Thursday, April 25, 2013

Sheryl Sandberg and Marissa Mayer: Class and the New Anti-Feminism

Perhaps just as the glass ceiling is being broken, women are yet again being blamed for their failure to succeed.  Or so it seems according to Sheryl Sandberg and  Marissa Mayer.
    Facebook COO Sheryl Sandberg’s book Lean In  is a NY Times bestseller. In it she contends that women fail to succeed because they lean back.   Specifically, they refuse to make their voice heard in business or make men take on equal shares of domestic tasks at home.  She recommends instead leaning in, speaking up, and simply asking for what one wants.  If only it were so easy.
    Sandberg’s book has been hailed by many as the new voice of feminism, advice from a smart successful, and rich woman who became one of the very few women to make it to the upper ranks of corporate America.  Yet her story is not that of a typical American woman.  It is the story of the  power and privilege of being born white and to the right parents.
    Sandberg is the daughter of privileged background.  Her father was an ophthalmologist, and her mother had a Ph.D.   Ms. Sandberg went to Harvard, secured her connections, and was successful in taking advantage of them.  No one denies she is smart, hardworking, and deserves all that she has earned.  But she got off to a start in life that only a few women–little alone men–enjoy, and is now in a position that few individuals are in now.  By the time she writes Lean In Sandberg has already succeeded, a billionaire and the head of a company.  It is a wonderful story and when she offers advice on how other women can succeed she seems to ignore the structural forces that many women still face.
    Conversely, Yahoo’s Marissa Meyer has taken a tough it out strategy when it comes to women.  She axed the work-from-home policy at Yahoo.   In an effort to revitalize the company she demanded everyone come to work.  Work-at-home policies have clearly helped women navigate child rearing and work.  But Meyer seems clueless about the problems working women face.  After she gave birth she remarked: “ Having a baby Is easier than I thought.”  Of  course it was.  She had a nursery built at work for her newborn and she did not have to worry about paying for child care.
    There is a reason why corporate America loves Sandberg’s book and Meyer–they take the heat off of them.  It is not the fault of corporate America that women are trapped by the glass ceiling or do not succeed.  It is because they fail to lean in.  It is not the fault of men for refusing to do their fair share of domestic work.  It is the fault of women for not asking.
    Sandberg and Meyer live in a reality different from most women.   They are not single divorced  moms living on a shoestring.  They did not grow up poor, Black, or Hispanic. They were not (as far as we know) victims of domestic abuse and they did drop out of college because they lacked money.  Their biographies are very different from most women.
    White women on average still earn approximately 77 cents on the dollar compared to men.  African-American women earn 64 cents, Hispanic 56 cents. Studies suggest that up to one-half of all women have faced sexual harassment at work, with about 95%+ of all sexual harassment victims being women.  In 2009 the median family income for a male-headed household was $48,000, for women it was $32,000.  Women of color again fare worse. Women  are more likely to be in poverty than men.  Women are far more likely to be victims of domestic abuse than men.  They come out economically worse after divorce than men (who generally come out economically better).   In college sports, universities continue to drag their feet in providing equal funding for women’s sports.
    Overall, 50 years after passage of the Equal Pay Act, nearly 50 years since the 1964 Civil Rights Act, and slightly more than 40 years after Title IX Education Amendments, women still significant  discrimination at work, home, and school.  This is the reality of the world most women live in, not the one that Sandberg and Meyer occupy.  But to listen to them it is the fault of women that they have not individually succeeded, ignoring the collective discrimination and barriers to success females continue to face.
    The feminism of Sandberg and Meyer is that of rich white women.  It is a view of the world  that forgets the experiences of most women, but it is mostly a view that is cloaked in class biases.  However, this would not be the first time individuals–male or female–have climbed to the top and forgot those  at the bottom.  It would also not be the first time those who have succeeded think that if they can do it why cannot the rest.  While no one doubts the accomplishments of Sandberg and Meyer, one  really needs to ask if they provide a guidance for success that most women can emulate.
.The point here is that neither Sandberg nor Meyer are typical of the average woman in America.  Their story is one of power and privilege.  They are rich enough now to have overcome the problems that most women face in their daily lives.

Sunday, April 21, 2013

Miranda Warnings and the Boston Marathon Bomber: Why Obama is Wrong

The decision by the FBI not to read Dzhokhar A. Tsarnaev, the accused Boston Marathon bomber, his Miranda rights is wrong on at least two counts. The first is from a perspective of the law, the other by way of a broader principle regarding the rights of individuals in a democracy.

