Wendy Davis and Texas Primary Results: What We Know Now


Cross-Posted at the Houston Press

Its official: Wendy Davis v. Greg Abbott. Both won their parties’ respective primaries in convincing fashion with Davis garnering nearly 80 percent of the Democratic vote and Abbott prevailing with over 90 percent of Republicans backing him.

Let me take the suspense out of this race: Abbott will win in convincing fashion. As I’ve noted before, there are simply not enough women and minority voters in Texas who will support Davis such that she can win. Indeed, setting aside gender, there aren’t enough white Democrats in Texas. What is more, Abbott has three times as much cash on hand as Davis.

Finally, mark my words: Abbott is going rain down hell-fire — in the form of TV ads — that question the propriety of Davis’ work while at her law firm (and another) vis-a-vis funneling state contracts to those same law firms.  The Texas Tribune reported on this a while back, and it is now starting to gain traction in the right-wing blogosphere which means Fox News will pick up the story, thus forcing the MSM to cover it as well. Davis has never been found guilty of any actual wrong-doing, but this is politics, and Abbott’s team will use this as a blunt cudgel to sully Davis’ reputation.

What else do we know from last night? Well, the Tea Party can count the Lt. Governor’s run-off as a win. Dan Patrick actually won a plurality of the votes (41.5 percent) while “Establishment” candidate David Dewhurst won only slightly more than 28 percent. Dewhurst also lost to Ted Cruz in the 2012 Senate race when Cruz was able to paint Dewhurst as not conservative enough. If you are a Democrat, you should be scared of having someone as conservative as Patrick in the Lt. Governor’s seat, which is considered the most powerful state-wide office. Patrick is a fire-breathing conservative. Allegedly, Dewhurst has been saving his campaign funds for the run-off.

But the Tea Party can’t take much solace in Senator John Cornyn’s spanking of Steve Stockman, nor Pete Sessions, who is Chairman of the important House Rules Committee, easy win over his Tea Party challenger. And I would be remiss to not note that George P. Bush is on his way to becoming your newest Land Commissioner.

In sum, we didn’t learn much we didn’t already knew. Texas is almost certain to remain red all over, both in state wide and national races. Davis’ star may soon take a hit, but she’ll live to fight another day (one can foresee a run for Congress in her Fort Worth district in 2016), and the Tea Party remains a force to be reckoned with in Texas state politics.

Let Clarence Thomas Be

Constitutional Law, Courts, Legal Profession, Media Criticism, Politics

Jeffrey Toobin’s recent New Yorker article criticizing Justice Clarence Thomas as “downright embarrassing” received much attention last week, including from the Sunday morning talking head shows (e.g., CNN’s Reliable Sources). Toobin’s issue is this: Justice Thomas hasn’t asked a question or meaningfully participated in oral argument in eight years. To Toobin, this is an appalling dereliction of his duty as a Supreme Court Justice.

Toobin is well wide of the mark on this criticism. First, as Toobin shows in his piece, the other eight justices participate in oral argument with a high level of frequency. But oral argument before the Supreme Court has become a way for the justices, using the lawyers at the podium as their foil, to argue among themselves. Many times Supreme Court advocates will get less then a couple sentences into their argument before the justices begin peppering them with questions. Scalia will help out a lawyer who is fumbling for a good answer to a question from a liberal justice. Breyer will do the same when Scalia asks a stumper. Breyer and Scalia will argue back and forth — like it’s a debating club. Scalia and Breyer are not the only culprits, just the most verbose from each wing.

And this should tell you something: Justice Thomas knows this is all somewhat of a spectacle and a way for the justices to “perform” for the insular world of Supreme Court watchers.  Did Kennedy give away which way he’ll vote? That question from Roberts shows he’s definitely leaning x way.

It might not rise quite to the level of kabuki theater, but it’s close. In other words, Thomas knows that oral argument rarely if ever actually makes a difference in the way the justices will vote. They have already read hundreds of pages of briefs (or least lengthy memorandum/a composed by their clerks) and they and their clerks have certainly spent time talking about the case at length. Oral argument is the least important aspect of Supreme Court advocacy.

So perhaps we should actually praise Justice Thomas for refusing to give into this dance. As Professor Jamal Greene noted yesterday on CNN, the presence of a “hot bench” is a relatively recent phenomenon (starting in the 1980s) and as recently as the Warren Court, there was a whole lot more listening by the justices than there was talking. There is probably no coincidence that the presence of the Court’s hot bench coincided with the timing of Supreme Court appointments being seen as proxies for the culture war and the concomitant media attention that drew.

