Sunday, November 28, 2010

Why Racial Profiling is like Affirmative Action

The Transportation and Security Administration's new video screening and pat-down procedures has given new fuel to advocates of racial profiling at airports around the nation. Opponents of racial profiling argue that treating an individual differently simply because of his or her race is wrong because discrimination, even for noble intentions, is just plain wrong. Let' call this the principle of formal equality.

Oddly enough, this is exactly what opponents of affirmative-action say. They typically argue that some other signifier, for example class, can be a more efficient, and less discriminatory way of achieving similar outcomes if affirmative-action policies were in place.

This argument is analogous to the one offered by those who are against racial profiling. They suggest that some other signifier, for example behavior, can be a more efficient, and less discriminatory way of achieving similar outcomes if racial profiling policies were in place.

It seems, then, that one can either be for race-based profiling and affirmative action, or against both. What is problematic is if one is for one but not the other. My guess is that most liberals are for race-based affirmative action but against racial profiling, and most conservatives are against race-based affirmative action but for racial profiling. Inconsistency?

The problem is harder to resolve for the conservative who is anti-affirmative action but for racial profiling than it is for the liberal who is pro-affirmative action and anti-racial profiling. Here is why. The liberal can restate his or her philosophy as such: discrimination is wrong only when a historically disadvantaged group bears the brunt of a particular policy (as in racial profiling); discrimination is permissible when historically advantaged groups bear the brunt of a particular policy (as in affirmative action). By moving away from formal equality toward a more substantive conception of equality that incorporates the principle of historical remedy, a liberal can remain consistently pro-affirmative action, and still be anti-racial-profiling.

For the conservative who is against race-based affirmative action but for profiling, the problem is stickier. Almost every anti-affirmative action argument I have come across turns on the principle of formal equality: that discrimination on the basis of race is wrong, no matter what the policy intentions may be.

Suppose, in an effort to reconcile an anti-affirmative action and a pro-profiling position, one argued that discrimination on the basis of race is wrong, unless it was done in the name of some higher good, such as national security.

Well, then in protest, the pro-affirmative action liberal will simply substitute "some higher good" with "diversity," and the anti-affirmative action conservative would be forced to accept the plausibility of the liberal's position on affirmative action -- or at least the fact that they share similar argumentative forms with no way to adjudicate between one higher good and another (while retaining his or her pro-profiling stance.) The problem is that to admit of any higher principle other than formal equality (the claim that discrimination on the basis of race for any reason is just flat out wrong) to help distinguish the cases decimates the case against affirmative action that was itself built on formal equality.

Profiling on the basis of race, among other characteristics, such as behavior, is likely to become a de facto, if not a de jure, policy in our nation's airports in the years to come. It is going to inconvenience some innocent people simply because, among other factors, their skin was colored a particular way just as, and the hope is, it will save a lot more innocent people a lot of hassle if everyone were treated equally at airports. If Americans accept this trade-off to be worth it, then perhaps we should also accept the analogous trade off: that as affirmative action on the basis of race, among other characteristics, such as gender, has become law and policy in employment and college admissions, the policy is going to make things harder for some equally qualified people, but it is going to make things easier for a bunch of people who would otherwise have had to endure many obstacles to employment and admission to college.

Sunday, November 21, 2010

Obama Attempting a Reset

For all the talk of a presidential reset button, the truth is that formal, public, dramatic resets don't work. They never have. Not when Nixon fired Joseph Califano, or when Carter fired four of his cabinet secretaries. The American presidency works best when it works silently, and the power exercised is invisible. It doesn't matter which party is in control of the White House; when foreign policy becomes issue number one, the executive becomes branch number one.

Something has crept up on us under an invisibility cloak. It is the new agenda in Washington. How quickly Washington has forgotten about jobs now that the elections are over. (Politicians won't have to pander to voters for another year or so.) Check out any newspaper, or cable channel: the bait and switch from jobs to national security is nothing short of astounding. Washington is abuzz with talk of TSA pat-downs, the NATO summit, North Korea' uranium-enriching facility, and, most prominently, ratification of the new START treaty.

