Archive

June 7th, 2016

Will eight justices be the new normal?

    With 24 cases still to decide this term and only eight justices to decide them, the Supreme Court has mustered all its resources to find (or manufacture) consensus. Many rulings - even those with lopsided majorities - hint strongly of compromise. So far, the justices have mostly decided not to decide, drafting narrow opinions that leave big questions unanswered.

    It is in vogue to treat this term as a one-off, yet another result of madhouse election-year politics. On that view, the court just needs to tread water a while longer. In the meantime, each of us can hope that justices who share our particular vision will end up with a majority.

    But when "exceptional" circumstances endure long enough, advance powerful political interests and are tolerated by the public, they can easily become the new normal. One or more vacancies will likely arise soon enough, leaving the court's ideological balance up for grabs. Especially in times of divided government, the historic norm of swift confirmations might be cast aside - replaced by lengthy delays that partisans on both sides will opportunistically decry or defend.

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June 6th

The media have reached a turning point in covering Donald Trump. He may not survive it.

    The news media have come in for a lot of criticism in the way they've reported this election, which makes it exactly like every other election. But something may have changed just in the last few days. I have no idea how meaningful it will turn out to be or how long it will last.

    But it's possible that when we look back over the sweep of this most unusual campaign, we'll mark this week as a significant turning point: the time when journalists finally figured out how to cover Donald Trump.

    They didn't do it by coming up with some new model of coverage, or putting aside what they were taught in journalism school. They're doing it by rediscovering the fundamental values and norms that are supposed to guide their profession. (And for the record, even though I'm part of "the media" I'm speaking in the third person here because I'm an opinion writer, and this is about the reporters whose job it is to objectively relay the events of the day).

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Why U.S. diplomacy can't fix the Middle East

    Israel wanted no part in it. And neither the Israelis nor the Palestinians were scheduled to attend. Yet Secretary of State John Kerry remained optimistic ahead of Friday's sure-to-go-nowhere Middle East peace conference in Paris. "What we are seeking to do," he said, "is encourage the parties to be able to see a way forward so they understand peace is a possibility."

    I recognize that sentiment: the feeling that you need to do something, anything, to keep a nearly dead process alive. For much of my 24-year career as a State Department Middle East analyst, negotiator and adviser, I held out hope that a conflict-ending peace agreement was possible. I had faith in negotiations as a talking cure and that the United States could arrange a comprehensive solution. I believed in the power of U.S. diplomacy.

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California's 'top two' election calamity

    California voters are set to vote in their primary on Tuesday, and will suffer the consequences of a serious self-imposed mistake in how they run their state. No, it has nothing to do with the presidential race.

    The disaster is its "top two" system, in which the candidates for state offices -- regardless of party -- go on to compete in the general election in November if they finish first and second in the primaries.

    The likely perverse result? Voters in November will probably have a choice between two Democrats for an open U.S. Senate seat.

    The motivation for the California system was to elevate more moderate politicians than the parties were producing on their own. In practice, at least in the first two election cycles since the change was carried out, the results have not matched reformers' hopes. Candidates have not been more moderate.

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Teachers need free-speech protection, too

    Are teachers entitled to free speech in the classroom? As a teacher of free-speech law, I've got a particular interest in this broadly important question. Thursday a federal appeals court said the answer was no -- at least at public schools below the university level.

    The decision makes some sense in light of existing precedent. But the Supreme Court has never directly addressed the issue. When it does, it should consider the possibility that the whole law of public workplace free speech has gone awry -- and that teachers as well as other public employees should be given greater latitude to express their opinions.

    The facts of the case show why teacher free-speech rights actually make a lot of sense. The Chicago Board of Education has a policy prohibiting teachers from using racial epithets in front of students -- no exceptions regardless of context or purpose. Lincoln Brown, a sixth grade teacher at Murray Language Academy, intercepted a student note that included music lyrics with the N-word. The principal of the public school was in the room observing the class.

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Clinton takes on the 'blame America first' Republicans

    If President Ronald Reagan's ambassador to the United Nations, Jeane Kirkpatrick, were alive to see Hillary Clinton's speech on Thursday, I imagine she would smile.

