Monthly Archives: December 2007

Judicial Nominations: President, Senate Must Reach Consensus on Potential Nominees

The Washington Post wrote another editorial concerning judicial nominations.

The reasoning of the editorial board of the Post is regardless how a nomination is decided, once a name is submitted, the process should go forward (presumably towards confirming the nominee).

I reject this reasoning. If the Presidential nominee selection process is flawed, yet the President still submits a nominee to the Senate, then the nomination process in the Senate should not start at all.

The people of the United States must always remember that judges have lifetime terms. Thus, the Senate has an obligation to consider carefully every judicial nomination. This includes the decision to refuse to consider Presidential judicial nominees.

The Post’s editorial summarized the circumstances surrounding President Bush’s Fourth Circuit nominees for Virginia and Maryland.


Senators John Warner (R) and Jim Webb (D) evaluated nominees and presented President Bush with five people that they would both support for nomination to the Fourth Circuit (for the Virginia seat). President Bush nominated Richmond lawyer E. Duncan Getchell Jr., who was not on their list. This decision did not please the Senators from Virginia. [Note: Mr. Getchell was on the list of Senators John Warner (R) and former Senator George Allen (R). According to the Virginian Pilot, since Allen lost to Webb, Getchell's name was removed from the list.]

The Post’s editorial board wisely stated that the Senate would not give the nominees a confirmation hearing.


I wrote about the nomination of Rod Rosenstein in this post. In summary, President Bush nominated Rod Rosenstein, U.S. Attorney for Maryland, for a judicial post on the Fourth Circuit, despite the objections of Maryland’s Senators.

For a smooth judicial nomination process consensus between the President and the Senate must occur before the President submits a nominee to the Senate.

Moreover, I do not consider it a priority to fill the five vacancies. Ten of fifteen seats (66%) are filled, balanced between Democratic and Republican appointees.

There is no need to upset the balance, especially since President Bush is entering his final year in office.

Ward Connerly: Suspicious Use of Deep South to Justify Injustice

I have noticed a pattern in Ward Connerly’s experience of discrimination. Distressingly, Connerly uses terms connected with the continuing Black struggle for true equality in his arguments. But his true intention is to remove the context of words so that he can use the terms to defend the status quo–retention of majority (White) institutional hegemony.

However, his arguments contradict the experience of Blacks who suffered and continue to suffer rampant anti-Black discrimination. It is irrational to assert that the experience of anti-Black discrimination leads the sufferer to support anti-Black legislation. Yet that is what Connerly is doing.

I will analyze a paragraph of Connerly’s letter to Gov. Jennifer Granholm during the time Proposal 2 was on the ballot to demonstrate my point.

I was born in the Deep South, at a time when racial discrimination was rampant. I know first-hand the meaning of the term “racial discrimination.” I doubt that you can say the same. Your knowledge about discrimination was probably gleaned from history books. In days of my youth, as a brown-skinned man, I rarely heard the term, “diversity.” But, I sure as hell heard and experienced “discrimination.” And, I can tell you that the pursuit of diversity should never be an excuse for our government to sanction or practice discrimination based on an individual’s race, color, gender, ethnicity or national ancestry. That principle should be guaranteed to Jennifer Gratz, a white woman, equally as it is guaranteed to me, a black man. One should not have to be an “outsider from California” to convince you of the importance of the fundamental principle of equal treatment before the law without regard to the color of a person’s skin. This principle is deeply etched in the character of most Americans. Had you been born in America, perhaps you would have a better appreciation of this fact.

In the red sentence, Connerly begins by stating that he experienced racial discrimination in the Deep South (he was born in Louisiana). His use of the term Deep South suggests that only the South was against Black people. However, the practice of anti-Black discrimination was and is practiced nationwide.

Another error in the red sentence is that Connerly suggests that only Black people can know what racial discrimination is. Any human can understand the wrongness of preventing a person from participating in social institutions merely on account of a person’s skin color.

Regarding the dark blue sentence, diversity–the practice of seeking the inclusion of Blacks in societal institutions–is not discrimination against Whites. Watch that Connerly now mentions discrimination in general and not as anti-Black discrimination.

