On Overstating the Case for Confederate Monuments

Posted on Categories Civil Rights, First Amendment, Political Processes & Rhetoric, Public, Race & Law, UncategorizedLeave a comment» on On Overstating the Case for Confederate Monuments
Statue of Confederate Army General Robert E. Lee sitting astride a horse.
The Robert Edward Lee statue in Emancipation Park

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, “Who’s culture is being protected by protecting these monuments?”) The consequences of the Civil War, for good and ill, linger. Moreover, history’s memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way–when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn’t confuse the two. Continue reading “On Overstating the Case for Confederate Monuments”

New Poll Gives Vivid Look into Polarized Political Perceptions

Posted on Categories Marquette Law School Poll, Political Processes & Rhetoric, PublicLeave a comment» on New Poll Gives Vivid Look into Polarized Political Perceptions

Once again, a lesson in the two worlds of Wisconsin. That’s one way to describe the new round of results from the Marquette Law School Poll released on Wednesday (June 28, 2017).

In one world, Donald Trump is doing well as president. In another, he is not. In one, he is keeping his promises. In another he is not. Opinions on Governor Scott Walker or Senators Ron Johnson and Tammy Baldwin or House Speaker Paul Ryan? Split evenly. In all of these instances, Republicans are firmly on one side, Democrats firmly on the other. And the divisions  generally show little change since March, the time of the most recent prior Law School Poll.

How sharp is the divide? A few results:

Overall, 41 percent of the 800 Wisconsin registered voters who were interviewed approved of the way Trump is doing his job, while 51 percent disapproved. But among those identifying themselves as Republican or leaning Republican, Trump’s work was approved by 85 percent, with 8 percent disapproving. Among Democrats, 3 percent approved of how Trump was doing as president while 95 percent disapproved. Continue reading “New Poll Gives Vivid Look into Polarized Political Perceptions”

Woman Interrupted: The Pernicious Problem That’s Not Just in Our Heads

Posted on Categories Federal Law & Legal System, Feminism, Judges & Judicial Process, Legal Profession, Political Processes & Rhetoric, Public2 Comments on Woman Interrupted: The Pernicious Problem That’s Not Just in Our Heads

On Tuesday, the Senate Intelligence Committee questioned Attorney General Jeff Sessions about his contacts with Russian officials in Washington D.C. and his conversations with the President about the Russia investigation or about former F.B.I. Director James B. Comey.

The hearing has been called “at times fiery” and Sessions’ testimony “highly contentious.” Indeed, several Democratic senators engaged in some testy back-and-forth with Sessions, with Oregon Senator Ron Wyden saying that Sessions’ answers did not “pass the smell test” and New Mexico Senator Martin Heinrich declaring that Sessions “[is] obstructing.”

But the grilling of Sessions that has probably received the most attention is that of California Senator Kamala Harris, a junior senator and former California attorney general. Senator Harris was questioning Sessions about his many non-answer answers at the hearing. Sessions claimed he was not answering due to long-standing Justice Department policy. Senator Harris pushed Sessions on this policy.

The New York Times described Senator Harris’ questioning style as “a rapid-fire . . . pace more commonly seen in courtrooms—a style that at times has her interrupting witnesses.” During her questioning, she was interrupted by both Arizona Senator John McCain and by North Carolina Senator Richard M. Burr, the chairperson of the Senate Intelligence Committee. Both men suggested that Sessions be allowed to answer. This was the second time in two weeks that Senator Harris has been interrupted by Senators Burr and McCain. Last week, she was interrupted by them while questioning Deputy Attorney General Rod Rosenstein. (Following the Sessions testimony, Jason Miller, a panelist on CNN, referred to Senator Harris as “hysterical,” most certainly a gendered analysis. CNN political analyst Kirsten Powers called out Miller’s gendered statement and pointed out how Miller believed neither Senators Harris (a woman of color) nor Wyden (a man) were “trying to get to the bottom of answers,” yet Miller called only Senator Harris “hysterical.”)

Earlier this year, during a Senate debate about Sessions’ confirmation as Attorney General, Massachusetts Senator Elizabeth Warren was interrupted and then formally rebuked by Senator Majority Leader Mitch McConnell for reading a 1986 letter from Coretta Scott King about then-U.S. attorney Jeff Sessions, who had been nominated at that time for a federal judgeship. The letter had criticized Sessions for using “the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge.” (The Senate rejected Sessions’ nomination for that federal judgeship.) Later, three male senators read the same letter on the Senate floor, and none were rebuked.

