Politics of the Court Fight and the Stalemate to Come

stalemateNew Orleans    As the sides dig in over the appointment of a new Supreme Court justice to replace Antonin Scalia after his recent death it is fascinating to watch in real-time the mammoth miscalculations that the Republicans, and perhaps the Democrats as well, are making about the likely impact of their positions on the appointment based on the early polling. The Republicans, led by Senate Majority Leader Mitch McConnell, believe that they will suffer no political damage from shunning any potential nominee proposed by President Obama. The Democrats think it will be a huge potential electoral issue driving the November election outcome. The basis for both positions is the early polling.

The Republicans say the country is more or less split down the middle on whether confirmation should wait for a new President after the election according to their reading of the polls. Democrats say that the critical block of independents believes that Obama’s nominee, whomever that might be, should get a fair hearing, also according to their reading of the polls. Neither side seems willing to admit that these are all polls taken before there is a nominee and before there is really a fight, which makes this a classic case of “premature certainty” in politics since both sides are simply guessing.

Meanwhile the President is clear. He has a constitutional obligation to nominate a replacement and, as some have noted, he was elected twice with significant majorities so the voters have already decided the question in terms of his right and obligation to make sure an appointment is made. This is also a classic case of a job that “goes with the territory.”

It is easy to see how all of this could break bad. First, the gambit of floating the Republican governor of Nevada gives a clear signal that Obama, wisely, is going to put someone forward who is not only eminently qualified as he continues to promise, but also someone walking the famous white line down the middle of the road. Once there is a face to the fight, it is almost unimaginable that the polls won’t reflect an interest in Senate hearings to get the measure of the nominee, and voters will invariably recognize that this is also part of the job that goes with the territory of being an elected Senator.

Those situations will be minor next to the pileup that is coming in potential 4-4 deadlocks in Supreme Court decisions. The right won’t be happy that losing the chance to overturn union shop dues collection in the Frederichs case. The left, and a huge number of women, will not be happy if a 4-4 decision on abortion clinic doctor hospital privileges leaves women with terrible options in Louisiana, Texas, and elsewhere now that clinics are being forced to close. A deadlocked decision is not a tie that goes to the runner, nor is it a do-over, but a reversion to the previous court’s decision, good or bad. There is nothing about this heightened sense of dysfunction that is going to go over well with the American people.

The best the Republicans can really hope for is that all politicians from both parties will be blamed, letting them escape out of the side door. The best the Democrats can hope for is that it increases voter turnout in November. All of it leads voters to believe it’s a pox on both of their houses, and that’s not good for democracy, even if it delights the Trumps’ and Cruzs’ of the political world.

Stop reading the polls, and start listening to people!

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Obama’s Free Shot at the Supreme Court

Supreme_Court_Building_at_DuskLondon    The sudden death of arch conservative Supreme Court Justice Antonin Scalia at 79 after 30 years on the Court is one of those rare events that has the potential to be a game changer and unsettle the already turbulent events of the election season. Taking to heart the Latin proverb “De mortuis nil nisi bonum,” roughly translated “of the dead, nothing unless good” or essentially, speak no evil of the dead, I would note that in his passing in the Big Bend country of Texas along the Rio Grande, we share in common a love for the rough, solitary beauty of that part of the country. And, so enough said on that score.

The frequency of tough 5-4 decisions on the United States Supreme Court found shifting power in the swing votes of first retired Justice Sandra Day O’Conner and now Justice Anthony Kennedy with four somewhat dependable liberal votes and four often rigid conservative votes marshaled by Chief Justice Roberts but prodded and poked by Justice Scalia, means that President Obama has the opportunity to at least improve the odds by diluting the presumptive four conservative votes. As the partisan sides quickly harden around this opportunity with Senate Majority Mitch McConnell already asking the President to leave the appointment until a new President is elected, essentially punting until 2017, and Democrats begging for a chance to create a liberal majority, unquestionably the potential for a battle royal looms large. The Republican majority controlled Senate has to confirm or reject any possible nominee, and President Obama has correctly just as quickly indicated that he will fulfill his constitutional responsibility and nominate someone in due course. One analysis indicated that the average time from nomination to confirmation is over 100 days, so there’s more than enough time, though others indicate that it is often hard for a President to get this done in the last year of office even in the best of times, which is obviously not now.

What do I know, but it seems to me this is almost a free shot for the President if he is willing to be realistic, as Hillary Clinton would say, or modest, as progressives will think. Obama doesn’t have to nominate a liberal jurist for all of us and the country to come out ahead on this matter. Virtually, anyone, even a middle-of-the-roader, if one can be found acceptable to all sides, will give us better odds for a fairer vote on the Court than Justice Scalia.

