Month: September 2020

Arguments that there is something wrong with moving ahead now to fill the Supreme Court vacancy caused by Justice Ginsburg’s death are bogus. Judge Barrett’s confirmation should proceed except in the unlikely event that holding off could produce a bipartisan deal to deescalate the toxic politicization of judicial confirmations. An ideal compromise would (1) reinstate the 60-vote threshold for confirming federal judges and (2) revive the standard that judicial confirmations should be based on merit rather than politics.

The Barrett nomination and confirmation schedule are appropriate

Prior to the Merrick Garland fiasco, there was no apparent problem with Supreme Court nominations and Senate confirmations during the last year of a president’s term. Presidents possess the full range of their authorities for their full time in office and clearly have the right to submit nominations whenever Supreme Court vacancies occur. Those who elected them expect no less. Likewise, the Senate has full authority, and even an ethical duty, to consider such nominations in good faith.

The projected timetable for Judge Barrett’s confirmation of about 38 days is short but not unprecedented. For example, the Washington Post reports that Justice Ginsburg was confirmed in 42 days, Sandra Day O’Connor in 33 days, and John Paul Stevens in only 19 days. In any event, the confirmation timeline should not depend on an arbitrary number of days but on whether it gives the Senate enough time for its due diligence. Judge Barrett was nominated and confirmed to the Seventh Circuit in 2017; thus, she is recently vetted and a known quantity to the Senate. She appears to be an exceptionally well qualified nominee, both professionally and personally. While issues could arise that legitimately require more time, there is no reason at present to dismiss the proposed confirmation timeline. 

The Garland debacle should not become the new normal

Democrats and the liberal media are in high dudgeon over the Barrett nomination based on Republicans’ refusal to consider former President Obama’s nomination of Merrick Garland during the last year of his term in 2016. Their stance was rightly condemned by Democrats, the media, and many others. The hypocrisy Republicans now display by their reversal of position is palpable. However, none of this constitutes a substantive justification for opposing Judge Barrett’s confirmation. For one thing, Democrats and the media are being just as hypocritical in reversing their own stance from 2016. Also, there’s little doubt that if the situation were reversed, Democrats (with liberal media support) would have done what Republicans did in 2016 and would do now what Republicans are doing. Sadly, Supreme Court confirmations have become so politicized that hardly anything said by either side is worth taking seriously.

More importantly, the contention that the Senate should not confirm a Supreme Court nominee in the last year of a president’s term, which liberals now invoke as “the Garland principle,” was unprincipled nonsense when Republicans disingenuously conjured it up in 2016 and still is today. It would be equally wrong for Democrats to embrace it now and probably perpetuate it. While the Senate has the raw power to deny good faith consideration to Supreme Court nominations, this surely amounts to an abuse of its constitutional advise and consent role and a dereliction of its duty at least from an ethical standpoint.

There is an overriding need to deescalate politicization of judicial appointments before it destroys the judiciary

While acting on the Barrett nomination now is fully justified, there may be a better option for those who take a longer-term view and care foremost about preserving the integrity of the judicial branch. The federal judiciary can function effectively only if judges are nonpartisan and independent in reality and perception. However, judicial appointments, particularly to the Supreme Court, have been politicized to the point of jeopardizing the credibility of the judiciary. The process has degenerated further with each recent confirmation. The Barrett confirmation promises to continue this sorry trend. Democrats and the media are already spewing hyperbole and threatening drastic retaliation if the nomination goes through. Their worst threat is to “pack” the Court, which would utterly destroy its stature. Reversing this downward spiral is arguably more important than any individual confirmation.   

Restoring the 60-vote threshold for judicial confirmations

Longstanding Senate rules can force a 60-vote majority to confirm federal judges. However, in 2013 Democrats invoked the so-called “nuclear option” (well named to capture its extremism) to override the rules and enable confirmation of lower court federal judges by simple majority vote. In 2017, Democrats’ mindless filibuster of the Gorsuch nomination forced Republicans to abandon the 60-vote rule for Supreme Court confirmations as well. In the closely divided Senate, reviving the 60-vote threshold would necessitate significant bipartisan support for judicial confirmations.