At all events, you might criticize Thomas for a number of different things, but this particular criticism is silly and picayune. Mr. Toobin: you’re better than this.

It’s Just a Matter of Time: Gay Rights Wins Again

Constitutional Law, Courts, Law & Politics, Politics

Cross-Posted at the Houston Press

Just as arch-conservative Arizona Governor Jan Brewer crumbled to public and political pressure and vetoed Arizona’s so-called “anti-gay legislation,” a Texas federal court judge (Hon. Orlando Garcia) in San Antonio struck down Texas’s ban on same-sex marriage because it violated the equal protection clause — i.e., all citizens must be treated equally by the government — and due process clause of the 14th Amendment.

This should not be surprising to those who have been paying attention. Federal judges in Utah and Oklahoma — Republican-dominated states — have done the same. A judge in Virginia also struck down that state’s prohibition on gay marriage.

So, here’s the landscape of LGBT rights as we survey the field today.

1. It’s Just a Matter of Time (Part I)

One of these cases from Texas, Utah, Oklahoma, etc. are going to make it to the Supreme Court (SCOTUS), or the Court may consolidate them, as the appeals process makes its way up the federal court food chain. (N.b., Judge Garcia, realizing the inevitability of an appeal of his ruling by Attorney General (soon to be Governor) Greg Abbott, immediately “stayed” his ruling so that the Fifth Circuit Court of Appeals could take a crack at it).

And when it does get to the Supreme Court, the Court will agree with these lower court rulings that there is a constitutional violation via these bans.  Unless you’re a Court Watcher, you probably don’t remember Romer v. Evans, a 1996 SCOTUS case where the Court ruled that a Colorado constitutional amendment prohibiting any “special treatment” for gays was struck down. Who wrote that opinion? Anthony Kennedy.  Kennedy is also the author of Lawerence v. Texas and has shown solicitude for LGBT rights. And Anthony Kennedy will likely write the opinion striking down these current bans when they get before SCOTUS.

2. It’s Just a Matter of Time (Part II)

And take a step back from the court rulings and survey the wider landscape.  It was only in 2004 when the Democrats — incorrectly, it turns out — were bemoaning Bush’s re-election because of “values voters” and how Rove got the Christian Conservatives out to the polls. Well, what a difference a decade makes.  And part of this difference is the Millenials. Many Millenials simply do not see what there is to get to worked up about vis-a-vis gay marriage:

“Millennials report a nearly 20-point gap between the views of their families and the views of their friends. Nearly half (49%) of Millennials say most of their family members oppose same-sex marriage, compared to 41% who say most of their family members support it. In contrast, only 30% of Millennials say most of their friends oppose same-sex marriage, while nearly twice as many (59%) say most of their friends favor same-sex marriage. Americans from the Silent Generation are equally likely to say that most of their friends (57%) and family members (56%) oppose same-sex marriage.”

As Millenials inevitably age, and those who believe LGBT rights are wrong inevitably die or shrink in numbers because of changing social mores, gay marriage will be seen as “NBD.” It’s just a matter of time.

If You’re a Female, Guns in the Home Are Especially Dangerous

Crime, Sociology

A new meta-analysis by the journal Annals of Internal Medicine has some surprising and not so surprising findings. As is well-known, the rate of gun ownership is the United States is the highest in the world, and the annual rate of firearm related homicide in the U.S. is one of the highest among Western, industrialized nations. Most homicides in the U.S. occurred within the home: nearly 75 percent of female gun homicide victims were killed in the home (45 percent for males). Finally, men with access to firearms have higher odds (though not statistically significant) of committing suicides than do females.

So these are sad statistics that we already knew. But here’s what you might not know:

Although men with access to firearms may have higher odds of committing suicide than women, women have higher odds of homicide victimization. The tests for interaction between sex subgroups in our meta-analysis were significant in fixed-effects models (P < 0.001). Although men account for more than three quarters of all suicides and homicides, women with firearm access have a higher risk for homicide victimization, a finding that previous studies support (910). Of note, in our review, homicide was the result of victimization rather than perpetration. Furthermore, empirical evidence suggests that most homicide victims know their assailant (10, 24), which suggests an interpersonal dispute within the household or other domestic violence and not an unknown intruder.

