Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

05/11/2010 (11:12 am)

Is Elena Kagan Anti-Military?


President Obama’s nominee-apparent for the Supreme Court seat being vacated by John Paul Stephens is facing her first public examination, to be carried out by commentators in the public arena. It addresses an incident stretching from 2002 through 2004, in which Ms. Kagan, first as law professor and then as Dean of the Harvard Law School, publicly and through litigation opposed US military recruitment on the Harvard University campus. The incident has produced an Internet blogstorm addressing the question, “Is Elena Kagan anti-military?”

A brief, on-the-surface examination of the event itself suggests that the answer is “No,” or at least (to be more precise) “That incident by itself is not sufficient proof of the claim.” Robert C. Clark, himself Dean of Harvard’s law school from 1999 – 2003, explains the mechanics of the scuffle in the Wall Street Journal today. Harvard University disapproved of the military’s “Don’t Ask, Don’t Tell” policy because it violated their placement office’s non-discrimination policy, which included “sexual orientation” among the things against which potential employers ought not discriminate. The Air Force objected on the basis of a law called the Solomon Act, which denies federal funding to universities that do not permit military recruiters on campus. Harvard had compromised by permitting the military to recruit through student organizations rather than through its placement office, compromising their principles to keep their federal funds, but the Air Force pressed its objection hoping to recruit with the help of Harvard’s Office of Career Services.

Dean Kagan cooperated with a legal challenge to the Solomon Act which claimed, in FAIR v. Rumsfeld, that the act was unconstitutional on 1st Amendment grounds. When the Solomon Act was declared unconstitutional by the 3rd Circuit and the decision was appealed by the Department of Defense to the US Supreme Court, Kagan signed a Friend of the Court brief supporting the plaintiffs and upholding the 3rd Circuit’s opinion. That opinion regarding the Solomon Act was overturned 8-0 by the US Supreme Court, vindicating PowerLine attorney Scott Johnson’s assessment that the argument Kagan endorsed was, “to say the least, strained.”

William Kristol at The Weekly Standard adds the relevant point that Harvard’s, and Kagan’s, opposition was not to the military but to standing US law. “Don’t Ask, Don’t Tell” was not an administrative policy produced by the military, it was a policy adopted by a Democrat-controlled Congress in 1993 and signed by a Democrat President. So, Harvard really had no legal grounds on which to refuse military recruiters access to their placement office — unless they were willing to refuse federal funds.

Personally, I detest the practice of the federal government giving funds for education, specifically because it gives it leverage to demand things that universities should be free to decide for themselves. If it’s morally necessary for universities to allow military recruitment (and I think it is,) we should pass a law saying so, and not rely on turning major universities into whores, pretending to leave them free but making them compromise themselves for money.

But that aside, what’s clear from the incident has less to do with the military than it has to do with Ms. Kagan’s pro-gay activism. She first flouted federal law, then involved herself in a legally tendentious challenge to that law, for the sake of what she regards as gay civil rights. In doing so, she staked out a position to the left of even the left-most of the Supreme Court’s Associate Justices, and to the left of the mainstream of the Democratic party, which passed the Solomon Act. While she has every right to engage in public activism of this sort, we have every right to ask whether we want to appoint such a partisan to the highest court of the land. On the Supreme Court, we need dispassionate defenders of the law, not advocates for partisan goals; if Ms. Kagan is a partisan advocate, she should be one, and refuse the nomination.

Moreover, we should not abandon the possibility of an anti-military bias so easily. Stereotypes facilitate information exchange; there are certain things one can take for granted about people of particular political stripe unless they explicitly say otherwise. For instance, conservatives are apt to favor limits on abortion, liberals to oppose them. There are exceptions, but unless we hear them we properly assume the general case.

