On Schuette v. Coalition to Defend Affirmative Action

This is one of those Supreme Court precedences that I both admire and despise.  To reiterate what the Court ruled on in this case (see "Scuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by all Means Necessary (BAMN) et al," no. 12-682, October 2013 Term, at: http://www.supremecourt.gov/opinions/13pdf/12-682_j4ek.pdf), Michigan apparently passed, by ballot referendum, a law amending the state's constitution that prohibited discrimination on the basis of race in admissions to public colleges and universities.  The intent, in this regard, was not to sanction a level playing field between minorities and White applicants to public higher education in the state but to prohibit preferences for minorities under affirmative action programs.  In this manner, public colleges and universities in Michigan will be constrained to select applicants strictly based on academic merit to fill limited enrollments for incoming classes of undergraduate students, rather than setting aside a limited number of spaces for ethnic and racial minorities seeking to benefit from engagement in higher education at institutions for which they might not otherwise qualify without the application of preferential admissions standards.
                 I have three separate points to make in regard to this decision.  First, strictly in regard to the principle of federalism and the preeminence of the democratic process, I think the Court made the right decision.  The electorate of Michigan, assembled as a sovereign polity, was entitled to make a decision that, as a minimum, served a legitimate public purpose (the maintenance of racial and ethnic neutrality in the organization of public institutions chartered for the political, cultural, and economic benefit of Michigan's citizens) and was rationally directed toward such ends.  I cannot see how the invalidation of this law in reference to a more restrictive standard of constitutionality would have been merited in order to defend contrary public policy objectives for which the people of Michigan made clear that they disagreed with the means by which such objectives had been advanced.  Stare decisis notwithstanding, I am of the opinion that democracy, as majority rule, needs to be our first jurisprudential principle in evaluating whether a particular legislative enactment meets constitutional muster.  In this regard, the decision of an assembled polity through the referendum process needs to be accorded some degree of preference, at least to the extent that it does not, on its face, expressively contradict constitutional standards by the intent of its authors. 
                  Having made this point, it seems clear to me, as it seems to be have been clear to Justice Sotomayer in dissent, that, in its effects, this law will not establish a level playing field between White, Anglo college applicants, on the one hand, and non-White, non-Anglo applicants, on the other.  Rather, allowed to stand, a rigorously merit-based applications process to public institutions of higher learning in Michigan will lead to enhanced admissions of White and Anglo applicants from secondary institutions in suburban and/or rural environments with relatively higher community median incomes and relatively higher-level academic performance in comparison with urban communities.  As such, these institutions will pervasively underserve poorer urban communities like those of Detroit, Flint, and Ann Arbor in preference to suburban counties and students from comparable secondary educational environments out of state (where, in any case, public colleges and universities will be able to charge heavier tuition rates relative to what they would charge to in-state students for whom they were commissioned with a mandate to serve and provide an affordable higher education!).  In this sense, there is something not merely racist embodied within the law which the people of Michigan enthusiastically endorsed, but also succinctly oriented to privilege minorities of the state's population based on higher income.  I cannot see how this law could ever have been intended to advance a larger mission of public higher education to promote the social mobility of individuals and social groupings left behind by economic development in previous generations with the promise of an affordable avenue to a better life through education.  It simply enacts into law, on the one hand, the spitefulness of a small number of households with academically marginal White candidates that did not get into the public institution of their choice because equally qualified candidates of color had to be admitted in their place and, on the other hand, the prejudices of libertarians who despised both the conception of public higher education, per se (wishing that these places could simply be transformed into quasi-public, profit making entities), and the notion that public colleges and universities might be used as a vehicles to enable lower income groups to crawl up from the lowest ranks of society by their own efforts, albeit with a helping hand from policies intended to sow the seeds of prosperity for a broader segment of the population!
