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WHAT A NOMINEE SHOULD BE ASKED! What should Bush’s choice be asked? Baker provides sheer confusion: // link // print // previous // next //
WEDNESDAY, JULY 6, 2005

WHAT A NOMINEE SHOULD BE ASKED: Holy cow! On today’s New York Times op-ed page, a fascinating look at one way (but only one way) to measure a Supreme Court justice’s “activism.” (By this measure, Clarence Thomas is the most “activist” current justice; Ruth Bader Ginsburg the least.) The authors, Perfesser Gewirtz and a bright young law graduate, offer a precise approach to a tired old, jumbled-up theme. Elsewhere, though, mainstream journalists muddy the waters, preparing the way for their favorite critter—a thoroughly incoherent debate about the next Court nominee.

Indeed, if it’s incoherence you seek, consider page one of this morning’s Post, where Peter Baker presents an undisciplined mish-mosh which can only confuse the debate. “The White House and Senate Democrats headed toward a collision yesterday over the role ideology should play in the selection of the next Supreme Court justice,” Baker writes. Then, he starts citing King Karl:

BAKER (7/6/05): Karl Rove, President Bush's chief political architect, said precedents from the most recent Supreme Court vacancies suggest that opposition-party senators have a responsibility to back a president's choice if they believe a nominee is qualified, even if they disagree with the person's views. He also maintained that a strongly held ideological stance would not amount to "extraordinary circumstances" justifying a Democratic filibuster under a recent bipartisan Senate deal.
According to Rove, senators shouldn’t consider a nominee’s “views”—or their “ideological stance.” But alas! What kinds of “views” and “ideology” do we mean here? Are we talking about a nominee’s political views—views which may play no role in his actual jurisprudence? Or are we talking about a nominee’s judicial views—views which will play a central role in every decision he makes from the bench? Throughout this lengthy piece, Baker makes no real attempt to sort this out. Instead, he offers quotes from a range of people who seem to be talking about various things. Incoherence rules the day, as it so often does with our press corps.

Should a nominee’s “views” be questioned? Our suggestion: When you see this matter discussed, insist, right away, on some basic clarity. In particular, when this jumbled debate starts up, we would ask two specific questions:

  1. Is it appropriate to ask a nominee if Roe v. Wade was decided correctly?

  2. Is it appropriate to ask a nominee if Roe v. Wade is settled law?
In each case, we’d think the answer is obvious: Yes. Others may reach a different conclusion. But let’s all try to make our reporters avoid the mish-mosh of Baker’s weak effort. You know how those mainstream scribes tend to be! Logic and clarity just aren’t their strong suits. Such unfamiliar, confining regimes must be imposed by force of arms—by bristling volunteer armies.

WHEN KINGS SPEAK, BAKER LISTENS: The propaganda points are already out there. Indeed, Baker presents one such point about Justice Ginsburg without a peep of challenge or protest. The scribe is still recording the thoughts of King Karl:

BAKER: "The president believes that somebody ought to have the proper understanding of what the role of a judge is to be, which is less expansive than some in the legal community" believe, Rove said. He added: "We don't think it is appropriate, as some have suggested, that initial candidates either...during the president's time of consideration or during the confirmation process be asked to in essence declare how they would vote in certain cases."

He repeatedly cited as an example the 1993 confirmation of President Bill Clinton's nomination of Ruth Bader Ginsburg to the Supreme Court. Many Republicans strongly disagreed with her liberal views and the record she compiled as a top lawyer for the American Civil Liberties Union, Rove noted, but she was overwhelmingly approved, 96 to 3.

It’s already a Standard Point—and Baker didn’t offer a peep of protest. But uh-oh! Orrin Hatch boasted in his book that he suggested Ginsburg to Clinton. And when she was nominated, Baker’s own Post painted Ginsburg as a judicial moderate-to-conservative. Indeed, the paper even cited a study! See THE DAILY HOWLER, 7/5/05—and ask yourselves when trembling Baker will dare to talk back to King Karl.

