New Posts at Verdict for 12/11/2015

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John Dean
Dec 11, 2015

What Trump’s Call to Ban Muslims Is Telling Us About Authoritarian Politics

Authoritarian leader personality-type and would-like-to-be-president, Donald Trump, after decades in the glare of media attention, instinctively understands exactly how to manipulate the fourth estate better than any political figure in modern America. By being himself, he is taking the country to school on how to dominate public attention with his inflammatory rhetoric, which he intuitively employs through unfiltered social media.

In the event you have been living in a cave, here is a very small sample of his increasingly offensive (to most people) comments. His comments are uniquely representative authoritarian personality behavior, and, in this case, of a man who has managed to place himself on the national stage where we can all better observe an authoritarian at work. This is Trump being himself. (Recently I spoke with an attorney who has been involved in a number of real estate disputes with Trump, over many years, who said Trump acts in a very similar fashion in his business dealings. He insults and belittles opponents, and is an extremely sore loser, whose standard operating procedure is to try to bully and bend the rules his way.)

Trump on Right Wingers. After calling presidential candidate Pat Buchanan a “Hitler lover” in October, 1999, Trump (temporarily) resigned from the Republican Party, hinting he would run for president. Regarding the leading current intellectual at Fox News, Charles Krauthammer, Trump tweeted (June 4, 2015): “One of the worst and most boring political pundits on television is @krauthammer. A totally overrated clown who speaks without knowing the facts.” He continued, “@krauthammer pretends to be a smart guy, but if you look at his record, he isn’t.”

Trump on Women. “Ariana Huffington is unattractive, both inside and out. I fully understand why her former husband left her for a man – he made a good decision,” (October 14, 2015). “If Hillary Clinton can’t satisfy her husband what makes her think she can satisfy America,” (April 16, 2015). Fox News anchor Megyn Kelly raised Trump’s sexist behavior at the first GOP debate on August 6, 2015, reminding him: ”You have called women you don’t like ‘fat pigs’, ‘dogs’, ‘slobs’, and ‘disgusting animals,” which resulted in his later calling Kelly a “bimbo,” who was bleeding from her “whatever.”

Trump on Immigration. After announcing he would deport some eleven million illegal Mexicans from the United States (“They’re bringing drugs, they’re bringing crime. They’re rapists…”), and building a wall along the southern border of the country (to be paid for by Mexico), he has, in the wake of the ISIL-inspired terror attacks in Paris and San Bernardino, turned to Muslims. Initially he wanted them all registered in a database, but when his poll numbers softened in Iowa, he toughened his stance, igniting a new news media firestorm.

Trump Outdoing Trump: Most recently, on December 7, 2015, when Trump called for a “a total and complete shutdown of Muslims entering the United States,” he lit a fuse he understood would explode worldwide. This is not to say he understood what he was doing, for he is not a person who thinks through his actions, rather trusts his impulses, for he is good at correcting his blunders as he proceeds. Trump did not fully understand what he was doing in calling for a blanket ban that would also prevent American Muslims from returning home. (It appears Trump was unaware that Muslims have been in this country longer than his own family, that they are approaching two percent of our population, that they serve in our military, and they are the second largest religion in the world after Christianity.) So he tweaked his blunder, and without missing a beat, he doubled down on his ban to reach only on “foreign Muslims,” which the New York Times discovered might be constitutional.

Notwithstanding the overreaction of the news media, which included other Republican leaders gently rebuking Trump’s “un-American” and unprecedented religious test for entering the United States, it now appears that rank and file Republicans actually like Trump’s foreign Muslim ban. It appears that Trump was telling Republicans what they wanted to hear, which has only reinforced his position as the GOP front-runner, and has undoubtedly bolstered his confidence in his own instincts and that he can continue to bluff and blunder his way toward the nomination, because he is smarter than everyone else, and he can double talk himself in politics like he has in business, for he is a natural born con man. This is how authoritarian leaders think.

The more rational and experienced Republican Party leaders view it differently. They understand that while Trump’s demagogy might win him the nomination it will not win the general election, and it may destroy the GOP. Not only will the Republican Party stand to lose the White House with Trump as the standard-bearer, but Trump could help them lose one or both houses of Congress.

Frankly, I find Donald Trump’s presidential bid absolutely fascinating for it lays bare the often hidden nature of authoritarian politics. I do not find Trump’s over-the-top and politically dangerous rhetoric threatening, because I am a confident that the sun will rise in the morning and that Trump will never be our nation’s president. But his candidacy is revealing a potentially virulent strain in American politics: authoritarianism.

I wrote in July when Trump became a serious candidate that he is a textbook example of the authoritarian leader personality. He checks off every box on the list of authoritarian traits. As I have explained on other occasions these personalities are typically male; they are dominating; they oppose equality; they are desirous of personal power; they are amoral, intimidating and bullying, faintly hedonistic, vengeful, pitiless, exploitive, manipulative, and dishonest; they will cheat to win; they are highly prejudiced (racist, sexist, and/or homophobic), mean-spirited, militant, and nationalistic; they tell others what they want to hear, take advantage of “suckers,” and specialize in creating false images to sell themselves. They may or may not be religious, but usually they are both political and economic conservatives and/or Republicans.

