Search Right-Wing Genius's Blog

Monday, December 17, 2012

Hang in there, Tony.

Associate Justice Anthony M. Kennedy, during a Supreme Court
group portrait in Washington on October 8, 2010. (Associated Press)

Of all the concerns about what four more years of President Obama will mean for the United States, perhaps the single most disturbing prospect is an opportunity to shift the balance of the Supreme Court.

Despite this president's consternation, the judiciary is a coequal branch of government, and it has long provided a crucial check on overreach by the other two branches, especially the current executive. Among the current Court's unanimous rebukes of the Obama administration's positions are its decisions in:
The administration has enjoyed some victories before the high court, to be sure, most notably in National Federation of Independent Business v. Sebelius, where a five-justice majority upheld the constitutionality of the president's signature health care reform law, with one exception: seven of the nine justices agreed that the federal government couldn't threaten States with the loss of theirexisting Medicaid funding if they decline to comply with the law's Medicaid expansion. Justice Anthony Kennedy, who many expected to be the "swing" vote that would decide the case, instead sided with Justices Scalia, Thomas and Alito in a scathing dissent from the core ruling.

The cases in which Justice Kennedy finds himself in the minority are becoming more and more infrequent. Last term, he voted in the majority 93% of the time, more often than any other justice. Of the 42 cases in which the justices split, Kennedy voted with the majority in all but five--again, more often than any other justice.

Because of his pivotal role in so many decisions, the thought of a Democratic president--especially one as hyper-partisan as Obama--appointing Kennedy's succesor is troubling to say the least. Judicial appointments are arguably one of the president's most significant powers; he can stock another branch of government with whomever he wants, restrained only by the advice and consent of the U.S. Senate. President Obama has already made two Supreme Court appointments, but Justices Sotomayor and Kagan replaced like-minded liberals, so there was no significant change in the ideological composition of the Court. In this respect, their appointments weren't a loss for conservatives so much as a missed opportunity. The same could be said if Obama gets to appoint a successor to Justice Ginsburg or Justice Breyer.

If one of the Court's more conservative members should die or retire, however, then this president will have an opportunity to shift the ideological balance of the high court, possibly for decades to come. There's little danger of Chief Justice Roberts or Justices Alito and Thomas stepping down anytime soon, and Antonin Scalia is unlikely to leave with a Democrat in the White House. That leaves Justice Anthony Kennedy, notorious for playing his cards close to the vest.

Although appointed by President Reagan, Kennedy has not been a reliably conservative vote on the Supreme Court. He disappointed the Right on cases involving eminent domain, states' rights, the death penalty and the right of enemy combatants to petition for a writ of habeas corpus. His voting record more closely aligns him with William H. Rehnquist than any of his other erstwhile colleagues. His opinions reflect a comprehensive approach to interpreting the Constitution, going so far as to draw on international law and recent changes in American law and traditions. 

Ideologically, Kennedy is probably best described as a moderate conservative. Some have slapped him with the "libertarian" label. Here's something by David Boaz, the executive vice president of the Cato Institute:
Justice Kennedy seems to be very concerned with liberty. He often sides with conservatives on economic issues (which are actually never mentioned by Time) and campaign speech, and with liberals on civil liberties, gay rights, and school prayer. Pretty inconsistent, huh?
Or then again, maybe Justice Kennedy has a basically libertarian view of the world and the Constitution. The word “libertarian” never appears in the article. Perhaps it should.

And it’s not like the idea of Justice Kennedy’s libertarianism is a deep, dark secret. The writers might have consulted Helen Knowles’s book The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. Or Frank Colucci’s book Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty. Or Randy Barnett’s Cato Supreme Court Review article on the Texas case, “Justice Kennedy’s Libertarian Revolution.”
I’m not saying that Justice Kennedy is a down-the-line, Nozick-reading, Cato Institute libertarian. He did join the Court’s statist majority in the medical marijuana case Raich v. Gonzales. And he infuriated libertarians by joining the majority in striking down state term limits and upholding state eminent domain. But the books and article cited above, and the Institute for Justice’s 1997 rating of Supreme Court justices, do point to a strong libertarian streak in Kennedy’s jurisprudence.
Kennedy's background certainly doesn't contradict this assessment. As a lawyer in California, he worked closely with then-Governor Ronald Reagan, including on Proposition 1, a proposed amendment to the state constitution that would have limited state taxing and spending powers. (Voters rejected it in 1973.) It was Reagan who recommended to then-President Ford that he appoint Kennedy to the U.S. Court of Appeals for the Ninth Circuit. 

However he might be categorized, Kennedy has provided critical votes in decisions that struck down government overreach. Had someone in the mold of Sonia Sotomayor or Elena Kagan been on the Court in his stead, dozens of cases likely would have been decided differently. Our jurisprudence on many constitutional issues, involving everything from civil liberties to the commerce clause to substantive due process, would be very different.

It's possible that Kennedy adamantly wants a Republican president to choose his successor and has no desire to give up his seat while Obama is president. It's also possible that he might do the Rehnquist thing and stay on until he's ten toes up. Whatever the case, here’s hoping he sticks it out for at least four more years.

Sunday, December 16, 2012

Another Policy Debate We Should Be Having

It's being reported that Adam Lanza, the gunman who killed his mother Friday morning at her Connecticut home before driving to an elementary school and gunning down another 26 people, including twenty children, ended his rampage by taking his own life.

Thank God.