Maybe Harris’ and Warren’s treatment is all about rules of decorum in the Senate. Decorum may be part of it; more than that, though, it appears to be the ages-old pernicious pattern of men interrupting women. It happens to most women, much of the time, in both personal and professional settings.

Continue reading “Woman Interrupted: The Pernicious Problem That’s Not Just in Our Heads”

Israel Reflections 2017–Race and Diversity

Posted on Categories Human Rights, Marquette Law School, Political Processes & Rhetoric, Public, Race & LawLeave a comment» on Israel Reflections 2017–Race and Diversity

Close up photo of Ethiopian member of the Israel Defense Forces kissing the Western Wall in Israel.Another new meeting this year was with Oshra Friedman of Tebeka legal services, an organization that provides specialized legal services for the Ethiopian immigrants to Israel.  As we learned on our last trip, Israel has welcomed thousands of immigrants from Ethiopia of Jewish heritage and assimilation into the modern society of Israel can be very challenging.   As we also saw last time, these challenges can remind us and cause us to reflect on the challenges of race here in Milwaukee.  From Student Sheila Thobani:

Before we even discussed paper topics prior to departing for Israel, thoughts about the conflict were already flooding my mind. Not the cliché thoughts of the obvious conflict, the talked about every day in the media conflict, but one that I had a more personal association with: identity. I believe that is why Oshra Friedman’s narrative engaged my curiosity.

With the constant comments in public about my physical characteristics, one-second longer than comfortable gazes, and second-guess pseudo interrogations by people of authority—I was waiting at the edge of my chair to see how someone who looked different than every other person on the streets of Israel dealt with her diversity. An immigrant from Ethiopia, whose parents refused to assimilate, who jumped forward too far because her community was too backwards, who didn’t succumb to gender norms, who married an Ashkenazi Israeli- this was a story I was all too familiar with; a familiarity not by exposure but by experience.

Whereas, over the border and across the sea, America has heard Friedman’s story of diversity for generations, Israel is still becoming familiar with this narrative. By no means do I mean to convey that because in America the story is heard that it is accepted and internalized- I only mean that it is there that there is the exposure and familiarity. As Friedman spoke about her mixed race children handling the innocence of childhood and the ignorance of adults, and agave accounts of situations they faced, I relived my own childhood memories of confusion colored by pride. Continue reading “Israel Reflections 2017–Race and Diversity”

What President Trump’s “Budget Blueprint” Could Mean For The Great Lakes

Posted on Categories Environmental Law, Political Processes & Rhetoric, Public, Water LawLeave a comment» on What President Trump’s “Budget Blueprint” Could Mean For The Great Lakes

At a recent Law School event, several panelists (including me) discussed the potential for the Trump administration to make important changes to the law in our respective areas of concentration. I said at the time that environmental law has proven quite resistant to previous efforts that would have weakened or erased it. Part of this resiliency is due A photo of a wetlandto the lengthy time horizon typically involved in repealing and replacing statutes and rules; another major factor is longstanding public opposition to such changes. With that said, major attempts are underway that, if implemented, would seriously undermine bulwarks of environmental law such as the Endangered Species Act, the National Environmental Policy Act, and the Antiquities Act. The Trump EPA has also recently begun the long process of repealing and replacing the Clean Water Rule, under direction from President Trump to rewrite it in a manner consistent with one of Justice Scalia’s previous opinions.

Whether or not those efforts succeed, the executive branch has a major impact on the day-to-day operation of environmental law even in the absence of major statutory or regulatory reforms. The most direct avenues for this are through budgeting decisions and enforcement discretion. With debates over spending engulfing Washington, it’s worth examining the potential impact of President Trump’s recent “America First – Budget Blueprint” on the Great Lakes region. Several features of the proposal have generated controversy and may be especially significant in the Great Lakes region: Continue reading “What President Trump’s “Budget Blueprint” Could Mean For The Great Lakes”

Author Bemoans “Worship of Ignorance” and Urges New Vitality in US Civic Life

Posted on Categories Political Processes & Rhetoric, Public, Speakers at Marquette1 Comment on Author Bemoans “Worship of Ignorance” and Urges New Vitality in US Civic Life

Tom Nichols thinks we’re in a pretty big mess in America. We’re narcissistic in a big way, we are ”obsessed with worship of ignorance,” we’re thin-skinned, we’re unwilling to have serious conversations on serious issues, we wear the fact that we don’t know much as a badge of honor, and we’re deeply divided.