With the removal of the context of the word discrimination, Connerly implicitly argues that the inclusion of Black people in societal institutions (as a remedy for past exclusion of Blacks) is as discriminatory against Whites as Jim Crow (the target of the 1964 Civil Rights Act) was against Blacks. This could only be true if the races had equal numbers of people in the population of the United States. This is not the case as Whites outnumber Black people 6 to 1.

United States (population: 281,421,906 (2000 Census)

Race Percentage of population Number
White 75.1% 211,460,626
Black 12.3 34,658,190
Native American 0.9 2,475,956
Asian 3.6 10,242,998


In the green sentence, Connerly’s claim of equality between Blacks and Whites sounds good in theory but it does not exist in reality. The fact is that Jennifer Gratz is White in a 80.2% White state (Michigan). She never experienced societal exclusion based on her White skin. Every part of Michigan’s societal institutions are dominated by White people.

However, Black people, who are a distinct social minority, need assurances that Black people can participate fully in societal institutions.

Connerly’s persistent reference to Granholm’s birth in Canada was insulting and irrelevant. Connerly was born in the United States but he fails to comprehend the ill effects of anti-Black discrimination in the United States.

In addition, in an interview with the Dartmouth Review, Connerly uses a similar story to justify his ballot initiative drive (similar to Michigan’s Proposal 2) in five states (note: for my posts on this issue, click the Ward Connerly category tag in the right column).

I was born in the Deep South in Louisiana in 1939, and I have seen and experienced racial discrimination in my lifetime. I think it is wrong, and that it denies our country the greatest potential from every person. When I was serving on the Board of Regents of the University of California, it was déjà vu all over again because I saw the discrimination that was visited upon Asian students at Berkeley and UCLA. As the number of Asians, the Chinese and Japanese at Berkeley especially, began to increase, the administration expressed its concern that Berkeley would become “Asian” and all that. My own view is that, I don’t care if an Asian takes every seat if he or she earned the right to be there, and so I moved to get rid of racial discrimination and preferential treatment in the UC System. One thing led to another, and so I expanded to California’s Proposition 209 and before Iknew it, I had a second activity in my life that concerned me. I really believe that everybody is entitled to be treated equally under the law by any government agency in the state. You and I don’t have a choice about whether or not we belong to the government. We’re required to pay our taxes and to be members of society, to support the government. Therefore, the government should not pick and choose who among us gets favored treatment. And all my initiatives that I’ve supported have been confined to the public sector, to the government. I don’t think private entities should discriminate, but that’s their business. But the government certainly should not.

The structure of Connerly’s response in the Dartmouth Review is the same as Connerly’s response to Granholm. It starts with Connerly’s reference to the Deep South. Then, Connerly discovers a mission to save another group from perceived discrimination. Finally, Connerly insists on his belief in equality (in spite of the reality of an overwhelmingly White population in California).

California (population: 33,871,648 (2000 Census) [NOTE: high number of “some other race”])


Percentage of population








Native American







In order to place Connerly’s statements in the green portion in context, consider Justice John Marshall Harlan’s dissent, in Plessy v. Ferguson, 163 U.S. 537 (1896). Harlan explained that Whites believed in White supremacy, but the Constitution prohibited the law from enforcing it and, most significantly, from protecting Blacks from the effects of White supremacy doctrines. (Note: this point is covered in this post.)

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.

The reader should realize Connerly’s unseemly tactics in his mentioning of the Deep South to justify the imposition of ballot initiatives that inhibit the fight against anti-Black discrimination.

Related link

For discussion of the opinions of Ward Connerly’s family (dissenting from his views), see the 1997 New York Times article, “Questions of race run deep for foe of preferences.”

Fed. Govt: Senate Confirms Nomination of Julie Myers as Asst. Sec’y of Homeland Security

The Senate, by unanimous consent motion, confirmed the nomination of Julie Myers to be Assistant Secretary of Homeland Security (Immigration and Customs Enforcement).

Note: For a post about Julie Myers and her interaction with an employee in a Halloween blackface costume, click on the DC tag category in the right column.