Suicide is an ugly thing, but it was a fitting end to this incomprehensible monster. First, because it is, by its nature, a very cowardly act. Second, because no one else had to be the one to end Lanza's life.

Taking a life, even when it’s totally justified and necessary to save others, can be a nerve-racking experience, so I’m glad that no one was put in the position of having to take Lanza out. For all we know, he wanted to be brought down in a hail of gunfire. 
Even if Lanza had not died by his own hand, it's good that the survivors and the families and friends of the people he murdered will not have to endure his continued existence, as the surviving victims of other mass shootings (e.g., those perpetrated by James Holmes in Aurora and Maj. Nidal Hasan at Fort Hood) must.

Think about what it would have been like for the bereaved families of those Lanza killed, knowing that the man who visited this unimaginable horror upon them still walked the earth, living, breathing, while they laid their dead to rest.

Had Lanza lived to be prosecuted, he would not have faced the death penalty. Connecticut abolished capital punishment earlier this year. (Oddly enough, the law, passed by a Democrat-controlled state legislature and signed into law by Gov. Dannel Malloy (D), did not apply to the sentences of the eleven inmates currently on death row in the state.)

I'm not one of those death-penalty proponents who believe that deterrence is the only justification for capital punishment. There are some criminals so dangerous that life imprisonment alone is inadequate to eliminate the threat they pose to society. (One good example is the case of Gary Tison, an Arizona man who was sentenced to life in prison for killing a guard but managed to escape with the help of his family and later murdered six others before dying of exposure in the Arizona desert.)

Suppose Lanza were still alive. Suppose he was tried for and convicted of murdering everyone he had killed. Even if he spent the rest of his life in prison, the length of his incarceration wouldn't come close to the sum total of all the years he took off the lives of his victims. (The same, of course, could be said if he were sentenced to death and executed, but at least then he would have been subject to something comparable to the heinous acts he committed--having his life ended prematurely, against his will.)

The Sandy Hook massacre has, predictably, evoked calls for government action to prevent future mass shootings or at least reconsider our gun laws. But Connecticut already has some of the strictest gun-control laws of the U.S., and they didn't do a damn thing to prevent the most deadly shooting at a grade school in our country's history. What's more, the firearms Lanza used apparently belonged to his mother Nancy, who by all accounts was a responsible gun owner. Should we forbid the purchase or ownership of deadly weapons by anyone with a potentially dangerous relative? 

The efficacy of gun-control laws is debatable, as are the deterrent effects of the death penalty. I for one am willing to discuss both. Never mind the issue of whether it’s appropriate to make earnest policy arguments in the wake of such an atrocity; the debate has already begun. Those who abstain from policy discussions so as not to be seen as politicizing a tragedy risk not having their voices heard.

The late Supreme Court Justice Louis Brandeis famously wrote in his concurring opinion in the 1927 case of Whitney v. California, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, [then] the remedy to be applied is more speech, not enforced silence." If you see or hear someone making a false or fallacious statement in furtherance of what you regard as bad policy, then don't silence yourself out of some obsolete sense of decency. As another right-wing genius once said, "Extremism in the defense of liberty is no vice, and moderation in the pursuit of justice is no virtue."

Saturday, December 15, 2012

Politifact F---s Up, Again

This pretty much says it all:

In 2009, "death panels" received the non-honor, but of course, that was not a statement, and therefore cannot technically be a lie. The following year, PolitiFact claimed that calling Obamacare a "government takeover of health care" was not only a lie but deserved the 2010 "Lie of the Year" aphorism. Their explanation relied heavily on a very narrow logical framework:  
"'Government takeover' conjures a European approach where the government owns the hospitals and the doctors are public employees," Politifact creator/editor Bill Adair and deputy editor Angie Drobnic Holan wrote. "But the law Congress passed, parts of which have already gone into effect, relies largely on the free market."

So, according to PolitiFact, because Obama and the Democrats weren't technically nationalizing the American health-care industry, calling Obamacare "a government takeover" was 100% false. (Throughout the year, the web site gave different versions of the claim a "Pants on Fire" rating, which means that the assertion is not only false but "ridiculous".)

Now, once again, PolitiFact has failed to help "find the truth in politics," its stated mission. Perhaps most disgraceful is that the statement it dubbed the 2012 "Lie of the Year" wasn't made, at least not the way PolitiFact analyzed it.

As Gutfeld mentioned, this year's dubious distinction went to Mitt Romney's statement that Barack Obama "sold Chrysler to Italians who are going to build Jeeps in China" at the cost of American jobs. Back in October, Politifact posted about the claim and ruled it a "Pants on Fire!" falsehood. The problem? The ad in which the claim was uttered didn't say that the Italian manufacturers who bought Chrysler were going to build Jeeps in China "at the cost of American jobs;" it didn't even imply as much. PolitiFact added that last part. Without it, the statement is not only accurate but true. As Bloomberg News reported, "Fiat SpA (F), majority owner of Chrysler Group LLC, plans to return Jeep output to China and may eventually make all of its models in that country, according to the head of both automakers’ operations in the region." (emphasis added)

So it sounds like, even if the Romney campaign had claimed that American jobs would be lost as a result of the production of Jeeps in China, it would have had some justification for doing so. Not according to PolitiFact, who called the ad "brazenly false."

Maybe they just don't know the meaning of the word "false". Or "brazenly". Or "fact". Somebody should get Angie Drobnic Holan a dictionary for Christmas

Friday, December 14, 2012

Tragedy, Unadulterated

(REUTERS/Adrees Latif) 

Let's start by acknowledging a painful reality: There's no way to make sense of what happened this morning in Newtown, Connecticut. It was a senseless act of violence that killed over two dozen people, most of them children, right before Christmas. Even if we’re able to ascertain the shooter’s motive, there’s no justification for his actions.

