Sunday, February 24, 2013

Will Voting Rights Act Be Victim of Its Success?

      Florida enacted a voting procedures law in 2011 that, among 80 changes, cut the time for early voting by half. Evidence in Florida and elsewhere shows that African American and Hispanic voters make more use of early voting than whites.
      The state had to get approval for the changes from the Justice Department or a three-judge federal court in Washington because five Florida counties are covered by the Voting Rights Act’s so-called preclearance requirement. That provision, section 5, currently requires nine states and parts of seven others to get prior approval of any change in voting law or procedures.
      The Justice Department approved 78 of the 80 changes in the Florida law, but the state went to court on the other two, including the change in early voting, when DOJ lawyers kept them under review. The court rejected the change in early voting last summer on the ground that the state had failed to show it would not lower turnout among minorities. Early voting remained a point of contention up to Election Day between Republican Gov. Rick Scott on one side and Democrats and minority groups on the other, but the court’s ruling had the effect of preventing reduced hours in the five affected counties.
      The court’s Aug. 16 ruling in Florida v. United States is one of four 2012 cases that the Obama administration is citing to the Supreme Court in advance of arguments on the constitutionality of the Voting Rights Act this week [Feb. 27] to show that the 48-year-old law still works and is still needed. The administration also used the act to block Texas from enacting a redistricting plan aimed at reducing Latino representation in the state legislature and the state’s congressional delegation. The act also blocked a Texas voter photo ID law and forced South Carolina to tweak its photo ID law to limit impact on minorities.
      Cases such as these — and hundreds of lesser episodes over the past five decades — explain why civil rights experts call the 1965 Voting Rights Act the most effective civil rights law in U.S. history. Ironically, opponents of the law are now citing its very effectiveness as the principal reason why the Supreme Court should either strike down or substantially limit the preclearance requirement.
      The “widespread and ingenious” voting discrimination practiced in the South in the past is now gone, lawyers representing Shelby County, Alabama, told the justices in their brief filed late last year [Dec. 26]. Today, the lawyers argue, the singling out of mostly southern states and counties based on minority voting and voting registration gaps from the bad, old days is unnecessary and — because of federalism concerns — unconstitutional.
      Four years ago, the Supreme Court came close to agreeing. “Things have changed in the South,” Chief Justice John G. Roberts Jr. wrote in Northwest Austin Municipal Utility District No. 1 v. Holder (2009). Improvements in minority voter registration and turnout, increases in the number of minority officeholders, and the elimination of blatant voter discrimination since passage of the Voting Rights Act “stand as a monument to its success,” Roberts wrote.
      All nine of the justices agreed in the case that the preclearance requirement raised a “difficult” question in light of what Roberts called “the principle of equal sovereignty” of the states. But Roberts led eight justices in ducking the issue by allowing the Austin municipal utility district to take advantage of the act’s section 4(b) to “bail out” of the requirement. Thomas, dissenting, said he would have gone ahead and ruled section 5 unconstitutional.
      The ruling was immediately seen as setting the stage for another test case except in the unlikely event that Congress significantly rewrote the law just a few years after reauthorizing it through 2031. Now, the law is before the Court again in a challenge, Shelby County v. Holder, 12-96, brought by a nearly all-white county just outside Birmingham that is supported by a range of conservative experts and advocacy groups and opposed by civil rights organizations.
      Solicitor General Donald Verrilli will be arguing on Wednesday from briefs that tout the success of the law as well as its flexibility. The government’s brief counts 750 section 5 objections from 1982 to 2006 that blocked approximately 24,000 election law changes. Despite overall improvement, the brief notes that section 5 challenges have increased since 1982 in at least two Deep South states: Louisiana and Mississippi.
      The government also stresses that most changes are routinely approved — as in the Florida case. Justice Department questions sometimes prompt jurisdictions to modify changes without protracted controversy. And the bailout provision has allowed 236 jurisdictions to date to get out of the preclearance requirement by showing a clean voting rights record for the previous 10 years.
      Opponents are unmoved. The bailout provision is burdensome, they insist, and subject to revocation on account of new alleged discrimination. And the burdens of the law are now being visited on jurisdictions with voting rights records in some regards better than states that are outside the law.
      Those may sound like policy arguments of the sort left to lawmakers instead of courts, but the Roberts Court conservatives have shown themselves to be no prisoners of judicial restraint in the past. This week, the conservative bloc’s self-restraint will be the key to the fate of a law universally acknowledged to be a monumental success.