Obama knows that clearly enough. The notion that California Attorney General Kamila Harris or Senator Cory Booker might be nominees is almost preposterous. Neither could be approved. If I were whispering in Obama’s ear I would say, nominate a moderate jurist who is African-American or perhaps even better Hispanic, that offers political risk to rabid opponents in the coming election, but who might be acceptable to Republicans based on reputation and body of work.

Obama doesn’t need to make a half-court shot here or something beyond the arc to put us ahead of where we are. He’s got a free throw if he can make it right from the line in the middle of the court, and we could still come up winners, as long as we remember where we have been more than where we might like to go.

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Supreme Court to Country on Guns: Go Local!

Gun_Show400New Orleans  In the wake of the massacre at San Bernardino using military grade assault rifles among other weapons, once again some folks are hoping there will be a movement towards more sensible regulation of these kinds of guns at the least. Others were heartened when the Supreme Court declined to hear an appeal on regulations by a community in Illinois that named and shamed certain guns, including these types of assault weapons, in a local ordinance, thereby letting the ban stand.

The Supreme Court has refused to handle lawsuits challenging federal, state, or local gun regulation 70 different times since 2008. Who can tell with the Roberts’ Court, but the implicit message seems to be that if citizens have the will to regulate in other jurisdictions from local communities to states to even the federal government, then the current court is not inclined to get into the mess and turn the tables over on a specious Second Amendment claim.

Social Policy Press is preparing to release Guns and Kids: Can We Stop the Carnage by legal scholar Frank Strier, an emeritus professor at California State. We’ll be talking about this more, but Professor Strier cautions that handguns not assault guns are 99.9% of the issue, when it comes to deaths in this area.

The problem for the President and for many working in the echo chamber where only your own voice can be heard without engaging others is that the ideological and practical gulf between citizens is huge on this issue. I was reminded of this in a brief, pre-dawn conversation with one of my brothers-in-law, who I deeply admire and respect in all things, recently when we stumbled on this issue where our shared outrage at the San Bernardino shooting led us to a frustrated stalemate on what should be done in my view or not done in his opinion.

A long email from a listener named Shawn Buffalo to a KABF on-the-air discussion recently spelled out clearly the gulf that must be bridged as well, as he wrote me,

…the two men speaking were talking about how gun rights should be revoked and how hunters don’t need assault weapons. Hunters don’t need them. Citizens do need them to defend against unjust government hostility and even more if our government ever did go outside the peoples will. I surely don’t believe this will happen, but I can’t guarantee it. I don’t own any assault weapons or fire arms. It’s the principle that citizens can arm if needed. Then they said that if this was passed, people wouldn’t be able to buy them. What store do we buy meth at again? Oh, we can’t get it at a store because it’s illegal. Glad we solved that issue. I didn’t post that I am a recipient of the CIB and Valor device for heroism while in combat during one of my tours in Iraq. I trained Iraq Soldiers. I have more than 5 years in deployment between Afghan and Iraq. We never trained ISIS to combat anyone and we never trained the Taliban in Afghan. Both of these actions were stated on this show. Insulted is the only word I know to describe my state of mind after hearing these men talk. Both of these groups need to be engaged in a manner that locates all their elements, fixing there position and then killing them or forcing their unconditional surrender.

Anyone, anywhere, anytime who thinks the issues of guns and gun control can be solved easily needs to get out of their own cocoon and talk to somebody or almost anybody and measure the distance in the discussion on this critical, life-and-death issue. It won’t be just leadership and compromise that gets us to a better, safer place, but listening and learning to search for solution together.

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Harris v. Quinn Part 2: Creating a Permanent Precariat in Public Employment

Harris v. Quinn Press Conference at Supreme CourtNew Orleans    As terrible as the impact of the Supreme Court’s Harris v. Quinn decision is for unions and their capacity, the equally profound and perhaps more permanent implication may be in its attempt to create different sets of rights and entitlements for a permanent precariat in public sector employment.  The 5-4 majority decision written by Justice Samuel Alito denigrated home-based healthcare aides by referring to them as “partial public employees” creating a new, dangerous, and previously unknown labor classification in order to pretzel his decision in such a way that it could inflate the importance of some family member caregivers and camouflage a huge setback in the long organizing campaign to formalize what had been completely informal, precarious work.

