Friday, June 28, 2013

The activist courts

This week the Supreme Court announced a historic ruling, declaring federal discrimination against gay couples seeking marriage to be unconstitutional.  For many, this was a day to celebrate the protections of minority rights that many thought unachievable only a few years ago.  This came on the back of a ruling overturning key provisions in the landmark 1965 voter's rights act, once credited as the greatest civil rights achievement of the 20th century.  The dichotomy of these two rulings got me thinking about the purpose of the court in American politics.  Is it an institution that should be limited in nature, identifying and overturning laws that usurp only from our most commonly agreed principals, or should it be an institution that seeks to apply those principals as broadly as possible, with the purpose of protecting those who congress is unwilling to protect?

It is important that the mission of the courts in determining the constitutionality of laws be crystal clear, as this small group of citizens is given unprecedented powers to invalidate legislation passed by a majority of a democratically elected members of congress, while themselves never facing a direct election by the public.  Their stamp on public debate is final, leaving us with no alternative but to follow what they decree.  They are ideally supposed to live outside the pressures of politics, applying the basic principals on which our government was founded as a litmus test to the validity of laws.  But reality is a far different animal.

The modern court is filled with ideologues bent on stamping their own dogma permanently into America's legal system.  These judges were hand picked in turn by ideologues in the white house, who seek to use the court as a proxy in political fights to ensure that their agenda cannot be challenged.  Controversial rulings often swing on a single vote, a single person, deciding the fate of laws critical to millions of Americans.  We require the principals on which they rule to be passed by two thirds of both the house and the senate, and then three fourths of the states must vote to ratify the expansion of the freedoms outlined.  They were designed to be broadly agreed upon, not controversial in any manor.  Yet the reality is the words of the constitution are twisted to fit whichever argument is championed by a justice, seen in the many many cases having dissenting views.  Why do we not hold these justices to a similar standard as the constitution?  We require criminals to be found unanimously guilty by a jury of their peers, but the whole class of law to which they are tried to rest on a tiebreaker yes or no swing vote?  Absurd.

The modern court is an activist court, both on liberal and conservative causes.  It embraces controversy... We've seen that in recent days, in the overturning of the long standing voter's rights act, and throughout courtrooms of the past century, from Roe vs Wade, to Bush vs Gore.  I believe the powers we have enshrined in this institution need be flexed only when there is widespread agreement.  The courts should need more than majority, they should need super majority to apply their ideals.  It could be done, as over 60 percent of rulings were unanimous at one point this year.  Deferring to the will of the elected legislature should resolve controversies.  The panel should be expanded, so that a wider range of views is represented by the votes.  Members of the court should be nominated by a wide body, not stuffed by any one president.  Some mechanism should be included to ensure minority views are also represented.  Our courts have been sliding down the slippery slope to the political muck.  It is time we bolster the institution with the protections to insure that it functions as it was originally intended, as the bellwether protector of the principals on which we all stand.

Sunday, June 16, 2013

racial inequality without racism

In 2003, I stood on the campus of UC Berkeley among a massive crowd of protesters, who were arguing for radical changes to university admittance policies.  They shouted that racism was ingrained in our country, that white people hid behind a vale of political correctness that masked an underlying modern day Jim Crow society.  How could this be, I thought.

Everything my personal experience told me suggested otherwise.  Nobody I ever personally knew was racist.  I had grown up in a rural predominantly white community, and the one or two fringe people flying their confederate flags weren't exactly what you'd call "difference makers" in town.  If I had to bet based on my personal interaction with people I met at Berkeley, I'd guess well north of 99% believe in civil rights, and embraced the diversity that made our campus special.  A Jim Crow UC Berkeley just didn't fit into my world view.

Last night, listening to the Tavis Smiley show on the way home, I heard this fascinating interview with Nancy DiTomaso as she discussed her book "The American Dilemma, racial inequality without racism".  There, she noted that after interviewing thousands of individuals, she found that for 99% of people, 70% or more of their job opportunities had came because they had some extra help from a friend or former coworker.  This type of networking has the effect of marginalizing social mobility, because if you come from a community where there are already no job opportunities to be shared, it makes it that much tougher to break into a market where you do not have a connection.  This is a reality that fits well in my understanding of how the world works.  Personal connections make getting a job 10 times easier for someone seeking employment.

But why does the world work that way?  Businesses have a financial interest in hiring the best candidates for the job.  They want a meritocracy.  The reality is that the hiring process in the modern workplace is totally broken.  How can you really know what a person claims to understand on their resume, amongst rampant exaggeration?  How can you project how an employee will do based on a 30 minute call and a 45 minute in person interview?  It is a joke.  A bad hire is far worse than not hiring anyone at all, and companies must hedge against this risk however they can.  So they turn to personal recommendations.  Nothing really identifies a star in the workplace like working with them for months on end, staying up late at night, relying on their good ideas to make a team successful.  If you can convince people you ALREADY know are good to come work with you, it is a huge win.  At the cost of an unintended structural inequality, without racism.

