Russ Feingold cuts through the “not prejudging cases” farce:

FEINGOLD: In Hamdi there were four different opinions…We know where all eight other members of the court stand on these opinions — in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court…Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision..Why shouldn’t the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process…You’re now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views…

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice…

FEINGOLD: I understand your view. I think it’s narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn’t have, as we say in Wisconsin, a snowball’s chance with a couple of the justices because of what they had ruled previously. But I didn’t think that made the process in any way tainted.

So first, John Roberts’ argument is that he can’t discuss past cases because it would be unfair to future litigants to go before a judge who was on the record about issues related to the case. Then, when confronted with the obvious but under-discussed point that every current Justice is on the record about prior cases by nature of having voted on them, his argument transforms into a new one: It’s unfair to future litigants to have to go before a judge who had publicly stated opinions about issues related to the case and hadn’t had them forged by the process of conferring with other justices. This argument is equally specious – certainly, judges views may change with time (though in some cases we may question how genuine the change of heart is), and no one asks an apointee to pledge not to listen to new viewpoints, but if the only people with well-reasoned, prudent opinions on Supreme Court decisions are Supreme Court Justices, then there isn’t much point in having judicial confirmation hearings at all. The idea that Supreme Court Justices, by nature of having to debate with their colleagues and write opinions, have earned some qualitatively different right to their judgments doesn’t seem in keeping with the humility which Roberts claims as the hallmark of his judicial philosophy. And if announcing positions on prior cases without having been on the Court for them is imprudent, his comments about Lochner and Brown are as much so as his comments on Hamdi. The real pattern in what he does and doesn’t discuss it seems, it which cases the public as a whole is likely to be reassured by his positions on and which ones he’d be safer keeping his mouth shut about.


Thanks for the shout out from Sean Siperstein on the Brown College Dems (cleverly-titled) blog, where he offers trenchant thoughts on the meaning of today’s NLRB decision on his campus:

Not only is this a widespread overturning of precedent and part of a larger trend, but it also ensures that the results of a referendum held among those Brown grad students eligible to unionize will remain permanently sealed and ultimately meaningless (the NLRB ruled previously that all non-science Brown TAs would be eligible, but held up the results being revealed until the current overall appeal was decided). At the time of that referendum, the Brown Democrats were part of a coalition of student groups which campaigned for undergrads to sign a “neutrality card” stating that this was a matter to be decided and debated among grad students themselves (and indeed, active organizations for and against unionization had formed in their ranks), and that undergraduate students and clubs, the administration, the Corporation and alumni ought to all recognize that principle, stay out of the debate, and let the vote proceed without further obfuscation. The effort was highly fruitful in terms of getting student signatures– perhaps the most effective thing that the Dems did during my freshman year– even if (as expected) the administration largely ignored its plea and actively pressured against/tried to prevent unionization, and I’d definitely like to think that this decision that ultimately defeats it will give us all pause to think and at the least serve as an exemplar of the direct impact of the Bush administration’s across-the-board conservatism.

Interesting that Sean sees graduate employees’ right to organize on his campus as an issue which could ignite students to get more involved in electoral politics; if anything, I think those of us organizing around the issue at Yale are struggling to mobilize students to bring the perspectives they believe in or fight for in national politics – on workers’ rights, women’s rights, free speech and such – to bear in confronting the conflict over unionization on our campus.  Among the differences which affect the climate, as Sean observes, is a radically different face on a similar administration agenda – I’ve never heard of Ruth Simmons doing or saying anything that would lead NYU’s administration to observe that she would “rather burn the university to the ground” than recognize graduate students’ right to organize.

Looks like Errol is (not surprisingly, given the number of debates the two of us have had previously over this issue) celebrating the NLRB decision stripping graduate student workers of legal recognition of their right to organize. Errol contends that this represents “Finally a common sense decision by the NLRB.” I’d say common sense explains the motivation behind this decision – as part of a broader Bush agenda of chipping away workers’ rights through court decisions, executive orders, and legislation, and as one with tremendous cache with certain University Presidents, including some with significant influence – but that that’s about the only relationship common sense and this decision have. There are a lot of points to be made in this argument; for now I’ll stick to responding to those Errol brings up directly.

It’s always been especially telling to me that the graduate student unions have all changed the name of what they do to being “graduate employees” in order to fight this battle. What does that say to me? Well it says that there is a PR game and that most people don’t actually see them as employees at all, so it’s necessary to confront them with the idea. “See I am an employee, because my wannabe union has the word employee in it.” That sort of thing.

This is a cheap and, I’d say, pretty misleading argument. The people subject to this decision are students at the Universities in question and employees of these universities. Sometimes they call themselves graduate employees because those two words communicate that they are both graduate students and employees. Hence GET-UP, Graduate Employees Together, U-Penn. Yale’s parallel union is called GESO, Graduate Employee Student Organization (Light and Truth alleged last year that the fact is was called GESO rather than GSEO showed its members were lazy students. I’ll like to hear them pronounce GSEO). I’m not sure what Errol means when he says that they “changed the name of what they do,” although he certainly makes it sound sinister. What they’ve done, rightfully, is come up with various phrases which allude to the multiple identities they take on simultaneously in the academy. I’d guess it’s the confluence of those identities, not their reflection in names, which Errol and others have a problem with:

That being said, it is obvious that graduate students do work, and probably much of it. Why doesn’t that make them employees of the university and not students? The only thing that separates the two is the possibility of the award of a professional degree. All the other people who recieve payment from the university who are employees are not being paid in their capacity as degree candidates, and it seems to me someone being paid in their capacity as a degree candidate should be considered a student. The payment that the university extends to it’s graduate students for their work is more akin to the financial aid of an undergraduate being paid in work study than it is to a teacher in secondary education.