Takeaway: if you’re a female, take stock of who you’re living with.

“The Free Market is the Best Answer to the Anti-Gay Legislation”

History, Politics

This is the proposed solution by Mr. W. James Antle III in an op-ed in The American Conservative. Here’s the central thesis of his argument that the free market is the solution to the so-called anti-gay legislation in Kansas and Arizona:

The same logic would seem to apply to participation in same-sex marriage services. If we can allow conscientious objectors to refuse to fight in wars, we can surely make some allowance for people to who don’t want to bake cakes, provide floral arrangements, or take photos at a particular wedding. A case could also be made that same-sex couples should prefer to send their business to vendors who share their values.

One might notice a few problems with Antle’s analogy. First, besides there not being a “market” for wars, the American army is now all volunteer — has been for decades — so it’s difficult to discern exactly how conscientious objectors are relevant at all social conservatives’ objections to having “the gays” foisted upon them.  Conscientious objectors, objected not just to going to war, but being drafted.  Not only is the analogy ill-thought out, it’s simply anachronistic.

Antle goes on, seeking to draw a distinction between Jim Crow and the current legislation at issue:

Jim Crow was a system of extensive discrimination, not isolated incidents. It relied on the state enforcement of laws requiring racial separation and the non-enforcement of laws banning private acts of violence when the victims were black. It denied blacks’ constitutional rights and was rooted in state government coercion and social customs so powerful they were largely impervious to market forces. The federal government had repeatedly attempted to remedy these problems through more modest measure.

Again, Antle seems to need a history lesson. Prior to the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the federal government had indeed made modest efforts, but it wasn’t because Jim Crow was so ingrained it was impervious to market forces. It was because Antle’s conservative forebears — perhaps W. James Antle I and II — like Senator Goldwater opposed the Civil Rights Act because it would affect peoples’ property rights. In other words, a free market argument.

I’ve got to hand to conservatives. They can keep recrafting the same argument decade after decade — the free market will sort it all out – and people, at least some, still keep buying it.

Expect a Few of These Law Schools to Be Shuttering Their Doors Soon(ish)

Legal Education

The ABA Journal reports that the following law schools have experienced crippling drops in enrollment in the past three years:

University of La Verne (down 66.2%)

Cooley Law School (down 40.6%)

Catholic University (down 39.5%)

New York Law School (down 38.7%)

University of Dayton (down 38.5%)

Pacific McGeorge (down 38.4%)

Widener University-Harrisburg (down 36.9%)

They are all private, save for University of Dayton, and all expensive. They are also all lesser-regarded schools where only the top 5-10 percent have good job prospects. The pincers are slowly closing on legal education.

Privatization and the “Prison Market”: The Taxpayer Foots the Bill

Economics, History, Politics, Sociology

http://upload.wikimedia.org/wikipedia/commons/thumb/1/1c/Xatta137.jpg/320px-Xatta137.jpgCross-Posted at the Houston Press

It’s a well-known and well bemoaned fact that even though Blacks and Latinos (primarily males) are only 30 percent of the overall population, they disproportionately make up 60 percent of the prison population. That’s bad enough news, but a new study by a UC-Berkeley researcher shows that in private prisons — which play a large role in the carceral system in a number of states (including Arizona, California and Texas) — the racial disparity is even worse than in government run institutions.

The reason why there is a greater racial disparity in private prisons, the study shows, is subtle but telling: private prisons include contractual provisions in their agreements with the state such that they do not have to house older prisoners or prisoners with serious health issues.

And what does this have to do with race? Here’s where a bit of recent historical knowledge comes in handy. The War on Drugs, started by Nixon, but really escalating under Reagan, has significantly contributed to criminalizing large swaths of younger minorities. On the other hand, if you are a prisoner over the age of 50, you are far more likely to be White. And if you’re older, you are more likely to have health issues, and thus more likely to be an expensive inmate. Private prisons, caring more about profits than rehabilitation (query whether our carceral system even really cares about rehabilitation anymore), contractually avoids having these older, Whiter, more expensive inmates. Thus, the greater racial disparity.

Politicians have sold us on private prisons as being more cost effective for the taxpayer. This turns out to be false. Private prisons are much like the health insurance company that would, pre-ACA, only insure the young and turn away those with pre-existing conditions. This is yet another example of the privatization movement vis-a-vis crony capitalism: private prisons operate with profit in mind and leave us (the taxpayer) to foot the bill for the more expensive inmates. Private prisons are more cost effective for the CEOs and shareholders of those companies, not society, the exact converse of the false bill of goods we were sold.

