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Saturday, February 01, 2003

During year's Koufax Award process, it was widely noted that material posted early in the year was at a large disadvantage in that memories tend to fade. This year, we are going to try to keep a file of good posts, good series and just good writing. If you have seen a post in the last month that you think is worthy of consideration, please send an email to the address listed on this blog or leave a comment to this post.

We intend to post a reminder to this effect at or near the end of each month. Nominating your own material is fine.

Secondly, we note that Eric Alterman of MSNBC’s Altercation has announced that he is going to update his blogroll by adding some additional links. Jeralyn of Talk Left has agreed to receive recomendations for Eric. You may reach her at Alterlinks@aol.com.

We recommended Kevin Drum of Calpundit and Mark Kleiman. Send an email reccomending your favorite blogs.

More State of the Union Recap

We were struck by the juxtaposition of one of Mr. Bush’s statements in the State of the Union address and three news reports.

In the address, Mr. Bush said the following:
And tonight I have a message for the brave and oppressed people of Iraq: Your enemy is not surrounding your country, your enemy is ruling your country.

We agree with Mr. Bush that Saddam is an enemy of the Iraqi people. He has used his dictatorial power to further his own ends at the expense of the population as a whole. His deprivation and torture of Iraqi citizens is despicable. His invasion of Kuwait along with his attempts to acquire weapons of mass destruction has caused more than a decade of suffering by the Iraqi people.

Three stories, however, may prevent the Iraqi people from seeing us as their friends.

First, from CBS News:
If the Pentagon sticks to its current war plan, one day in March the Air Force and Navy will launch between 300 and 400 cruise missiles at targets in Iraq. As CBS News Correspondent David Martin reports, this is more than number that were launched during the entire 40 days of the first Gulf War.

On the second day, the plan calls for launching another 300 to 400 cruise missiles.

"There will not be a safe place in Baghdad," said one Pentagon official who has been briefed on the plan.

"The sheer size of this has never been seen before, never been contemplated before," the official said.

The battle plan is based on a concept developed at the National Defense University. It's called "Shock and Awe" and it focuses on the psychological destruction of the enemy's will to fight rather than the physical destruction of his military forces.

"We want them to quit. We want them not to fight," says Harlan Ullman, one of the authors of the Shock and Awe concept which relies on large numbers of precision guided weapons.

"So that you have this simultaneous effect, rather like the nuclear weapons at Hiroshima, not taking days or weeks but in minutes," says Ullman...

One can perhaps understand that a plumber in Baghdad would not feel that “Shock and Awe” was a friendly gesture.

The second story concerns our use of nuclear weapons in Iraq. The Washington Times:
A classified document signed by President Bush specifically allows for the use of nuclear weapons in response to biological or chemical attacks, apparently changing a decades-old U.S. policy of deliberate ambiguity, it was learned by The Washington Times.

The third story, from the L.A. Times also involves the use of nuclear weapons:
As the Pentagon continues a highly visible buildup of troops and weapons in the Persian Gulf, it is also quietly preparing for the possible use of nuclear weapons in a war against Iraq, according to a report by a defense analyst.

Although they consider such a strike unlikely, military planners have been actively studying lists of potential targets and considering options, including the possible use of so-called bunker-buster nuclear weapons against deeply buried military targets, says analyst William M. Arkin, who writes a regular column on defense matters for The Times.

The juxtaposition of Mr. Bush’s SOTU remarks with those news stories points out one of the central dilemmas facing us with regard to Iraq.

On the one hand, if we go to war, Mr. Bush needs to use overwhelming force to shorten the war, minimize US casualties and ensure a quick and decisive victory.

On the other hand, use of nuclear weapons or turning Baghdad into Dresden within two days may compound the risks we face after the war.

One purpose of the war is to make us safer from terrorist attack. The complete devastation of Iraq could harm that effort in two ways. First, it could result in a large increase in the number of Muslims prepared to join a terrorist jihad against the United States.

Secondly, counties with large Islamic populations may face domestic pressure to not cooperate with the War on Terrorism if the destruction of Iraq is seen as going beyond what was necessary.

We think that the use of nuclear weapons should only occur in response to a nuclear attack. The risk of blowback from using nuclear weapons in any other circumstances seems, to us at least, far too great when compared to the military need.

Other than that, we do not have answers to the dilemma described above. Since war now appears inevitable, we simply hope that President Bush chooses wisely.

Columbia Disaster

The space shuttle Columbia broke up over Texas today and crashed. There are no survivors.

We wish the families and friends of the astronauts comfort in their loss. The astronauts were brave pioneers who paid the ultimate price to expand the knowledge of the human race. They are heroes.