Kagan is a progressive. We can infer from that that she believes the following about the military, unless we hear otherwise:

  1. Money spent on military recruiting, training, and equipping would be better spent on social programs, without exception.
  2. Any military action is presumed to be completely explained by its benefit to some Republican constituency group, and has no benefit whatsoever for national defense, unless initiated by a Democratic President.
  3. America’s military opponents are simply ordinary citizens engaged in perfectly justified and even patriotic defense of their homeland, and to fight them is to face endless war and certain defeat, Just Like Vietnam®.
  4. The American military turns ordinary, decent citizens into depressive, reflexive murderers, but no similar influences affect America’s adversaries, for which reason American servicemen are presumed guilty of any atrocity attributed to them, while fighters for America’s adversaries never are.
  5. True American patriots will engage in active opposition to any American military operation, even to the point of embarrassing the US unjustly in the eyes of the world, handing to our enemies information vital to our national security, crippling the US’ ability to act, and even visiting America’s military enemies and declaring one’s support for them. Such destructive activism is called “reasoned debate,” and no criticism of such “debate” is permitted.
  6. It is completely consistent for those who behave in the fashion described by bullet points (1) – (5) to declare publicly, “I completely support America’s soldiers, and honor their commitment,” and to be believed. To doubt such a declaration is evil.
  7. Give Peace A Chance. Om. Pass the tofu.

Has anybody produced anything suggesting that Ms. Kagan does not hold to all points in that list, right down to the tofu? To the contrary, Kristol believes that for Ms. Kagan to mistakenly assign to “the military” a policy that was passed by the Congress and signed by the President, suggests precisely the sort of animus against the military that the above list describes. And I agree. Ms. Kagan may be an intellectual heavyweight, but let’s assume she feels more or less what Democrats have advocated openly concerning the military.

Ed Whalen posted a sensible list of objections to Kagan’s nomination at The Corner, which I recommend as a general introduction to the issues concerning the nomination. Aside from those and her near-certain support for existing, anti-federalist abortion law, I oppose her nomination because she’s an anti-military, pro-gay partisan, not a defender of dispassionate law.

03/01/2010 (1:41 pm)

Supreme Court Set To Hear Gun Ban Case

Oral arguments before the US Supreme Court begin tomorrow for the case of McDonald v Chicago, a challenge to the City of Chicago’s regulations that ban ownership of handguns in effect.

The case of the District of Columbia v Heller, which in June of 2008 struck down the District’s handgun ban and trigger lock requirement for violating the 2nd Amendment, settled the question of whether the 2nd Amendment applied only to organized militia or protected individual citizens. However, it settled the question only within federal jurisdictions. Consequently, McDonald and his associates filed their lawsuit, joined by the Illinois affiliate of the NRA, only hours after the US Supreme Court decided Heller.

The McDonald case will decide whether the Constitutional protections of the 2nd Amendment apply to states and local governments, which actually examines, not the 2nd Amendment, but the 14th. Let’s remember how the 14th Amendment begins, with relevant emphasis added:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th Amendment was ratified in 1868, but was essentially gutted in 1873 in a New Orleans action called “the Slaughter-House Cases,” in which the US Supreme Court decided that the 14th Amendment’s “Privileges and Immunities” clause affected only the privileges that attached to US citizenship, not privileges that attached to state citizenship. This meant that future attempts to use the 14th Amendment to protect some right or other required that the plaintiff argue that the right in question was “fundamental” to US citizenship, by being “implicit in the concept of ordered liberty” (Duncan v. Louisiana, Mr. Justice Black concurring.) Only those rights that are essential to the concept of liberty need be protected from state law by the 14th Amendment, according to Mr. Justice Miller in 1873. The process of deciding which rights are protected by the 14th Amendment has been called “selective incorporation.”

The McDonald case seeks to change that, arguing for what is called “full incorporation” of the 14th Amendment — they are asking the Court to overturn the Slaughter-House Cases and find, instead, that the 14th Amendment requires that state laws grant to all citizens the rights guaranteed by the Bill of Rights.