I tried to find the right words to appropriately address this mass shooting, but then I realized that it really doesn’t matter. Anything that is said about this could do no more than incrementally alleviate or compound the pain it’s caused.

I was reminded of another horrifying calamity at a schoolhouse. One that occurred close to home, but far back in time.

On March 18, 1937, the London School in New London, Texas exploded. 311 people were killed, mostly children. Never before and not since has a single occurrence at a U.S. school taken so many lives. 

Like Newtown, New London was (and still is) a quiet community nestled in rural arcadia. One could hardly have blamed its denizens from feeling insulated from the worst of the world. The London School Explosion, of course, was caused by a gas leak, not an act of human malice, but I don't suppose that made it any easier for the hundreds of bereft to take. 

If you crave something therapeutic, some words that might soothe or comfort your soul in the wake of this awful news, then I'm afraid I won't be of much use to you, but here’s a sentiment from one of my old college chums, via Facebook:

My heart is broken to hear about the horrible tragedy in Connecticut. How sad it is to think that even the most innocent children are not safe from the horrors of the world. As we pray for all those involved, please take a moment to cherish your own loved ones.
Do not feel guilty if your appreciation of getting to spend time with your loved ones this holiday season is in any way enhanced by what happened at Sandy Hook Elementary this morning. Any good that can come of this tragedy will be in affront to the unmitigated evil that perpetrated it.

Thursday, December 13, 2012

Something to Think About on Taxes

After I started this post, I read Stephen F. Hayward's piece in the December 3 issue of National Review, in which he offered House Republicans an idea on how to deal with Taxmageddon: 
The House GOP should call the Obama-Krugman bluff--of letting us go over the fiscal cliff on January 1--by passing a sweeping, pro-growth tax reform package right now, and sending it to the Senate, coupled with an announcement that it is not going along with tax increases for anyone unless taxes increase for everyone. The House GOP could even just pass Simpson-Bowles, and rightly say they are passing the plan President Obama's own commission recommended.
I was about to suggest much the same thing, albeit in my customarily garrulous style. Since taxes still seem to be the focal point of the negotiations between President Obama and Speaker Boehner, the House Republican Conference might as well accept that they're not going to convince the president and enough Senate Democrats to agree to a reasonable substitute for what will happen under current law before year's end and pass something like the Tax Reform Act of 1986. Unless they already have something drafted, however, that might not be feasible, so they could just use the Simpson-Bowles plan, but tax filers who itemize should still be allowed to take the full deduction for charitable contributions.

The other part of Hayward's/my idea--that the House GOP should announce that it is not going along with tax increases for anyone unless taxes increase for everyone--may sound like a move wrought with peril. At first blush, it sounds like it would play into the Democratic meme that Republicans are holding middle-class tax cuts "hostage" to protect "the rich," but the GOP has a ready retort, courtesy of the same Democrats who are levelling that charge: "shared sacrifice".

The argument is simple: If President Obama and congressional Democrats are serious about everyone needing to "share" in the "sacrifices" that must be made to get our fiscal house in order, then any deal we reach to reduce the deficit ought to send the message that "we're in this together," and therefore it's only fair that either all wage earners pay higher income taxes, or nobody pays higher income taxes.

Clever Democrats (yes, there are a few) might counter that the "sacrifices" that middle- and lower-income households will have to make should not come in the form of taxes but rather in cuts to entitlements and social welfare programs, but if they made that argument, then Republicans could simply challenge them to name specific programs and services they're willing to cut and at least offer an estimate of how much less they're willing to spend. (I have long believed that Senate Democrats will not be able to provide enough votes for the kind of spending cuts and entitlement reforms that would entice a sufficient number of Republicans to agree to the kind of massive tax hike for which the White House is calling.) 

In this vein, Republicans can also usurp the "fairness" issue, which Democrats always seem eager to inject into any debate over tax policy. Obama has demanded that the top individual income tax rates go from 33% and 35% to 36% and 39.6%, respectively, and that all other tax rates should stay the same. Prior to EGTRRA (the first Bush tax cut), the top rate was 39.6% and the lowest income tax rate was 15%. That's an 8:3 ratio between the highest and lowest income tax rates. Since 2003, individual income has been subject to a six-bracket (one more than under Clinton) schedule with a top rate of 35% and a bottom rate of 10%, a 7:2 (or 3.5 to 1) ratio. In other words, the current federal income tax is actually more progressive than it was under Clinton. Obama wants a six-bracket schedule with a top rate of 39.6% and a bottom rate of 10%, the most sharply graduated rate schedule in a generation. Not only should this be troubling to anyone who understands bracket creep, ubt I think most middle- and lower-income Americans would agree that it's not "fair" to lump a household making $300,000 or $400,000 a year into the same tax bracket as Donald Trump and Bill Gates (unless it's a flat tax, which Democrats have long eschewed). 

There's another dynamic at work here: The debate over the best way to effect a tax increase--whether to do it by raising tax rates or by limiting/eliminating tax credits and deductions--is fueled in part by the prospective impact of any such change in current tax law on future efforts to reform the tax code. Arch-conservative Sen. Tom Coburn (R-Okla.) recently said that he "would rather see the rates go up than do it the other way because it gives us a greater chance to reform the tax code and broaden the base in the future."

