Essentially Contested America

When I was a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

There are three reasons why I think Sonia Sotomayor is a good choice to be the next Justice on the United States Supreme Court.  First, her nomination is historic.  If confirmed, Justice Sotomayor will be the first Latina, the first woman of color, and only the third woman to serve on the United States Supreme Court (not to mention the first Supreme Court Justice to grow up in a public housing project!).  Second, Sotomayor is an incredibly accomplished, brilliant woman who is highly qualified for the job.  Third, Judge Sotomayor has the right temperament and philosophy for the Supreme Court today.

It is difficult to overstate the historic significance of President Obama’s choice of a Latina woman as his first nomination to the Supreme Court.   To illustrate my point, consider this:   When I was a student at Yale Law School in the late 1980s, the law students held a one day strike for diversity, calling for diversity in the faculty, student body and law school curriculum.  To protest the fact that at that time Yale had never had a woman of color on the faculty, a classmate of mine created paper effigies of all the faculty members and hung them from the ceiling of the law school.  Hanging from the ceiling was a long row of white men, several white women, and several men of color.  No women of color.  Now imagine if my classmate had done the same with the United States Supreme Court throughout our history.  Out of 115 paper effigies (based on my unofficial count), 111 of them would be white men, two would Black men, and two white women.  Again, no women of color.

The fact that Justice Sotomayor would be the first Latina and the first woman of color ever to serve on the United States Supreme Court, and a person who comes from a low income background, matters because the Supreme Court makes decisions that affect all of our lives, including the 52% of us who are women and the 26% of us who are non-white.  It matters because life experience, including our gender, race and economic backgrounds, affects how all of us view the world, and how judges view the law.  This does not mean that Justice Sotomayor would always rule in favor of women, people of color (regardless of their gender), and poor people, who appear before the Court.  Her record on the lower federal courts makes this abundantly clear.  What it does mean is that Justice Sotomayor would bring a life experience to the Court that would enrich the Court’s consideration of legal issues and make the Court more connected to the impact of its decisions on all of us.

Second, Justice Sotomayor’s qualifications are outstanding.  She graduated at the top of her class from Princeton, one of the nation’s top universities and an incredibly competetive institution.  She excelled as well at Yale Law School, where she served on the Law Review.  Sotomayor has extensive experience as a prosecutor and as a private attorney, and 17 years as a federal judge.  I am incredulous that anyone could argue that Sotomayor lacks the credentials to be a Supreme Court justice.  These critiques simply have no foundation.  Sotomayor’s record speaks for itself.

Finally, I believe that Sotomayor has the right temperament for the Court at this time.  This is where I differ from those liberals who have argued that they would prefer someone with a stronger ideological focus.   By all accounts, Sotomayor is a liberal to moderate person who enjoys engaging legal arguments and listens to all sides before making decisions.  However, she is no shrinking violet and is not likely to be intimidated by the more conservative, more senior members of the Court.  (After all, the woman grew up in a Bronx housing project!!!)

Sotomayor’s record is also so far from the “liberal activist” label that conservative critics are trying to link to her that the label simply won’t stick.  It’s about time that we recognized that (as I have argued in previous columns) the only activism that has occurred in  the United States Supreme Court in the past twenty or so years has been conservative retrenchment against progressive political policies.  If confirmed, Sotomayor will bring strong experience, diversity, and a balanced approach to the law that belies that conservative activism.   As a person with progressive politics who is sick and tired of the activism of the conservative Rehnquist and Roberts Courts, I say, bring Sotomayor on!

After years of woeful neglect, health care reform is now thankfully at the top of the national agenda.  What’s missing from President Obama’s and Congress’ consideration?  A single payer health care system.  This omission is a huge mistake, since it is likely that only a single payer health care system  can solve our nation’s health care woes.

There are two reasons why our nation needs health care reform now: The first is the cost, and the second is the lack of accessibility of our current system.   Shockingly, 50 million people in our country currently lack health insurance.  At the same time, those of us fortunate enough to have health insurance face mounting costs and cuts in coverage by our employers.  Meanwhile, the cost of medical care in the United States is twice the average in other industrialized nations.  Patients aren’t the only one bearing these costs, either.  From small business owners to General Motors, American employers are being crippled by their responsibilities to pay health insurance premiums.