Monday, February 18, 2013

Oversight of Drone Program Remains Elusive

      John Brennan’s appearance before the Senate Intelligence Committee on his nomination to be director of the Central Intelligence Agency had the advance buildup of a major Broadway opening. The Feb. 7 hearing was viewed as the long-awaited opportunity to get the Obama administration on the record about its use of drone aircraft for targeted killings of al Qaeda figures abroad. Brennan, who has served as the White House’s top counterterrorism adviser for the past four years, was commonly described as the architect of the drone program.
      Expectations were raised at the start of the week [Feb. 4] when a summary of the Justice Department’s long-sought opinion on the legality of the drone program was leaked to Michael Isikoff, NBC News’ national investigative correspondent. The 16-page DOJ “white paper” set out in greater detail than ever before the administration’s legal case for targeting “senior operational leaders” of al Qaeda, even if the target is a U.S. citizen.
      The leak gave national security advocates and experts grist for debate while waiting for Brennan’s confirmation hearing. With many legal experts faulting the memo as vague on critical definitions, the administration responded two days later by releasing to Intelligence Committee members the actual text of one of the Office of Legal Counsel (OLC) opinions on the issue.
      Despite the hype, the week’s events proved to be mostly a bust for advocates of greater transparency and accountability on the drone program. The OLC opinion was made available only to senators, not to their staffs — prompting a stiff complaint from the committee’s chair, Democrat Dianne Feinstein of California. And Brennan’s three hours-plus in the witness chair provided virtually no new information about the drone program, as Isikoff reported that night.
      Nothing in the week since the hearing suggests that transparency and accountability are any closer. Brennan’s written answers to additional questions from the hearing, released last week [Feb. 15], added nothing but more generalities to his defense of the targeted killing program. And the most concrete proposal for subjecting the drone program to effective oversight — a proposed national security court to vet a kill order — seems likely to die despite what Brennan professed to be the administration’s willingness to consider the idea.
      Brennan assured the Intelligence Committee that the administration has been “very judicious” in the use of “remotely piloted aircraft” to conduct targeted killings. Under relatively friendly questioning by Feinstein, Brennan said the administration does everything possible to minimize innocent casualties, but he declined to give specific figures. And he declined to give any information about the administration’s justification for the September 2011 drone-strike killing of Anwar al-Awlaki, a U.S. citizen-turned-al Qaeda propagandist.
      Outsiders take the administration’s tut-tuts with more than a grain of salt. An in-depth report by the non-profit newsroom Pro Publica says the administration has “drastically” expended the drone program. The report counts 40 drone strikes last year in Yemen alone and seven strikes in Pakistan in the first few days of 2013. The number of innocent casualties is “impossible to know,” the report concludes, but it cites estimates in the hundreds from the center-left New America Foundation and the British-based Bureau of Investigative Journalism. On the eve of the Brennan hearing, the New York Times published an embarrassing account of a drone strike that killed three major al Qaeda figures as they met in Yemen with a vocal opponent of al Qaeda, who also was “incinerated” in the attack.
      For many advocates and observers, the targeting of a U.S. citizen raises difficult legal and policy issues. The Justice Department white paper acknowledges a citizen’s interest in avoiding “erroneous deprivation of his life.” But it says that interest is outweighed by the government’s “compelling” interest in “waging war, protecting its citizens, and removing the threat posed by enemy forces.” Nothing in U.S. law or the international law of war, the white paper concludes, immunizes a U.S. citizen from “a lethal operation” if he is fighting for the enemy.
      The idea of creating a special court to screen such a targeted killing, modeled along the lines of the Foreign Intelligence Surveillance Act court, got a boost at the Brennan hearing from Feinstein as well as Maine’s newly elected independent senator, Angus King. “Having the executive being the prosecutor, the judge, the jury and the executioner all in one is very contrary to the traditions and the laws of this country,” King said. Brennan called the idea “worthy of discussion,” but he went on to list the practical and constitutional difficulties with judicial review of the president’s decision-making as commander in chief.
      National security and presidential power hawks — for example, John Yoo, head of OLC during the Bush administration, writing in an op-ed in the Wall Street Journal — second those concerns. From an opposite perspective, some civil liberties-minded experts and commentators, including Garrett Epps, legal affairs columnist for The Atlantic, view a judicial role as likely to be of little use and potentially dangerous by injecting the courts into treacherously political decisions. Federal judges appear to be less than enthusiastic as well. “A very bad idea,” writes retired federal judge James Robertson in an op-ed in the Washington Post. With little support outside the political left, the national security court seems to be an idea whose time has not come — nor ever will.