Grover Norquist, president of Americans for Tax Reform who I think has some pledge or something maybe I don't know, had previously explained why he didn't like the concept of "raising revenues" through "closing loopholes," as House Republicans offered to do in their initial proposal to avert the "fiscal cliff". As he told Neil Cavuto:  
"They’re not talking about a few deductions and credits. They’re talking about a trillion dollars’ worth of deductions and credits; that’s what -- that's what the other team wants. If you do that [then] you’ve just killed tax reform for a generation. Why? How do you ever get the rates down if you don’t have the deductions and credits? What Obama’s hoping to do is raise taxes, spend the money, kill tax reform for individuals dead all at the same time."
It's something every Republican--in fact, every member of Congress who cares about the future of this country--ought to consider before voting, or even pledging to vote, for any bill designed to raise taxes, whatever the method. "Tax reform," as I and I think most other fiscally-astute Americans think of it, means cleaning up the tax code by lowering income tax rates and reducing and/or eliminating credits and deductions. If there aren't enough credits or deductions to reduce/eliminate, then this endeavor simply becomes a tax cut.

With this in mind, Taxmageddon is starting to look like an awfully appealing option. If they haven't already, then congressional Republicans ought to start hammering out an income tax reform bill along the lines of what Messrs. Simpson and Bowles called for. Post-Taxmaggedon, they'll be able to sell it as a middle-class tax cut that extracts more revenue from wealthy Americans. If the Democrats don't have a comparable counter-offer ready, then they'll be boxed in: oppose the GOP bill and keep taxes high on middle- and lower-income Americans, or sign on to it and effectively concede defeat on the tax policy argument.

What a great way to start Obama's second term.

Wednesday, December 5, 2012

Yeah, It Was a Stupid Thing to Say. Can we PLEASE Stop Talking About It?

 Its been less than three full days since NBC sportscaster Bob Costas used his halftime segment on Sunday Night Football to expound on the tragic murder-suicide perpetrated by Kansas City Chiefs linebacker Jovan Belcher, and I'm already sick of hearing about it. If you watched FOX News in the last 48 hours, then you've probably seen or heard about Costas's remarks. Basically, Costas stired up a controversy when he echoed the sentiments expressed by Fox Sports columnist Jason Whitlock in his Sunday column. Here's a piece byan excerpt of what Whitlock wrote:

Jovan Belcher, a starting linebacker for the Chiefs, murdered the mother of his child shortly before 8 a.m. Saturday. He hopped in his car, drove to the Kansas City Chiefs practice facility, thanked Romeo Crennel and Scott Pioli — and shot himself in the head in front of his coach and general manager around 8:10 a.m.

Within two hours, the NFL instructed the Carolina Panthers to travel to Kansas City as scheduled in preparation for Sunday’s noon kickoff. By 3 p.m., the Chiefs announced that Crennel and team captains had decided to play Sunday’s game as planned.

Short of terrorist attack and weather disaster, nothing slows the NFL.

A 25-year-old kid gunned down his 22-year-old girlfriend in front of his mother and three-month-old child, and all he could think to do in the immediate aftermath is rush to thank his football coach and football employer. Belcher’s last moments on this earth weren’t spent thanking the mother who raised him or apologizing to the child he would orphan. His final words of gratitude and perhaps remorse were reserved for his football gods.

It should come as no surprise that Crennel, Chiefs players, Pioli, owner Clark Hunt and NFL commissioner Roger Goodell quickly agreed not to delay Sunday’s football congregation at Arrowhead Stadium.

Football is our God. Its exaggerated value in our society has never been more evident than Saturday morning in my adopted hometown. There’s just no way this game should be played.

Twenty-eight hours after witnessing one of his starting linebackers take his life, Crennel will stand on the sideline as young men play a violent game. Twenty-eight hours after one of their best friends killed the mother of his child and himself, Chiefs players will take the field and play a violent game.

Football is a game of emotion. Football is a game in which the coaches and players preach about treating each other as family.

How can they play Sunday? Why should they?

Belcher and his girlfriend didn’t die in a car accident 30 minutes away from Arrowhead Stadium. This isn’t some tragedy Crennel and Pioli heard about. Belcher crashed his car through the gates of the Chiefs practice facility. He pointed a gun to his head in front of Crennel and Pioli. He killed himself within a quarter of a mile of Arrowhead Stadium, where the players and coaches work.

I just don’t get it. And I’m not trying to vilify the Chiefs for choosing to play Sunday’s game. It shouldn’t be their decision. Roger Goodell should’ve made this call. Crennel, Pioli and Kansas City players are justifiably still in a state of shock.
I wholeheartedly agree, and if these were the sentiments Bob Costas chose to repeat on national TV Sunday night, then he wouldn't have evoked the ire of the emotive Right. But Costas didn't question the wisdom/sensibility/propriety of going ahead with a football game the day after one of the teams' star players killed his girlfriend in front of their child and then committed suicide in front of his coach and GM. Instead, he chose to quote or paraphrase the following lines from Whitlock's article:  

Our current gun culture simply ensures that more and more domestic disputes will end in the ultimate tragedy, and that more convenience-store confrontations over loud music coming from a car will leave more teenage boys bloodied and dead.

In the coming days, Belcher’s actions will be analyzed through the lens of concussions and head injuries. Who knows? Maybe brain damage triggered his violent overreaction to a fight with his girlfriend. What I believe is, if he didn’t possess/own a gun, he and Kasandra Perkins would both be alive today.
Costas made it clear that he shared Whitlock's view, telling the audience that, while he did "not always agree" with Whitlock, the columnist had "said it so well that we may as well just quote or paraphrase from the end of his article." 