By the way, consider this hazy statement from Baker: “Many Republicans strongly disagreed with her liberal views.” But did they disagree with her liberal political views? Or did she have liberal judicial views? This is a basic distinction—one which must be imposed on fellows like Baker as this discussion unfolds.

Special report—Do urban kids matter?

PART 2—TRUST US, THE MAYOR’S AID SAID: Hay-yo! All of a sudden, New York fourth graders are doing much better on their high-stakes, mandated ELA test (English Language Arts). In this year’s test, 70.6 percent of kids statewide achieved proficiency, a jump of 8.2 points from 2004. And in New York City, score gains were even more dramatic. In the city, 59.5 percent of fourth graders met the standard this year—a jump of 9.9 points. An ecstatic Mayor Bloomberg rushed to take credit. To teachers, it was time for a raise (see THE DAILY HOWLER, 7/5/05).

But some cruel souls had a different reaction. Perhaps recalling forty years of documented nationwide testing hoaxes, they wondered if the score gains were actually real. Result? Last Monday night, a City Hall meeting was held by Eva Moskowitz, chairwoman of the City Council's Education Committee and a critic of Bloomberg. The meeting was held to see if the score gains should be accepted as real.

We’ll take our record of the meeting from the New York Times’ Michael Winerip. And we’ll suggest that this meeting shows how weakly our society tends to analyze pleasing score gains of this type.

How weak was the technical expertise brought to bear at this meeting? According to Winerip, Moskowitz's “star witness” was Robert Tobias, former testing director of New York City’s schools (for thirteen years, through 2001). Moskowitz was “suspicious of the big jump in scores”—and Winerip says he made five different points. Some of these points are right on the money. And some are remarkably lame.

Let’s begin with an obvious point. According to Winerip, Tobias wondered whether the gains could be attributed to Bloomberg’s policies. “[W]ith so many districts in the state improving, many of them more than New York City, it raised the question of whether Mayor Bloomberg's education reforms were responsible,” Winerip wrote. This is a fairly obvious point. Even if city score gains are judged to be real, similar gains occurred all over the state. This would remove a bit of the luster from Bloomberg’s specific policies.

Tobias made a second point which seemed to be disputed by no one. “He noted that the city had admitted that 900 more students who were not fluent in English—so-called English-language learners—were exempted from the test this year,” Winerip wrote, “eliminating a low-scoring group.” More from Winerip: “City officials say that accounted for one point of the 10-point increase.” This small adjustment brings city score gains more in line with the statewide average.

But alas! In Winerip’s telling, Tobias went on to make some points which seems to be technically weak. Consider this claim, for example:

WINERIP (6/29/05): He also said several educators had told him that this year's state test appeared easier because the reading passages were more engaging. ''The content and format of the state test was more children-friendly,'' he said. ''Reading passages were more about children's literature, more interesting, not the dry passages of the past.”
Were the reading passages “more interesting?” It’s possible, but that wouldn’t mean that the exam was “easier” than previous editions. If the exam has been competently devised, it should be equally hard to pass, however “engaging” the passages might be. And another point Tobias offered seemed to be equally weak:
WINERIP: Dr. Tobias explained that this was the seventh year this test had been administered, and that national studies show the longer a test is in place, the more savvy teachers become about teaching to it.
Really? Teachers are really “more savvy” in the seventh year than they were in the sixth? It’s hard to believe this could make a real difference. But then, an air of unreality often obtains when testing experts discuss high-stakes tests. To our taste, Tobias ignored a forty-year elephant in the room when he offered this general appraisal:
WINERIP: For more than an hour, he discussed the ''unhealthy over-reliance on testing as a facile tool for educational reform and political advantage.'' Several factors made him suspicious of the big jump in scores. ''An unprecedented increase in test preparation has been widely reported,'' he said, ''including the adoption of a new program'' of repeated practice testing by New York City. ''Much of this test preparation is not designed to increase student learning but rather to try to beat or game the test,'' he said.
Could “an unprecedented increase in test preparation” lead to misleading gains—to score gains which reflect test savvy, not a real gain in reading skill? We suppose this is possible—but, at least in Winerip’s telling, Tobias ignores a much larger problem. Over the course of the past forty years, teachers, principals and school administrators have routinely cheated on high-stakes tests as they struggle to drive up their test scores. Under the pressure of high-stakes testing, teachers have routinely pre-acquainted kids with the specific items on which they’d be tested. Teachers have routinely given kids too much time to take their tests. Teachers have routinely arranged for slower kids to be absent from the tests. And yes, teachers have given kids correct answers while the tests were being given—and teachers have routinely erased wrong answers, making them right, after the testing is completed and the students have all gone home! (Yes, this has been widely documented.) There is no way to cheat on these tests that hasn’t been routinely observed—but testing experts like Tobias almost never mention this fact, preferring instead to mouth polite words, euphemistically saying that schools sometimes try “to beat or game a test.” Sorry—as we’ve noted again and again (links below), teachers, principals and entire school systems routinely cheat on tests like these. But forty years into this well-documented story, experts like Tobias dare not say its name—and writers like Winerip don’t bring it up either. Readers of the New York Times get to see polite, puzzling euphemisms—and the lives of urban kids keep playing second fiddle to the interests of hoaxers.