                   Lastly, off the top of my head I cannot vouch for the inherent value of diversity in higher educational institutions with any specific empirical evidence, but it seems likely that, if Michigan's public colleges and universities do become lily White places of learning, they will also become academically sterile places, catering to a truncated range of students looking for reinforcement of particular parochial perspectives on the universe of knowledge, and attracting few truly innovative academic thinkers as faculty outside of disciplines that attract disproportionate numbers of students at every institution of higher learning in the United States based on the perceived marketability of their degrees.  They will cluster small handfuls of departments, in high tech fields or in exclusive business programs, enjoying substantial funding for respectable faculty and high-quality students, and larger numbers of departments, particularly in the humanities and social sciences, with mediocre faculty and below average students from families with the ability to pay overinflated tuitions for a subpar higher educational experience.  Rather than being the sorts of places that support vigorous debate over public policy issues, relevant to the workings of the democratic process in the state, and generate energetic, passionate graduates in fields like education and health care, they will become factories for graduates with degrees that, by and large, carry little weight in competition with graduates from public and private institutions that accord greater attention to recruiting both students and faculty from a wider range of cultural backgrounds and, hence, create educational environments more conducive to critical learning and development of the sort of social capital associated with the experience of diversity.  In short, I would hope that the good people of Michigan would realize the extent to which the law they enacted through democratic consent will not only diminish the value of their public higher educational system but have a detrimental effect on the economic development environment that a good system of public higher education might otherwise help to support.  In view of the present state of Michigan's economy, and especially that of its most populous city, it would seem that the state needs all the help that it can get to promote an energetic, entrepreneurial environment within a broader range of its population and that enacting laws likely to promote degeneration of the quality of its public higher educational system by limiting its inclusiveness to certain populations can only accentuate the negative. 

The People's Republic of Donetsk?

Veering back quickly onto the goings on in Ukraine, it appears that things are coming to a head in the eastern oblasts.  Donetsk, Kharkiiv, and Lugansk have central governmental administrative facilities under seige by pro-Russian demonstrators, the central government in Kiev is increasingly displaying a willingness to employ armed security forces to retake these facilities from protesters (many of whom seem to be well armed as well!), and Russia continues to display a significant military presence in the bordering Russian oblasts of Belgorod and Rostov.  Reiterating the broader points that I attempted to advance in my much longer post on the "Impending National Division of Ukraine," it is imperative that the U.S. and EU act in order to address a situation that may be spriraling toward a violent confrontation between Ukraine and Russia, one which Ukraine will certainly lose.  In this manner, I further consider it imperative that the West stop projecting an analysis of the situation in Ukraine through the spectrum of Munich, 1938.  Rather, there may yet be ways to extract a peaceful resolution to the crisis in the eastern Ukrainian oblasts if the interim government in Kiev can be persuaded to part with these territories in exchange for a firm commitment by the U.S. and EU to bolster the economic developmental possibilities for the remainder of the country. 
              In this respect, I mean to assert that, notwithstanding present capacity of Russia to invest petroleum revenues heavily into the redevelopment of the Don Basin, unification of the Ukrainian oblasts in the Don Basin with Russia is, under present circumstances with Russia driving political wedges between itself and the West, an economic dead end for the good people of Donetsk, Lugansk, and Kharkiiv.  If a majority of these populations sincerely want to go in this direction, Kiev should let them veer off into oblivion.  On the other hand, the project of a Ukraine fully integrated into Europe is too important for the larger population of Ukraine, especially those west of the Dneiper, to be granted short shrift by the U.S. and EU in the interests of defending borders that don't mean anything against Russian aggression.  If, as a result of commitments by Western states to support a thoroughly democratic restructuring of state political processes (combatting corruption) and enhanced access to by the state and national financial system to global financial resources, promoting private investments in export processing and implantation of more advanced industrial processes in Kiev, Dnipropetrovsk, and other western Ukrainian urban centers, Ukraine becomes an economic developmental success story at the edge of former Soviet space, its example might constitute the West's best argument for changing, over the long run, Russian governmental behavior and pulling Russia into Europe.