Restoring confirmations based on merit

Not too long ago, Supreme Court nominees were confirmed or rejected based on their merits: intellect, background and experience, and personal integrity. Nominees’ judicial philosophy made little difference so long as they were within the mainstream of legal thought; nor did it matter whether the nominating president was a Republican or Democrat. Applying this standard, bipartisan Senate majorities overwhelming confirmed nominees as ideologically disparate as Ginsburg (96-3) and Scalia (98-0). It also was considered inappropriate to apply “litmus tests” to nominees or press them to reveal how they would vote in specific cases. (The latter became known as “the Ginsburg standard” since Justice Ginsburg espoused it forcefully at her confirmation hearing.) Returning to these merit-based standards along with reimposing the 60-vote rule would go a long way toward restoring integrity to judicial confirmations.

Is compromise possible?

The Senate has sunk so low that any effort at rational, bipartisan compromise is a long shot. However, the above steps are hardly radical; they simply restore the status quo that existed for many years. The 60-vote rule applied until very recently. With several notable exceptions, broad bipartisanship and merit-based standards held sway through 1994 when Justice Breyer was confirmed by an 87-9 vote. Nominees continued to receive significant bipartisan support as recently as Justice Kagan in 2010.

The hyper-partisan Senate leaders on each side would be of no help in forging a compromise. However, a handful of courageous, institutionalist senators from each party (if they can be found) could form a critical mass to force reform. Now is as good a time as any to try. While Republicans currently have the upper hand, they are at considerable risk of losing both the presidency and their Senate majority. This would open the floodgates for Democrats to add judges (and maybe justices) in the immediate future. The stakes are even higher for Democrats. This is the first appointment in decades that would dramatically change the Court’s ideological composition. Replacing Ginsburg with Barrett probably would guarantee a conservative majority of justices for years to come even if Democrats sweep the election.

While a bipartisan compromise along the above lines may be the ideal outcome, it is probably a bridge too far. If so, and if no shocking developments occur in the confirmation process, Judge Barrett should be confirmed.  

The tragic death of George Floyd at the hands of Minneapolis police and other recent incidents feed the narrative promoted by Black Lives Matter (BLM) and re-enforced by much of the media that cops are engaged in deadly warfare against African Americans. The BLM website  (www.Blacklivesmatter.com/whatwebelieve) asserts that Blacks are the victims of “rampant and deliberate violence inflicted on us by the state.” Statistics and objective studies flatly refute this narrative.

Most police killings (of both Blacks and Whites) occur where police encounter armed, violent individuals who threaten them or others. Such encounters involve African Americans disproportionately. While Blacks are killed at a much higher rate than their share of the population, this disparity vanishes when their disproportionate rate of violent crime (overwhelmingly committed by young Black males against other Blacks) is factored in. The reality is that disproportionate police killings of Blacks will subside only when disproportionate Black violent crime subsides.

At the same time, it bears emphasis that disproportionate Black crime rates reflect a host of other racial disparities impacting African Americans that do stem from racism and persist after centuries of overt race discrimination. Fatal police encounters are only one symptom of these deeper problems. Until policymakers address the underlying problems, little is likely to change.

Data sources

Comprehensive data on police killings of civilians is limited since there is no official, comprehensive database–a serious shortcoming in itself. The best available data sources come from outside government. The following analysis relies primarily on the Washington Post’s “Fatal Force” database because it covers all lethal shootings by police from 2015 forward and is readily searchable by race and other relevant criteria. While George Floyd’s killing did not involve firearms, shootings comprise more than 90 percent of all fatal intentional use of force cases involving police. This analysis also relies on a series of studies that have been done in recent years as described here, here, here, here, here, here and here.      

Preliminary observations

A few overall points are worth making before delving into the statistics and studies. First, the vast majority of African Americans, like other citizens, are law-abiding individuals who never experience violent encounters with police.