U.S. Judiciary: House Passes Consolidated Appropriations Bill; Bill Includes 2008 COLA for Judges

[Update 12/19/07: The Senate has also approved H.R. 2764. Click here for the roll call vote.]

The U.S. House of Representatives passed its consolidated appropriations bill (H.R. 2764). Included in the measure is a cost of living adjustment for Justices and Judges in 2008.

SEC. 305. Pursuant to section 140 of Public Law 97-92, and from funds appropriated in this Act, Justices and judges of the United States are authorized during fiscal
year 2008, to receive a salary adjustment in accordance with 28 U.S.C. 461.

There is no provision for a judicial base pay increase (there is no language from H.R.3753 or S.1638). [Note: See my previous post for more information on these bills.]

ACRI Ballot Initiative (Oklahoma): Editorial Opposes Ballot Initiative for Public Employment

An editorial in the Muskogee Phoenix opposes the ballot initiative proposal from the American Civil Rights Institute (ACRI).

The editorial explains that the state government employees should reflect the population of the state.

Public employment should be balanced, and the balance should reflect the greater community at large. That balance always has been attained best by legal protections, and there is no reason to remove those programs in this state.

The editorial also states that public contracts should not be subject to affirmative action but given to those who provide the best service at the best price.

ACRI Ballot Initiative (Oklahoma): Initiative Supporters Submit 145,000 Signatures to the OK Secretary of State

According to the Tulsa World, the American Civil Rights Institute (ACRI), Oklahoma branch (OKCRI) submitted 145,000 signatures to the Oklahoma Secretary of State’s office.

The Tulsa World explained that initiative supporters need to collect 138,970 signatures for the initiative process to continue.

Should OKCRI collect enough signatures, there is a protest period before the Oklahoma Supreme Court, the Tulsa World reported.

U.S. Judiciary: Congress Must Maintain Its Power Over Judicial Pay Increases


I disagree with the editorial of The Washington Post concerning federal judicial pay. The bill being considered in the House of Representatives, in particular, contains an unjustified squandering of Congressional power over the federal treasury.

I feel the Congress must jealously guard its power of the purse (U.S. Constitution, Article I, section 8). There are two bills being considered in the Congress: one in the House or Representatives (H.R. 3753) and the other in the Senate (S.1638). Both bills propose a substantial increase in judicial pay.

However, H.R. 3753, section 4, proposes to repeal the law requiring a specific authorization from Congress to increase judicial pay (Public Law 97-92, section 140). [Note: For more information on P.L. 97-92 and other laws regarding judicial pay, see a Congressional Research Service report on the issue.]

Federal judges must not compare their salaries with highly paid corporate lawyers. The fact is relatively few lawyers earn that income. The Empirical Legal Studies blog explains this point for the Juris Doctor class of 2006.

The sample includes–in order of size–private practice (55.8%), business (14.2%), government (10.6%), judicial clerks (9.6%), public interest (5.4%), and other (2.8%). Half of the graduates make less than the $62,000 per year median–but remarkably, there is no clustering there. Over a quarter (27.5%) make between $40k-$55k per year, and another quarter (27.8%) have an annual salary of $100K plus.



If the chart were a flipbook of the last twenty years, the first mode would be relatively stationary, barely tracking inflation, while the second mode would be moving quickly to the right–i.e., the salary wars. In fact, because of the recent jump to $160K in the major markets, the second mode has already moved even more to the right.

Moreover, highly paid corporate lawyers must be on call 24 hours a day to attend to the needs of their clients. Judges have the power to set their own schedule. Furthermore, as I wrote in a previous post,

Judge Richard Posner of the Seventh Circuit Court of Appeals argued that a salary increase for judges is not necessary as other perquisites are not included in the base salary (the value of the federal pension, health insurance benefits, ability to earn outside income).

Given the distribution of salaries provided by the Empirical Legal Studies blog, contrary to the argument of Chief Justice John Roberts, many good judges can come from lawyers who are not paid extraordinarily large salaries.

While both bills being considered in Congress are unacceptably expensive, the House bill unjustifiably cedes its power over the spending of federal taxpayer-provided funds.