Student Loan Debts Tops $1 Trillion



Can’t afford to buy a house, join the “ownership society”, because of your student loans? You are not alone. Indeed, as the Washington Post reports:

Regulators and industry experts warn that young adults can no longer save for down payments or qualify for the mortgages they need to buy their first homes. This survey found that mortgage originations have dropped $97 billion to $452 billion from the third quarter to the fourth quarter of 2013, which may reflect the end of the refinance boom as well as a drop-off in home purchases. A separate analysis by the Mortgage Bankers’ Association found that loan applications for home purchases have slipped nearly 20 percent in the past four months compared to a year ago.

At a certain point, something has to give. Who has a stronger lobby: the real estate associations or the student loan industry (who somehow managed to make student loans non-dischargaeble in bankruptcy)? I’m guessing the real estate lobby wins in the end.

Infant Mortality is Higher When a Republican Is In the White House


Cross-Posted at the Houston Press

Let’s get this out of the way at the front. The study — the one I’m about to delineate — does not mean that there is a causal relationship between Republican presidents and infant mortality.  It means that after the authors controlled for certain relevant variables — e.g., education attainment, the unemployment rate, and economic inequality — there was a correlation between a GOP administration and higher rates of infant mortality. (Cue angry comment from anonymous internet commenter who does not even know what a regression analysis is).

Now that we’ve (hopefully) subordinated any knee-jerk responses, some new research (gated) indicates that, for reasons we do not yet know, infant mortality is higher under Republican presidents since 1965 (through 2010) than Democratic presidents. The researchers, responsibly, say that further research is needed to determine if there is statistical causation. But we do know that when a Republican is in the White House, infant mortality — while dropping absolutely over the past seven-plus decades — is 3 percent higher. And, as an important side note, throw away the canard that we have the best health care system in the world; the U.S. ranks 31st, neighbored by Slovakia and Chile, in infant mortality.

The study’s finding do have some intuitive appeal. Republicans have long been skeptical of any national health insurance program, and their ongoing fight to attack, repeal or otherwise tarnish Obamacare (the Affordable Care Act) is well-known. Indeed, Republicans are skeptical of most social-welfare programs in general.

But I suspect the reason for the study’s finding might go a bit deeper. For example, in 1960, the U.S. ranked 12th lowest in infant mortality. This is why I suspect the explanation goes far beyond basic partisan labels (i.e., Democratic and Republican) and probably calls for an examination of the political plate-tectonic shifts that have taken place in American politics since the 1960s. Today is not the day for that history lesson (but see here and here for primers). But I submit the most alarming take-away from this research is not the 3 percent difference between Republicans and Democrats, but why we’re comfortable living in a world where Slovakia is our equal.

Tuesday Morning Fun: Almost 25% of 2000 Law School Grads No Longer Practice Law

Legal Profession

Most make the decision to go to professional school with the goal of practicing in that profession. Medical, dental and law schools mint doctors, dentists and lawyers. The differentiation with law school, vis-a-vis medical and dental school, is that most have a pretty good idea of what it means to be a doctor or a dentist — they’ve been visiting those professionals their entire lives in most cases.

However, many people have not had near the interaction with the legal profession. Law schools are the great repository of liberal arts majors who just don’t know what to do with their lives. And the idea of law school sounds good. But once one gets out into the profession, many begin to understand that practicing law, the actual nuts and bolts of it, that they really don’t like it all that much.

And now we have some empirical proof of this. According the longitudinal study “After the JD” as reported by the ABA Journal: “Twenty-four percent of the surveyed lawyers were not practicing law in 2012, compared to about 9 percent who weren’t practicing law in 2003, according to preliminary survey findings.”

So, three years out, 9 percent weren’t practicing law (and they probably weren’t ever going to anyways), but an astonishing 24 percent, nearly a quarter of all law students who passed the bar, left the profession twelve years out. That is an attrition rate that is truly astounding. I don’t have the number in front of me, but I can almost guarantee you that 25 percent of doctors have not left the medical profession twelve years after residency.

This isn’t the time or the place for an in-depth analysis of these findings. But perhaps we should be concerned that there is something intrinsic about the legal profession that drives this many people to leave.