The Supreme Court ruled in Miranda v. Arizona that the police must advise individuals of their rights at that time they are taken into custodial arrest.  In effect, at the time they are detained and when police questioning turns from general information gathering of an individual to accusatorial interrogation, that is when the Miranda warnings must be given.  The warnings are a product of the Fifth Amendment right against self-incrimination.

In  New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court created a narrow exception to the Miranda warning requirement.  That case involved a situation where police chased a suspect into a store.  They apprehended and searched him, and then found an empty holster.  They suspected he had ditched a gun.  Before giving him his Miranda warnings they asked him where the gun was, he told him, and then they gave him his rights.  The Supreme Court upheld this as valid.  They ruled that police could question a suspect to address imminent threat to the safety of public or officer.  Once that threat was abated, then the police would need to offer Miranda warnings.  The public safety rule is not blanket exception to obtain evidence or testimonial information that may be used against individuals to convict them.

With Dzhokhar A. Tsarnaev, the police were within the Constitution not to read him his rights when they first apprehended him.  They needed to determine if he had bomb or other weapons that could threaten police or public safety.  Once that threat was addressed t hey should have Mirandized him.  It would have taken a few seconds and no harm would have followed form doing that.

There is little evidence that Mirandizing someone really hurts a police case, but not doing so can be significant.  In general information gathered in violation of the Miranda requirement cannot be used in Court to convict a person.  Thus, potentially information that the police gather on Dzhokhar A. Tsarnaev might not be allowed in court to prosecute him.  A review of post-Quarles cases does not make it clear what the public safety exception will allow in.

But would it not be better not to take a chance.  Why risk prosecution by not giving him his rights?  Depending on what he is charged with and what evidence there is, this decision could be legally damaging to the government’s case.

The second reason why not Mirandizing Tsarnaev is wrong more about the broader concept of democracy and human rights in a free society.  After 9/11 the Bush Administration invoked questionable legal doctrines about the rights of the president and the government to bypass the Constitution and international rights in the apprehending, detaining, and prosecution of suspected terrorists.  They concocted questionable theories about torture and tried to offshore illegal activities to places like Gitmo in Cuba.  (I have written extensively about this issue in my two articles “Defending American Presidential Authority in a Post 9-11 World: Examining the Justice Department Memoranda.”  Democracy and Society Volume 5, Issue 2 (May 2008) and “Democracy on Trial:  Terrorism, Crime, and National Security Policy in a Post 9-11 World,”38 Golden Gate Law Review, 195 (2008).)

For the most part, the Supreme Court rejected the Bush Administration’s questionable legal theories. In a series of cases most notably including  Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court ruled that all individuals–not just American citizens–held within US territories, must receive the protection for their rights that the Constitution demands.  Yet despite these rulings, both Bush and now Obama have continued to press these flawed legal theories.  Most recently, the Obama Administration pressed the case to support Drone warfare, and now this use of the public safety exception with  Tsarnaev.

Presidents do not have extra-constitutional power.  Respect for our constitutional rights is not something we do when it is just convenient.  It is something that is required of a democratic free society.  It is what separates the US from non-democratic countries.  Tsarnaev is a US citizen arrested and accused of crimes in this country. There is no reason to exempt him from the Constitution.  In a free society the government carries the burden to prove guilt and it is required to play by the rules.  The rule should apply here to.

Thursday, April 18, 2013

The Lessons of Gun Control: It’s Congress Versus the People

Should president Obama have been surprised that the Senate rejected almost all of the gun measures despite the fact that large majorities supported some of the ideas, such as universal background checks?   Not really.  In part rejection of the gun control measures speak to the power of money in politics or  the power of a well organized group to act more effectively than unorganized public opinion.  But more specifically, the gun measure speaks to a broader and more serious problem in Washington–how  Congress has become a counter-majoritarian institution and is now functioning in ways contrary to what and how the Constitutional Framers envisioned the government to operate.

Political scientist Robert Dahl writes in A Preface to Democratic Theory how the fear of majority faction or the tyranny of the majority dominated the concerns of the constitutional framers. According to Madison in Federalist # 10, a faction was:  "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 

Factions threatened the public good and the rights of minorities.  Madison thought that minority factions–a group of people composing of less than a majority–could be controlled simply by the majority outvoting them.  The real problem was majority faction-the problem of the tyranny of the majority according to Alexis deTocqueville–or balancing majority rule with minority rights, that was the object of constitutional design.  The framers feared how a majority could capture hold of the American political system and use it to threat the public good or rights of others.  The constitutional solution was to break up political power and slow down the winds of political change.  Make it difficult to bring about quick political change.