Bob Costas’s little speech didn’t prevent me from enjoying finally watching my Cowboys win a game. Truth be told, I didn’t even watch it when it aired. Like most football fans, I spend halftime not watching whatever filler material networks come up with to fill time in between the second and third quarters. I only learned about what he had said Monday morning on the news. It seemed to be a hot topic, at least on cable news.

Now I'm getting sick of hearing about it. What Bob Costas did on Sunday night wasn't right, and it wasn't wrong. It was stupid. It was stupid because he chose to adopt as his own the opinions of a man who in other venues has called the NRA "the new KKK." It was stupid because Costas himself, like many anti-gun celebrities, benefits from the protection of armed guards. It was stupid because "our current gun culture" is not characterized by an increase in violent crime, at least not if you believe in statistics. 

I live in Texas. Actually, I live in Arlington, about four miles west of the stadium where Costas gave his little speech Sunday night. We have a right-to-carry law. Since the law was passed in 1996, our violent crime rate has dropped 20%, and the murder rate is down 31%. In 2010, there were actually 229 fewer murders, 748 fewer rapes and 9,011 fewer aggravated assaults than in 1996. (Our population increased by about 6 million, or 31%, in the same time span.) If handguns don't make us safer, then the knowledge that a murderer/rapist/robber's would-be prey might be packing surely has.

Finally, because Costas's controversial comments were, in his own words, prompted by a desire to get some "perspective" on this tragedy, here's another perspective on this hubbub by Whitlock's fellow Fox Sports columnist Jen Floyd Engel, with whom I do not always agree: 
This is not simply about guns. This is about rights. It is a slippery slope from doing something in the interest of public safety to giving up what we hold dear. The slope is greased with fear, with a self-righteous belief that we know better than the framers of the Constitution. And it is all based on informal fallacy.

The idea that if we just ban all guns then Kasandra Perkins doesn't die and a 3-month-old baby is not orphaned is the very essence of a stated premise that fails to support its proposed conclusion. Yes, guns are dangerous and people such as Belcher sometimes use them to do awful things. What I believe in my heart is Jovan Belcher was going to find a way to wreak havoc that day whether he had a gun or a knife or only his fists. And even the potential to stop him is not justification for willingly handing over rights guaranteed to us.

If this makes me a gun nut or a wing nut or a preachy PITA, then I'm OK with those labels. Although, I prefer Constitutionalist.
I prefer Doctor. (Seriously, I'm an M.D., but that's neither here nor there.) Whatever your take on this tragedy and guns in general, can we at least agree that there's better things for the media to fixate on right now? Oh well, if Bill O'Reilly would rather talk about this than the "War on Christmas," then so be it. I'll just watch CBS. (Their football coverage sometimes includes Lily Aldridge.) 

Tuesday, December 4, 2012

A Disturbing New Twist on the Bradley Effect

The defeat of Rep. Allen West (R., Fla.) means that, come January, the United States Congress will have just one black Republican member, Rep. Tim Scott of South Carolina. West's loss came as a surprise to a number of people, especially considering that every public poll of his race had shown the freshman congressman leading his Democratic opponent, Patrick Murphy. Yet, on Tuesday morning, it was West who conceded to Murphy after a two-week recount confirmed that the incumbent had fallen more than 2,000 votes short of winning a second term.

The race in West’s congressional district wasn't the only one where the outcome defied multiple polls: In Utah's newly-created 4th District, Rep. Jim Matheson, the lone Democrat in the Beehive State's congressional delegation, eked out a victory over Saratoga Springs Mayor Mia Love (R). Less than a week before Election Day, a Mason-Dixon poll showed the six-term incumbent trailing Love by an eye-popping twelve percentage points. About a month earlier, the Deseret News/KSL poll pegged Love's lead at six points, 49% to 43%, but that was a huge shift from their previous poll of the race, conducted in June, which had Matheson up by a healthy fifteen-point margin, 53% to 38%. Despite this apparent momentum toward Love and a huge voter turnout in a state that went for Mitt Romney by a wider margin than any other, Matheson managed to win with 49% of the vote to 48% for his Republican challenger.

The surprising losses of these two prominent black candidates--and the poll numbers that turned out to be so wrong--bring to mind the so-called "Bradley Effect," a phenomenon in which polls of races with one African-American candidate tend to overestimate his/her support or underestimate the support for his/her opponent, or both. The term arose out of another surprising election result, in the 1982 race for governor of California. Los Angeles Mayor Tom Bradley (D) was poised to become the Golden State's first African-American governor. He went into Election Day with a healthy lead over his Republican opponent, then-Attorney General George Deukmejian, in all the polls. Even the exit poll results indicated a big Democratic win. Much to the Bradley campaign's chagrin, however, Deukmejian triumphed, winning the election by less than 100,000 votes out of nearly 8 million cast.

The following year, in the race for mayor of Chicago, Harold Washington, an African-American congressman from Illinois's 1st congressional district, defeated his caucasian opponent, former State Rep. Bernard Epton (R), by about 47,500 votes (less than four percentage points). Multiple polls conducted in the run-up to Election Day indicated it would be a rout for Washington. Three separate polls taken in the final weeks of the campaign showed Washington with a fourteen-point lead.