We hope that Rick Husband, William McCool, Michael Anderson, David Brown, Kalpana Chawla, Laurel Clark, and Ilan Ramon may rest in peace.

Calpundit has excellent and complete coverage of the disaster.

Write The Letter

The latest brouhaha involves Professor Michael Dini of Texas Tech University. Professor Dini teaches biology. Micah Spradling, one of Dr. Dini’s students, filed a Federal complaint against Dr. Dini and Texas Tech. The complaint alleges religious discrimination. The gravamen of the complaint is that Professor Dini refused to write a letter of recommendation for the student.

The A.P. story on the controversy is here.

Dr. Dini refused to write a letter of recommendation for his student, because Mr. Spradling, although wanting further education and a career in biological sciences, could not “truthfully and forthrightly affirm a scientific answer” to the question of the origins of the human species. Mr. Spradling, apparently, does not believe in evolution.

Dr. Dini’s criteria for issuing a letter of recommendation are here.

Mr. Spradling responsed to the refusal to write the letter by suing both Dr. Dini and the school, Texas Tech.

We think that Dr. Dini should settle the suit by writing the letter for Mr. Spradling.

Our perspective is not that of an academic, an ethicist, a philospher, a scientist or a cleric. We view this from the perspective of a litigator.

Litigating over an issue as trivial as a letter of recommendation is absurd. The money spent by Texas Tech paying lawyers to defend Dr. Dini’s letter of recommendation policy would be better spent improving the biology department of Texas Tech. The money Dr. Dini does not spend on litigation could fund a trip to the Galapogos Islands to study the length of bird beaks.

The letter might read something like this:

Dear Sir or Madam:

I understand that Micah Spradling has applied to your fine institution in an effort to further his training in the biological sciences. I have been asked to write this letter by Mr. Spradling.

I know Mr. Spadling fairly well as he has taken lower level and upper level courses from me. I have also met with him in my office to discuss matters of biology.

In our meetings, the issue of the origin of the human species arose. Despite four years of training in the biological sciences, Mr. Spradling was unable to truthfully and forthrightly affirm a scientific answer to that question.

As a result of that inability, I declined to write a letter of recommendation for Mr. Spradling. When I declined, Mr. Spradling sued me as well as Texas Tech.

This letter is written under the terms of the settlement of that suit and you should regard it as such.

If you seek litigious students who, after four years of training in biology, are unable to state a scientific basis for the origin of the human species, then Mr. Spradling would be a fine addition to your program.

Sincerely Yours

We cannot expect professors to do more than provide truthful letters that contain an honest assessment of a student. The above letter is both.

Thursday, January 30, 2003
An Imminent Threat?

We were in the process of writing about Iraq when when we stoped by Tim Dunlop's Road to Surfdom. Tim's current post makes our draft completely superfluous. Please go read it.

Washington Legal Foundation Funding

Recently we wrote about the Washington Legal Foundation’s efforts to prevent funding of legal representation for the poor by attacking the constitutionality of IOLTA (Interest On Lawyer Trust Account) programs.

WLF has litigated a case with a potential recovery of $20 all the way to the Supreme Court of the United States in order to, in its own words, “deal a death blow” to groups that provide legal representation for the poor.

We began to wonder who funds those efforts. Thanks to a link from Skimble, we learned that the WLF is a 501(c)(3) corporation. That is an Internal Revenue Service designation that means that the WFL is a recognized charity and that donations to it are tax deductible.

Thus, the money that funds the WFL would otherwise be taxable. Some portion of WFL funding would (in the absence of the 501(c)(3) designation) be available to reduce the deficit, fund prescription drug benefits or prosecute the war on terror.

Who takes advantage of the WFL charity designation to try to prevent funding for legal representation for the poor?

Once again, Skimble has part of the answer. Major corporations make donations to the WFL. Skimble links to this list prepared by Capital Research.org.

Corporations and their foundations gave more than $600,000 to the WLF over a period of years. Most of those donations were in the range of $1,000 to $10,000. The major exception is Reynolds Tobacco and its parent Nabisco who made gifts of $75,000 in 1996 and $100,000 in 1995 respectively. Perhaps it is not surprising that Reynolds Tobacco supported the WFL. In a 1998 fundraising letter to Phillip Morris, the WFL bragged that it had accomplished “a great deal for the tobacco industry.”

The tax-deductible corporate money supporting the WLF pales in comparison to the sums given by right wing foundations.