Second, police killings of civilians of any race are rare. Nationwide, cops interact with civilians over 50 million times each year and make over 10 million arrests annually. Fatalities at the hands of police constitute a minuscule percentage of these interactions. According to the Post’s database, police on average fatally shoot close to 1,000 civilians per year, of whom about 225 to 250 are Black. This represents less than one death out of every 10,000 arrests and at most one Black death out of every 40,000. Of course, all such deaths, Black and otherwise, are concerning and deserve scrutiny. However, they hardly show a pattern of rampant violence directed against Blacks or anyone else.

Third, police killings of unarmed civilians are rarer still. Over 90 percent of those shot dead by police are armed. Nationwide, 55 unarmed shooting fatalities occurred in 2019, including 14 Blacks and 25 Whites. Moreover, some victims classified as “unarmed” were killed while attacking police officers. Almost all persons killed by police, armed and unarmed, resisted the police in some way. Several highly publicized cases (including Floyd’s) involve police encounters that began fairly routinely but escalated due to actions of the victim.

Objective studies refute the narrative of racial animus in police killings

With the foregoing perspectives in mind, what do the data show about fatal police encounters? While police fatally shoot more Whites than Blacks each year, the percentage of Black victims significantly exceeds their representation in the general population. African Americans constitute roughly 13 percent of the Nation’s population but account for about 24 percent of fatal police shootings. Many contend that this disparity proves racial bias. However, looking only at demographic representation has little probative value. For example, using this sole criterion would mean that police engage in massive sex discrimination since 96 percent of fatal shooting victims are male.  

What, then, does explain disproportionate police killings of Blacks? Studies consistently find that the statistical disparity in police shootings of Blacks evaporates when the even more disproportionate share of violent crime they commit is factored in. Blacks account for 58 percent of all murder arrests and 40 percent of those apprehended for all violent crimes. Most police killings occur when cops encounter potentially violent situations with armed, threatening individuals. Such encounters involve African Americans disproportionately, the great majority being young armed males. It is also noteworthy that the studies find no disparity in the race of police officers doing the shooting; Black officers are just as likely as White officers to shoot Black victims.

Activists and the media turn a blind eye to all of this and focus instead on a few individual cases that appear (at least at first blush) to be the most egregious, particularly those rare instances in which the victim was unarmed. Some cases, such as Floyd’s killing, do seem wholly unjustified. In other highly publicized cases, however, police culpability is ambiguous or nonexistent. The highly publicized 2014 killing of Michael Brown in Ferguson, Missouri, fits the latter category. The cop who shot Brown was exonerated both by local officials and the Obama Justice Department, yet his case is still widely invoked as a prime example of police racism and prominent politicians still falsely describe Brown’s killing as “murder.”

Those promoting the narrative of racist police killings also ignore the fact that dubious police-involved killings are not unique to Blacks. As one commentator observed, for every Black person killed by police, there usually is at least one White person killed in a similar way. For example, the 2016 killing of a White man (Tony Timpa) by Dallas police was strikingly similar to Floyd’s. Like most cases of White victims, Timpa’s death received little if any national publicity.  

The victims of violent crime committed by Blacks are overwhelmingly Black.

The toll that violent crime takes on Black lives is still another obvious fact that activists and the media either ignore or deflect. According to the FBI, 2,870 Blacks were murdered in 2016; at least 2,570 (90%) were killed by other Blacks. Shockingly, homicide is the leading cause of death for Blacks up to age 45. Blacks between the ages of ten and 43 die of homicide at thirteen times the rate of Whites, according to the Centers for Disease Control. Thirty-eight juveniles have been murdered by gun violence in Chicago so far this year, including five under the age of 10.

Less policing leads to increased Black deaths

The so-called “Ferguson effect” posits that police become less proactive when they are subjected to withering criticism, which in turn leads to increased crime. The term was coined to explain the rise in crime in Ferguson, Missouri, following widespread outrage over the Michael Brown killing. Another dramatic example is what happened in Baltimore in the wake of the controversial death of Freddie Gray while in police custody and the widespread protests and rioting that followed. Many American cities are experiencing a surge in murders following the George Floyd killing and other recent police-involved incidents. The Ferguson effect theory has its detractors as well as proponents. However, a  recent study by Harvard economists provides supporting data for it. The study found that in cases of police killings of Blacks that went “viral” (i.e., generated great controversy), there followed large and statistically significant increases in homicides and total crime.  Other studies (described here) reach similar conclusions.