The historic changes that organizing and unionization has established over 35 years of organizing home-based, informal workers are essential to understand no matter how the court has tried to disguise and devalue the importance of the contribution.  When we first began organizing these workers they were not just minimum wage workers, they were lucky to be even that.  Domestic workers only received minimum wage coverage under the Fair Labor Standards Act in 1978 and though now we recognize home healthcare workers as a critical piece in the health care mosaic and a cost saving, humane option to nursing homes, these jobs were just evolving in the 1970’s from their historic position as household servants.  Workers were seen as unskilled and classified as homemakers, chore workers, and generally, unskilled domestic labor.  Like domestics they had a series of clients, often traveling throughout the day until reimbursement was won for them to get pay for these hours, and received no benefits, holidays, vacations, health insurance, or even much respect.

Nonprofits first entered the field in some markets, and still are significant in New York, offering to match desperate families with workers able to meet the need.  For profit companies with names like McMaid, quickly followed with efforts to make the workers independent subcontractors and match workers with clients while receiving Medicare reimbursement dollars.  Moving from home to home to provide their special service, the workers were only marginally tied to the company paymasters since they provided no fixed worksite.  In the early days there were shapeups where workers showed up for their checks, until unions used these check days to sign-up the workers.  Requirements for regular training might create the only time a worker would meet others working for the same company.

When the United Labor Unions affiliated with the Service Employees in 1984, we had contracts covering this work with nonprofits in Boston and a bargaining order and no members but big dreams if we could get more legal and financial resources for our homecare local 880 in Chicago.  In Justice Alito’s classification of “partial public employees” he is ignoring years of litigation at every level of judicial review that established through the NLRA that these workers when handled by private companies were not independent contractors nor where they government employees.  As state reimbursement programs grew in states like Illinois, California, and elsewhere, entities like the Illinois Department of Rehabilitative Services (DORS) became significant employers and providers of home health workers, organizers were forced to establish the rights and entitlements of these workers at every level just as they did under the NLRA.   Some states with smaller programs, like Arkansas where Local 100 represents these workers, simply did the right thing and classified them as public employees, even while paying minimum wages.  Other states with more extensive health and benefit systems, like Illinois, balked at integrating tens of thousands of workers in benefit programs that were already in many cases overburdened and underfunded.  The compromise negotiated through constant bureaucratic and political struggle was to ease these workers, and later home daycare workers as well, into many of the rights and protections of public employees without accreting them fully into health and pension programs and instead concentrating on wages and some health coverage, all of which were won as critical milestones of substantial progress through unionization on the way to a future promised land.

What the Supreme Court is now trying to do through the backdoor of Harris v. Quinn is tear down the houses that our unions have built to hold safe and secure the employment of these workers.  Classifying them as “partial public employees,” and somehow not only different, but inherently substandard and diminished in comparison to firefighters and police for example opens the door to a definition of permanent precarity in a cruel paradox since these workers, just like fire and police, often are also among the few public servants with life and death of the public literally in their hands.   In the Hobby Lobby decision, Justice Alito tried to warn the religious and rightwing zealots that they should not take the religious exception into other attacks against minimum wages, discrimination, and other worker entitlements.  Sadly, nothing I have seen in this decision is a similar call for restraint in not expanding the diminishment of rights and entitlements for precariously employed, but public subsidized workers, way past the simple issue of paying servicing fees to a union, putting dark clouds in front of millions of workers in the future.

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Harris v. Quinn Part 1: Supreme Court Brings Right-to-Work to Unions of Home Workers

Screen Shot 2014-07-01 at 1.21.17 PMNew Orleans    The Supreme Court decision in Harris v. Quinn, issued on a 5-4 ideological split, denying the union of home healthcare aides in Illinois the ability to collect agency servicing fees in lieu of full membership dues, will be crippling to many local unions, but not fatal.  Regardless of the opinion rendered by Justice Alito, this is not a question of free speech or the coerced payment of individuals for the union’s political activity, it is flatly about denying critical resources to unions.

This is a decision I take personally having been at the side of Keith Kelleher, Myra Glassman, and so many others who built first United Labor Unions Local 880, then SEIU Local 880, and now what is known as SEIU Healthcare of Illinois, Indiana, Missouri & Kansas over much of the last 30 years of its history.  In that period, the local was built from nothing to over 80,000 members with much of that growth over the last decade.  For all the havoc this decision will wreck on local and national unions like SEIU and AFSCME, probably the one local most able to sustain the hit without losing a step will in fact be SEIU Healthcare, largely because so much of its history was spent in the push-and-shove of fighting each step of the way to raise the voice, wages, and rights of home healthcare and home daycare workers in its jurisdiction, and doing so in an “open shop” right-to-work environment.