To accomplish that, the Constitution devised  numerous mechanisms to break up political power.  We know these techniques–checks and balances, separation of powers, bicameralism, and federalism.  These are just the most famous of the institutional mechanisms to thwart majority rule.  But add to add two years terms for the House of Representatives, six year terms for the Senate (with no more than one-third elected every two years), and a four year term for the president and one can see how difficult it is to bring about rapid change in any election.

This is a brilliant design but somewhere along the ay Madison missed something–the power of minority factions.  He ignored or underrated how powerful a small, cohesive group could be, especially if it possessed significant resources.  In effect, a minority faction could effectively capture the government, turning it into a counter-majoritarian institution.  This is exactly what is happening now with Congress.

Public opinion polls demonstrate majority support for universal background checks for guns purchases, higher taxes on the wealthy as part of a deficit reduction solution, and same-sex marriage.  Yet despite this support on these and other issues, Congress, especially the House of Representatives, seems unwilling to act.   All this points to Congress’s counter-majoritarianism,
What is meant by counter-majoritarian? The term goes back to Alexander Bickel. A famous legal scholar from the 1950s and author of  The Least Dangerous Branch (1962).  Bickel’s book was written in reaction to the Earl Warren Supreme Court.  He was witnessing a Court that seemed willing to issue opinions that overturned acts of Congress and state legislatures, ignoring the preferences of the will of the majority in an effort to protect minority rights.  Bickel described this activity as counter-majoritarian.

Over the years Republicans and conservatives took Bickel’s comments as an indictment of judicial activism.  They loathed how the judiciary intervened in matters such as abortion, integration, and criminal due process issues such as the Miranda warnings, search and seizure, and the death penalty. The courts should stay out of what is rightly the task of elections, Congress, and the president to address.

The irony now seems to be a role reversal where Congress has become the counter-majoritarian institution and the Supreme Court the majoritarian one.  Look to the two same-sex marriage cases recently before the Supreme Court.  Despite public opinion now favoring same-sex marriage, the laws of Congress stand in the way.  The Defense of Marriage Act, as several Justices pointed out, is preventing states from changing their laws to reflect new societal conceptions of marriage.  The oral arguments in this and in the California Prop 8 case demonstrated a Court hoping that the political process would act (so that it would not have to) while at the same time recognizing that the majority process–in the case of California a ballot initiative–had broken down and the judiciary needed to act to get it working again.

But it is not simply the matter of same-sex marriage that it highlighting the role reversal for Congress and the Supreme Court.  What is really clear is how Congress was designed to be counter-majoritarian and it had become more so over time.
But when Congress is faulted but not reflecting public opinion or what the majority of people want in the United States, the answer is that as an institution it is not a national legislature.  The House represents 435 separate localities across the country, the Senate 50.  Congress is not reflective of national opinion because it is basically a parochial body. If this parochialism is not counter-majoritarianism, it is at least indifferent to national majority preferences.  The best sign of that in 2012 1.4 million more votes were cast for Democratic House candidates than Republican candidates.  Majority rule did not prevail.

But there are many other ways that Congress is counter-majoritarian.  The Senate filibuster allows 41 senators representing as few as 15% of the population to prevent legislation or nominations from being considered.  Individual senators can place holds on some legislation or “blue slip” judicial nominations in their home state.  In the House a single committee can block the entire body form considering legislation, and it is rare that a discharge petition is successful to force bills from committee to the floor.  Partisanship, polarization, and the pull of special interests have only exacerbated these counter-majoritarian tendencies.

Counter-majoritarian is good when it comes to protecting rights.  But the counter-majoritarianism in Congress goes beyond that. It is preventing the federal government from getting any work down, undermining the very functioning of our democracy.  Barely three months into President Obama second term he already seems like a lame duck, and it appears that time is simply being marked until the 2014 elections.  In the meantime, gun and other legislation languishes and this president, like his predecessors, is increasingly turning to executive orders to bypass Congress.  In the same way that the Supreme Court should not make policy, presidents should not be able to self-legislate.

Congress has become an anti-democratic institution incapable of functioning expect in rare circumstances.  It now stands as an impediment to progress and change.  Its anti-majoritarianism has cost it prestige, power, and legitimacy.  It is no wonder that the approval rating for cockroaches is higher than that for Congress.