The obvious discrepancies between the pre-election polling and the actual results of these two high-profile races seemed to cry out for an explanation. Arguably, racial tensions between blacks and whites were stronger, or at least more overt, 30 years ago than they are today, so naturally race was floated as a possible factor in Bradley's loss and Washington's unexpectedly narrow win. (Veteran California pollster Mervin Field was quoted two days after the 1982 election as saying that "race was a factor in the Bradley loss.") While it was clear that these elections had turned out much differently than the polls had foretold, the notion that races between a black candidate and a white candidate presented a special problem for pollsters did not gain widespread acceptance until after a couple of elections with history-making black candidates at the end of the decade.

In 1989, a U.S. Attorney named Rudy Giuliani made his first run for mayor of New York City. Just before the election, two different polls showed him trailing his African-American opponent, Manhattan Borough President David Dinkins, by double digits: Dinkins led Giuliani by fourteen points in the ABC/New York Daily News tracking survey of the race, fifteen points according to Gallup, and by eighteen points in a poll conducted by the New York Observer. Even the exit polls overestimated Dinkins's eventual two-point margin of victory.

The more infamous race that year took place in Virginia. I'll let Scott Keeter and Nilanthi Samaranayake of the Pew Research Center explain:
Virginia Democrat and African American Douglas Wilder edged white Republican Marshall Coleman by less than one percentage point to become the nation's first elected black governor. But two of three polls conducted just days before the election showed Wilder leading by double-digits; a third poll had him 4 points ahead.
The exit poll results from the Virginia governor's race were particularly jarring; according to Pew, "an exit poll conducted on Election Day showed Wilder winning by 10 points, while accurately tallying the vote in the other two statewide races." This indicated that some voters must not have been honest with poll-takers. Keeter and Samaranayake noted that, unlike other exit polls that used an anonymous written ballot to collect voters' responses, "this one had interviewers asking voters face-to-face how they voted, a situation that might increase the pressure to provide a socially desirable response."

It didn't take long for major media outfits to trumpet explanations for why the polls in these two particular elections were so far off. Two days after Election Day, the New York Times ran an article about the "broad disparities" between the polls and election results in New York and Virginia: 
In Virginia, Mason-Dixon Opinion Research Inc. acknowledged making a fundamental error in the way it conducted its Election Day polling. Its workers stopped voters outside polling places and asked them face to face how they had voted, rather than following the more widely accepted practice of having them fill out ''secret ballots'' and drop them in a box. All the New York polls used this method.

Brad Coker, Mason-Dixon's president, said that in hindsight he thought some voters might have been reluctant to admit to a poll taker that they had not voted for the black candidate, L. Douglas Wilder. The organization's Election Day polls gave a 10-point lead to Mr. Wilder, the Democrat, and at least three television stations reported the figures right after the polls closed and declared Mr. Wilder the winner. Today it appears that Mr. Wilder did defeat J. Marshall Coleman, the Republican, but by only one quarter of a percentage point.

''I'm a big supporter of pre-election polls and exit polls,'' said Peter D. Hart, a leading Democratic poll taker here, ''but only for figuring out the dynamics of an election and not who is going to win. What bothers me about yesterday is that the exit polls are obscuring the news, setting up incorrect expectations and leaving everyone talking about 'Oops, what happened?' rather than the historic story of the elections of Wilder and Dinkins.''
Virginia political scientist Larry Sabato was even more blatant in his analysis. ''Whites tell pollsters ahead of time that they are voting for the black candidate,'' he said, ''and then they go into the voting booth and can't quite pull down that lever.'' And, Richmond Times-Dispatch article that ran the same day quoted Coker as saying, "Virginians were put on the spot: If we don't vote for Wilder, [then] we're going to be perceived of as racist." Whatever the reason was, the gap between poll results and election results in races between a black candidate and a white candidate was becoming a recurring problem.

For Wilder, it wasn't the first time his poll numbers had foretold a different election result. In 1985, he was elected lieutenant governor by three precentage points, but pre-election polls had pegged his lead at anywhere from nine to 22 points. The same polls were much more accurate with regard to the governor's race that year. In part because Wilder's experiences provided stronger evidence (and more of it) that voters lied to pollsters about voting for the black candidate than did Tom Bradley's 1982 campaign, some individuals prefer the term "Wilder Effect" to "Bradley Effect". 

Whatever you call it, the concept that the effect was attributable to white voters who were reluctant to tell poll takers they were not voting for a black candidate gained steam following the '89 elections. In 1993, ahead of Mayor Dinkins's rematch wth Giuliani, the New York Times reported on a study by Larry Hugick, the director of political and media surveys at Princeton Survey Research Associates, who concluded that, in general elections that pitted a black Democrat against a white Republican, polls consistently overestimated the black candidate's strength. Said the Times:
[Mr. Hugick] concluded that white Democrats and Democratic-leaning independent voters were more likely than blacks to be undecided, torn between their allegiance to political party and to race. These ambivalent voters told interviewers conducting polls that they were undecided, but overwhelmingly supported the white candidate in the voting booth.
Mr. Hugick speculated that some of these voters were genuinely undecided, while others were reluctant to admit they were voting against a black Democrat, perhaps worried they would be perceived as racially biased.