To insist that GESO members are not “employees and not students” is to take down a straw man argument – GESO members have never contended not to be students. What they are is employees and students. The receipt of educational certification from an employer doesn’t make them as singular a phenomenon as Errol seems to suggest. Apprentices organized some of the first unions in this country so as to better secure the conditions and compensation they deserved for the significant work they were doing while training under their employers. Stipends and benefits for graduate student teaching assistants and researchers are not comparable (except in that both are too low…) to financial aids grants for undergraduates because, while the university’s award of financial aid is hopefully grounded in an understanding that education at the university is strengthened by the presence of a more diverse student body, undergraduates are not being compensated for the provision of a service to the school. Just ask the IRS, which recognizes the former, and not the latter, as salaries. Meanwhile, it’s Yale’s administration, not GESO, which has for the past months engaged in covert and strategic renaming, couching the teaching and research requirements for graduate employees in new language as academic requirements in anticipation of a new NRLB ruling. The fact of the matter is that graduate students are doing over 30% of the work of teaching at our august university, and that they are replacing paid faculty in doing so.

The [generalized] University’s obligation to all its students to provide an atmosphere conducive to learning is perhaps it’s highest one and that being said, it matters very much to that atmosphere if a graduate students’ family doesn’t have an affordable health care plan, or enough money to eat well balanced meals. The University should take care of these needs, and, if the best way to assure that it is in tune with the needs of its students is to recognize them as a group rather than a collection of individuals, I certainly believe that the University should do that. The University should also be perceptive to the outcries of its students that they want to be represented collectively because it’s in the best interest of both the students and families involved and the University to do so. However, that group, those families, that collectivity, are not, and shouldn’t ever be considered a union.

No organization (certainly not the Graduate Student Assembly) has acheived as much for Yale’s graduate students as GESO, whose organizing drive has won the concessions on stipend increases, childcare, international visa reform lobbying and a score of other issues which then become repackaged by Yale’s administration as further evidence of why Yale’s graduate students don’t need a union. That’s because no other type of body has demonstrated the same capacity to leverage pressure, represent constituents, and effect change. But we needn’t just look at Yale. Graduate student unions across and beyond this country have won landmark agreements with universities protecting the institutional support, resources, and freedoms whose procurement by graduate student employees, as Errol says, are vital to the health of the university for all its members. Why shouldn’t graduate employees pursue collective representation through unionization?

It doesn’t do justice to the struggles of everyday working people by calling it so, but most of all, it doesn’t represent the truth of the situation.

But it does represent the truth of the situation, which is that these unions’ members are workers with a right to organize protected by the Wagner Act and the Declaration of Universal Human Rights. They receive payment for the work they do for an employer, and unlike most undergraduates, the majority of them depend on the funds they receive from the university to support themselves and often dependants (this proportion rises as the benefits provided by the university rise, and as this proportion rises, so does the diversity of the graduate employees). The construction of a group called “everyday working people” as the proper constituents of a union, and of a distinction between that group and the workers in question – be they teachers, writers, waiters, nurses, or graduate employees – is not new, and neither is the struggle of every group of workers to demonstrate and defend their right to organize. These struggles absolutely have different contours, and different stakes. But they remain parallel struggles, and while a good number of Yale undergraduates believe that the question of whether Mary Reynolds, GESO Chair and American Studies Teaching Assistant, has the same right to a union that Bobby Proto, Local 35 President and pipefitter does, is a question of whether Mary’s is more or less oppressed than Bobby, my experience is that many fewer members of Local 35 and Local 34 (Yale’s service and maintenance and clerical and technical unions, respectively) see it that way. My experience is that many more members of Locals 34 and 35 see their stake in GESO’s right to organize as similar to Local 35’s stake in Local 34’s right to organize back in 1984, when conventional wisdom was that “pink collar unions” were a contradiction in terms which would destroy the collegiality and intellectual vigor of the university. What doesn’t do justice to their struggle for the right to organize is not GESO’s campaign for the same right, but rather Yale’s campaign, with the unfortunate assistance of the Bush administration and the NLRB, to deny it.

In a shameful, if unsurprising, assault on the right of all workers to organize, the Bush National Labor Relations Board overturns the historic and unanimous NYU decision recognizing graduate students’ right to organize with a 3-2 decision buying into the Levin-Simmons-Bollinger-Rodin line that graduate students employees, whose low-wage work makes the university function, are not employees with workers’ rights.  This is of course, what they used to say about public employees, about teachers, and about all workers before that.  None of which stopped those workers from courageously organizing anymore than this decision will be able to halt the national movement for graduate student unionization.  As the dissenting judges wrote:

…the majority’s reasons, at bottom, amount to the claim that graduate student collective bargaining is simply incompatible with the nature and mission of the university. This revelation will surely come as a surprise on many campuses -not least at New York University, a first rate institution where graduate students now work under a collective bargaining agreement reached in the wake of the decision that is overruled here…Today’s decision is woefully out of touch with contemporary academic reality.

Shame on the Bush administration for another callous and backwards slap in the face of all workers, and shame on the Yale administration for its years of lobbying for this result.