And don’t worry—the standard bullroar really gets deep when sitting test directors testify. Also present at the meeting was New York City’s current director of testing, Lori Mei. As always happens in matters like this, Mei was prepared to pile high praise on the head of her brilliant boss:

WINERIP: and said there w [S]he strongly defended the mayor's educational innovations as real learning going on, not test prep. She cited new intervention programs that spot lagging students early, identify deficiencies and provide extra help; the mayor's mandatory retention program, plus extra resources like summer school to help those students; Saturday academies that prepared students for the tests; the new citywide curriculum; and more professional development for teachers.
Blah blah blah, etcetera and so on! History is clear: Sitting “experts” are always prepared to credit their bosses for pleasing score gains. And they always seem prepared to rattle off answers like this one:
WINERIP (continuing directly); When Ms. Moskowitz asked how Dr. Mei knew these programs were responsible for test gains—given that Yonkers, Syracuse and Rochester used different programs and improved more than New York City—Dr. Mei said she wasn't familiar with other districts.
Pathetic, isn’t it? The most obvious question in the world is greeted with a non-answer answer. But our analysts really came out of their chairs as Winerip reported another Mei comment. Moskowitz challenged score gains on tests in other grades, noting that these city-made tests aren’t available for public scrutiny. What was Mei’s answer to this? “Trust us,” the bureaucrat said:
WINERIP: When Ms. Moskowitz countered that the city tests are hard to monitor since they're not made public, Dr. Mei deferred to representatives from Harcourt Assessment (which does the city English tests) and CTB/McGraw Hill (math), who testified that the city tests were scientifically scaled.

Mr. Tobias suggested that it would be useful for the city to appoint an independent panel to analyze test results, but city officials were not interested. ''We have the testing companies, myself, everybody has said that these test scores are O.K.,'' said Dr. Mei.

Would it be useful to establish a panel? Nonsense! Everyone says that these scores are OK! Even the testing companies say it, the city’s prime test expert said. And yes—the two companies had “testified” to the fact that their own tests were well-founded!

Trust us, the test director said. Everyone says that the scores are OK! But as we noted in yesterday’s Part 1, every party on whom Mei relied has a personal stake in this matter. Everyone gains when a test hoax occurs—everyone except the urban children whose lives provide the stage for the hoax. And how much faith should we put in test companies? Our thoughts drifted back about twenty-fives years, to the long telephonic discussions we held with our own very-high-placed “Steep Throat.”

TOMORROW—PART 3: Hay-yo! The top dog at a major test company told us where steep score gains come from.

VISIT OUR INCOMPARABLE ARCHIVES: Hoaxes have been widely documented for the past twenty years. See THE DAILY HOWLER, 4/19/01, with links to previous posts.