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What could we do to improve on this system?  We need to improve the hiring process to make it more merit based.  Companies need tangible evidence about the people they invest in.  There are a few areas where I could see wins both for companies and minorities in my industry, software engineering.  First, there are competition based sites such as Top Coder and 99designs, where contracts are won on a merit based system via direct competition.  Statistics on these sites give you a quantitative difference between the results of different individuals, which can be meaningful when hiring a full time employee.  This is a meritocracy in its truest form.  Next, if companies can increase the ratio of interns to full time employees, they provide low cost, low risk opportunities to identify potential candidates based on an extended period of working along side them.  These kind of jobs provide invaluable inroads for people just starting their career, and improve the long term quality of employees that a company brings in, without having to rely on personal recommendations to hedge risk.

Thursday, June 13, 2013

The Entitlement Deficit

People look at the budget deficit as more or less "solved" by the recent budget sequester and tax hikes, but the truth of the matter is that we have a nearly insurmountable structural deficit in entitlement spending.  This recent article captures the scope of that deficit... roughly 100 trillion dollars over the next thirty years.  That is an unfathomably high number.

Republicans, after a decade of lavish spending when they had their turn at the helm, have finally painted themselves into a corner of permanent minority status.  Their shift back to a financially tenable position as just come too late.  Democrats are loathe to take the needed steps on the third rail of American politics, seemingly covering their eyes and ears in public about the looming debt.  So does a path exist that could return America to long term fiscal solvency?

In the late 1990's, republicans and democrats came together under the Contract for America to enact welfare reform, the first major reduction in entitlement spending in a generation.  The benefits were almost immediately tangible, with millions of capable people going back to work and off the welfare roles, and the first government surplus in over a generation.  I'd identify that as the last time we saw a victory for fiscally responsible policy... and it could be a template again for responsible government.

Sunday, June 9, 2013

Edward Snowden

Edward Snowden was living a privileged life.  He lived comfortably, working at a desk job in Hawaii, and was paid handsomely to do it.  But there was a catch.  He was being asked to spy on American citizens, in an all intrusive manor, encompassing every recorded detail of our day to day lives, and all part of a program without the knowledge or consent of the public.  So he stepped away from his job with the NSA, and leaked the existence of this program to the media.  "I don't want to live in a society that does these sort of things", he said.

The civil libertarian in me applauds his actions.  I listen to him thoughtfully lay out his case for the decision he made, and can come to the same conclusions.  The government should have no authority to unilaterally impose Orwellian surveillance programs on their own people without the informed consent of the public.  There is no good excuse for this reach for power.

Now, if politicians could have a public debate about the merits of such a program, and an open vote to enact it, I'd be singing a different tune.  After all, this program probably does save lives, and it is up to the people to decide how much they are willing to compromise their personal liberties and privacy in the name of security.  But that is not what happened here.  The US government kept it secret in hopes of making it a more effective tool.  But claiming that mere revelation of the program's existence,  something that has even widely assumed to have already been in place, that it could fatally cripple it's viability in gathering intelligence... well that is just absurd.  Any major nation that could do us damage assuredly knew of the existence of such a program to begin with.  For individuals, the revelation of this program will not likely change their online behaviors.  Any terrorist organization which must further isolate itself from modern communication technologies is likely to become less effective.

The only important reason to hide it is fear that the American people would not grant them such sweeping authority.  We live in a world where more and more power is concentrated in fewer hands.  In a land founded in the name of liberty, to be governed by the people, we instead creep ever closer to granting Caesar the reigns, and letting the republic fall in its wayside.  Democracy is the light, but it's dusk approaches.

Friday, June 7, 2013

domestic spying

The recent disclosure of a massive domestic spying on American's cell phone records is an extensive expansion of executive authority, to say the least.  Starting in the Bush administration, and massively expanded in the Obama administration, this dragnet is a tool which the administration has told us has been used to foil at least one terrorist plot.

The real story here in my opinion is the secret power grab by the executive branch.  Never was this authority requested from the American people.  In fact, for the longest time, it was outright denied.  The Bush administration held focus on warrentless wiretapping which ONLY applied to conversations between suspected foreign terrorist sympathizers, and yes maybe American's were on the other end of the line.  The Obama administration denied this program existed in public hearings, when they claimed that they were not "wittingly" collecting American phone records.  It is clear now that both administrations expanded their own authority well beyond what the public was willing to accept, and denied it all the while.

Today, we live in a country where new powers can be dictated from the executive branch without the consent or even the notification of the people they govern.  That is a terrifying world, not because of where it is, but where it inevitably will end.  Our country has a generations long story of the great experiment called democracy, where the people decide the laws to which they will be held accountable.  But this story is changing tune, to one where those who govern ultimately usurp that power from the people, and consolidate it for themselves.