag lights, many other towers were illuminated.  First the commercial cathedrals of the Woolworth,  New York Life, and the Empire State buildings, then the Riverside Church campanile, and a dozen other lofty towers were bathed in spotlights every night. These new lights have earned their keep, and will become, I hope, part of the permanent 9/11 memorial, an aid to recall all we lost.

- George  Conk  March 25, 2002

Bridging the Christian-Muslim Divide - Fr. Patrick Ryan, S.J. on NPR

Fr. Patrick Ryan, McGinley Professor of Theology at Fordham, speaks on NPR about the outreach program to help bridge the gap between Christians and Muslims.  Fr. Ryan spent 26 years teaching in Africa - eleven of those years in Nigeria - a major Muslim country.  He talks with Jennifer Ludden of Talk of the Nation.

Tony Judt: Closely watched trains

Tony Judt loved trains.  Late in life when he was dreadfully ill with ALS he had long conversations with Timothy Snyder, which produced the collaboration the forthcoming Thinking the Twentieth Century, a century characterized by certainties abandoned and defeated.  Judt told Snyder that "one of the sadnesses of his illness was that he would never again find himself on a railway platform, uncertain of destination but certain of progress."  Ah that certainty again.  Trains produce wonderful metaphors.  They contain an ambiguity that gives them depth, as in Muddy Waters'  Two Trains Running - neither one going my way.


Snyder's New York Review post on Tony Judt and Thinking the Twentieth Century is HERE

Accommodations: American Catholicism and Muslims in America

Thomas Nast's 1875 cartoon depicts Catholic priests as crocodiles seeking to devour American children

R. Scott Appleby, Director of the Kroc Institute International Peace Studies and John T. McGreevy, Dean of the College at Notre Dame comment, as historians of American Catholicism on the similarities between nativist anti-Catholic sentiment and the hostility to Muslims in America today.  Writing in the NYR (New York Review) blog here they ask  ` Should Muslims accede to popular sentiment and forego exercising their right to build near the World Trade Center?'  Appleby and McGreevy say NO:

Must Muslims unequivocally reject all forms of terrorism—especially those Muslims who wish to promote full Muslim participation in American society? Of course. But if the Catholic experience in the United States holds any lesson it is that becoming American also means asserting one’s constitutional rights, fully and forcefully, even if that assertion is occasionally taken to be insulting. The genius of the American experiment in religious liberty is precisely this long-term confidence that equal rights for all religious groups builds the loyalty every democratic society needs. Certainly American Catholics learned that lesson long ago.

h/t Religiousleftlaw.com