            At the present moment, the best argument that I can make in regard to the situation in the eastern Ukrainian oblasts is that the U.S. and EU should be recommending extreme caution by Kiev, while extending the promise of long term economic support and assistance.  Any effort to subdue pro-Russian populations is unlikely to end well for Ukraine.  If these oblasts want referendums to gauge their support for secession and unification with Russia, then Kiev should not only grant them their referendums, but bring in international observers to ensure the process is entirely fair to all populations in the oblasts (assuming that something of this nature could be negotiated by responsible parties on both sides in Kiev, Kharkiiv, Donetsk, and Lugansk).  Finally, if Kiev is truly serious about wanting to hold onto these oblasts, it could do much more to announce its willingness to acquiesce in the continued pervasive use of the Russian language in local government and commerce, and to support a broader ethnic diversity in the Don Basin, relative to the robust assertion of liberal Ukrainian nationalism evident in the Euromaidan revolution and its aftermath.  Vigorous assertions of Russian nationalism in the eastern oblasts appear to be emphatically about the fears of the local populations, especially ethnic Russians, that the government in Kiev will impose a culturally radical, Ukrainian nationalist politics, inconsistent with the understanding of most residents in these oblasts that a fundamental ethno-cultural kinship existed between Ukraine and Russia.  For all the noise that Russia has made about radical U.S. and European intervention in the eastern oblasts in support of a rightist agenda in Kiev, and for all the effort of Washington and Brussels to reduce the Ukrainian crisis to an instance of unacceptable Russian aggression, both sides closer to the ground in Donetsk, Kharkiiv, and Lugansk need to resituate the discussion to extract the fundamental interests of local people from the blare of international power politics.  In the end, if these oblasts are going to remain within Ukraine, Kiev might have to agree to accept some sort of loose federal relationship of the sort that Russia has been supporting. 
             As a final point, approaching as a Marxist, I find the recurrence of socialistic metaphors in the Ukrainian crisis peculiar.  Clearly, on the Russian side of the dispute, the notion of recreating the Soviet Union as a contiguous, politically unified geopolitical superpower has conveyed itself to the reintroduction of a socialist rhetoric, readily comprehended within the consciousness of, at least, older residents in the Don Basin.  Thus, in its efforts to appeal to residents in the eastern oblasts, Moscow has been excoriating the interim government in Kiev as a regime of right wing, culturally intolerant Ukrainian ethno-fascists, charges for which many right wing politicians in Kiev appear to be handing Moscow abundant ammunition!  The idea of an autonomous "People's Republic of Donetsk" strikes me as the most emphatic Rip Van Winkle moment here, however.  Furthermore, in view of current trends in cultural politics and ethnic xenophobia in the Russian Federation, it comes off, relative to the broader Marxian tradition, as a cynical joke.  I have hopes for the people of Donetsk, that they will one day be part of a broader economically integrated, culturally cosmopolitan, and politically harmonious world, in community with the entire Russian ethnic and political sphere.  The idea of Donetsk existing in autonomy from Kiev, moreover, seems not only logical but, in view of the oblast's lingering economic ties to Russia, mutually beneficial to all parties.  This framework appears implicit within the idea of transforming Ukraine into a loose federation.  One way or another, such a reorganization would certainly reinforce the possibilities for a democratic consensus within the population of the oblast in reference to its economic developmental future, something that would be more difficult if the oblast was forced to harmonize its vision against the westward leaning priorities of Kiev.  In this sense, maybe the idea of a People's Republic of Donetsk is something that I can embrace, but only to the extent that it strives for the kind of cosmopolitan tolerance of cultural differences, vigorous radically democratic political experimentation within and outside of state political processes, and consistent support for anti-capitalist, non-exploitative, decentralized, and entrepreneurial communist experimentation, all of which I would find consistent with the application of a Marxian-inspired metaphor.  In view of Russia's contemporary drift into a politically reactionary, culturally intolerant, and crony-capitalistic economic model, I would consider the likelihood that an autonomous People's Republic of Donetsk could live up to my hopes miniscule.      