Media Transparency has published a list of foundation support for the WFL. Conservative foundations such as the John M. Olin Foundation and the Lynde and Harry Bradley Foundation, Inc. have combined to provide almost $2,000,000 in funding to the WFL.

That is not the first time that those two foundations have combined forces. They also funded David Brock’s smear book ‘The Real Anita Hill.” In that book, Brock characterized law professor Anita Hill as “a little bit nutty and a little bit slutty.” Brock has since apologized to Anita Hill.

The largest source of funding for the WFL is the person at the center of the Vast Right Wing Conspiracy, Richard Mellon Scaife. Scaife is heir to the Mellon fortune and is a major benefactor to right wing causes.

He funded the American Spectator Magazine. He funded the notorious Arkansas Project. The Arkansas Project engaged in a massive effort to find political dirt on Bill Clinton. Scaife promoted the “Bill Clinton has a black love child” hoax. He pushed the “Vince Foster was killed by Hilary Clinton” smear. He pushed the “Bill Clinton was a running drugs through Mena Airport” fantasy. There is hardly any right wing smear of the Clinton Administration that was not funded or promoted by Richard Mellon Scaife.

Scaife controls at least three foundations. Those are the Sarah Scaife Foundation, the Carthage Foundation and the Allegheny Foundation. Those foundations have given the WFL more than $3.8 million over the years.

Based on the data we reviewed, Richard Mellon Scaife the single largest benefactor to the WFL.

Who supports the WFL efforts to prevent poor folks from obtaining legal representation? Who wants to “deal a death blow” to groups that help the homeless, the poor or minorities?

The usual suspects.

The State of the Union Recap

There have been a number of people writing about the President’s State of the Union address.

Jeanne D’Arc is pleasantly surprised at Mr. Bush’s proposal to provide $15 billion to help fight aids in Africa. We agree. Like Hesiod, we do not care what motivates that proposal. We like the substance of it and that, in the end, is all that matters. We tip our hat to the administration.

We were also quite pleased with Mr. Bush’s proposal to provide funding for hydrogen fuel cell research and development. That strikes us a far seeing substantively good proposal. Interesting Times, notes however, that when Al Gore made a similar proposal years ago, conservatives claimed that he was crazy. As Bob Somerby has repeatedly documented (see here, here , here and here for only a few examples. For more go to the Daily Howler and search for “internal combustion”), the media was only too happy to go along with that silly charade. Will the media now give President Bush similar treatment? Do not hold your breath.

Liberal Oasis has a superb substantive analysis of the speech.

TBogg provides a more amusing analysis of the speech. We cannot reprint it as this site is G rated.

There is a lively comment section on the speech at Atrios. Our favorite comment was from Brian Broadus regarding Mr. Bush’s continued flogging of the aluminum tubes that Saddam imported or tried to import. Despite the fact that the inspectors have reported that those tubes were not appropriate for the enrichment of uranium, Mr. Bush keeps bring them up. Brian comments:
What's with the aluminum damned tubes? It's like Captain Queeg and the strawberries. Can't he let it go?

Next it will be ball bearings.

Our favorite comment on the speech, as is often the case, comes from Julia at Sisyphus Shrugged. Noting that Mr. Bush declared that “the dictator of Iraq is not disarming,” Julia replied “I find him rather offputting myself.”

Many have commented on what Mr. Bush said. We were struck by what was omitted.

In the area of foreign policy, Osama bin Laden and Mullah Omar’s names were not mentioned. That is perhaps understandable.

Saudi Arabia, which spawned a majority of the 9/11 terrorists and which Senator Bob Graham has hinted provided support and assistance to the hijackers was not mentioned.

Pakistan, which sponsored the Taliban, currently harbors some elements of Al Qaeda, provided nuclear technology to North Korea and is one of the two most likely countries (along with North Korea) to provide a nuclear weapon to terrorists was not mentioned.

The Israel-Palestinian dispute merited one line.

The financial collapse in Argentina and the strike in Venezuela (which is partly responsible for the run up in the price of oil) were not mentioned.

Some have argued that France and Germany’s reluctance to join or approve of a war in Iraq will split the 50 year old NATO alliance. If so, it did not merit a mention in the speech.

Relations with Russia and China were not discussed.

On domestic policy, many of the traditional Republican themes were omitted.

Crime got only a passing reference to enforcement actions against crooked CEOs.

Welfare did not come up.

There were no calls for constitutional amendments. Flag burning, school prayer and term limits received no attention. It is perhaps understandable that Mr. Bush did not call for a balanced budget amendment on the same day that his administration announced that it anticipates that next year’s deficit will reach record levels.