Monday, February 11, 2013

Standard & Poor's Subprime Performance

      The unnamed senior analyst was new to the credit rating agency Standard & Poor’s in July 2007 when he told an investment banker client by e-mail that the job was “going great.” Except, the analyst added sardonically, that the world of mortgage-backed securities that accounted for much of the company’s business was “crashing,” investors and the media “hate us,” and “we’re all running around to save face.”
      Continuing the e-mail string two days later, the analyst acknowledged that there had been “internal pressure” for S&P to lower its all-important investment ratings on many deals. But the pressure apparently came to naught. Why? Because “the leadership was concerned of p*ssing off too many clients” and “jumping the gun ahead of” S&P’s lesser rivals in the credit-rating business, Fitch and Moody’s.
      The newbie analyst’s unguarded admission of S&P’s conflict of interest between satisfying clients and providing objective financial advice was one of many revealing e-mails cited in the government’s massive suit filed last week [Feb. 4] charging S&P with fraud. The 119-page complaint depicts S&P as giving its coveted investment-grade triple-A rating to packages of subprime mortgages even as S&P analysts and executives were well aware of the record level of delinquencies in the mortgage marketplace.
      The suit, United States v. McGrawHill, filed in federal court in Los Angeles, represents the government’s most ambitious effort to date to go after one of the financial companies that played a part in the great financial crisis of 2007-2008. (McGraw Hill is S&P’s parent company.) The government is asking for up to $5 billion in civil penalties under a 1989 law, the Financial Institutions Reform, Recovery and Enforcement Act, which Congress passed after the savings & loan crisis of the 1980s. The law allows the government to recoup fraud-related losses suffered by federally insured banks and credit unions.
      In announcing the lawsuit, Attorney General Eric Holder said S&P’s “egregious” conduct went “to the very heart of the recent financial crisis.” S&P analysts were aware as early as 2003 of doubts about the accuracy of its ratings for financial packages made of up residential mortgages, Holder said. But S&P executives allegedly ignored the warnings, concealed facts, made false representations to investors and financial institutions, and took “other steps” to manipulate the ratings, all for the purpose of increasing S&P’s revenue and market share.
      Prepared for the filing — S&P was reported to have turned down a proposed settlement — the company sent the high-powered Wall Street attorney Floyd Abrams out to answer the charges. In a succession of TV interviews, Abrams tut-tutted the seemingly damning e-mails cited in the government’s complaint.
      The government had picked a few “angry” or “embarrassing” e-mails out of 20 million pages of documents, Abrams said. Overall, he insisted, the evidence would show that S&P was doing its best in difficult times to make good judgments about what was going to happen in the future. And if S&P got it wrong, Abrams said, so did everybody else: the other credit rating companies and the top government leaders, including the Bush administration’s secretary of the treasury, Henry Paulson.
      The government’s complaint, however, charges that the company was not merely wrong, but knowingly and intentionally wrong. In the government’s telling, the company stood to gain more from pleasing the clients who paid six-figure fees to have their investment packages favorably rated than it stood to lose from misleading investors about the risks of billion-dollar bundles of subprime residential mortgages.
      One analyst complained in a 2004 e-mail about losing a deal to Moody’s because S&P was requiring higher credit support for a favorable rating. Over time, the government alleges, S&P stopped being so demanding. By 2006, one analyst was asking rhetorically: “Does company care about deal volume or sound credit standards?” Despite the unprecedented level of mortgage delinquencies, S&P failed to downgrade any of the mortgage-backed securities even when they consisted primarily of subprime mortgages.
      Experts handicapping the suit disagree on its prospects. Writing in the New York Times’ blog Dealbook, law professors Peter Henning and Steven Davidoff argue the government faces an “uphill battle” despite “the colorful e-mails.” A few complaints by low-level employees will not be enough to prove intentional fraud, Henning and Davidoff suggest. In addition, the government will have trouble showing that investors relied on the ratings since prospectuses typically include boilerplate advice not to rely on them.
      Disagreeing, former financial executive Richard Eskow argues in an op-ed in Huffington Post that the government makes out a “strong” case that S&P intentionally misled investors about its internal controls, methodology, and objectivity. Eskow, now a senior fellow with the liberal group Campaign for America’s Future, also notes the irony that S&P, accustomed to bragging about the quality of its services, will be defending in part by saying, “We weren’t crooked, just incompetent.”
      Whatever the outcome of the suit, Eskow argues that the credit rating agency system remains “broken” despite efforts by Congress to fix it. An amendment sponsored by Sen. Al Franken, the Minnesota Democrat, sought to eliminate the conflict of interest inherent in the system of issuer-paid ratings by having an independent board pick the agency to rate structured deals. The Securities and Exchange Commission, however, has failed to act on the issue. Despite its subprime performance in the past, the credit rating industry apparently has enough clout in Washington to bottle up any reforms that threaten its lucrative business.