His deep concerns didn’t arise from the 2016 political tumult and the rise of Donald Trump to the presidency. Nichols has been studying and writing about his concerns for several years.

The result is his new book, The Death of Expertise: The Campaign against Established Knowledge and Why it Matters. And the book led to an “On the Issues with Mike Gousha” program Tuesday at Marquette Law School. Continue reading “Author Bemoans “Worship of Ignorance” and Urges New Vitality in US Civic Life”

Abele Offers Big Ideas in Law School Session — Like Making Milwaukee the State Capital

Posted on Categories Milwaukee, Political Processes & Rhetoric, Public, Speakers at Marquette1 Comment on Abele Offers Big Ideas in Law School Session — Like Making Milwaukee the State Capital

Chris Abele likes to think big. How big? Try this on:

“Move the capital.”

What? Move the state capital from Madison to Milwaukee? The idea was greeted with laughter when Abele, the Milwaukee County executive, floated it during an “On the Issues with Mike Gousha” program at Marquette Law School on Wednesday.

It’s hard to picture the odds of that coming to pass as anything other than flat zero. But Abele was serious – sort of. He knew it was not going to happen, but, he said, “you can’t talk me out of thinking about it.” There is “plenty of research” that shows the advantages in terms of economic impact and government efficiency of the state capital and the state’s largest population center being the same. Think of Boston, Denver, and Minnesota’s Twin Cities.  Continue reading “Abele Offers Big Ideas in Law School Session — Like Making Milwaukee the State Capital”

On the Issues: “Politically Homeless” Activist Calls for Change in the System

Posted on Categories Election Law, Political Processes & Rhetoric, Public, Speakers at MarquetteLeave a comment» on On the Issues: “Politically Homeless” Activist Calls for Change in the System

Katherine Gehl says, “I like to say I’m politically homeless.” It was clear at an “On the Issues with Mike Gousha” program at Marquette Law School on Wednesday that she does not use that label because she is not involved. In fact, the opposite is true: She is deeply involved.

Her sense of “homelessness” comes from her frustration with what she calls “the political-industry complex.” The two major parties, Congress, the executive branch, Washington lobbyists, and the national media are all thriving, but they are not producing solutions to the nation’s problems, Gehl said. And while Washington thrives, problems go unsolved and people grow increasingly dissatisfied. She said the system and particularly the two major political parties do not have the incentives businesses have to respond constructively to competition. “Two parties equals zero results,” she said.

Gehl (pronounced Gayle) is a former Democrat who describes herself now as “a proud independent, a centrist, a pro-problem-solving, non-ideological citizen who wants to see government deliver on its promise to the citizens.” She adds, “That is not an ideology that fits with either of the parties.” Continue reading “On the Issues: “Politically Homeless” Activist Calls for Change in the System”

From Immigration to Executive Orders to Judicial Review: Miracle or Not?

Posted on Categories Civil Procedure, Judges & Judicial Process, Political Processes & Rhetoric, PublicLeave a comment» on From Immigration to Executive Orders to Judicial Review: Miracle or Not?

[The following guest post is from Jacques Condon, the alumni guest blogger for October 2016.] In the movie Die Hard, an enterprising police office played by Bruce Willis thwarts a large-scale robbery attempt (of, all things, bearer bonds). He does it barefoot, and clandestinely. But he also has aid from outside law enforcement which, unwittingly, is also used by the bad guys to their advantage. According to the lead bad guy, played by Alan Rickman, when asked what miracle will crack the safe to expose its riches, he responds: “You asked for miracles, Theo, I give you the F.B.I.”

The Die Hard “miracle” is rolled out for full entertainment value, and, to be sure, even Hollywood miracles that can be traced to non-fiction are sometimes hidden by the misnomers of “Based on a True Story” or “Taken From Real Events,” which allow for artistic license.

Yet this same point — the artistry of miracles — continually shows up in explaining and describing judicial rhetoric.

Nowhere has this been more than in the sound bites surrounding the President’s executive order on immigration. Continue reading “From Immigration to Executive Orders to Judicial Review: Miracle or Not?”