Condoleezza Rice: Questionable Use of Birmingham Story


The Washington Post had a story about how the Israeli foreign minister felt insulted about not being recognized by foreign ministers from other Middle Eastern countries (that do not have diplomatic relations with Israel).

What caught my attention is where the Secretary of State, Condoleezza Rice, made a comment that her experience with the Birmingham church bombing helped her to understand the feelings of the Palestinians and the Israelis.

Rice began by saying she did not want to draw historical parallels or be too self-reflective, but as a young girl she grew up in Birmingham, Ala., “at a time of separation and tension.”


She noted that a local church was bombed by white separatists, killing four girls, including a classmate of hers.”


Like the Israelis, I know what it is like to go to sleep at night, not knowing if you will be bombed, of being afraid to be in your own neighborhood, of being afraid to go to your church,” she said.


But, she added, as a black child in the South, being told she could not use certain water fountains or eat in certain restaurants, she also understood the feelings and emotions of the Palestinians.”


I know what it is like to hear to that you cannot go on a road or through a checkpoint because you are Palestinian,” she said. “I understand the feeling of humiliation and powerlessness.”


“There is pain on both sides,” Rice concluded. “This has gone on too long.”

When I read and thought about this quote, I did not feel comfortable with Secretary Rice’s statement concerning the Birmingham church bombing. Surely, what occurred with the Birmingham church bombing was horrible (understatement). But I feel that a witness to such inhumanity would have a mission to seek social justice (particularly for Blacks in the United States, given that it was a Black church that was bombed).

The problem with Secretary Rice’s statement is not that she used the imagery of the Birmingham church bombing with respect to the Palestinian struggle for a state of their own. Rather, it is the use of the horrible event in Birmingham to justify inaction. Her words did not put the parties on the road to peace nor to a final peace agreement.

As a result, her use of Birmingham is a gratuitous abuse of history as a mere talking point. Other writers have noticed this (here, here, and here).

I did some research on Secretary Rice’s use of the Birmingham story. Throughout, I noticed that her use of Birmingham was consistently questionable. In essence, the Birmingham experience did not serve as a spur for peace, but rather bellicosity (more human suffering, ironically with bombs).

In the Telegraph (a United Kingdom newspaper):

Miss Rice rarely plays on her upbringing in Birmingham, Alabama – a hotbed of racial strife in the Sixties, culminating in the fatal bombing of a black church. However, addressing the National Association of Black Journalists in Dallas, she used that personal history to issue a direct challenge to all those critical of the Bush administration’s ambitions in Iraq and beyond.


“Like many of you, I grew up around the home-grown terrorism of the 1960s. I remember the bombing of the church in Birmingham in 1963, because one of the little girls that died was a friend of mine,” she said.


Black Americans should stand by others seeking freedom today, she went on, and shun the “condescending” argument that some races or nations were not interested in or ready for Western freedoms.


“We’ve heard that argument before. And we, more than any, as a people, should be ready to reject it,” she said. “That view was wrong in 1963 in Birmingham and it is wrong in 2003 in Baghdad and in the rest of the Middle East.”

Dr. Rice’s opening statement at her confirmation hearing:

Four years ago, Secretary Powell addressed this committee for the same purpose I do now. Then as now, it was the same week that America celebrates the life and legacy of Doctor Martin Luther King, Jr. It is a time to reflect on the legacy of that great man, on the sacrifices he made, on the courage of the people he led, and on the progress our nation has made in the decades since. I am especially indebted to those who fought and sacrificed in the Civil Rights movement so that I could be here today.


For me, this is a time to remember other heroes as well. I grew up in Birmingham, Alabama — the old Birmingham of Bull Connor, church bombings, and voter intimidation — the Birmingham where Dr. King was thrown in jail for demonstrating without a permit. Yet there was another Birmingham, the city where my parents — John and Angelena Rice — and their friends built a thriving community in the midst of the most terrible segregation in the country. It would have been so easy for them to give in to despair, and to send that message of hopelessness to their children. But they refused to allow the limits and injustices of their time to limit our horizons. My friends and I were raised to believe that we could do or become anything — that the only limits to our aspirations came from within. We were taught not to listen to those who said to us, “No, you can’t.”