Undoubtedly, if the majority of the Court decides to overturn the Slaughter-House Cases, we’ll be treated to yet another round of leftists shrilling over the “judicial activism” of the conservative majority on the Court. Let’s keep in mind what that really means. The left has lost a great deal of credibility over the past decades because they are perceived as having used the court system to write legislation and effect social change, calling on liberal judges to create law where the legislature had failed to do so. The US Supreme Court has done this in cases like Griswold v Connecticut, where the Court found a right to privacy enumerated within a “penumbra” of an “emanation” from other rights. The “right” to privacy was thereafter used for further mischief, overturning legitimate acts of the legislature concerning abortions and homosexuality and challenging the state’s right to regulate pornography and obscenity. The left, perceiving that they had lost ground in the public mind, has taken to accusing conservatives on the Court of “judicial activism” whenever they disagree over an interpretation of any Constitutional phrase. They’re deliberately misusing the term in order to obscure its meaning in the public mind, to erase the general perception that the left abuses the institutions of free government. From the left, in current instances, “judicial activism” means only that the majority has slain one of the left’s sacred cows.

No act that plausibly interprets standing law as the basis for a decision can properly be called “judicial activism” in the sense it was applied to the left. The 14th Amendment is standing law, and so is the 2nd Amendment; the question is where they apply, and deciding that question one way or the other does not constitute “activism” so long as the legal reasoning rests on valid interpretation of law.

In the Heller case, dissent arose based on what those judges considered legitimate state concerns for public safety. Since the right to keep and bear arms was conceived as a manner of keeping citizens safe from oppressive government, I have to think that even if their claims that legal handguns threaten public safety were true (they’re not,) the essential need for citizens to protect themselves against oppression should trump local safety requirements. That’s not a legal opinion — I’m not an attorney, but I feel certain that argument would not stand up in Court — but it’s a philosophical one.

However, it’s moot because the public safety concerns are pure bunk. Most of the abuse of handguns in the US is carried out by gang members using guns that are illegally obtained — illegal under laws that are not violations of the 2nd and 14th Amendments. Half the deaths from handguns are suicides, but people do not need a handgun to commit suicide (a $4 bottle of aspirin will do the trick), so banning handguns would likely not prevent those deaths. Nations exist in which all citizens within a certain age band are required by law to keep assault weapons in their homes (Israel and Switzerland,) and the crime and accident statistics in those nations are not like those in the US, so we know with certainty that the mere presence of firearms is not the cause of the US’ violence problem. Furthermore, it appears likely that handguns are used twice as often to prevent crime as they are to perpetrate it, so a ban is likely to increase rather than reduce gun crime, as it apparently did in Great Britain and Australia.

Be that as it may, the Court in Heller announced that it has no intention of reversing state and local laws limiting ownership of machine guns, signaling that while a law that has the effect of a ban runs afoul of the 2nd Amendment, one that effects public safety without banning items that are commonly used does not. This strikes me as inconsistent with their decision; while laws restricting access to “assault weapons” are popular, if laws banning one particular style of weapon (e.g. “handguns”) do not pass Constitutional muster, and if the purposes of the 2nd Amendment include citizen paramilitary ability, then laws banning any particular style of weapon should likewise not pass muster. But that’s a topic for another day. The next day or two should determine whether local handgun bans will remain in force, and we’ll hear the result of the arguments in a few months.

02/11/2010 (10:52 pm)

Why The Unions Didn’t Applaud


About two weeks ago, the US Supreme Court published their decision in the case of Citizens United v. Federal Election Commission, and the left went berserk. The Court declared that preventing corporations and unions from running ads on their own within two months of a national election or a month of a primary created an unconstitutional restriction on free speech. Henceforth, corporations and unions are free to run ads about candidates to their heart’s content. Leftists decried the demolition of barriers to “corruption,” the unconscionable bypassing of precedent, and the sheer, unnecessary activism of the conservatives on the Court, and predicted a flood of corrupt corporate money in elections (see here, here, and here for examples.) The President huffed,

…the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans…

You’d think the unions would have applauded the decision, since unions, like corporations, were restricted from running ads, but are now permitted. You’d also think the Democrats would have shrugged their shoulders and accepted the change, since unions, which have extraordinarily deep pockets and are nearly 100% in the Democrats’ camp, would offset whatever advantage Republicans might have in the corporate world. But they didn’t.