The Problem of Jonathan Pollard

As with many of the other posts that I have included on this blog, this passage will be rather short.  I have comparably few things to say about Jonathan Pollard, and I know very little about his case or the classified information that he apparently provided to Israel before his apprehension, indictment, and imprisonment on espionage charges in 1987.  From the details that appear available, he seems to have provided communications security information at least in some way comparable to the information provided to news media sources by Edward Snowden, in addition to materials regarding various U.S. intelligence data collection on foreign (Arab, Iranian, Soviet, etc.) military capabilities not otherwise available to or verified by Israeli intelligence sources.  I have placed two separate posts on this blog concerning the espionage committed by Edward Snowden, which I consider, at least to some extent, to have provided a valuable service to the broader American public in revealing the substantial extent to which the National Security Administration and other U.S. intelligence agencies have been engaged in collecting information on the American public.  The Pollard case is of an entirely different character.  In this regard, the problematic character of the Espionage Act of 1917 concerns me much less here than it does with regard to Snowden.  The information Pollard passed to Israel and the particular manner in which it was passed ensured that it would unambiguously be used by a foreign intelligence service and foreign military entities, even if those entities were, at the time as presently, allied to the U.S.  Considering the country to which the information was passed and its peculiar relation to the U.S., in relation to the rest of the world, I think Pollard's circumstances demand further attention. 
           Notably, I would hope that Pollard is not released in anticipation of repatriation by Israel, as an expression of the fidelity of the Obama administration toward our ally Israel in anticipation of the Jewish Passover.  More fundamentally, the idea that Pollard would be released to Israel in an effort to bring the Likud government of Netanyahu back to the peace process or to restrain Israel from continuing to authorize the construction of settlements in West Bank territories outside Israel's pre-1968 boundaries disgusts me, when over $3 billion of tax money collected from U.S. tax payers flows annually to bankroll Israeli military operations!
            In a further sense, I think that the indictment and imprisonment of Pollard raises questions concerning the boundaries that the American polity should be willing to accept in the dispersal of sensitive information to allied militaries and intelligence services.  Perhaps Pollard was right to have supplies Israel with information that it needed to more effectively undertake defense planning against Arab and other states in its region in the early 1980s.  Emphatically, I do not know all of the issues involved in Pollard's case because I do not know all of what he supplied or where it fit into the broader structure of Israeli defense planning or why U.S. Naval and other intelligence sources were not being more forthcoming to an ally in supplying this information in the first place.  Having said all that, U.S. military and civilian intelligence agencies must be capable of engaging in the collection and maintenance of sensitive information without the interference or disclosure to non-U.S. entities.  For the same reasons that Snowden's disclosures over the last year have raised legitimate issues in violation of espionage laws, notwithstanding the potential long term benefits of these disclosures, Pollard's disclosures to Israel merit the sentence that he received and that he should serve. 
          As a final point, I am intrigued by the notion that as an American Jew, Pollard was somehow more entitled to serve the interests of Israel in the provision of sensitive U.S. governmental/military/intelligence information.  Perhaps "entitled" is not the right word to apply here, but I am searching for an appropriate concept to capture the broader nexus of positionalities applicable to an American Jew as a Jew, wholly welcomed to partake of Israel through the official governmental/constitutional policy of the state as an ethno-cultural homeland for all Jews, as an official of the U.S. federal government, and particularly its intelligence services, tasked by the American people to act in a manner that supports and defends the U.S. Constitution, and as an American citizen, attempting to act in a manner that Pollard conceivably thought would serve the best interests of his country, his family, and all his neighbors in his community.  As in many other circumstances, this raises questions for me about nationality, within the broader evolutionary stream of liberal (and Marxist) globalist thought.  Pollard is obviously entitled, in every sense of the word to place his identification with Judaism, as a requisite of identifying with the Zionist (a term I use in a historical rather than in a prejorative sense) project of Israel, above his identification with the American (liberal constitutionalist) project.  Fundamentally, I see these two projects (i.e. Zionism and the Enlightenment, as the wellspring of ethical and juridical principles embodied in the foundations of the U.S.) as incommensurably at odds.  I need to commit a larger post or set of posts to an explanation of this, but, in a most basic sense, I have to concede that I neither support the existence of Israel, as the outcome of the Zionist project, nor do I see anything in Israel's existence that supports the project of the Enlightenment, a project founded on secular, multi-ethnic principles that contradict the notion of ethno-cultural Jewish state.  In this regard, I find the notion that Pollard would have understood some equivalence between these two ends troubling.