A New Era: The Rule of Law in the Trump Administration

Posted on Categories Civil Rights, Constitutional Law, Federal Law & Legal System, Federalism, First Amendment, Human Rights, Immigration Law, Labor & Employment Law, Legal History, Political Processes & Rhetoric, Public, Race & Law1 Comment on A New Era: The Rule of Law in the Trump Administration

Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.

As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.

Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate. Continue reading “A New Era: The Rule of Law in the Trump Administration”

Big Dreams and Hidden Harms

Posted on Categories Federal Law & Legal System, Immigration Law, Political Processes & Rhetoric, Public3 Comments on Big Dreams and Hidden Harms

One of the first choices that the Trump Administration will face after the upcoming inauguration is what to do about the “Dreamers.”  The name Dreamer has been used both to refer specifically to the young adults currently participating in the Deferred Action Childhood Arrival program (DACA) and, more generally, to any undocumented residents of the United States who were brought to this country by their parents when they were minors.

It is not difficult to be sympathetic to the plight of the Dreamers.  As undocumented residents of the United States, they were subject to immediate deportation under the law as it existed prior to 2012.  However, these longtime residents of the United States often had little memory of their birth country and may not have spoken any language other than English.  They grew up in the United States, and attended U.S. schools, and as a result they share the same hopes and dreams of any native born young adult.  Moreover, they were not morally complicit in their parents’ decision to enter the United States.  Prior to 2012, approximately 2 million people essentially found themselves trapped in a form of limbo – feeling American, unconnected to any foreign country, and yet unable to work lawfully in the United States or to plan for their future.

Legislation was first introduced in Congress in 2001 to resolve this situation and to permit these persons to obtain legal residence in the United States.  Titled the Development Relief and Education of Alien Minors Act (or DREAM Act), this first bill and similar versions introduced in subsequent years were designed to create a 6-year pathway to permanent legal residency.  To be eligible under the DREAM Act, a young adult had to have been brought to the United States at a young age, was required to be a college graduate or a military veteran (or be currently enrolled or enlisted), and could not have a criminal record.  The DREAM Act and its successor bills boasted bipartisan support but never passed both houses of Congress, either as a standalone bill or as a component part of a comprehensive immigration reform package.

Frustrated by congressional inaction, President Obama chose to extend relief to the Dreamers in the form of a Presidential Directive. Continue reading “Big Dreams and Hidden Harms”

Electoral College – Keep or Toss?

Posted on Categories Constitutional Law, Election Law, Political Processes & Rhetoric, President & Executive Branch, Public2 Comments on Electoral College – Keep or Toss?

electoral-college-2016By Mathew O’Neill

During the Twilight craze, the country was split between Team Edward and Team Jacob.  The battle was over Bella Swan’s heart.  Edward, a 200-year old vampire, was devastatingly handsome, kind, chivalrous, and his skin sparkled in the sun.  Jacob, a teenage werewolf, was brash, muscular, impulsive and fiercely protective of his tribe and Bella.  Oh, and Edward murdered a few thousand people but felt badly about it, while Jacob only killed vampires but had a bad mullet.  I was decidedly Team Jacob.

After the 2016 election, the country is split about the Electoral College.  There are again two camps: Team Keep and Team Toss.  Before going into the merits of each, some brief background.

As of this writing, Donald Trump won 56% to 44% in the Electoral College (290 to 232), while Hillary Clinton leads in the popular vote count 62,523,844 to 61,201,031.  So, while Trump romped to an 11-point Electoral route, he actually got clobbered by 1,322,813 votes.  What gives?  I thought this was a democracy.

This anomaly is the work of the venerated Electoral College.  The College was created in Article II, Section 1 of the Constitution, which states in part:

The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and representative to which the State may be entitled in Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The 23rd Amendment granted at least three Electors to the District of Columbia, bringing to 538 the total number of current Electors: 435 Representatives, 100 Senators and the D.C. trio.

The Constitution does not direct how the states must “chuse” their Electors.  In colonial times, most states did not call for a popular election to select their Electors.  Instead, party bosses made those decisions.  Eventually the cigar-smoke cleared, and today all states and D.C. hold a general election for President and Vice President, and nearly every state (48 of 50) has chosen to award all of its Electors to the winner of that state’s popular votes.  Thus, because the margins in various states can differ (Clinton won California by 3.5 million votes; Trump won Florida by 20,000 votes), it is possible to win the Electoral College, and thus the keys to the White House and a cool plane, while at the same time lose the overall popular vote.

Which raises the question: is this acceptable? Continue reading “Electoral College – Keep or Toss?”