Amid Mr. Bush’s tax cutting fever, the one tax that is to remain uncut is the capital gains tax. The screaming you hear results from Bob Novak pulling out what remains of his hair.

No departments are to be eliminated. The NEA funding remains safe.

With the Euro trading above the dollar and with OPEC possibly changing to the Euro as its basic currency, Mr. Bush had nothing to say about the flagging strength of our currency.

Trade did not make the cut.

In the wake of Trent Lott and the University of Michigan case, Mr. Bush made no mention of either race relations or affirmative action.

The absence of many of those issues in the State of the Union address is a testament not only to the intensity of Mr. Bush’s focus on Iraq and tax cuts but also to the willingness of the GOP to close ranks behind Mr. Bush and give him a pass on issues that have been central to the base of the party for many years.

That is known as discipline and the Democrats should note it and remember it for when they take power.

Tuesday, January 28, 2003
The Outrageous Washington Legal Foundation

There is much happening in the world. The President gave his State of the Union speech tonight. The inspectors have reported to the UN. General Norman Schwarzkopf thinks we should give the inspectors more time. Consumer confidence has hit new lows. The economy has not yet produced a single net new job under any President named Bush. Our oldest son has a report due soon on Thurgood Marshall and needs some help. Naturally, we have decided to write about lawyers’ trust accounts and legal aid for poor folks. Wait, we are serious.

This is a story of a right wing legal foundation attempting to use the courts to prevent money from going to provide legal representation for the poor. It is a little bit complicated but hang with us.

Lawyer Trust Accounts

Lawyers often have control over other people’s money. They hold other people’s money in anticipation of real estate closings. They hold their client’s money to satisfy liens. When a personal injury claim settles, the payment is often held in trust by the plaintiff’s lawyer until expenses are paid, releases signed and the proceeds paid out.

Legal ethics (no that is not an oxymoron) prevents the lawyer from putting a client’s money into his or her own operating account. The quickest way to a disbarment (short of conviction of a felony) is to “co-mingle” a client’s money with the lawyer’s own funds.

To prevent co-mingling, lawyers set up trust accounts. They place a client’s funds into the account and keep strict records of the amounts until the money is disbursed for the benefit of the client.

We were once called upon to lecture new lawyers on how to manage their trust accounts. Although we were allotted 45 minutes, our “lecture” lasted only two sentences. “It is not your money. If you treat it like your own money, you will be disbarred.” We then took 55 minutes of questions.

Interest On Lawyer Trust Accounts

What happens to the interest on trust account deposits?

Traditionally, there was no interest paid on such funds. The amounts placed in trust are either small or stay in the account for a very short period of time (one day to maybe two weeks). The costs of setting up an interest bearing account plus the bank, accounting and legal fees to do so far exceed any interest that could be earned.

To avoid the administrative and accounting hassle for the tiny amount of interest (which would not even pay the costs associated with earning it), lawyers traditionally kept the trust funds in non-interest bearing checking accounts and absorbed the costs of maintaining those accounts.

In essence, banks received the interest on lawyer trust accounts because they had the benefit of the float without paying out any interest.

With the high interest rates of the 1970s, some smart person had a brainstorm. What if we require all lawyers to put their trust account funds into interest bearing accounts, pool the funds, centralize the accounting and give the interest to a worthy cause?

With that bright idea, IOLTA was born. IOLTA stands for Interest On Lawyers’ Trust Accounts.

IOLTA legislation was enacted in almost all states. Those statutes created a court sponsored legal foundation. The legal foundations established what is now known as IOLTA programs.

In an IOLTA program, lawyers deposit their client’s money into IOLTA accounts. Those funds are pooled with other lawyers’ trust funds in an interest bearing account (large sums or money to be held for long periods are typically placed in special interest bearing accounts with the interest going to the client).

The IOLTA programs do the accounting, interact with the banks and receive the interest earned on the pooled account.

The pooling of the money and the centralization of the management and accounting causes the interest on the trust accounts to exceed the administrative costs. IOLTA accounts nationwide generated in excess of $148 million dollars in interest last year.

Please note that the clients whose money generated that interest lost nothing. In the absence of an IOLTA program, the administrative costs and banking fees would consume all of the interest earned on short-term deposits. In essence, the IOLTA programs took the float away from the banks and gave it to the court sponsored legal foundations.

Use of the Funds

What do the legal foundations do with the money?

The money goes to help poor people obtain legal representation. IOLTA provides money for indigent defense, legal services for women and children who are victims of domestic violence, tenants in disputes with landlords, senior citizens who are victims of fraud, homeless people and assorted other poor people in need of legal services.

