By LEROY GOLDMAN
Columnist

Published: Tuesday, October 22, 2013 at 4:30 a.m.

Affirmative action back in cross hairs 

“Equal Justice Under Law” are the words carved in the white Vermont marble on the west front of the U.S. Supreme Court. They paraphrase the Equal Protection Clause of the 14th Amendment.

The court’s interpretation of that clause is at the heart of the nation’s struggle to define the proper bounds of affirmative action. The struggle has been bitterly controversial. It is a work in progress and not the zero-sum game that too many would like it to be.

Perhaps the best way to grasp the opposing views of how to define what’s permissible under the aegis of the Constitution respecting affirmative action is to contrast the words of former Supreme Court Justice Harry Blackmun with those of Chief Justice John Roberts.

On June 28, 1978, in a fractured plurality decision, the Supreme Court ruled in the case of Regents of the University of California v. Bakke that affirmative action permitted race to be used as a factor in college admissions. In his opinion, Justice Blackmun’s stated, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.”

On June 28, 2007, in another fractured plurality decision, the Supreme Court ruled in the case of Parents Involved in Community Schools v. Seattle School District No. 1 that the school desegregation plans of both Seattle and Louisville, Ky., were unconstitutional because they were not sufficiently narrowly tailored. In his opinion, Chief Justice Roberts stated, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

What is incontrovertibly clear is that Blackmun’s view and Roberts’ view cannot coexist. The fundamental question going forward is whether Roberts will be able to put up or whether he will have to shut up. When we know the answer to that question, we will know the outcome of the war over affirmative action, not simply the outcome of one of its many battles.

Comes now the case of Schuette v. Coalition to Defend Affirmative Action, the next battle in the war. The high court heard oral arguments on Schuette last Tuesday.

Writing in SCOTUSblog, Editor Amy Howe recently stated, “in late June, the court issued its decision in Fisher v. University of Texas at Austin, a challenge to the university’s consideration of race in its undergraduate admissions process. The court sent the case back to the lower court with instructions to take a closer (and tougher) look at the policy.”

In Schuette, Howe opined, the high court will confront the sequel to the Fisher case, stating, “In Fisher the court was considering whether the Constitution allows a university to (voluntarily) consider race as a factor in admissions; in Schuette, the issue is whether the Constitution allows a state to do the opposite: prohibit universities from using race as a factor.”

Schuette’s seeds were sown in 2006 when voters in the state of Michigan approved Proposal 2, a constitutional amendment that blocks the state from using race or gender in public education, employment and contracting. The proposal was adopted by a whopping 58 percent to 42 percent margin. Seven other states have adopted similar prohibitions: Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington.

The challengers of Proposal 2 were successful last November in persuading the 6th U.S. Circuit Court of Appeals that Proposal 2 skewed the political process against the interests of minorities and thus violated the 14th Amendment’s Equal Protection Clause. They relied upon what is known as the “Political Process Theory,” which is based on Supreme Court rulings in Hunter v. Erickson (1969) and Washington v. Seattle School District No. 1 (1982). The 6th Circuit’s 8-7 decision aligned the eight judges chosen by Democratic presidents in opposition to the seven judges chosen by Republican presidents.

It’s likely that Justice Anthony Kennedy’s vote will decide Schuette. And his line of questioning during the oral arguments last week suggests that he may be looking for a way to distinguish Schuette from the prior precedents the court laid down in the 1969 and 1982 cases, and upon which the eight justices of the 6th Circuit relied.

In SCOTUSblog, Lyle Denniston wrote, “Kennedy began looking for factual differences between the prior cases and the one now before the court. And then he showed real fascination with suggestions by Michigan’s solicitor general, John J. Bursch, as to how the court could distinguish the prior precedents without having to overrule them.”

That indeed may be the way that Justice Kennedy threads the eye of the needle in this case. If so, it will tell us that the battles will continue, but the outcome of the war hangs in the balance. And it will tell us that Chief Justice Roberts has not yet been able to persuade a majority of the court that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Roberts may have less time than he thinks to create that majority. Justice Kennedy, the court’s “swing justice,” is 77. If the suicidal obsession of the Republican Party hands the nation yet another Democratic president in 2016, Kennedy will be 88 by the end of that president’s second term. Tempus fugit, Mr. Chief Justice.