The Ferguson effect probably explains at least in part the recent dramatic increases in murders. This is particularly likely where politicians berate police before investigations are complete. An example is the non-fatal shooting of Jacob Blake in Kenosha, Wisconsin. The Wisconsin governor immediately condemned the police and the lieutenant governor described the shooting, bizarrely and without evidence, as “some sort of vendetta taken out on a member of our community.” While acknowledging that the facts need to be investigated, vice presidential candidate Kamala Harris nonetheless asserted that the police officer who shot Blake should be charged with a crime.  

Some police reforms are needed

The lack of evidence of racial animus in police killings does not mean there are no problems with policing. Studies find race-based disparities in a variety of more routine police actions that do not involve fatal force. Blacks are more likely than Whites to be subject to traffic stops and “stop and frisk” encounters. Blacks also report rough physical treatment and verbal abuse from police at a higher rate than Whites. (A recent Washington Post article catalogs studies finding such racial disparities in policing, among other components of the criminal justice system.) These disparities likely result from widely-held stereotypes of Black males as potentially dangerous and prone to criminal behavior. They also explain why African Americans have significantly less confidence than Whites that police will treat them fairly, although a majority of Blacks (71%) are at least somewhat confident of receiving positive treatment from police.

Race aside, there are also concerns that police resort to force too quickly and use force excessively against both Blacks and Whites. Even legally justified killings by police may still be avoidable. Some reforms to address these problems have been enacted in the wake of the Floyd killing, such as limiting “chokeholds” and other dubious police techniques, improving police training, and enhancing accountability. Reforms such as these have the potential to improve policing and strengthen relationships between police and the citizens they serve.

Bottom line: The key to reducing disproportionate Black deaths at the hands of police is to reduce disproportionate Black violent crime

Demonizing police and reducing police presence, particularly in high crime areas, will not save Black lives–at least innocent ones. On the contrary, it will cost innocent Black lives. What’s needed is not fewer police but better policing. Well-conceived reforms can enhance law enforcement and save lives. However, as long as combating violent crime remains a core police function and Blacks commit a disproportionate share of that crime, they will inevitably remain disproportionate victims of police killings.

George Floyd’s tragic death unleashed unprecedented national outrage over police killings of African Americans. Unfortunately, the directions this outrage has taken so far offer little hope for real change either in police outcomes or other racial disparities that underlie them. Instead, they promote more polarization and divisiveness through distortions from activists and much of the media, posturing and demagoguery from politicians, and symbolism over substance. These reactions feature heavy doses of tribalistic, stereotyping rhetoric that demeans both Blacks and Whites and impedes constructive debate. Until we come together in honest, good faith dialogue the problems will only grow worse.

Black Lives Matter (BLM) along with other activists and most media promote the narrative that police are engaged in ongoing lethal warfare against Blacks. This is demonstrably false. Even worse, measures they advocate would cost Black lives rather than save them and exacerbate racial disparities.            

State and local politicians cravenly attack their police departments to deflect attention from their own leadership failures. They control the police and bear direct responsibility for police performance. If cops systematically engage in bad practices, these officials allow it. If police unions have too much power, these officials approved it. Whatever excess funding or responsibilities police have these officials provided.

Symbolic actions coming from many quarters, including Whites intent on demonstrating their “wokeness,” are shallow and largely empty gestures. Destroying statues, renaming things, confessing to White privilege and racism, as well as other forms of virtue-signaling do nothing to save Black lives. Protests over Floyd’s death and more recent incidents have descended into riots and looting, sometimes apparently spearheaded by White anarchists. The ongoing protests in Portland seem to be an end in themselves and a form of local sport that has turned deadly. These actions repel rather than attract support for their supposed causes. 