Authoritarian leaders, of course, need followers. These are the people who social science describes as authoritarians as well in their willingness to follow such dominating and often blunderbuss leaders. As I explained in July, these followers typically have traits which somewhat mirror those of authoritarian leaders: “authoritarian followers are both men and women, who tend to be highly conventional, always and easily submissive to authority, while willing to work aggressively on behalf of such an authority. They tend to be very religious, with moderate to little education, trusting of untrustworthy authorities, prejudiced (e.g., with respect to gay marriage); they are typically mean-spirited, narrow-minded, intolerant, bullying, zealous, dogmatic, uncritical of their chosen authority, hypocritical, inconsistent, prone to panic easily, highly self-righteous, moralistic, strict disciplinarian, severely punitive; they also demand loyalty and return it, have little self-awareness, and are typically politically and economically conservative Republicans.”

What is not known, rather can only be roughly estimated, is how many Republicans are actually “authoritarian followers.” I noted in July that from my data collection over the years, “I have come to believe that somewhere between a quarter and half of registered Republicans are authoritarians, not to mention they are the activist base of the party.” There are also a few authoritarian followers in the ranks of the Democrats. In short, there are enough authoritarian personalities in the GOP to nominate Trump. But there are nowhere near enough of these people to elect a such a domineering personality president. To the contrary, for good reason the overwhelming numbers of Americans who vote in presidential elections are fearful of authoritarian leaders like Trump, and they have never been able to appeal to others outside their natural authoritarian base.

One of the fascinating aspects of Trump’s candidacy is the information it is revealing about authoritarian politics. More specifically, Trump’s over-the-top call to at least temporarily ban all foreign Muslims from entering the United States is providing telling data about how many authoritarian followers may reside in the GOP, not to mention a few who call themselves Democrats. It is not unreasonable to believe that those who support Trump’s thoughtless and fear-driven proposal are likely authoritarian follow-the-leader type personalities. (Social science testing shows authoritarian personalities are basically frightened people, which authoritarian leaders instinctively seek to exploit.)

The headlines from the first polling on this issue indicate Trump hit another home run with Republicans: “Bloomberg Politics Poll: Nearly Two-Thirds of Likely GOP Primary Voters Back Trump’s Muslim Ban; More than a third say it makes them more likely to vote for him, according to an online PulsePoll conducted by Purple Strategies on Tuesday.” If these poll numbers can be transposed to indicate the number of authoritarian followers—and there certainly does appear to be a direct correlation—then there may be as many as 65 percent of Republicans who are such personalities. As the Bloomberg polls reveal, however, only 37 percent of all voters supported Trump’s ban, with 75 percent of Democrats flat-out rejecting it.

It must be remembered that Trump’s authoritarian politics are no guarantee he will win the GOP nomination because ALL the Republican presidential candidates are authoritarian leader type personalities. For some GOP authoritarian followers, many of whom are evangelical Christians, Trump’s multi-wives high-living lifestyle may turn them to one of the other candidates, like Ted Cruz, an authoritarian with views closer to their own.

We are going to know a lot more about authoritarian politics when the 2016 presidential race is completed. And Trump’s upfront and out-there authoritarianism has certainly made it more interesting.

John W. Dean, a Justia columnist, is a former counsel to the president.
Vikram David Amar
Dec 11, 2015

Five (Somewhat) Unpredictable Aspects of this Week’s Oral Argument in Fisher v. University of Texas at Austin

Many facets of Wednesday’s oral argument in the Fisher v. University of Texas (UT) at Austin affirmative action case were not particularly surprising: Justices who have been very skeptical of affirmative action in the past (Chief Justice Roberts and Justices Scalia and Alito) signaled their skepticism in the questions they asked of the lawyer for the University (Gregory Garre). Justice Thomas was quiet (again not a surprise since he rarely says anything at oral argument) but gave no indications he is more tolerant of race-based affirmative action than he has been in the past. Expected swing Justice Anthony Kennedy seemed generally to side with the more conservative folks (as he does in most race cases). And the justices who have seemed deferential to universities to make use of affirmative action in the past (especially Justices Ginsburg and Sotomayor) seemed to accept UT’s decision to use race in the program used to admit 25 percent of its incoming undergraduate freshman class.

Moving beyond expected bottom-line outcomes for the justices, much of the substance of the discussion was also not shocking. Skeptics of UT’s use of race pressed the University on why use of race was necessary and why other approaches, including expanded use of the so-called “percent plan” by which 75 percent of UT’s class is admitted by drawing from the top ranks (10 or so present) of all high schools in the state—a plan that (because of residential segregation) has generated some racial diversity at the University. These skeptics also (again somewhat predictably) characterized the percentage plan as race-neutral even though (as Justice Ginsburg pointed out, just as she has in the past) the plan was almost certainly chosen in large part because of its racial effects.