Why consider single payer?  Because it is the only system that would solve both flaws in our current health care system by expanding access and lowering costs.  Expanding the risk pool of a single insurance carrier to include every person in the country would reduce the costs of health care to all of us because it would include miliions of people who are now healthy but simply unable to afford insurance.  Moreover, if the insurer is the government rather than the private insurance industry, we can save as much as a third of our current health care costs, which currently go to funding medical insurance companies.  Finally, if everyone is insured, everybody will have access to cheaper preventive health care instead of waiting until they are so sick they have to go to the emergency room and rely on expensive life saving measures.

The single payer solution is so clear, no wonder 59% of physicians and 62% of Americans support it!  Yet despite this support, a single payer plan is not currently being considered by President Obama, nor is Representative Conyers’ bill, H.R. 676, receiving much consideration in Congress.  Why not?  The health care insurance industry is a powerful lobby, it’s far too easy for opponents of single payer to demonize it as “socialized medicine” and therefore Un-American, and many are concerned about raising taxes to fund a single payer system.  While it is not possible to just make the insurance lobby go away, the other two objections are easily answered.

Let’s make this clear – single payer is not socialized medicine.  Under a single payer system, the government would not run the health care system, it would just fund the system that already exists, absent the private insurance companies.  Our health care system would be similar to that of every other industrialized nation.  (As an aside, those other nations are home to industries that compete with our American companies without being saddled with health care costs.)

Nor would a single payer system cost more than the existing system.  As I have explained, it would cost at least 30% less than the existing system.  The difference would be that our health care would be funded by tax dollars instead of employer subsidies, employee co-payments and deductibles, and payments by uninsured patients.  Yes, our taxes would go up, but taxes would be our only health care costs.  American businesses would be able to compete on the international market, and small business owners would be able to stay in business.  The millions of dollars saved by employers could be invested in raising salaries of existing employees and hiring new employees.

Imagine being able to go to the doctor whenever you need one without worrying about paying the full bill, a co-payment or a deductable.  Imagine not fearing bankruptcy if God forbid you or a member of your family suffers from a catastrophic illness or injury.  Imagine not seeing your real wages go down every year as your meager raise is eaten up by higher medical expenses.  Imagine an economy in which small businesses flourish and larger corporations can compete in the international market.  All of this is possible, and it is within out reach – if our elected representatives will consider the single payer solution.

Our current economic crisis has caused thousands of people to face unemployment, home foreclosures, evictions, bankruptcies, domestic violence and other problems.  However, too many people who find themselves in legal trouble cannot afford to hire a lawyer to help them – as many as 80% in some parts of the country.  As a former legal services lawyer, I can attest to the value of having a lawyer when a person is in an overcrowded housing court, or seeking benefits from the government.  Regardless of the strength of your case, whether or not you have a lawyer often makes the difference between winning and losing.  Yet even as the need for legal assistance has skyrocketted, in recent years, Congress has slashed LSC funds and imposed drastic restrictions on the use of those funds.  The reduction in LSC funds has caused LSC programs to consolidate and reduce services.  Nationally, 50% of eligible applicants those who seek assistance from LSC programs are turned away.  Consider this – in order to be eligible for LSC assistance, your annual household income must be below 125% of the poverty line – currently about $25,000 for a family of four.  If LSC lawyers can’t help them, no one will.

Last month, Senator Tom Harkin introduced the Civil Access to Justice Act.  The CAJA would re-authorise the Legal Services Corporation for the first time since 1981.  It would also increase funding for the Legal Services Corporation, reduce the restrictions on LSC funded programs, provide for improved governance at LSC, and authorize a grant program from the Department of Education to expand law school clinics.  The proposed bill would expand funding to $740,000, a mere drop in the bucket in the federal budget, but over twice the funding level from last year.  It would once again enable LSC programs to collect attorneys’ fees and file class actions to provide systemic relief.  Harkin, also a former legal services lawyer, is well aware of the crying need for the Civil Access to Justice Act.  I hope that Congress will pass it quickly, to further the promise on the United States Supreme Court facade of “Equal Justice Under Law.”