The brainstorm of IOLTA accounts does a lot of good. Many poor people are now able to obtain legal representation with IOLTA funds. The program harms no one except the banks who no longer get to use the float on trust accounts interest free.

The Takings Clause

Not everyone sees it that way. The Washington Legal Foundation (WLF) is unhappy that IOLTA money is used to help the poor.

The WLF began filing suits in a number of states to prevent IOLTA from receiving the interest on lawyer trust accounts. Among the suits was one filed in Federal Court in Washington State.

The WLF’s legal theory was that the taking of interest on lawyer trust accounts was a violation of the Fifth Amendment to the Constitution.

Many may think of the Fifth Amendment in terms of the right to refrain from self-incrimination. That amendment, however, also has the “takings clause.” That clause provides that “nor shall private property be taken for public use, without just compensation.” In other words, if the government takes your property they must pay you “just compensation” for it.

The most common application of that clause is in condemnation (also called eminent domain) cases. If the government wants to build a road, it must acquire the land to do so. The government has the power to simply decide what land it wants and take it from the owner even if he owner does not wish to sell. The government must, however, pay the owner “just compensation” for the land.

That raises the issue of how much compensation is just. Generally, the amount that must be paid is measured by what the owner lost and not by the value to the government.

The wisdom of that rule may be seen when the government has purchased all of the land it needs for a new highway except for one parcel. Because the government must have the last parcel to have a road at all, the value of the last piece is quite high to the government. The landowner, however, receives a price measured by the value to him and not the windfall of the value to the government.

In its lawsuit, the WLF contends that the pooling of the trust money and the resulting interest being given to the IOLTA program takes property without compensation in violation of the Fifth Amendment.

The plaintiffs in the Washington suit contend that twenty dollars ($20.00) of interest earned on their money was siphoned off to the IOLTA account and that their constitutional rights had thereby been violated.

The defendants saw it differently. As they saw it, without the IOLTA account, the plaintiffs would have received no interest on their money. Without the pooling arrangement of IOLTA, it was uneconomical to set up interest bearing accounts. The defendants believe that the plaintiffs lost nothing and, therefore, no compensation is due.

Court Proceedings

At the trial court level, WFL lost on summary judgment. They appealed to the United Stated Circuit Court for the 9th Circuit. A three judge panel of Appeals Court reversed, finding that plaintiffs’ property had been taken without compensation.

Washington’s IOLTA foundation asked for the entire 9th Circuit to hear the case (called an en banc proceeding). The en banc panel disagreed with the Circuit Court opinion, reversed and reinstated the summary judgment against the plaintiffs.

The plaintiffs then sought review in the United States Supreme Court. The high court accepted the case where it has been briefed and argued but no decision has been reached.

Both Sam Heldman and Scotus predict that the Supreme Court will affirm and uphold IOLTA’s right to take the interest payments and fund legal representation for poor people. While we bow to their greater expertise, we are not as sanguine.

WFL’s Motivation

Why you may ask, would anyone litigate all the way to the Supreme Court of the United States in a case worth at most $20?

For the WFL, it was not about the money, it was about preventing poor people from obtaining legal representation.

On its web site, the WFL describes its mission as follows:
The Washington Legal Foundation (WLF) has one goal: to defend and promote the principles of freedom and justice.

Since it was founded 25 years ago, WLF has developed into the nation's preeminent center for public interest law, advocating free-enterprise principles, responsible government, property rights, a strong national security and defense, and balanced civil and criminal justice system.

The balance it seeks in the civil and criminal justice system does not appear to apply to groups it does not favor. In one of its fundraising letters, the WFL said that:
We are finally in a position we've fought more than a decade to reach -- a position where we can deal a death blow to the single most important source of income for radical legal groups all across the country," wrote WLF Chairman Daniel Popeo. Among the foundation's adversaries in the litigation, Popeo continues, are "groups dedicated to the homeless, to minorities, to gay and lesbian causes, and any other group that has drawn money from hard-working Americans like you and me to support its radical cause!

The WFL will spend hundeds of thousands of dollars to litigate a $20 case to the Supreme Court of the United States if doing so provides an opportunity to “deal a death blow” to a program that allows poor people access to justice.

That is WFL’s idea of promoting “the principles of freedom and justice.” WFL apparently believes that we cannot have a “balanced criminal and civil justice system” unless we prevent poor people from obtaining legal representation.

We think that is outrageous. That is why we are writing about lawyer trust accounts on the night of the State of the Union speech.

Update: Skimble has much more on the WLF and Dan Popeo.