    Clinton has done to Donald Trump what Kirkpatrick did to Clinton's party back in 1984. Clinton questioned the presumptive Republican presidential nominee's love of country and asked why he was so nice to the dictators who hate it.

    It was a theme of Clinton's major address in San Diego. "If Donald gets his way, they will be celebrating in the Kremlin;" "I don't understand Donald's bizarre fascination with dictators who don't like America;" "I will leave it to the psychologists to explain his affection for tyrants," and so on.

    In most election years it is the Republicans who do this kind of thing. It was an important line of attack for Richard Nixon. But the true master of the genre was Kirkpatrick, the foreign policy sage who got Reagan's attention with an essay in Commentary Magazine that derided Jimmy Carter's hostility toward authoritarian allies of America.

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The jobs recovery doesn't have to be over

    After U.S. employers turned in their worst hiring performance in almost six years, the people responsible for managing the economy must be wondering: Are businesses running up against the limits of how many jobs they can create?

    It doesn't have to be that way.

    The May jobs report offers troubling signals that the U.S. economy may be nearing its capacity to generate jobs. Nonfarm employers added only 38,000 workers -- a number that, even accounting for a Verizon Communications strike that took about 35,000 people off payrolls, fell far short of expectations. The unemployment rate declined to 4.7 percent, the lowest since November 2007, due to a drop in the number of people seeking work actively enough to be counted as unemployed. That's well below the level that economists see as full employment, the point at which further hiring tends to push up wages and inflation.

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Okay, that was a lousy jobs report. Now what are we gonna do about it?

    Yeah. . .okay. . .that was a really disappointing jobs report that came out Friday morning. The question is, what are we going to do about it?

    Expectations, which are typically just a rear-view mirror exercise in this case, were for around 160,000 net new payroll jobs. Instead, we got 38,000, the worst month of job gains since late 2010, the point at which post-recession job growth finally got going. The unemployment rate actually fell sharply in May, from 5 percent to 4.7 percent, but for the wrong reason: not because people got jobs, but because they left the labor force.

    The monthly data are noisy, and this month's jobs count took a hit of about 35,000 from the strike against Verizon. But the trend over the past three months amounts to less than 120,000 jobs per month, well below the 200,000/month trend we'd gotten used to.

    Still, we don't want to overreact, and while these lousy numbers are consistent with a real growth rate of less than 1 percent in the first quarter of the year, the second quarter is tracking at north of 2 percent. So things could certainly improve.

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Sentencing the worst of the worst

    Capital punishment in the United States is on the wane. Fewer people, 49, were sentenced to death in 2015 than in any year since the Supreme Court reauthorized the ultimate sanction in 1976; only 28 were executed, the fewest in 20 years.

    States find it harder to obtain lethal-injection drugs, especially now that pharmaceutical giant Pfizer has barred the use of its products. A recent Supreme Court ruling overturned the death sentence of a black man in Georgia on the grounds that prosecutors improperly kept African Americans off the jury.

    A death-penalty abolitionist, Sen. Bernie Sanders, I-Vermont, has given Hillary Clinton a run for her money in the Democratic presidential race; she, in turn, has voiced only qualified backing for capital punishment. And polls show downward movement in support for the death penalty.

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The licenses that get in the way of new jobs

    I've met too many people who want to work but aren't given a shot. Often, that's because licensing and certification requirements create obstacles to joining skilled professions where no or lower barriers should exist.

    A couple of years ago, my office identified a clear example in Delaware's barber and cosmetology industries, which used to require either paying for 1,500 hours of instruction or spending 3,000 hours as an apprentice to earn a license - the equivalent of about a year of schooling or two years as an apprentice. That wasn't necessary to succeed in these fields, and the rules kept some good people out of these professions because it was either too expensive or took too long to become qualified. To address those issues, we came up with a third option that allows people to combine on-the-job experience with a shorter school program.

    Meanwhile, research across the country has suggested that there is a lack of access to work in certain legal and health services that don't require a law or medical degree, such as providing defense in eviction cases and basic primary-care services, because of overly burdensome licensing laws.

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