Last April, both President Obama and Russian President Dmitri Medvedev signed the new START treaty, which would replace the 1991 Strategic Arms Reduction Treaty, or START, which expired in December 2009 (and which had been proposed by Ronald Reagan himself.) If ratified, this treaty would be just about the most tangible foreign policy achievement of the Obama administration and this is the ideal reset button if ever there were one.

That is why Obama has put most of his eggs in this basket, using his weekend address to continue the publicity blitz started out by Secretary of State Hillary Clinton and Defense Secretary Robert Gates advocating senate ratification of the treaty. Republican senators say that the treaty would be an obstacle to America's missile defense programs and the modernization of our nuclear weapons. The Obama administration argues that if the US does not sign the treaty, then it would not be able to send inspectors into Russia to verify its nuclear capability; it also argues that failure to ratify the treaty would weaken Russia's resolve to cooperate with the US on dealing with Iran, Afghanistan, and terrorism.

The weight of public and expert opinion is on the administration’s side. Five former secretaries of state, including Colin Powell and Henry Kissinger, and six former secretaries of defense, including William Cohen and James Schlesinger, are already on the record in support of ratification, as is the Chairman of the Joint Chiefs of Staff, Mike Mullen. Democratic senators are hoping to take on vote on the treaty sometime in December, and are still gathering Republicans to make the requisite 67 required for passage. Senator Dick Lugar, the ranking Republican on the Senate Foreign Relations Committee (which has already approved the treaty on a 14-4 bipartisan vote) has come out strongly in support of ratification. His is a critical and respected voice who may well be able to bring 8 republicans on board. This is a winnable issue for the administration, and they know it.

Just weeks after his electoral “shellacking,” this could be Obama at the nadir of his presidency, and yet he dares call the Republican’s bluff on START. This is the audacity of the executive pride, because when the president talks foreign policy, he gets an automatic pass. The deference he enjoys is practically monarchical, and chief executives since Washington have known its power. That is how George Bush managed to get the Democrats on board with him to go to war in Iraq, and this is how Barack Obama will attempt his presidential reset. Quietly, without fanfare, we have pivoted from butter to guns, from jobs to security. Coincidence? For better or for worse, the executive pride will not be humbled.

Monday, November 15, 2010

Article 2 of the Constitution is a Paradoxical Thing

These are deliquescent days in Washington. As the Democratic party works out a deal to keep both Steny Hoyer and James Clyburn in the leadership hierarchy, and the Republican party takes stock of what it means to welcome 35 new Tea Party members into its caucus, the President must be wondering, what now?

Pat Caddell and Douglas Schoen are advising Obama to not seek re-election. Others are simply predicting a one-term presidency whether or not Obama likes it.

But these grim prognostications are pre-mature, if only because most presidents have been able to marshall their incumbent benefits to win a second term in office. When David Axelrod exits the White House in January and passes the baton over to David Plouffe, the White House will go into full campaign mode. These guys do not like losing, and they have one thing going for them: the best self-promoter the business has ever seen.

Team Obama will have a few other things going for them. First, they no longer have to set the agenda. Whereas for the last two years, the White House has acted and the Republican party has reacted, a role reversal is about to happen. And one of the rules of American politics is that s/he who sets the agenda gets the blame when the constitution's multiple veto points invariably alters or derails the agenda. Second, now that the House will be controlled by the Republicans, Obama will be able to do what presidents do best: assign blame to the inefficient First Branch and take things into his own hands. Presidential discretion is a very powerful thing and it is especially powerful when the president's hand appears to be forced by an uncooperative House. Third, as Nancy Pelosi is likely to remain the leader of the Democrats in the House, she can continue to be the lightning rod for conservative critics (and proof to the liberal base that the Democratic party made a good-faith effort to be true to its progressive principles), while the president will be freed to perform the role of bipartisan leader so that he can try to win back the independent voters who have lost their love for him.