Links and Sources

WFL Homepage

Opinion of the 9th Circuit Court of Appeals

En Banc Opinion of the 9th Circuit Court of Appeals

Supreme Court Oral Argument Transcript

Summary of the Case

Supreme Court Briefs (must scroll down to the case)

OP-ED in Community Rights

Scotus’ analysis

Sam Heldman’s analysis

A Retraction Is Sufficient

We are generally reluctant to write about tiffs between bloggers. The back and forth between the left and right wings of the blog world usually fails to capture our interest. One recent episode is so ridiculous that we just cannot resist writing about it.

Time Magazine recently published a story that alleged that President Bush renewed a tradition of sending a wreath to the Confederate Memorial at Arlington National Cemetery. Time reported that Mr. Bush had renewed the tradition, which had begun under Woodrow Wilson, after G.W. Bush’s father had discontinued it.

Many bloggers on the left of blogtopia wrote about that issue and suggested that it was yet another example of Mr. Bush’s attempts to appeal to Southern whites, the “Confederate Heritage” crowd and racists while being insensitive the perspective of African-Americans.

Time then retracted part of the story. George W. Bush had indeed sent wreaths to the Confederate Memorial. That practice, however, had not stopped under his father but rather the date on which the wreath was sent changed. President Clinton, apparently, continued to send such wreaths during his time in office.

Most left of center bloggers who had written about the incident noted that the story was false and linked to Time’s retraction.

Where is the controversy? Well, one right wing blogger, Ricky West of North Georgia Dogma is quite unhappy with the retractions.

Here is part of Mr. West’s diatribe:
Looks like we have a theme: Ignore any and everything said in the post when the premise is found to be incorrect and blame the source for everything. So, if you guys aren't going to have the 'nads to address your comments and let the rest of us assume that the real culprit is the source for their creation, please tell me why I should be reading you at all? (emphasis ommited).

Mr. West went on to call certain bloggers “cowards” and to question their manhood.

Mr. West is not satisfied that the bloggers informed their readers that the story was false. He wishes them to also retract their comments that charged the Bush administration with tolerating racism and seeking to appeal to the “confederate heritage” crowd. Mr. West’s position is ridiculous.

First, it is completely appropriate for a blogger to write about and link to a story in Time Magazine. Secondly, if sending the wreath to the Confederate Memorial fit a pattern of the Bush administration being insensitive to the concerns of African-Americans while courting the “confederate heritage” voters, relying on a Time Magazine article to demonstrate an instance of such pattern is completely appropriate.

When the Time Magazine story proved false in one particular, it was incumbent on the bloggers to note the falsity of the example used. Implicit in reporting the falsity of the linked story is an acknowledgement that the story may no longer be used as evidence of the pattern.

We doubt that any blogger concluded that Mr. Bush was playing footsie with the racists solely on the basis of the wreath story. Indeed, there is ample evidence of Republican tolerance of racists without reference to that story. We did not write about the wreath story. We have written that the Republican Party is far too tolerant of racist elements. The position that Mr. Bush and the GOP are overly tolerant of racists is not dependent on the wreath story.

Secondly, sending a wreath to the Confederate Memorial is inappropriate regardless of whether or not Bill Clinton and other Democratic Presidents did so. The Confederacy attempted to destroy the United States of America. It attempted to do so by secession and by force of arms. The Confederacy was prepared to destroy the United States to defend the right of Southerners to own people as chattel. That was wrong then. It is wrong now. It should not be honored or celebrated in any way.

We are Southern by birth, heritage and choice. Despite those roots, we find it difficult to see why any President of the United States, Democrat or Republican, would want to honor those who tried to kill American servicemen and tried to destroy the very Union we hold dear. The fact that Bill Clinton, and many other presidents, Democrats and Republicans alike, did something inappropriate is no reason for George W. Bush to also do it.

Third, when one’s position is based on a myriad of examples, changing that position simply because one example turns out to be false is ridiculous. Mr. West’s position, apparently, is that Mr. Bush cannot be attempting to appeal to racists because Bill Clinton also sent wreaths to the Confederate Memorial. That makes no sense.

Some months ago, it was reported that Iraq had imported aluminum tubes. Some in the administration said that the only use of such tubes was for the development of nuclear weapons. Many warbloggers leapt on that statement as evidence to support of a policy of war with Iraq. That was perfectly appropriate in that the development of nuclear weapons by Iraq would give weight to the argument for invasion.

The U.N. weapons inspectors recently reported that the type of aluminum tube imported by Iraq was not useful to enrich uranium but had other uses.

What should the bloggers who had cited the importation of the tubes as a reason for invasion do at that point?

Certainly, they should note that one of the facts on which their argument was based turned out not to be true.