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Jeff Miller's the right man for the job

Jeff Miller's the right man for the job

Eligible voters of Hendersonville are now in the process of voting for their City Council and mayor. If you haven’t yet voted, I urge you to make your voice heard by voting in this important election.

Its importance is vital not only to the residents of the city of Hendersonville but also to all of us who live in Henderson County.

Although the residents of Hendersonville make up only about 10 percent of the population of the county, the reality is that Hendersonville is the county’s anchor. We all have a stake, even if we don’t have a vote, in its ability to thrive and grow. If it does, all of us will be the beneficiaries of its success. If it doesn’t, all of us will pay the price for its decline.

Those of you who have lived in Western North Carolina and/or Hendersonville all of your lives already love this uniquely special corner of America. And, like so many of you who chose to come here from all over America, my wife and I treasure the beauty, opportunity and magnificence we have found here.

That said, let’s talk about the election now underway for Hendersonville City Council. Two of the council’s four seats are up for election. Jeff Miller is seeking your support and your vote for one of those two City Council seats. I urge you to give him that support by voting for him, and I’d like to tell you why.

Of course, you remember that Jeff ran for our seat in Congress in 2010. Shortly after he won the primary, I decided maybe I could help him in the general election.

At that point, I had never met Jeff and knew little about him. The one thing I did know was how successful the HonorAir program had become and that Jeff was the driving force who had made it possible for so many World War II veterans in Western North Carolina to travel to Washington to visit the magnificent World War II Memorial and Arlington Cemetery.

So I called Jeff and introduced myself. I asked him if I could come by and meet with him for 10 minutes and talk about whether he’d like to have me as an unpaid volunteer for his campaign. He said yes, and the next day our 10-minute talk turned into a fascinating two-hour discussion.

Suffice to say, I called my then-editor at my former newspaper and requested a leave of absence from writing my weekly op-ed column in order to avoid any appearance of possible conflict of interest, which was granted. And during the summer and early fall of 2010, I did what little I could to advise for Jeff’s campaign.

Let me tell you about what happened regarding a piece of advice I gave him early on in the campaign. His reaction stunned me, caused my respect for him to skyrocket, and causes me to be urging you to vote for him now. It has everything to do with his integrity, humanity and willingness to help others — not himself.

Early on in my days as a volunteer in 2010, I engaged Jeff in a conversation about HonorAir.

I said, “Look, Jeff, there’s got to be an enormous number of veterans, their families and friends here in this congressional district who have benefited from the HonorAir program, right?” He responded, “Sure.”

“Do you have, or have access to, a mailing list of all of those folks?” I asked. “Yep”, he said.

“Jeff”, I said, “this is a special resource that could and should be used during the campaign. It could be a game changer on Election Day.” And Jeff smiled and said, “Don’t go there. I won’t mix my work with Honor Air with my political campaign, and that’s final!”

Now think about that conversation and contrast it with the way most politicians in this nation do business, whether they are in Washington, Raleigh or Hendersonville. I’ve worked very closely with scores of elected officials from both political parties over many decades, and I’m here to tell you that not one of them comes close to matching the integrity I saw firsthand from Jeff as he faced an uphill battle in 2010 against an entrenched, far better funded incumbent.

None of us is surprised that last month Gov. Pat McCrory came to Hendersonville and presented Jeff with one of North Carolina’s most prestigious awards, the Order of the Long Leaf Pine, for the HonorAir Program.

I could go on at considerable length and give you all the other strong arguments to vote for Jeff. But you already know most of them — things like being life-long Hendersonville resident, a successful small businessman, his superb working relationships with a host of civic and county organizations, and more. But that’s simply the icing on the cake, isn’t it? You get the point.

Jeff Miller, once elected to Hendersonville City Council, will turn his remarkable talents and limitless energy to giving our local government the boost and direction it needs to succeed. And he will do it for you and for all of us here in Hendersonville and Henderson County because that’s the kind of individual he is. That’s what makes him special, and that’s why he deserves your vote.

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By LEROY GOLDMAN
Columnist

Published: Sunday, October 13, 2013 at 4:30 a.m.