So much of the argument unfolded true to expected form. But here, in brief, are five things I found somewhat surprising about the substance of what various justices said:

The Possibility of Yet Another Remand

Justice Kennedy (again, likely the pivotal vote) spent a fair amount of time musing about whether the educational benefits of supplementing the percent plan by considering the race of applicants admitted outside the percent plan could be better understood after more evidence was presented to and vetted by the district court. When the Fisher case was last before the Court (in 2013), it was remanded to the Fifth Circuit and so yet another remand (all the way back to the trial court) would not necessarily make the federal judicial system look particularly efficient. And I don’t actually expect another remand (because I imagine Justice Kennedy will be convinced that it was the University’s burden already (under so-called “strict scrutiny” applicable in race-based affirmative action cases) to place into the record all the underlying support behind the University’s pedagogical decision to make use of race. But the fact that Justice Kennedy is even thinking about this option (assuming his questions were earnest)—an option the liberals would accept even as they might prefer an outright affirmance of the Fifth Circuit and the University)—is quite interesting.

The Lack of Agreement on How Much Race Has Affected Admission Outcomes

It is one thing to say, as the plaintiff’s lawyer challenging UT’s program did, that we cannot know in any individual admitted applicant’s case whether her race was a “but for” cause of her admission—that is, whether she would not have been admitted but for her minority race. It is another thing for the record to be unclear—and the competing characterizations by the two sides seemed to suggest it was unclear—about how much racial diversity at the University has increased on account of the University’s decision to take race into account. I realize, of course, that one cannot conduct a controlled experiment when changes in the year-by-year data we have might be attributable to factors other than the University’s decision to take race into account. But I was still surprised at how far apart the parties seemed to be on this essentially factual question.

The Conservatives’ Suggestion That a Small Use of Race is Harder to Justify than a More Aggressive One

To the extent that the number of instances in which race seemed to be a “but for” cause of admission is small rather than large, I was intrigued to hear the skeptics of affirmative action suggest that this would be a reason to invalidate Texas’ program. The notion seems to be that, given how divisive and incendiary the use of race can be—and has proven to be—in America, race consciousness is not a viable option if its use does not make a huge dent in the lack-of-diversity problem; there simply is not enough diversity bang for the contentiousness buck.

There is a certain logical coherence to this argument, but it runs up against a competing principle that the Court has long embraced—that smaller, incidental, “tie-breaking” uses of race are much easier to justify than are huge preferences or plusses. I suppose the conservatives’ position is: if the use of a small plus (which is all that is allowed) doesn’t generate a big return, then no race at all can be used. Perhaps, but it seems somewhat counterintuitive to say you can’t move in the right direction merely because the movement isn’t very dramatic.

The Reappearance of Possible Mootness

In her questioning, Justice Ginsburg resurfaced the question of why the University couldn’t make this case go away by refunding the plaintiff the application fee money she sought as damages, inasmuch as her original claim for injunctive relief—an order directing the University to reconsider her application without regard to race—has long since become irrelevant after she graduated from another university. (I wrote an earlier column about this aspect of the case when it was before the Court before.)

The lawyer for the plaintiff said additional damages (in the form of lower lifetime earnings on account of having attended another university) would be in play, and the pleadings could be amended to assert and prove up additional damages. I’m not sure that is true, since the complaint filed in the case alleged damages “in the form of”—rather than “including but not limited to”—a refund of the application fee. And the fact that the complaint seeks (in a boilerplate way) other relief as may be “just” may not save the plaintiff from what seems to be a poorly narrow characterization of damage components. But what I found particularly interesting is that the Chief Justice interjected (and suggested) that the plaintiff could turn down any tender by the University, and this might avoid the mootness problem. The effect vel non of tender is the subject of another case this term, Campbell-Ewald Company v. Gomez (argued in October), and followers of that case may read tea leaves from what the Chief said on Wednesday.

The Meaning of “Sunsetting” Language in Grutter

The conservative justices invoked language from the end of Justice O’Connor’s majority opinion in Grutter v. Bollinger in 2003 upholding the University of Michigan Law School’s use of race to suggest that there is a clear time limit on the ability of governments in the United States to take race into account in university admissions. What the opinion said (a dozen years ago) was: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”‘ Without getting too deeply into the issue, I should say that this language does not necessarily hold (as conservatives seem to think) that there is a constitutional expiration date on the use of affirmative action. As Evan Caminker and I wrote in a law review article shortly after Grutter came down, there are other possible readings, including “nothing more than her (and the Court’s) fervent desire [and expectation] that the number of minority law school candidates with top grades and test scores would naturally increase so dramatically over the next quarter century that racial diversity in all competitive law schools would exist even if it were not pursued as a distinct admissions goal, or if it were pursued only in a race-neutral way.” In any event, I am a bit surprised that the conservatives’ reading of Grutter (the first seeds of which were planted in Justice Thomas’s dissent in that very case) haven’t gone more aggressively challenged.

Vikram David Amar is the Iwan Foundation Professor of Law and the Dean at the University of Illinois College of Law. Previously, he served as the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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