The story of Birmingham’s parents and teachers and children is a story of the triumph of universal values over adversity. And those values — a belief in democracy, and liberty, and the dignity of every life, and the rights of every individual — unite Americans of all backgrounds, all faiths, and all colors. They provide us a common cause in all times, a rallying point in difficult times, and a source of hope to men and women across the globe who cherish freedom and work to advance freedom’s cause. And in these extraordinary times, it is the duty of all of us — legislators, diplomats, civil servants, and citizens — to uphold and advance the values that are the core of the American identity, and that have lifted the lives of millions around the world.


One of history’s clearest lessons is that America is safer, and the world is more secure, whenever and wherever freedom prevails. It is neither an accident nor a coincidence that the greatest threats of the last century emerged from totalitarian movements. Fascism and Communism differed in many ways, but they shared an implacable hatred of freedom, a fanatical assurance that their way was the only way, and a supreme confidence that history was on their side.

This use of the terrible tragedy of discrimination against Blacks is deplorable. Readers should be aware of Secretary Rice’s tactic.

DCPS: Chancellor Rhee, Mayor Fenty May Be Following a Consultant’s Plan


According to The Washington Post , there was a rally by parents of District of Columbia Public Schools (DCPS) students against Mayor Adrian Fenty’s and Chancellor Michelle Rhee’s plan to close schools and convert central office employees to at-will status. There was an interesting quote in the article:

Jeff Smith, executive director of D.C. Voice, questioned the sincerity of the administration’s interest in what parents say.”Instead, people will think that they’re just really looking for approval of a predetermined plan,” Smith said.

Mayor Fenty hired the consulting firm of Alvarez and Marsal to review the finances of DCPS. The managing director of Alvarez and Marsal, William Roberti, ran St. Louis Public Schools for a year.

It was billed as the next big idea in education, a way forward for struggling school systems everywhere. Plagued by falling enrollment and dismal test scores, the St. Louis school district hired a big-name New York bankruptcy firm to turn things around for a one-time fee of $5 million.


During his 13 months as superintendent of St. Louis public schools, former Brooks Brothers chief executive William V. Roberti closed 21 schools, lopped $79 million off the school budget, privatized many school services and laid off more than 1,000 employees. He stepped down in June at the end of his contract, proclaiming that the district had made “tremendous strides” toward putting its affairs in order, reversing decades of financial mismanagement.

The result of Alvarez and Marsal’s work were that administrators were hired for six figure salaries, while teachers in the classroom did not receive a raise, and parents were upset about school closures.

Three months into a new school year, many teachers, parents and students in St. Louis were asking what they have gained from the whirlwind unleashed by the gruff, straight-talking retail executive. Student enrollment continues to decline, teachers complain about poor morale and low pay, parents are unhappy about school closures, and voters are up in arms about high salaries paid to top administrators.

In DC, where Alvarez and Marsal is working, Rhee has also hired high salaried administrators causing an increase of a deficit in the DCPS’s budget.

[Pamela] Graham [DCPS Chief Financial Officer] attributed some of the deficit to what she called Rhee’s improper hiring and promotion of 132 employees. “The practice of overriding process and procedure in hiring new employees must not continue,” Graham wrote in the Nov. 21 memo.

There are other similarities. Roberti in St. Louis, found unused supplies in warehouses and a worse deficit than expected among other events.

Rhee has also found supplies in a warehouse (see also a Washington Post article on this point).

JOHN MERROW: When teachers complained about not receiving textbooks on time, she paid a visit to the central warehouse.


MICHELLE RHEE: By the time I got onto the second floor, I thought I was going to throw up. I actually felt nauseous because of what I was seeing. It was boxes and boxes of glue and scissors and composition books, binders, boxes of unopened trade books, class sets of novels, things that teachers not only are dying for but spend their own money on.

DCPS could also be facing a worsening financial condition.

In October, Fenty and Rhee asked the council to approve a one-time expenditure of $81 million to cover a projected $35 million shortfall and the cost of restructuring the central office.