Real crisis is plight of the middle class

President Barack Obama has repeatedly made it clear that he will not negotiate with Congress over the necessity to raise the debt ceiling. House Speaker John Boehner has repeatedly said the House will not raise the debt ceiling absent negotiations that reduce government spending and deal with our rising debt.

Both sides are dug in, and you and I are caught in the no man’s land in between. While both sides may cobble together a short-term agreement to avert economic Armageddon, that will only trigger another round of dysfunctional, dangerous infighting before the holiday season.

Although there are some out there in right-wing La-La-Land who dismiss the clear and present danger inherent in default, most Americans know it’s a risk that we dare not run. What most Americans don’t yet know is that there is a worse risk of a different kind of default we are taking and that the collective jackasses who control both ends of Pennsylvania Avenue in Washington know about, but won’t give voice to — defaulting on the middle class.

Default means a failure to act. It means neglect. It means failure to perform a legally required obligation. And that’s been Washington’s default position for years on a threat more ominous and insidious than the one we face right now on the debt ceiling. I’m talking about the death of the American middle class.

In Profit Confidential last month, Michael Lombardi called it “the elephant in the room no one wants to talk about.” He believes the middle class is on the verge of collapse. For the half-century from the end of World War II until the financial crisis that began five years ago, a vibrant middle class was the engine that drove the American economy forward. Its spending fueled the expansion of thousands of businesses, large and small. It created millions of good jobs to meet expanding consumer demand. And it enabled companies to invest in research, development and expansion to make the American economy the envy of the world.

It was a tide that lifted all boats. It’s a tide that Washington, with our acquiescence, has allowed to run out.

Seventy-six percent of all Americans live check to check, and 46 percent have less than $800 in savings. America’s second largest employer, after Wal-Mart, is a temp agency, Kelly Services! With the exception of the wealthy, the incomes of Americans are declining.

The implosion of the housing market has savaged the middle class. The delinquency rate on single-family mortgages earlier this year was 558 percent higher than the delinquency rate in the first quarter of 2005. Homeownership is at it lowest rate in almost 20 years. Median household income has declined by almost 8 percent since 2000. Sixty percent of the jobs lost in the recent recession were good-paying jobs, but almost 60 percent of the jobs created since then have been low-wage jobs. The nation has lost 56,000 manufacturing plants since 2001, and the number of Americans employed in manufacturing has dwindled from 17 million to 12 million.

Almost 50 million Americans live in poverty. About 25 million American adults live with their parents. In 2000, 17 million Americans were on food stamps, while today it’s 47 million.

A recent poll by the Pew Research Center shows a large majority of the American people believe that government policies in response to the recession have done little or nothing to help. Seventy-one percent believe the middle class has not been helped, and 67 percent believe small businesses have not been helped. On the other hand, large majorities believe government policies have helped large banks (69 percent), large corporations (67 percent) and wealthy people (59 percent).

In a recent editorial, the Detroit News stated, “After five years of wealth transfer schemes, the income gap in America is now at its widest since the 1920s, the Gilded Age. It should be evident by now that taking money from the rich to give to government doesn’t make the poor richer.”

All of this is summed up nicely by Harvard economist Michael Porter. He told CNBC’s “Closing Bell” earlier this year, “America used to be a uniquely productive, low-cost place to do business. We had an efficient infrastructure, limited regulation, and we believed in the market. This position has eroded. Regulatory costs have gone up, the legal system is more cumbersome, infrastructure is eroding and the country is falling behind on skills.”

Porter argues that these declines have forced government to make social welfare promises, like health care, that can’t be afforded because of the lackluster performance of the economy. He calls for a sustainable budget compromise, tax reform and energy independence by taking advantage of the shale revolution.

But nobody in Washington will give voice to our real problems, and they’re betting you won’t notice. Washington’s circular firing squad over the shutdown and debt ceiling is all about jockeying for position in the 2014 midterm election — 17 seats in the House and six in the Senate. It’s got precious little to do with the restoration of our economy and saving the middle class.

Since the president won’t negotiate with Congress over the shutdown or the debt limit, he’s had time to broker a powwow with Daniel Snyder, Jerry Jones and Roger Goodell. The White House has just announced that henceforth the Redskins and the Cowboys will be known as the Redpersons and the Cowpersons!