Were they required at that point to retract their support for invasion based on other evidence? Of course not. There is other evidence from which one may draw the inference that Iraq is developing weapons of mass destruction. There are reasons besides the development of weapons of mass destruction to support an invasion.

The same is true for the wreath story and the argument that Mr. Bush tolerates and appeals to racists.

For Mr. West to suggest that people who believe that Mr. Bush seeks to appeal to the racists are “cowards” because they did not change their view when it turned out that Bill Clinton had also made the mistake of sending wreaths to the Confederate Memorial is simply ridiculous.

Monday, January 27, 2003
Affirmative Access

In a recent speech announcing that his administration would file an amicus brief with the Supreme Court, President Bush declared that:
At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students based solely on their race…

Systems in California and Florida and Texas have proven that by guaranteeing admissions to the top students from high schools throughout the state, including low-income neighborhoods, colleges can attain broad racial diversity.

That statement reminded us of a comment made in the third Presidential debate in 2000. In that debate, the issue of affirmative action arose. Mr. Bush said:
For example in our State of Texas I worked with the legislature, both Republicans and Democrats to pass a law that say if you come in in the top 10% of your high school class you're automatically admitted to one of our higher institutions of learning. College. And as a result, our universities are now more diverse.

It was a smart thing to do is what I called it, I labeled it affirmative access.

According to Mr. Bush, the Michigan plan is an impermissible quota system while the “affirmative access” provision in Texas is an admirable race neutral method of achieving racial diversity in higher education.

The Texas “top 10%” program is interesting. It has no point system. By statute any Texas High School student who ranks in the top 10% of his or her class is guaranteed admission to any Texas state university.

The genesis of the Texas affirmative access system was the Court of Appeals decision in Hopwood v. Texas. In Hopwood, the United States Circuit Court for the Fifth Circuit held the Texas affirmative action program unconstitutional under the 14th Amendment to the Unites States Constitution.

After Hopwood, African American enrollment at the University of Texas law school dropped more than 90%. Minority enrollment increased after the passage of the “Top 10%” law.

The Texas system has some initial appeal. It achieves the goal of increasing minority enrollment without overt consideration of race. We support both the goal of increasing minority enrollment and the effect that the top 10% program has had in Texas University.

Upon closer inspection, however, it is difficult to see why the Texas system is an admirable method of providing access to the American dream for minorities while the Michigan system is an odious quota system.

The affirmative access provision of Texas law was specifically designed to increase racial and ethnic diversity at the university.

Thus, like the Michigan system, the Texas “top 10%” program actively seeks racial and ethnic diversity as a goal of its admission’s policy.

Secondly, the Texas program automatically admits students that are less qualified on the basis of grades and test scores than students who are not automatically admitted.
Natalie Fogiel, an 18-year-old high-school senior in Dallas, has SAT scores higher than the Ivy League’s collective average—she scored 1490 out of 1600. She’s a National Merit Scholar semifinalist, and she’s active in Student Congress.

Ms. Fogiel attends high school in the affluent Highland Park area of Dallas. Highland Park High School is 97% white. Ms. Fogiel is not in the top 10% of her class but rather is in the top 15%. At her school, even straight A’s in regular classes for four straight years would not place a student in the top 10%. Thus, Ms. Fogiel does not qualify for automatic admission to the University of Texas.

Meanwhile, a student in the top 10% of the class at overwhelmingly Hispanic W. H. Adamson High School would be guaranteed admission at the University of Texas. Adamson has an average SAT score below 900.

Bob Somerby has pointed out that the University of Michigan program has been criticized for counting on 12 points of a possible 150 for SAT scores. In the Texas program SAT scores count for absolutely nothing.

The Texas program uses race as a criteria for admission but does so covertly. As Michael Dorf on Findlaw.com as written:
Another significant drawback of the ten percent plan is that it depends on segregation. Admitting the top ten percent of Texas high school graduates means admitting substantial numbers of African-Americans and Hispanics — but this is an artifact of de facto segregation, where schools divide into white and non-white. Because there is currently a gap between the test scores and grades of white and minority students, integration would threaten the ten percent plan: At least in the short run, the more schools become integrated, the more minority students would tend to fall out of the top ten percent — and below the radar screen of the Texas plan.

Researchers from the Harvard Civil Rights Project, including John Yun, have documented that segregation in Southern public schools is increasing (link provided with permission of the author).

Thus, while the purpose of the Texas “top 10%” program is to increase minority enrollment in Texas public Universities, it relies on segregation of the Texas public school system to accomplish that purpose.