Monday, April 15, 2013

Liberalism in Retreat--The Conservatism of Barack Obama

It may very well be that the legacy of Barack Obama is that he will destroy whatever is left of the liberalism of the Democratic Party.  At least this is the conclusion one can reach given his recent budget proposals and his continued advocacy for the use of drone warfare.  In so many ways, Obama looks even more conservative than his adversaries on the right.

By now it is common place to assert that the Democrats are the party of liberalism.  It is the party of FDR and JFK, of the New Deal and the Great Society, civil rights and taxes, abortion and gay rights, for the rights of the accused and against guns. This is the party that first Richard Nixon and then Ronald Reagan stereotyped and successfully ran against.  These two elections resulted in what was once thought to be a political realignment in American politics as Reagan Democrats and the once solid south moved into the column of the Republican Party. It was barely a generation ago that  critics hailed the demise of the Democrats as too liberal.  Between 1968 and 1988 Democrats won only one presidential contest, they lost control of the Senate in 1980, and they looked doomed.  Throw in the 1994 congressional losses and then again the beatings they took in 2002 and one could  have put RIP next to the Democratic Party.

But along came Bill Clinton.  He along with the Democratic Leadership Council contended that the party had become too liberal and it needed to move to the center.  And it did.  Clinton was a pro-death penalty president who signed DOMA, Don’t Ask, Don’t Tell, welfare reform, and limits on habeas corpus for prisoners.  He dramatically moved the Democrats to the center, as the story goes, and the result was that his party again became more electable.

But politics is not static.  While Democrats moved to the right, the Republicans shifted even further.  First with Bush and then with the TEA Party.  The center of American political gravity on many issues moved rightward.  And so has Barack Obama.

Initially though, Obama had everyone convinced that he was a liberal.  Maybe it was his race, or his appeal to a new generation of voters.  But back in 2008 many thought of him as the liberal candidate in the race, at least compared to Senator Clinton.  But compared to John Edwards and Dennis Kucinich he was a moderate.  That juxtaposition probably helped him in the battle for the Democratic Party nomination, but also his rhetoric at times sound progressive, especially when he talked of health care reform, gay rights, or the rights of workers.  His rhetoric sounded progressive, at least in comparison to the Bush era values as he spoke of closing Gitmo and ending the war in Iraq.  Even his 2009 inaugural speech trumpeted a liberal theme, but sadly the gap between rhetoric and reality grew.

Obama did call for major expansion of health care reform but he rejected calls for the more liberal single payer system that Senator Ted Kennedy and other liberals wanted.  He opted for the Republican solution–Romneycare–the Massachusetts model that the GOP and his 2012 presidential opponent once embraced.  Yes Obama also did end the war in Iraq but he also promised to commit  more troops to Afghanistan–transforming Bush’s war to his.  Additionally, Obama turned his back on many of his supporters.  He never supported the Employee Free Choice Act, a reform sought by labor unions to update the Wagner Act, he did not push for repeal of “Don’t Ask, Don’t Tell until  halfway through his first term, only getting it by capitulating on an extension of the Bush era tax cuts.  His health care reforms capitulated on abortion and reproductive freedoms for women, and he has never really pushed hard on global warming and the environment.  Finally, Obama continued  the Bush era initiatives to bail out the banks but not the home owners and Dodd-Frank, the major financial reform legislation, hardly will change banking behavior and discourage them from more risking lending in future.

One cannot deny that Obama has accomplished a lot and he deserves praise for all of that.  He has faced a hostile Congress, but do not forget that for the first two years he had significant Democratic majorities.  But with those majorities he has infuriated many in his party but a horrible set of negotiating skills.  He seems to give in, not negotiate.

But now there is a second term.  He began his quest by saying he had evolved on gay marriage.  He now supported it–an act of bravery when public opinion had already shifted.  He says he opposes the Defense of Marriage Act (DOMA) and his administration argued against its constitutionality before the Supreme Court, but his administration still enforces the law, prompting Chief Justice Roberts to exclaim that the President should have the courage of his convictions not to enforce the law if he thinks it is unconstitutional.

Obama’s second inaugural and his 2013 State of the Union speeches again sounded liberal.  He hit the themes of gay rights, guns, the environment, and economic justice.  Yet once again the gap between rhetoric and performance is wide.  Obama ended 2012 by securing tax hikes on the top earners and preserving it for the rest.  Yet he let the payroll tax expire, resulting in more of us paying more overall taxes now than before.