"To some extent, these voters are torn between party and doubts about the ability of black candidates to do a good job," he said. "It's racial stereotyping. It's a way race affects us in this country. We've understood racial intolerance is highly unacceptable, but that doesn't mean that people have internalized tolerance."
After Giuliani defeated Dinkins in another close race, Hugick sent out a memo to his clients and friends, detailing his findings and asserting that the 1993 New York mayoral election "again demonstrated that late polls in biracial general elections overstate the black candidate's vote-getting ability." Following that election, however, the Wilder/Bradley effect appeared to be waning. African-American candidates who waged multiple campaigns provided a good "control" group with which to examine whether the Bradley/Wilder effect still occurred. Polls showed Mayor Dinkins's 1993 rematch with Giuliani, for example, to be a real dead heat. Giuliani, of course, won the race by a margin comparable to Dinkins's narrow 1989 victory.

In 1990, former Charlotte Mayor Harvey Gantt, an African-American Democrat, challenged longtime Sen. Jesse Helms (R-NC). Two of three independent polls conducted just before the election showed Gantt leading Helms, but none showed the controversial  senator with a lead of six percentage points, his eventual margin of victory. Six years later, when Helms again fended off a challenge from Gantt, the polls were much more accurate; the incumbent's 53%-46% win was consistent with polling that gave him a modest lead.

Similarly, when Carol Moseley Braun became the first (and, to date, only) African-American woman elected to the U.S. Senate in 1992, the election results were much closer than polls had suggested. Braun defeated Republican Richard Williamson by a ten-point margin, but polls taken just days before the election showed her with a lead ranging from 17 to 20 points. (Notably, all of these polls pegged Braun's level of support at less than the 53% of the vote she ultimately received, so it's certainly possible that everyone who claimed to be voting for Braun did actually vote for her, but if these polls were accurate, then it would mean that Williamson won nearly all of the late deciders.) Six years later, Braun lost her bid for re-election by less than 100,000 votes, or three percentage points, to Peter Fitzgerald, a wealthy state senator from the Chicago suburbs. It could have been a lot worse; pre-election polls gave Fitzgerald a lead of three to ten points. A strong turnout among Illinois's black voters may have boosted Braun.

The cases of Gantt and Braun suggest that, to the extent that polls significantly overstate a black candidate's support and/or undertell his/her white opponent's strength in the black candidate's first run for statewide office, this phenomenon does not repeat itself when the same black politician runs again for the same office. Tom Bradley himself got creamed by Deukmejian in their 1986 rematch, but at least the mayor wasn't misled by poll numbers that showed him to be ahead. Prior to the election, all public polls had Bradley trailing the incumbent by double digits. Though Deukmejian won re-election by a larger margin than the polls indicated he would, none greatly overtold Bradley's level of support.
The paucity of competitive general-election match-ups between a white candidate and a black candidate in 2000, 2002 and 2004 made it difficult to gauge whether the Bradley effect was still waning. There was the race for governor of  New York in 2002, in which incumbent Gov. George E. Pataki (R) crushed his opponents to win a third term. Pataki won 48%, finishing well ahead of the state's African-American Comptroller, H. Carl McCall (D), who took 32%, and a slew of other candidates who weren't black. Pataki had led McCall by eleven points in a survey taken in late September. 

In 2004, two members of the U.S. House of Representatives from the Atlanta area squared off against each other for the Senate seat being vacated by Georgia Democrat Zell Miller. Rep. Johnny Isakson, a white Republican, defeated Rep. Denise Majette, an African-American Democrat, winning 58% of the vote to Majette's 40%. The weekend before the election, the Atlanta Journal-Constitution published the results of a poll that had Isakson leading Majette by thirteen points, 49% to 36%. 
Then came 2008. There wasn't a single black candidate, Republican or Democrat, in a highly competitive gubernatorial or senatorial contest that year, but the presidential candidacy of Barack Obama revived talk about the Bradley/Wilder effect. Other than Obama's surprise loss to then-Sen. Hillary Clinton in the New Hampshire primary, however, there were no conspicuous gaps between Obama's poll numbers and share of the vote he actually received in the 2008 Democratic primaries. In the general election, Obama experienced a fate similar to that of Washington, Wilder and Dinkins: he won, but some polls overtold hs eventual margin of victory. A lot of polls underestimated voter support for the Republican nominee, Sen. John McCain of Arizona, both nationally and at the state level, but very few overestimated Obama's support. This could simply have meant that late deciders broke for McCain. Whether that's true or not, there was not a single battleground state in which all the polls were way off. Obama did not experience the Wilder effect in November.

Even before the 2008 election, there was a growing consensus among analysts who examined the data that the Wilder effect was a thing of the past. Daniel J. Hopkins, a post-doctoral fellow at Harvard, conducted the most extensive study and analysis I've seen of the phenomenon and concluded that "there was indeed a Wilder effect" in elections during the 1980s and early 1990s but that "this effect subsequently disappeared."

To what, then, should we attribute the salient discrepancy between the poll and election results in Utah and Florida this year? Regardless of the cause(s), this much is clear: The Wilder Effect still exists, but with a twist; the effect seems to only manifest itself in races between a black Republican and a white Democrat.

I first noticed this correlation between the presence/absence of a Bradley/Wilder effect and the political affiliations of the candidates in 2006. That year saw more competitive races for statewide office between a black candidate and a white candidate than any other election cycle I can remember. The U.S. Senate races in Tennessee and Maryland provided data for a good comparative analysis. Both featured a charismatic, energetic black politician vying against an older, duller white politician for an open U.S. Senate seat. (In Mississippi, State Rep. Erik R. Fleming, a black Democrat, challenged Sen. Trent Lott, a white Republican, for his Senate seat, but that race was not considered competitive, and Lott won re-election by a decisive margin.) 