And if you had any doubt why they didn’t accept it, this week you got your answer. It seems that despite the law, unions have been pouring their vast sums into elections all along. What a surprise.

Joseph Abrams at FoxNews.com published an exposé about a web site called TheTeaPartyIsOver.org, which claims to be a grassroots organization aimed at countering the effects of the burgeoning Tea Party movement with legislation. Only, Abrams discovered that it’s not really a grassroots organization at all. The site is one of several created by a pair of Washington attorneys that funnel money from union bank accounts into local political races, bypassing campaign finance restrictions by laundering the money. The maneuver appears to be legal, but hardly ethical; it clearly utilizes a loophole in the campaign finance restrictions, allowing forbidden union funds to be spent in the guise of local, grassroots activism far from the source of the funds. Abrams uncovered donations from the American Federation of State, County, and Municipal Employees Union (AFSCME) numbering in the millions of dollars, and directed into state political campaigns.

We’ve known for years that unions have been engaging in similar actions. Apparently McCain-Feingold (formally know as BCRA, for “Bipartisan Campaign Reform Act of 2002”) did not really stop the flow of “corrupting” cash into elections, it just redirected it for those who were prepared to play the system. Democrats claiming that removing the restriction on corporate spending will ruin the election process are just posturing for the camera; what they really oppose is Republicans getting in on the act.

The President was particularly disingenuous on the topic during his State of the Union address. Recall the passage that had Supreme Court Justice Samuel Alito mouthing “Not true” from his second-row seat:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities…

“Law Professor” Obama was talking out of his nether parts. The restriction overturned by the Court was less than 20 years old, not a century old, and the decision had no effect whatsoever on rules restricting foreign entities from participating in elections. Worse, though, was the irony of President Obama decrying foreign participation after Candidate Obama deliberately removed normal checks on credit card donations to permit a veritable flood of illegal foreign contributions into his own campaign.

HillaryTheMovieThe Citizens United decision was a significant blow to the Obama effort to stack future elections in favor of Democrats. If you recall, the case was the result of partisan activism on the part of the Federal Election Commission (FEC,) which stepped in to halt David Bossie’s group from advertising its documentary “Hillary: The Movie” during the 2008 primary campaign season. The FEC declared that “Hillary: The Movie” was “express advocacy,” which made it a violation of section 441b of the BCRA: there was no reasonable interpretation other than that the film was an appeal to vote against Hillary Clinton. The partisan nature of the action was clear to those of us who recalled Michael Moore’s release of “Fahrenheit 911” during the 2004 election cycle, about which the FEC made not the slightest peep; there was no reasonable interpretation other than that the film was an appeal to vote against George W. Bush.

Citizens United appealed to the DC District Court but was not granted a stay, the DC Court noting that Citizens United used funds from corporate sponsors to market the movie. CU had to restrain its marketing effort pending appeal to the Supreme Court. The Court, in an opinion written by Justice Anthony Kennedy, overturned the decision from a 1990 case called Austin v Michigan Chamber of Commerce, in which the Court had permitted an exception to the first amendment, granting the government power to restrict the speech of corporations in order to prevent “distortion” caused by amassed corporate wealth. Today’s court, finding no other acceptable reason to permit CU to market its film, declared the reasoning in the 1990 decision faulty, recalling Justice Scalia’s dissent from that case: “The government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.” The Court left in place restrictions on the amounts corporations can donate directly to candidates, and requirements that the sources of funds be exposed publicly.