Obama continues to pursue economic policies that sound more conservative than liberal. His budget proposals to cut Social Security and Medicare give him little room to negotiate with Republicans.  Given his starting position, all he can do is move further to the right.  Sequestration was partially Obama’s idea and the percentage of government spending going to discretionary programs is lower now than it has been in a generation.  Obama has embraced austerity and deficit reduction as goals, again ideas favored by Republicans.  When push comes to shove, don’t be surprised if Obama endorses the Keystone Pipeline as an important jobs initiative for his administration.

But alas, there may even be one place where Republicans are to the left of Obama–drone warfare.  In a legal analysis as tortured as the memos drafted by the Bush administration, the Obama administration has endorsed presidential power to use drones in warfare, even up to the point of killing American citizens outside the United States.  Such brazen disregard for both domestic and international law must bring a smile to a Dick Cheney (who embraced gay marriage well before Obama).

How anyone can conclude that Obama is a liberal is beyond comprehension.  Nixon was more liberal, as was Eisenhower.  Obama’s liberal legacy is gone and now the question becomes how much of liberalism will he give away in his remaining second term.

Sunday, April 7, 2013

America's Paradoxical Economy

    The economic situation and choices for America are not terrific.  This is clearly the case after the April 2013 unemployment  report indicated only 88,000 new jobs generated last month, coupled with nearly 500,000 individuals leaving the job market.  But the jobs’ numbers only point to one part of the overall American economic paradox.
    One the one hand the stock market is at a record high along with many companies showing record profits.  This should be good news for the economy but not necessarily.  First, the record profits are coming at a time of high unemployment.  Companies are making products or delivering goods and services but they are not hiring workers.  The profits are coming via increased productivity through automation or via flat wages that can be maintained as a result of high unemployment.  In short, companies have failed to hire workers because they are being replaced by machines as in manufacturing, or simply they do not need to increase wages because high unemployment is not pressuring wages up.  Couple that with weak unions and there is no real pressure to increase wages.
    The consequences of a flat labor market mean that there is insufficient consumer demand for significantly more goods and services.  Couple that with still high consumer debt (along with student loan debt) and there are structural limits to how much consumer demand can drive the economy out of a recession.
    Now consider data demonstrating that the economic growth is weak.  The GDP is not expected to grow much in the coming year and the best evidence is that the sequestration will perhaps take approximately .05 off annual GDP growth that is essentially not expected to grow more than about 1-2% this year.  Sequestration will also lead to government layoffs and add to the unemployment program.  What we have here is an economic austerity program similar to Europe that is not a recipe for economic growth.
    Now think about one potential bright spot for the economy–the housing market.  The real estate market appears back with stronger demand and increased prices.  Yet here too there is a problem.  The growth in part is stimulated by record low interest rates that appear to be overheating the market.  There is no question that it is a great time to borrow for housing and there are indications that the low interest rates are encouraging speculative building.  None of this is really good.  Why?  We really do need to increase interest rates to cool down the market otherwise we are headed for another bubble.  The low interest rates fueled the last real estate bubble that burst in 2008.  Moreover, we have done very little since 2008 to reform the real estate and housing markets.   Dodd-Frank, the financial reform law, has done little to change behavior here.
    But if one increases interest rates at the Federal Reserve Board to cool off the housing market then that rate increase could very well hurt the rest of the economy.  Cutting back on economic demand while raising interest rates is a terrific way to throw the economy into a recession.
    Now consider that sequestration is already cutting back on the safety net for the poor and unemployed.  Obama is now talking about agreeing to further cuts in government spending for Social Security and other similar programs.  These cuts too will hurt the most vulnerable and also damage the economy in the sense of cutting back on money that money to consume.
    Finally, think of all those individuals who have left the job market.  They cannot find jobs, perhaps lack the training to find new ones, face job discrimination, and often lack the resources or capacity to borrow for retraining.  We have in these individuals significant underutilization of their skills and talents–letting them go to waste.
    In sum, we have a tremendously paradoxical economy.  It is both overheated and underperforming at the same time.  Tools to fix one part of it may damage the other.  There is no question we need to develop and grow the economy but at the same time we need to attend to the redistributional aspects of an economy that is the most skewed in terms of wealth and income in many generations.  Policies are needed to grow the economy, cool the growing housing bubble, train workers for reemployment, and relieve many from the continued high consumer and other debt that they hold.