In Tennessee, Democrats nominated Harold Ford, Jr., a five-term congressman from Memphis, to run for the seat of then-Senate Majority Leader Bill Frist (R), who was retiring. Ford and his Republican opponent, former Chattanooga Mayor Bob Corker, traded the lead in the polls back and forth until October, when Corker appeared to be pulling away. Heading into Election Day, independent polls put Corker's lead at anywhere from three to twelve points. The only public polls that showed Ford leading were conducted by partisan Democratic pollsters. Corker did end up winning, but only by about 50,000 votes (less than three percentage points). There had been no Wilder effect in the Tennessee Senate race.

In Maryland, it was a different story. Perhaps no U.S. Senate candidate in 2006 garnered as much enthusiasm as Michael Steele. Four years after becoming Maryland's first African-American lieutenant governor, Steele appeared to be on the verge of beating the odds to win a U.S. Senate seat in a state where 55% of voters were registered Democrats. He had fought the Democratic candidate, ten-term Rep. Ben Cardin, to a draw in the polls. There was even talk of a "Reverse Wilder Effect" in the race.

“With Steele sporting a 7-point lead among white voters,” pondered RealClearPolitics’s John McIntyre just days before the election, “what happens to Cardin's lead if Steele's 12% of the black vote goes to 20% or 25%?” We found out: Steele managed to take 25% of the black vote, according to exit polls, but lost to Cardin by a 54%-44% margin.  

Having followed the 2004 elections as closely as I did, I knew how pollsters could sometimes get it wrong (This was before I looked into the history of the "Bradley Effect" and discovered just how wrong.), but the results of the Maryland Senate race had left a particularly bad taste in my mouth because (1) I had gotten my hopes up, based on what appeared to be momentum towards Steele in the final weeks of the campaign, and (2) I couldn't find another comparably high-profile race that cycle in which so many polls had been so far off.

I should mention that, in the three 2006 gubernatorial contests between a black candidate and a white candidate, there was no such disparity between the polls and the outcome. In Ohio, Republican Ken Blackwell, an African-American who had served as mayor of Cincinnati, state Treasurer and Ohio Secretary of State, lost in a rout to Ted Strickland, a white Democratic congressman from Lucasville. Strickland's 900,000-vote margin of victory accorded with polls that put him ahead of Blackwell by about 20 points. Next door, in Pennsylvania, Gov. Ed Rendell (D) held off a challenge from businessman and former Pittsburgh Steelers Wide Receiver Lynn Swann (R) to win a second term. Swann actually outperformed his standing in most polls, winning 40% of the vote to Rendell's 60%.

In Massachusetts, Deval Patrick (D) was elected the Bay State's first black governor by a 56%-35% margin. Some polls had shown him leading his opponent, Lt. Gov. Kerry Healey (R) by more, but every poll of the race had understated Healey's support. Thus, much like the 2008 presidential election, it appears that most undecided voters in the Massachusetts and Pennsylvania gubernatorial races ended up supporting the Republican. Race made no difference.

In light of this data, I was inclined to write off Steele's discouraging loss as a fluke. Then, in 2010, I was again bemused by the results of an election that did not comport with the polling. This time, it was in Colorado. Rep. Ed Perlmutter (D), an aging, white pol from Golden, faced a tough challenge from Aurora City Councilman Ryan Frazier (R), an ebullient young African-American. Things seemed to be going Frazier's way: the left leaning Denver Post endorsed him, and a desperate-looking Perlmutter actually smacked him at a debate in October. Even more encouraging, the only public poll of the race showed Frazier leading Perlmutter, 40%-39%. While a one-point lead is no cause for ecstasy, an incumbent polling at 39% is generally not considered to be in good shape. So you can imagine how disappointed I was to learn that Perlmutter won re-election. It wasn't even close; the incumbent won by nearly 25,000 votes, taking 53% of the vote to Frazier's 42%. Ouch.

Now, the losses of Love and West, belied by multiple polls, add to this pattern of black Republicans who lost elections despite poll results that showed them tied or leading their white Democratic opponents. What could explain this 21st-century version of the Wilder Effect? Are large numbers of white voters reluctant to unequivocally declare their support for a black candidate's opponent? If so, then why did Ford, Blackwell, Swann, Patrick and Obama not experience the Wilder effect? It's certainly possible that the polls in Utah and Florida, like many other polls this cycle, underestimated Democratic turnout and/or overestimated Republican turnout, but then what accounts for the unexpectedly lopsided defeats of Frazier and Steele? I will not endeavor to answer these questions in this post; my only point is that the Bradley/Wilder effect still occurs but (for whatever reason) only in races between a white Democrat and a black Republican. (Take note, Herman Cain.)

Monday, November 12, 2012

One Reason NOT To Check My E-mail Every Five Minutes

I've gotten burned before for being less than diligent about checking my inbox, but something happened on election night that made me glad I wasn't furiously refreshing my e-mail as often as I was the live election results from the Ohio and Colorado Secretaries' of State web sites. At 8:04 p.m. (according to the time stamp on the message), an email with the following subject appeared in my Yahoo! Mail inbox: 

The error wasn't limited to the subject line, either; the message read, in part: "Mitt Romney wins Michigan, the Associated Press reports." Of course, Mitt Romney did not win Michigan, and the AP did not project that he had. This message was followed by another at 8:10 with the subject, "WSJ NEWS ALERT: CORRECTION: Obama Wins Michigan".

I won't fault the Wall Street Journal for this mistake, but I hope there weren't too many Romney supporters who were made to feel false (if temporary) joy and crushing disappointment because of it.