Doing the math, if 880, as I still fondly call the local, was representing 20,000 homecare aides in Illinois, my bet is that only half or fewer of that number were paying agency fees.  Keith constantly worried and worked to keep the number of full members close to the 50% mark for years and years because he knew that being at or over a majority would make a difference in winning the rights to exclusively represent the entire Department of Rehabilitation Services (DORS) unit through first consultation, then an election, and finally a contract.  He labored over a regular repetition of direct mail, believing in that tool from his father’s experience – and lessons – from creating and running the big sweepstakes mailings.  There were always phone banks, a service center, and crews of organizers chasing the workers and signing them up as members.  Many of the states where the local works now are right-to-work states, so this is not a situation where they would have allowed themselves to ever get fat and happy.  The 880 crew is simply hardwired differently as organizers to an aggressive organizing culture.  They’ll take a hit here, and, yes, they might lose a couple of million dollars, but they won’t miss a step.  For them, that’s only money.

On the other hand there are many locals who have benefited from the breakthroughs in places like Illinois where workers have gone from minimum wage to $13 per hour, from having nothing to winning benefits, and from being invisible to a regular presence in the halls of power, but have not shared the same culture and experience.   The giant SEIU home care local based in Los Angeles, California claiming more than 100,000 members in this sector, never to  my knowledge had more than 20% of them as full, dues paying members.  Other locals with both SEIU and AFSCME throughout the state also won bargaining rights without the decades of patient organizing, monthly meetings, and lobby days that was the hallmark of Local 880.  They will feel this decision acutely as it comes.  This might have been the case in Ohio and Michigan as well, but Republican governors have already eviscerated those local unions and vacated bargaining rights.

Who knows what the Supreme Court understood about all of this.  From what I have seen in reading the decision so far, not much unfortunately.  Nonetheless, whether by design or accident, they and their allies have shrewdly attacked the one area of organizing that has been the signal accomplishment of our generation of organizers:  informal home-based employment.  It is here that we have added perhaps three-quarters of a million workers and achieved real density, particularly in the publicly directed areas of the work over the last 30 years, and it is here that the Supreme Court has tried to deliver a blow at the very heart of our future.

The wound isn’t fatal, we will bleed buckets, and it will hurt us for a long time to come, but we’ll look at more of the implications of this tomorrow as we try to puzzle out what a “partial public employee,” might actually be.

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Public Racism is now a Hope for Voters’ Rights

clippers-donald-sterlingNew Orleans    Maybe in a weird, crazy way we are going to end up being able to find a silver lining in the dark cloud of the stark racism expressed recently by the Nevada rancher’s slavery bear hug and the Los Angeles Clippers’ owner’s snarling slurs to his mistress.  How could progressives have picked more outstanding representatives of the dug-in nature of racism than a 20-year law breaking squatter refusing to pay the government for grazing his cattle on Bureau of Land Management property or an 80-year old billionaire with a record of racial discrimination settlements for discrimination in his apartment empire giving racist advice to his multi-racial Mexican and African-American girlfriend?  You couldn’t order a present this good from Amazon even if you agreed to pay the shipping or find this on any aisle at Walmart’s among the 50,000 choices. 

            Almost as if it were planned rather than a coincidence, a federal judge in Wisconsin has now struck down the voter identification law there because it violates the 14th Amendment and also because it violates the Voting Rights Act as racially discriminatory.  In a 90-page opinion, he based his decision that voter ID’s are not only illegal because they were a solution looking for a non-existent problem, but also because he argued that 300,000 citizens in the state or 9% of the population, disproportionately made of racial minorities, were the people who lacked IDs and would therefore have voting obstacles.  Wisconsin will no doubt appeal, and the Supreme Court will have trouble not taking such a case.

            Supreme Court Justice Roberts is making his living claiming that racism and discrimination are so yesterday, over and done, that we no longer need affirmative action, voter protections or much of anything else in his lilywhite imaginary world.  But, now on the front pages day after day we have proof positive, way past all of the pretending, that there are deep veins of racism both among the high and mighty and the far flung and isolated, continuing to poison American life.

Too many of the big whoops have been lured into believing that they can buy a safe pass to conceal their hate.  One of the most tragic side stories in the Clippers’ saga is the role of the Los Angeles NAACP in giving multiple awards, whitewashing the owner in what one columnist called a “cash for karma” exchange. 

The fantasy of current racial harmony may be over thanks to these bums.  They make the reality of racism harder to ignore.  Justice cannot be based on a Beltway myopia, but an understanding of what exists everywhere across the country.  It also cannot be based on the way people pretend to operate, but what they really think, which is what determines what they really do.

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