There is no reliable litmus test for Obama's re-electability until a credible Republican alternative is placed before the electorate. No such person exists right now - not even Sarah Palin, who seems newly interested in the job, but who is likely only to remain a fundraiser and kingmaker, but not the successful candidate, because she is even more polarizing than Hillary Clinton was in 2008. In the months ahead, the Republican party will take up the challenge of reconciling itself with the principles of Tea party libertarianism, and the party's success in 2012 will turn in large part on its ability to complete this reconciliation before the primary season of 2012 begins.

All told, the American presidency is strongest when it is weakest and weakest when it is strongest. Think of Bill Clinton when he was being impeached, or George Bush when he declared "Mission Accomplished" in Iraq. Obama was weakest when he stood triumphantly before corinthian pillars made of styrofoam and now that he has been humbled, no longer over-estimated, and indeed condemned to a single term, he is more likely than not to rise pheonix-like. Such is the nature of prerogative.

As historians begin to examine President Bush's newly released memoir, Obama should take heed that if history has not yet been written for his predecessor, then it has certainly not been written for him.

Sunday, November 7, 2010

Beware the Claims of a "Mandate"

Mandate claims in American politics are hogwash, and they are especially dubious in mid-term elections where an entire branch was not evaluated for re-election. Mandates imply that there is a clear date on which majorities are counted. There isn't, because ours is a republic in which the staggered electoral calendar introduced the principle that republican "truth" would emerge from a conversation between different majorities at different cross sections in time. The president elected in 2008 is still around - so as far as the Constitution is concerned, the Democratic mandate from 2008 is no less relevant and carries over into 2011 as much as the Republican mandate from 2010.

The Constitution understands that what you and I believed in 2008 and what we believe in 2010 could be the same or it could be different - but what matters is that the Constitution predicted our fickleness and finds its average between the two. The change that Obama promised in 2008 was as much mandated as the change that the Republicans and the Tea Partiers resisted in 2010. This is an important lesson for both Republicans in Congress and the President. If mandates are fragile, even meaningless things, then at the very least, neither should make too much of their own.

But still, since we are committed to majoritarian rule, it would be worthwhile to try to divine exactly what the American people are looking for in the next two years. Just where is the median position between the electoral mandate of 2008 and 2010? Should Barack Obama try to do what Bill Clinton did, and find a "third way" compromise with Republicans, and John Boehner should try to, like Newt Gingerich, push a purist Republican agenda? On balance, I think Obama should resist the urge to over-react, and Boehner should resist the urge to over-reach.

Bill Clinton's mandate from 1992 was not only much smaller (with 45 million Americans voting for him, he received a plurality but not a majority of the popular vote), it was also a mandate ("Putting People First") that wasn't based on a campaign that was categorically and emphatically about change. When his party lost 54 seats in the House in 1994, it was certainly humbling compared to the relatively paltry size of his own mandate.

Less so for Barack Obama. About 90 million voters turned out last week. Assuming that a vote for a Republican candidate for the House and the Senate and in any state can be meaningfully clumped together to articulate a generic Republican mandate for 2010, then about 47 million voters (52 percent of 90 million) signed on to the Republican Pledge for America in 2010.

That leaves an undiluted and quite unambiguous vote for one man, Barack Obama, in 2008 that was one and a half times the number of votes cast for 286 Republican women and men (239 in the House plus 47 in the Senate) in 2010, since 132 million Americans turned out in the 2008 elections, and about 70 million chose Barack Obama and his version of change. That's a pretty hefty differential, and if so 2011 should not be replayed as if it were 1995.

If Obama should not over-react, neither should Republicans over-reach. Republicans should not be blamed for playing the hype game today. It sets the bargaining position in their favor when they take control of Congress in January. But, Republicans should be careful with too much of a good thing. The higher the expectations they set, the harder they can fall. (Obama found that out.)

Obama and the new Congress should understand that the system under which they operate was designed to facilitate a conversation between voting generations. And since the system, in effect, anticipated the fickleness of voters, it is incumbent on those we have selected to represent us in government to enact a careful titration of two mandates loudly articulated against each other. If we we might have been too quick to believe Obama in 2008 and too quick to be disheartened in 2010, our elected officials ought to exercise independent and long-sighted judgment in government with the knowledge that they are not merely delegates of a people who may change our minds every day, but trustees of the republic which is here to stay.