While caterwauling over the end of their monopoly on the use of amassed funds, Democrats have commenced extorting funds from corporations for use in elections. That extortion also became evident this week, as the Obamateur President announced exceptions to his own administration’s purported outrage over “unconscionable” executive bonus payments, stupidly admitting to Bloomberg BusinessWeek that he “does not begrudge” huge bonuses for the CEOs of Goldman Sachs and JP Morgan Chase. Those two investment banking firms, just by coincidence, are the firms from which employees contributed the most to his campaign of any corporations in America. Apparently the vicious assaults on ordinary corporate practice only apply to those firms that forgot to feather the Good President’s nest. He quickly backpedaled as the blogs took note, but too late.

Expect legislative action to restore the ban on corporate spending. Expect the legislation to neglect to include the ban on union spending. It hardly matters, though. Democrats decry the presence of money in politics — and then ignore the law. It’s their way.

07/20/2009 (9:04 am)

Bork Weighs In on Borking

BORK CONFIRMATIONS HEARINGS 1987After I observed about a week ago that the Bork hearings in 1987 had changed the judicial selection process into a blood sport, I found an interview with Judge Robert Bork concerning the Sotomayor hearings. I was intrigued to discover that he does not entirely agree with me concerning the reason for the change. He blames the political nature of confirmation hearings on the growing activism of the Supreme Court itself.

Here’s Judge Bork’s version:

Newsmax.TV’s Ashley Martella observed that Bork’s “savaging by the left” forever changed the way judges are confirmed, with politics and demographics becoming more important than competence and qualifications.

“That’s entirely true,” said Bork, whose latest book is “A Time to Speak — Selected Writings and Arguments.”

“But the Supreme Court has only itself to blame for that. The Supreme Court made itself, starting in the 1950s, into an increasingly political institution, and once you’re a political institution with that kind of power, people are going to fight to control the institution any way they can.

This sounds right to me, and I stand corrected. The real shift is the result of judicial activism — the Court inserting itself into current politics and making law, whereas its constitutional role limits it simply to deciding constitutional issues regarding existing law. As soon as the Court asserted itself as a maker of federal policy, judicial confirmations became political events.

Bork actually does not roll the clock back far enough; I’m thinking that the real damage was done by Franklin Roosevelt in the 1930s, when Roosevelt was prevented from turning the United States into a socialist paradise by that oh-so-inconvenient Constitution, and tried to circumvent it by packing the Court. As with so many other things in recent American history, the real deterioration traces back to the insertions of Marx and his stepchildren into modern politics. The judicial activism of the 1950s was certainly the work of Marx-influenced judges flocking to the courts in the 1930s to “change the world.”

In case you’re wondering, Judge Bork does not consider Judge Sotomayor qualified to sit on the Supreme Court, and says he does not take her seriously when she says she’s governed by law.

Bork called confirmation hearings such as Sotomayor’s “something of a dance. The opposition asks tough questions, the nominee gives a soft and evasive answer and assures everybody that fidelity to the law is the only thing that matters.

“Then having gotten past that, when they’re on the bench they go back to their prior practice of deciding politically. I don’t take Sotomayor’s protestations that she’s entirely governed by law seriously. I think the statements she’s made and the rulings she’s made show that she’s not governed entirely by law.”

07/14/2009 (2:09 pm)

Sotomayor, Senate Hearings, and Truth

bildePowerLine blog, a conservative lawyers’ haven, takes Judge Sonia Sotomayor to the woodshed today for telling a deliberate falsehood before the Senate Judiciary Committee, which has begun hearings about confirming Judge Sotomayor to replace the retiring Judge David Souter on the Supreme Court, regarding her now-infamous claim that a wise Latina woman would be able to judge cases involving matters within her experience more competently than a wise, Caucasian man who lacked those experiences.