In many ways, the city of Detroit, Michigan, embodies the American dream – and its failings.  In the Twentieth Century, Detroit was a center of industry – and not just any industry.   The American romance with the automobile is central to the American dream, and for much of the Twentieth Century, most of our cars were made in or around Detroit.  Automobile enthusiasts looked forward to the Detroit auto show every year, and one need only scan the titles of popular songs to understand how much we loved cars made in Detroit – Mustangs, Cadillacs, Mercuries, the list goes on and on.  Of course, the cars made in Detroit were not just important in popular culture – they also provided thousands of people with well-paying jobs.  As a result, immigrants flocked to Detroit from other countries and  African Americans migrated from the south of this country, fleeing Jim Crow and seeking a new prosperous life.  Detroit became the center of the union movement, and automobile workers prospered.  Until the mid-1960s, Detroit really was a city in which the American dream came to life for thousands of people.

The decline of Detroit is an all-too-familiar story.  The race riots in the 1960s, the white migration to the suburbs, the arrival of Japanese cars, and the decline of the American automobile industry.  GM was once the number one employer in this country, but GM, and its well-paying union jobs, has now been replaced in that role by Walmart and its low-paying no-benefits positions.  To look at how the American dream has failed so many workers in this country, one need only look at Detroit.  In these dark days of economic recession, no place is darker than Detroit.  GM and Chrysler are on the brink of economic disaster, and the third of the Big Three, Ford, is struggling as well.  The rate of unemployment in Detroit is over 10%, and it is one of the cities worst hit by the housing crisis.  I have heard reports of houses selling for as little as $100 in Detroit.

Ironically, the low cost of housing in Detroit is also cause for a strange sort of optimism.  Artists have started buying houses in Detroit, moving from more prosperous cities like Chicago to find a place they can afford to live.  The sheer economic devastation in that city thus leaves open the possibility of a new urban colony with renovated housing, green energy, community gardens, and artistic renewal.  Sound crazy?  Maybe, but there is that spirit about Detroit, that spirit of hope and optimism that reflects the remnants of the American dream.  The 1960s were a decade of turmoil and racial strife in Detroit, arguably the beginning of the downward spiral that is culminating today.  But they were also the decade of Motown music.  Could artists alone save Detroit?  Of course not, but we also can’t expect the automobile industry alone to do the job.  Cities like Detroit need imagination and vision, small businesses and “knowledge jobs.”  For that reason, this new migration of artists to Detroit may be what’s needed to start the city moving in a new direction.

President Obama’s speech last week was hailed by some as a declaration that the era of Ronald Reagan is over.  I hope that is true, at least with regard to our country’s economic priorities.  Prior to Reagan’s presidency, our country had gone through a long period of relative prosperity that began after the end of World War II.  Sure, there were some downturns during that period, including a deadly combination of inflation and unemployment under President Carter that contributed to his loss to Reagan.  However, what was most notable about that long period was the steady increase in real wages of middle class people.  There was at least an implicit understanding that the goal of our economy was to provide decent, well paying jobs for people so that they could achieve the “American dream” of a comfortable middle class lifestyle.  An indication of this consensus is the fact that even Republican president Richard Nixon supported the right to a minimum income.

After Reagan became president, our national economic priorities shifted to overall economic growth regardless of who benefited.  Under the “trickle down” economic policies of Reagan and his allies, as long as the rich got richer, we would all eventually benefit.  Our country began to focus more on the stock market as an indicator of wealth – as long as the market was rising and GDP was growing, then the country was doing OK.  The problem with that theory was that the wealth did not trickle down.  Rich people got richer – a lot richer, but for the rest of us real wages began to decline, and are still far behind those of the mid 1970s when inflation is taken into account.

The decline of real wages since Reagan became president was no accident.  It is the result of government policies that favored rich people and large corporations, including tax cuts for the rich and de-regulation of business, accompanied by policies that hurt low and middle class people, including the end of welfare as we know it and strident anti-unionism symbolized by Reagan’s firing of the striking air traffic controllers.  The weakening of unions has placed a downward pressure on the wages of all of us because it reduces the bargaining power of workers as a whole.