Thursday, February 7, 2013

The Making of a Wise Latina Justice

      Sonia Sotomayor notched her first courtroom victory as a prosecutor in New York City when a jury convicted a defendant in an episode stemming from an assault on his wife while riding the subway. The wife refused to testify, but the defendant was also charged with assaulting a fellow subway rider who had intervened to try to stop the beating.
      Although gratified by the jury’s guilty verdict, Sotomayor’s heart sank when the judge said he was inclined to sentence the defendant to one year in jail. The defense attorney protested that the defendant had never been in trouble before and his family depended on him for support.
      The judge then turned to Sotomayor, who — as she recounts in her insightful memoir My Beloved World — said she agreed with the defense lawyer. Jail would be a hardship for the family, Sotomayor acknowledged. Probation along with a treatment program for domestic abuse would be satisfactory. The judge went along with the recommendation.
      Three decades later, opponents of Sotomayor’s nomination to the Supreme Court in 2009 might have made something out of the case had they only known of it. Some critics labeled Sotomayor the “empathy nominee,” playing off President Obama’s listing of one of the attributes he had been looking for in a prospective justice. Sotomayor resisted the imputation. As a judge, she told the Senate Judiciary Committee, she based her decisions solely on the law.
      Sotomayor reveals in her memoir, however, that empathy is in fact a deeply ingrained trait of hers. Chronicling her life up to her appointment to the federal bench in 1992, Sotomayor makes clear that she believes her “innate skills of the heart” help explain her success in rising from a crime- and drug-ridden Puerto Rican neighborhood in the Bronx to become the first Hispanic to serve on the highest court in the land.
      “Whenever I make a new friend, my mind naturally goes to the question, what can I learn from this person?” Sotomayor writes midway through the 300-page memoir published last month [Jan. 15]. “There are very few people in the world whom you can’t learn something from . . . .” Later, she explains how she came to realize that "leveraging emotional intelligence” was important to communicating with jurors along with remembering that there is a difference between what makes sense to a lawyer and what makes sense “to a human being.”
      Sotomayor’s life parallels in some respects that of her Supreme Court colleague Clarence Thomas, who recounts in his memoir My Grandfather’s Son how he rose from poverty to become the second African American justice. But the memoirs are as different in tone as night and day. Thomas’s memoir is suffused with anger, resentment, and self-pity, not just in his account of his bitter confirmation battle but in the narrative of his childhood, adolescence and college and law school education.
      By contrast, Sotomayor is forgiving and understanding even when confronted with hardships and prejudice of the same type that Thomas encountered. Her father was an alcoholic, who drank himself to death when Sonia was only eight, but Sotomayor depicts him nevertheless as loving and attentive. Her mother was distant and often insensitive, but Sotomayor gives her credit for instilling discipline and a love of learning. And when Sotomayor is admitted to Princeton as an undergraduate, she says she felt no envy or resentment toward her wealthier and better-prepared schoolmates. Instead, Sotomayor writes, she felt “only astonishment at how much of a world there was out there and how much of it others already knew.”
      From his Yale Law School experience, Thomas has taken away a lasting resentment toward affirmative action. His degree, he wrote, bears “the taint of racial preference.” Sotomayor, by contrast, has openly called herself an “affirmative action baby” and bears her status as a badge of honor. She relates in the memoir her dinner at Yale with a law firm recruiter who asked her whether being Puerto Rican helped her get admitted. “It probably didn’t hurt,” Sotomayor replied. “But I imagine that graduating summa cum laude and Phi Beta Kappa from Princeton had something to do with it too.”
      Throughout the memoir, Sotomayor stresses discipline and perseverance as keys to her success along with confidence that she could do whatever she set out to do — just as she learned to manage her diabetes from the age of seven. Yet, unlike Thomas’s self-portrait, there is no swagger in Sotomayor’s account. Thomas wrote that it never occurred to him that he could not do the work of a Supreme Court justice. By contrast, Sotomayor writes that her knees were knocking the first time she presided over a courtroom. She used the same metaphor in a television interview to describe her first session on the Supreme Court.
      Sotomayor closes her memoir by recalling a friend’s rebuke from law school days that she never took firm stands, that she was always open to persuasion. Sotomayor takes the point that having principles is important, but wisely adds that equally important is being open to new understandings. “My highest aspiration for my work on the Court,” she writes, “is to grow in understanding beyond what I can foresee.”