Yesterday, Rhee told council members that she had not informed them that the shortfall had increased by $66 million because she does not agree with Graham’s analysis and wanted to meet with her before giving the information to the council. “We don’t believe that a lot of that information was accurate,” she said.

Because DC has hired Alvarez and Marsal, it is possible that Fenty is implementing Alvarez and Marsal’s plan (possibly adapted from its St. Louis experience).

This could explain Rhee’s and Fenty’s decisions without consulting parents or the DC Council. For example,  Fenty’s plan to close 24 schools (there was a heated meeting in Ward 5 over the plan).

Also, it could explain the news making breakfast meeting between Fenty and the DC Council. Here is one exchange between Council Member Jim Graham and Mayor Fenty.

Graham explained that he thought a Ward Council Member should be part of any decision made on school closing in their Ward. “I thought I’d have a bigger role,” he said to Fenty.


Fenty was quick to respond. He leaned across the table and stretched his arm toward Graham and told him that Council Members don’t dictate police deployment, “But that hasn’t stopped you from sending hundreds of emails, calling assistant police chiefs, calling me, to get more cops in your Ward. I suggest you put the same energy in to the schools.


It was the most forceful Fenty had been. He didn’t raise his voice, but he made a point that resonated with everyone in that room. It was a moment, that defined the change of temperature in the room. And it as about to get a lot hotter.


As Graham recoiled back in his seat, he fired off one last shot across the bow.” Don’t plan on selling any buildings…” Before he could even finish his thought, much less his sentence, Fenty said in a firm tone, “Let’s not start threatening people, I don’t think you want to threaten me.”


At that point every council member began talking, asking for clarification of what Graham had said. Voices were raised by several council members “That came out wrong,” one of them said.


Then Graham rose from his seat, walked over to Fenty and whispered something in his ear, then returned to his seat.

The possible implentation of a consultant’s plan should be monitored. Apparently, the employee unions may already be aware of the possibility.

“Have you heard? Reform of D.C. public schools has been hijacked. Mayor Fenty and his posse of consultants and contractors have hijacked the reform process,” a female narrator says in the ad.

Related links:

For more information about William Roberti’s (of Alvarez and Marsal) work for St. Louis’s public schools, see the following: Demolition Man and Trouble with the New Math.

DC considered Alvarez and Marsal in 2004. See the article, Can D.C.’s Search Make the Grade? A quote from the column that could provide information about Chancellor Rhee’s and Mayor Fenty’s method of making decisions.

As it happens, one of the men who turned Washington down, Carl Cohn, described in detail what he thinks needs to be done. Cohn told The Washington Post, “It has to be made clear to everyone that this is about the kids. Then you bring in a take-no-prisoners company that addresses the fundamental issues of operation, of people not doing their jobs.”

On this point, see an article at Education Week for a critique of Chancellor Rhee.

DCPS: Michelle Rhee’s Best Interest of the Students Policy

According to the Washington City Paper, Michelle Rhee is making policies with the goal of being for the students.

At a D.C. Council hearing on Nov. 2, Rhee said this to councilmembers: “I am convinced that we must not let the rights, privileges, and priorities of adults to take precedence over what is in the best interests of students. We cannot allow children to languish while we try to remediate adults. We cannot forsake their futures for adult issues in the present.”

This week, Rhee offered the following reason for proposing the closure of several schools.

“Currently, we are not affording our students quality programs they deserve,” Rhee said. “We must provide initiatives and school programs that not only serve kids well but also appeal to parents. With this initiative, we believe, we’ve laid out a plan that will achieve the highest level of academic performance for students. In order to do this, we must move toward a more effective use of our resources.”

For one parent, the initial reaction to Rhee’s closure proposal was shock:

But parents and students who might be affected by the closures focused yesterday on what the changes would mean for them.

Jill Weiler, who advocates for parents at Bruce-Monroe Elementary as a member of the community group Telling Stories Project, said parents at the Ward 1 school were shocked that the mayor apparently reneged on an agreement not to close the school. She said the mayor spoke to parents this summer.

“He said it’s a new day in D.C. We have a partnership; we make decisions together. . . . It was such a celebratory night,” she said.

Now, Weiler said, parents “feel terribly disappointed, discouraged and betrayed.”