The overheated rhetoric that permeates social media, academia, and much of what passes for civil discourse likewise turns off well-meaning people who would be receptive to rational debate. Branding everyone and everything “racist” trivializes that concept and robs it of meaning. Many of today’s “anti-racist” practitioners (often Whites) insult all races and discourage dialog. They seek to shoehorn everyone into monolithic tribal groups defined by ridiculous stereotypes. Whites are privileged racists who benefit from America’s defining history of suppressing minorities. Blacks are hapless victims who lack individual agency and the ability to affect their own destinies. As one (African American) reviewer observed, Robin DiAngelo’s best-selling book White Fragility, a prime example of contemporary anti-racist dogma, “entails an elaborate and pitilessly dehumanizing condescension toward Black people.” Similarly, another reviewer described her book as based on the “unstated assumption . . . that all black people are emotionally immature and child-like.”

What, then, can be done to harness the outrage into something productive? Serious efforts to reduce racial disparities in fatal police encounters must start with dispassionate, fact-based analysis. Two hard truths lie at the heart of the problem:

1. The cause of disproportionate Black deaths at the hands of police is not racism but the disproportionate rate of Black violent crime, overwhelmingly committed against Black victims. Disproportionate police killings of Blacks will subside only when disproportionate Black violent crime subsides. This will also save many more Black lives than police take.
2. Disproportionate Black violent crime, in turn, stems from a host of other racial disparities that persist  after centuries of true race discrimination. For example, Black males on average earn less money, are less likely to graduate from college, and die at younger ages than other American men. Until these underlying disparities are addressed, disproportionate Black crime is unlikely to subside.

BLM activists and their allies ignore the first truth; BLM critics and their allies ignore the second. Until all sides acknowledge and address both, little will change.

Remedying broader racial disparities requires attacking their root causes. Some are obvious, such as dangerous, drug- and gang-ridden neighborhoods and failing public schools. At a bare minimum, every American deserves physical security and every child deserves a decent education in a safe environment that is conducive to learning. Other root causes involve more complex problems such as entrenched segregated housing patterns and a range of sociological and cultural issues.

Paradoxically, activists like BLM and “woke” elites promote policies that diminish rather than enhance Black lives. This is manifestly true of calls to “defund” the police. Police reforms are appropriate to reduce excess use of force, enhance accountability, and improve relationships between police and minority citizens. However, reducing police presence, especially in high-crime neighborhoods, will increase innocent Black deaths. Unsurprisingly, few African Americans favor this approach. They want better not less policing.

Similarly, activists undermine the cause of racial justice by disparaging as “White values” such obviously beneficial paths to achievement as the nuclear family, traditional education, rational thinking, and individual responsibility. This also is hypocritical since elites embrace these values in their own lives and for their own families. Along the same lines, activists as well as academic and media elites increasingly espouse once-fringe “critical race theory” that portrays the United States as an irredeemably White supremacist country defined by “institutional” and “systemic” racism whose stated ideals are nothing but lies. These spurious charges not only turn off most Americans but also create what one critic describes as an ”activist black hole” that offers only a cynical message of victimhood and despair.

Another commentator noted that such assertions “create in the minds of students and teachers of all races a vision of America that is imbued with a permanent malignancy that is hostile to the dreams of students of color” and promotes “the soft bigotry of low expectations.” He contrasted this with the positive message of former President Obama, who argued that a constructive path forward for African Americans calls for–

“taking full responsibility for our own lives—by demanding more from our fathers, and spending more time with our children, and reading to them, and teaching them that, while they may face challenges and discrimination in their own lives, they must never succumb to despair or cynicism. They must always believe that they can write their own destiny.”

As President Obama recognized, the United States, like most countries, has a complex history that features both shameful episodes and those that inspire hope for the future. Our Nation has consistently evolved to reverse past shortcomings. It practiced slavery and engaged in legalized race discrimination but later fought a war to end slavery, outlawed race discrimination, and enacted numerous laws to promote racial equality. Anyone serious about eliminating racial disparities in police encounters and other areas needs to embrace and build upon this foundation—not tear it down.