It is impossible to overstate the love that conservative lawyers for over a generation have felt for Antonin Scalia.
When he was nominated by President Reagan to the Supreme Court in 1986, he and Robert Bork were not just the two people quickly left on the list being considered by administration officials at the Justice Department (a much younger yours truly was among them) — there was no third place on that list. As a justice, he transformed the importance given to constitutional and statutory texts, over not only over a judge’s selfish policy preferences but also over other nontextual sources like legislative history. And not only his intelligence, but his wit and faith were legendary.
He cannot be replaced.
Some Thoughts on the Sanders–Clinton Race/Crime Exchange – The discussion of race during one of the recent Bernie Sanders–Hillary Clinton debates, especially with regard to crime, was disturbing but not surprising, following as it did the standard leftist script.
Senator Sanders pointed to the disproportionate number of African Americans in prison and called for “radical reform” of a “broken criminal-justice system.” The solution is less aggressive policing in black neighborhoods, he said, since after all, African Americans use marijuana at essentially the same rate as other groups, but are much more likely to be arrested for drug crimes. Secretary Clinton said, “I completely agree” with all this, called for an end to “mass incarceration,” and added that these and other, noncriminal racial discrepancies are caused by “systemic racism.” And in his response to that, Sanders said that he disagreed with nothing that Clinton had said, adding only that police departments must look like their communities (quotas, anyone?). Later Clinton referred to “systemic racism” again, and Sanders to “institutional racism.”
Three quick points: First, the dog that didn’t bark is that there was no mention, of course, of the fact that 71 percent of African Americans are born out of wedlock, and it is the implosion of the black family that is most to blame for the continuing (and in many cases growing) racial disparities in this country — in crime, poverty, unemployment, substance abuse, you name it. Second, as I discuss in more detail here, all races do not abuse drugs at the same rate and, in any event, this would tell us very little about prison disparities, since hard time seldom results from simple drug use and, besides, most imprisonment is not for drug crimes at all. Third, the simple fact is that imprisonment rates reflect crime rates, and to characterize our police and prosecutors as systematically racist is false, divisive, and demagogic, and a call for less aggressive policing is the last thing that law-abiding people in high-crime areas want.
Felon Voting in Maryland Just in Time for the Election — and Plenty of Hypocrisy – Unfortunately for the law-abiding citizens of Maryland, on February 9 the state legislature overrode Governor Larry Hogan’s veto of a bill allowing felons to register and vote the moment they are out of prison — even if they are still on parole or probation and haven’t paid any required restitution to their victims or other court costs and fines. The law will take effect in 30 days, just in time for about 44,000 felons to register and vote in the April 26 Maryland primary.
Using the usual argument of those who support allowing felons to vote as soon as they are released, Thomas V. Miller (D), the president of the Maryland Senate, said that felons are “people who have returned to society, repaid their debt to society . . . [and] we want to reincorporate them into society . . . We want them to be able to hold their head high, and that’s what this is all about.” But is this what it is really all about, or is it just an attempt to get more voters that favor his political party to the polls?
What Miller doesn’t mention is that under Maryland law, like other states, you don’t just lose your right to vote when you are convicted of a felony — Maryland also bars felons from owning a gun or serving on a jury. The state allows licensing boards to deny an application or impose sanctions on a current license holder for individuals convicted of “drug crimes.”
Licensing boards as varied as cosmetology and architecture are also allowed to deny or suspend the license of an applicant who has been convicted of any felony or even “a misdemeanor that is directly related to the fitness and qualification of the applicant or licensee.”
There is nothing barring the state Department of Corrections or sheriff’s offices from doing background checks and refusing to hire felons. More generally, felons can be barred from any other state employment positions that require a background check or are designated state personnel-management positions. Since you have to undergo a criminal background check to get a teaching certificate in Maryland, this means you can be denied a teaching job the moment you step out of prison — even if you can now vote.
Furthermore, state law allows landlords to discriminate against anyone convicted of felony drug crimes or any person “whose tenancy would . . . constitute a direct threat to the health or safety of other individuals,” which may describe many felons convicted of violent crimes. Public-housing authorities like Montgomery County and Prince George’s County specifically say that they consider an applicant’s criminal history when determining their “suitability” for public housing.
If the members of the Maryland state legislature who voted to allow felons to vote immediately really believe that felons have “repaid their debt to society” and if they really want to “reincorporate them into society,” why didn’t they include provisions in this voting bill restoring all of those other rights? Are we to believe that they don’t trust a felon fresh out of prison to own a gun? That they don’t believe that felons have the judgment to serve on a jury? To work as law-enforcement officers or teachers? To live in public housing?
So even though these legislators don’t trust felons to be responsible in all of these other areas of licensing, public employment, housing, and the judicial system, they do trust that felons have the judgment to make responsible decisions in the voting booth that will affect the rule of law and specifically, the rules governing our civil society that those felons have proven they are willing to break.
Are these legislators really interested in “reincorporating” felons into our civil society? Or are they just interested in the potential votes these felons will bring?
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Last week I traveled to the University of Texas to debate the issue of affirmative action, and you can watch the event here. And this week I’ll be traveling to Pittsburgh to talk on the same topic at a couple of events; the newspaper there ran a preview/interview with me, which you can read here.
