MHI Brookings Brief

Listen: Race relations, one year after Charlottesville “At its crux, what the Charlottesville protest symbolized was the fact that we as a nation have done absolutely nothing to acknowledge the brutality, the torture, the kind of terrorism that a system based on a racially-stratified society has led to.” In a special edition of the Brookings Cafeteria podcast, four Brookings experts discuss what the violent August 2017 protests in Charlottesville, Virginia revealed about race relations in America and how far we’ve come since. https://html5-player.libsyn.com/embed/episode/id/6884359/height/360/width/640/theme/standard/autonext/no/thumbnail/yes/autoplay/no/preload/no/no_addthis/no/direction/backward/no-cache/true/ In a special edition of the Brookings Cafeteria, four Brookings experts share their thoughts on the 2017 white supremacist rallies in Charlottesville, Va. Their commentary includes analyses of race and extremism in America, the history of racism and how we commemorate history in our public spaces, and what public policy solutions we should consider moving forward.

Kavanaugh aside, consider what’s happening to America’s courts Russell Wheeler argues that assaults on judicial norms from both political parties have degraded the U.S. judiciary’s confirmation process, leaving it in a weak position to fulfill its main duty of resolving civil and criminal cases. The Kavanaugh nomination battle illustrates the degradation of the federal judicial confirmation process. Most recently, the current Senate majority has ignored a Democratic Supreme Court nominee eight months prior to a presidential election but rushed to confirm a Republican nominee four months before a Senate election; practically eliminated judicial confirmations in the eighth year of an opposing president’s term; eliminated consensus-building filibusters for Supreme Court nominees, citing a shaky 2013 precedent; jettisoned a blue slip process that it exploited under a Democratic president. Assaults by both parties on traditional norms of judicial selection comity have dragged the judiciary into our polarized politics and raised vacancy rates that weaken the courts’ ability to do their main job: resolving civil and criminal cases. Majority Leader Mitch McConnell (R-Ky.) said the Senate would ignore Merrick Garland, Obama’s March 2016 nominee to replace Justice Scalia, because “the American people are choosing their next president, and their next president should pick this Supreme Court nominee.”McConnell justified confirming Kavanaugh because “…nobody on either side has ever suggested before yesterday that the Senate should only process Supreme Court nominees in odd-numbered years.” But he refused to process Democratic nominees in the (non-odd) eighth year, no doubt would have argued the same in the fourth year had Scalia died in 2012, and quite likely will reverse himself if a vacancy occurs in 2020. The 114th Senate record on district and circuit nominee confirmations broke with its predecessors’ treatment of what McConnell called “constitutionally lame-duck-presidenc[ies].” (McConnell’s use of “constitutionally” may suggest he carved out an opening should vacancies occur in the fourth year of President Trump’s first term.) TABLE 1: NOMINATIONS IN RECENT PRESIDENTS’ EIGHTH YEARS YEAR WHITE HOUSE CONTROL SENATE CONTROL CIRCUIT CONFIRMATIONS DISTRICT CONFIRMATIONS 1988 Rep Dem 7 33 2000 Dem Rep 8 31 2008 Rep Dem 4 24 2016 Dem Rep 1 8 The obstructionism started in early 2015 (an odd-numbered year) with 7 circuit and 33 district vacancies, then shot up to 11 circuit and 75 district vacancies by September 2016, rising to 12 circuit and 125 district vacancies in early August 2018 (almost a fifth of all district judgeships). These district vacancies don’t affect Washington pressure groups but they wreak havoc with litigants, especially civil litigants seeking resolution of commercial or civil rights disputes, because criminal cases have statutory precedence. The current Senate has further degraded the process by eliminating the filibuster for Supreme Court nominees. Fifty senators with a Pence tie-breaker can confirm a nominee with no bipartisan support. If Scalia’s and Kennedy’s successors needed 60 votes for confirmation, they might better reflect national preferences as evidenced in the 2016 popular vote, which Trump lost decisively. It’s true that Democrats eliminated the filibuster for district and circuit nominees in November 2013, but compare the confirmation situation at that time to the comparable point in Bush’s presidency. Obama had fewer confirmations, lower confirmation rates, much longer time to confirmation for district judges and many more vacancies to fill. TABLE 2: NOMINATIONS IN BUSH 2 AND OBAMA’S FIFTH YEARS DISTRICT COURT OF APPEALS DATE VACANCIES* NOM’S CONF’S MED. DAYS TO CONF. NOM’S CONF’S MED. DAYS TO CONF. 11/21/05 213 190 175 (92%) 140 52 41 (79%) 256 11/21/13 250 218 168 (77%) 215 55 39 (71%) 229 *Includes vacancies at the start of term and those taking senior status. Obama’s final confirmation rates and numbers would have been even sparser than Bush’s without the 2013 intervention. TABLE 3: OVERALL CONFIRMATION RECORDS FOR BUSH 2 AND OBAMA DISTRICT COURT OF APPEALS NOM’S CONF’S MED. DAYS TO CONF. NOM’S CONF’S MED. DAYS TO CONF. Bush 2 285 261 (92%) 142 84 60 (71%) 219 Obama 323 268 (83%) 215 68 55 (81%) 229 The 115th Senate has also trashed home-state senators’ blue-slip veto power over circuit nominees, a privilege that Democrats strictly but grumpily honored under Obama. Home-state Republican senators invoked it to keep many vacancies nominee-less—vacancies that Trump has now filled, as he has other vacancies for which Obama had submitted nominees that in normal times the Senate would confirm. Democrats will respond in kind in the future when they get a Senate majority. If that happens with a Republican in the White House, confirmations will probably stop, as they pretty much did in 2015-16. Vacancies will increase. With a Democrat in the White House, the Senate will ram through nominees with little regard for the Republican minority. These facts will not stop the Republican confirmation juggernaut from installing judges nominated by an unpopular president who entered office with a popular vote deficit that might have been even greater but for outside intervention. Assuming a party-line vote, Justice Kavanaugh will be the appointee of a president who got almost 3 million fewer popular votes than his major competitor, confirmed by a Republican Senate representing 43 percent of the national electorate. (If the three Democrats most likely to break ranks do so, the figure goes up only to 44 percent.) So much for the idea that presidential and senatorial elections are the proper way to put a popular imprint on the federal judiciary. The exercise of raw power will produce a short-term gain, but the continued loss of comity will further the long-term degradation of the judiciary.