My mention of “the end of welfare” deserves more explanation, and illustrates the fact that not only Republicans, but also Democrats, bought into these harmful economic policies.  Under Bill Clinton, a Democratic Congress voted to end the entitlement to welfare of the New Deal era Aid to Families with Dependent Children (“AFDC”) program and replace it with Temporary Assistance for Needy Families (“TANF”), a program that has a five year lifetime limit and requires recipients (with a few exceptions) to work in order to receive their benefits.   While AFDC was not ended under Reagan, he began the process with his campaign rhetoric that included lies about Cadillac driving welfare mothers.  The end of AFDC places downward pressure on wages, since most people now have no alternative but to accept low wage part time service employment, providing fiercely anti-union companies like Walmart with a ready supply of cheap and exploitable labor.

For the sake of all of us, I really hope that Obama’s speech signals an end to Reaganomics, and a real change to our national economic priorities.  We simply can’t afford the old ones anymore.

Must reads for this week: Guiliani’s conception of foreign policy in Foreign Affairs magazine and Juliet Lapidos’ article on the same in Slate.com. Authoritarian, dedicated, religious fanaticism is certainly a real threat. But to raise the specter of facism and communism as the model for Jidahdi and Islamist terrorism is dangerous. The former were much more formidable enemies. What we need for the latter is a new anti-terrorist force of military and law enforcement personnel to deal with the complex and varied threats we face. Following Mr. Bush’s hysteria over terrorism, as does Mr. Guiliani, gives fanatical religious groups much more credit than they deserve. They’re terrorists–and that means that they are dangerous–but no where near the scale of dangerousness posed by the Soviet Union. Turning the “war of terror” into a continuing threat as ubiquitous as the Soviet Union and the Cold War is senseless and counterproductive. It’s ultimate effect is to obscure the ways of reaching out to Muslims who need the United States to care more about them than their dictatorial and corrupt leaders. The war on terror, prosecuted as Mr. Bush does, is simply a way to distract American voters from the real world of terror, Mr. Bush’s government helps to protect.

The Insidious Right has mastered the art of demonizing critics for speaking the truth. Whenever anyone points out that the American political system has permitted, even encouraged, the wealthy to oppress the poor, the Insidious Rights condemns that critic for advocating class warfare. So even if it is true that the wealthy oppress the poor, it becomes impossible to say so. What a trick! The problem, of course, is that this “trick” prevents the justifiable criticism of political-economic structures that stand in the way of America fulfilling its promise of equality. And that’s precisely the malevolent genius behind this tactic. The possibility of the wealthy oppressing the poor cannot even be raised. However, Senator Bernie Sanders (I-Vermont) will not be silenced. Consider his words:

Class warfare is being waged in America and the wrong side is winning. It is time for the new Democratic majority in Congress to stand with the working families of our country. It is time we offer a budget that reflects the needs of working people instead of the wealthy.

And it is time for citizens across the nation to stand up and demand that their representatives and senators, Democrats and Republicans, do so and thereby represent the interests of all Americans, not a select few.

We must ask: Which side are we on?
Are we for the rich and the powerful or the middle class and working families?

As a member of the Senate Budget Committee, I see a pretty clear answer. I will not be voting for more tax breaks for the outgoing CEO of Home Depot, who recently received a $210 million golden parachute. Rather, I will be voting to substantially increase financial aid for low and middle class families so that every American, regardless of income, can receive a college education.

I will not support a tax cut for the former CEO of Pfizer, who received a $200 million compensation package. Instead, I will vote to substantially increase funding for childcare so that families can find affordable and quality care for their children.

The former CEO of ExxonMobil, who managed to get a $400 million retirement package, does not need more tax relief. It is far more important that we keep our promises to the veterans of this country who now find themselves on waiting lists to get the health care they need.

If we as a nation are serious about creating a more egalitarian society, we need to invest more federal resources in education, health care, housing, infrastructure, environmental protection and sustainable energy. We also have to reduce our national debt. Given that reality, Congress must develop the courage to stand up to the big money interests and roll back the tax breaks for the wealthiest one percent, stop corporate welfare, eliminate unneeded defense weaponry, and demand that the wealthy and powerful rejoin American society. We should do nothing less.

The role money plays in politics, guaranteeing the dominance of corporate interests over human interest, is scandalous. Unless we can address the issue of class domination without being silenced, a corporate monarchy will rule American society unabated. Bernie Sanders deserves credit for daring to speak out against a monarchy infinitely more oppressive than the monarchy our irrepressible Revolutionary generation overthrew.