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PLAYING WITH FIRE

PLAYING WITH FIRE

Our mothers told us not to play with fire. The message didn't get through to President Obama and the Congress. The stalemate over government funding and the onrushing date when the debt ceiling may be breached is an indictment of the President and Congress. Their attempt to pin the blame for their brinkmanship and its dire consequences on each other means they believe that we're dumb enough to fall for it.

However, the good news is that most Americans are clear headed enough to know that the spin coming out of Washington is just that—spin. It's a smoke screen, a smokescreen that cloaks a conflagration that could irreparably harm the nation's already fragile economy.

The impasse over funding the Government and raising the debt ceiling is cause for alarm. But the real problem is, of course, much worse. Washington's failure to govern is monumental and longstanding. The economy remains weak and fragile. Its growth rate is anemic. Unemployment remains persistently high and far too many of the jobs being created are part time, low pay jobs. The necessity to reform the tax code for individuals and corporations is dead in the water. Regulatory reform of the puzzle palaces that line the Potomac is stillborn. Millions of young Americans graduate from college inadequately equipped to find good jobs, while saddled with crushing student loan debt. Immigration reform has morphed from dream to nightmare. The effort to make America energy independent and to curtail the power of OPEC has run out of gas. The renaissance of American manufacturing that the energy boom could have triggered hasn't materialized. The urgent need to reform Medicare, Medicaid, and Social Security before their runaway growth eats the entire Federal budget has been shelved.

You get the picture. You and I are responsible for having populated both ends of Pennsylvania Avenue in Washington with a collection of deceitful clowns who won't work together, who won't do the nation's business, and who expect us to reelect them, regardless of their willful failure to govern. Unforgivably, too many of us do just that.

And now their intransigence has led the nation to the brink of default. Complicating the battle that will occur over the next few weeks concerning raising the debt limit is the fact that a large swath of the American people do not understand the risks associated with default. A recent Washington Post-ABC poll showed that 43% of respondents favored not raising the debt limit and letting the Government default on paying its bills and meeting it obligations.

Such a view is either foolhardy or draconian. Here's why. Default will cause the Government to cut spending by about a third. That will throw a wet blanket on already anemic economic growth. Default will preclude the government from borrowing from investors in order to meet its financial obligations. That will send a shock wave of instability through the financial system as investors worry that their loans might not be paid back. Their response to that uncertainty almost certainly will be to raise interest rates. Those interest rate increases will spread throughout the economy adversely increasing what you pay on your mortgage, car loan, and your credit cards.

In 2011, when the President and the Congress last collided on whether to raise the debt ceiling, one of the nation's three credit rating agencies, Standard and Poors, lowered its rating of the U. S. Government from AAA to AA+. If the Government defaults later this month, it's likely that the other two rating agencies, Moody's and Fitch Ratings, will also lower their ratings. Such a move will roil Wall Street and international markets. So what, I don't care, you may say. Well you should care because what's at stake is the value of your 401K and your IRA. Once this cycle begins the threat of a new and severe recession becomes real.

The way to break this impasse is for the House Republicans to set aside their insistence that the debt limit can only be raised if the President and the Congressional Democrats agree to their Obamacare demands. Don't misunderstand me here. I'd love to see Obamacare delayed, or repealed so that a wholly new and effective Health Care Reform law could be enacted in its place. But that is not going to happen until 2017 at the earliest. The GOP's Obamacare strategy is fatally flawed, dangerous to the economy, and will backfire politically.

If the GOP believes that Obamacare won't work, If they believe that its onerous taxes on individuals and businesses will provoke a national outcry of opposition, and if they believe that the Federal Government will never be able to properly and efficiently administer the program, then they should simply sit back and wait for its inevitable collapse, which will fall directly and crushingly on President Obama and the Democrats. When that happens, who knows, it might create the conditions whereby the Republicans could regain the Senate and the White House with a governing mandate.

In the meantime think of Washington as a major league baseball team with a starting rotation of Reid, Pelosi, Boehner, McConnell, and Obama. For two of them every pitch is wild Left. For two others every pitch is wild Right. And that leaves the southpaw who takes the mound, fingers the rosin bag, goes into his windup, but refuses to pitch the ball.

The Shadow's yanking Washington's starting rotation and sending them down to the bush league (pun intended), but Goldman can be reached at:  EmailMe

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