Do certain school policies improve outcomes for disadvantaged students? As educational achievement gaps continue to widen between economically advantaged and disadvantaged students, David Figlio and Krzysztof Karbownik find that certain school policies and practices—like multi-age classrooms or summer school—often have divergent and even opposing impacts on the performance of students from different socio-economic backgrounds. We make use of matched birth-school administrative data from Florida, coupled with an extensive survey of instructional policies and practices, to observe which policies and practices are associated with improved test performance for relatively advantaged students in a school, for relatively disadvantaged students in a school, for both, and for neither. We consider twelve policies and practices from this survey that are neither highly common nor challenging to implement, and we find that in seven of twelve cases, the policy/practice is associated with much different fifth grade test score outcomes for advantaged versus disadvantaged students. For example, sponsoring Saturday school is associated with significant increases in test performance for disadvantaged students but reductions in test performance for advantaged students. While these are not causal estimates of relationships – to do so would require either an experiment or a natural experiment – they do make clear that school policies and practices that are associated with better outcomes for some students might be associated with worse outcomes for others. Our bottom line is this: Policies and practices that might be successful overall could actually help one group of students while harming another, so care should be taken when evaluating them to see whether they are benefiting all, some, or no students – and whom they are benefiting. Schools might do a better job ensuring success for all students the more they investigate how the practices are affecting different groups of students. We hope that this analysis will shed some light on possible policies and practices to be evaluated more rigorously, and to encourage a careful analysis of heterogeneous effects of policies and practices. ANALYSIS AND RESULTS In this analysis, we look separately at students who are relatively advantaged (top quartile of the socio-economic distribution) and relatively disadvantaged (bottom quartile of the socio-economic distribution), and focus on schools that are reasonably heterogeneous – those with at least ten observed students in each socio-economic quartile. (All told, 1,223 public elementary schools have at least ten observed students in each socio-economic quartile across observed school years.) We first regress fifth grade statewide test scores on a series of background variables (race, ethnicity, country of birth, gender, gestational age, birth weight, and month and year of birth) and then compare these “residualized” test scores across schools that either offer the policy/practice or that do not, and do so separately for relatively disadvantaged and relatively advantaged students. Because test scores differ greatly across race-ethnicity-nativity groups, and these characteristics are permanent for each child, we prefer to “net out” any variation in achievement that does not come from either socio-economic status or school policies. While we recognize that racial and ethnic composition are themselves also indicators of socio-economic status and affluence, we want to try to get at the portion of socio-economic status that is not associated with race and ethnicity. We estimate and present a multivariable analysis, in which we consider a “horse race” between the twelve policies and practices; sometimes schools carry out two or more of these policies and practices,and we want to see which seem to be more strongly associated with test scores for different groups of students. To help to interpret these figures, consider the practice at the very left of the top graph – whether a school sponsors Saturday school, the practice most disproportionately associated with schools educating disadvantaged students. We find that the most disadvantaged students have 5.3 percent of a standard deviation higher test scores in schools that sponsor Saturday school than in schools that do not. But the difference in test scores for the most advantaged students goes the other way: The most advantaged students have 1.7 percent of a standard deviation lower test scores in schools that sponsor Saturday school than in schools that do not. As a consequence, the difference between the estimated relationships for disadvantaged versus advantaged students are 7 percent of a standard deviation. This comparison makes clear that it might be challenging for a school to achieve high performance for all students – at least with the same set of policies and practices. While we are not estimating a causal relationship, and there are many unobserved reasons why a school might choose to sponsor Saturday school, it’s still the case that we observe that disadvantaged students’ test scores are higher in schools that sponsor Saturday school, while advantaged students’ test scores are lower in these same schools. MHI Brookings