In the language of the civil rights laws, the Texas program, while facially race neutral, has a disparate impact based on race.
If a white student applying to Michigan suffers racial discrimination because an African-American is admitted with lower grades and test scores, it is difficult to see why a white Texan who is denied admission to Texas because of a program with the purpose and effect of admitting minority candidates with lower test scores and grades has suffered any less.Given that disparate impact, a legal analysis of the Texas program should look a lot like the legal analysis of the Michigan program.

Next, the Texas statute specifically recognizes that some students admitted under the “top 10%” law are unqualified as they will not be ready for college work. The statute itself contains the following provision:
After admitting an applicant under this section, the institution shall review the applicant's record and any other factor the institution considers appropriate to determine whether the applicant may require additional preparation for college level work or would benefit from inclusion in a retention program. The institution may require a student so identified to enroll during the summer immediately after the student is admitted under this section to participate in appropriate enrichment courses and orientation programs.

Thus, the Texas program specifically recognizes that some students who are not prepared for college work will be admitted over other students who are prepared for college work. The purpose of such a policy is to increase minority enrollment in Texas universities. We are not aware that the Michigan affirmative action program is designed to admit students who are unprepared for college.

The “top 10%” program also provides perverse incentives for parents. If a choice is given, parents must decide whether it is better for a student to stay in a poor school or move to a better school. The Texas program rewards the choice to stay in a poor school because admission to a Texas University is far more likely at a poor school.

President Bush and many conservatives believe that school choice is one method of improving public schools. The Texas program undercuts that goal by providing an incentive for parents to keep their children in failing schools.
Mickey Kaus, writing in Slate has argued:
This dilemma is particularly acute for supporters of school choice (mostly on the right) who hope that vouchers, or other choice mechanisms such as charter schools, will encourage motivated black students to leave bad schools and attend better ones. But why would a black student who is near the top of his class at a lousy public high school--and therefore guaranteed college admission under the X Percent Solution--leave to go to a much better high school where he's apt to rank in the middle of the class?

Indeed, why would any good student, black or white, leave a bad school for a good school if he ranks much higher at the former than at the latter? The X Percent Solution seems to subvert the basic mechanism that is supposed to make school choice work…

There are other problems with the X Percent Solution: Even if there's no school choice, won't it remove a major incentive for poor schools to improve? After all, their top 10 or 20 percent get into college anyway!

The White House position is as follows:
"The president believes in affirmative access, providing equal opportunity for all Americans, not quotas," Fleischer said. "Affirmative access, which encourages and increases diversity on campus based on merit," Fleischer.

The program that Mr. Bush supports explicitly has a quota for admissions. That quota, as a result the segregation of the Texas public school system, admits a certain percentage of minorities regardless of the outcome of a race neutral comparison of individual candidates.

The Bush supported program has the purpose of promoting racial diversity on campus even at the costs of admitting some “less qualified” minorities ahead of “better qualified” whites. Indeed, the Texas program goes even further and explicitly provides that some students who gain admission will not be qualified for college work while other students, who are quite prepared for college work, will be denied admission.

The Texas program also gives perverse incentives for students to stay in failing schools by rewarding them with college admission that would be denied if they opted for better high schools.

We support the affirmative action program at Michigan. We agree with the statement in the Bakke decision that "In order to get beyond racism, we must first take account of race. There is no other way."

If the Court decides that the Michigan program is unconstitutional, then we will support a program modeled after the Texas “top 10%” statute.

We have a hard time, however, seeing how the Michigan system constitutes odious use of racial quotas while also contending that the Texas system is a model of a race neutral meritocracy. It just is not true.

Sunday, January 26, 2003
In the Pocket

It is an article of faith among conservatives that the Democratic Party is “in the pocket” of the trial lawyers. It is true that lawyers make stubstantial contributions to Democrats.

That, however, only tells one side of the story. Who opposes tort reform?

Insurance Companies, and the health care sector (health professionals, HMO’s and pharmaceutical companies) come to mind. How much do all parties interested in tort reform issue give to each party?

We looked to Open Secrets.org to find out.

All told, the lawyers, insurance companies and the health care industry gave $95.9 million to Democrats and $92.5 million to Republicans.

The pharmaceutical companies are interested in a number of issues other than tort reform. Among those other issues are patents and a prescription drug benefit. If we count only lawyers, Doctors, HMOs and insurance companies, the Democrats lead the fundraising race by $85.2 million to $69 million.

Conservatives are correct in identifying lawyers as major contributors to the Democratic Party. They often fail to mention that the Republican Party benefits from generous contributions from the other side of the tort reform debate.