Judge Sotomayor is trying to backpedal, and she’s apparently lying to do it. In response to a gentle set-up from committee Chairman Sen. Patrick Leahy (D, VT) she represented her controversial comment as merely agreeing with sentiments voiced by former Supreme Court Justice Sandra O’Connor on a similar subject. John Hinderaker at PowerLine points out that the text of Sotomayor’s own comment clearly identifies her as disagreeing with O’Connor’s sentiments (emphasis mine):

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

We know today that this theme of Judge Sotomayor’s was repeated in public speeches through the late 90s and early 21st century; it is not an incidental comment, but a central thought of hers. I suspect that Judge Sotomayor is a closet progressive of the same sort as President Obama: eager to strike a moderate pose for the cameras, but only for the purpose of obtaining power from which to enact a full-throttle race toward Progressive Utopia.

reagan_with_robert_bork_1987However, I cannot blame Judge Sotomayor for the atmosphere in which she finds it necessary to lie. For that, we have to run the clock back about 22 years, to the summer when President Ronald Reagan nominated appellate court judge Robert Bork to replace the retiring Justice Lewis Powell on the Supreme Court. Prior to the Bork nomination, gentlemen’s agreement in the Senate had limited examination of nominees mostly to their legal qualifications. However, with a seat on the court at stake which had frequently been a moderate swing vote, and with the narrowest of margins supporting the alleged right to legal abortions which is, inexplicably, the heart and soul of the Democratic party, the Democrats threw tradition to the winds and launched a public relations assault against Judge Bork the likes of which had not been seen in a Supreme Court nomination during any of the participants’ lifetimes. The resulting campaign, remarkable for its venality as well as its falsehood, remains in the language as a verb, “to Bork”, meaning to demolish by public relations assault any possibility of the person being approved to hold office. The Republicans, ever hopeful that their opponents will act like human beings, were taken completely by surprise, and did not respond. The consequence was the mediocrity of Anthony Kennedy, with whom we still suffer.

The other consequence is that nominees for Supreme Court seats have learned to shield their views behind iron screens, and to dissemble before the Senate chambers. Positions responsible for the law ought to be immune from political considerations, and can be if both sides agree to it; but since the Democrats decided that politics trump the impartiality of the Court, no nominee can afford to approach the Senate without recognizing the political implications of even the slightest misstatement.

Thus, those who need the truth in order to make wise decisions, are denied the truth. This is the price of demolishing gentlemen’s rules regarding the impartiality of the law.

Mind you, Judge Sotomayor is dissembling somewhat more than usual, saying pretty much the polar opposite of what she offered as sound advice in lecture after lecture less than a decade ago. Still, the real story on judges lying to Congress in confirmation hearings rests more on the shoulders of Sen. Ted Kennedy and Sen. Joe Biden, both of whom were major players in the Borking, than it rests on Judge Sotomayor.

07/03/2009 (10:56 am)

Ricci and the Stench of Racial Politics

In my arcanely-worded and overly-long post yesterday regarding the Ricci case and Title VII of the Civil Rights Act, I left out any mention of the real heart of the case: the Mayor who, seeking the support of a race-hustling cleric, rigged the hearings of the Civil Service Board to produce the result he wanted.

Reading Michael Barone’s editorial from Wednesday and Justice Samuel Alito’s concurring opinion (you have to scroll down to find it) corrected the error for me, so I’m passing it on to you all today.

kimberMayor John DeStephano of New Haven apparently relies on the political support of the Rev. Boise Kimber, a headline-grabbing and corrupt African-American pastor who routinely threatens opponents with racial demonstrations, a la Al Sharpton. Kimber showed his stripes when appointed chairman of the New Haven Board of Fire Commissioners by announcing to the firefighters that certain recruits would not be hired “because they just have too many vowels in their name.” When that statement was made public, Kimber had to step down as chairman, but he remains on the board of commissioners — and apparently, his intent still colors that of the board.

Justice Alito’s opinion describes a seamy, cozy collaboration between DeStephano, Kimber, and managers within city government to manipulate the hearings of the Civil Service Board (CSB) to ensure that the results of the testing be thrown out, while making it appear that real hearings were going on. Read:

Taking into account all the evidence in the summary judgment record, a reasonable jury could find the following. Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked — as things turned out, successfully — to persuade the CSB that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency.

Short version: New Haven did not discriminate against white firefighters out of fear of violating the Civil Rights Act; they did it to satisfy a race hustler, so he would support the Mayor politically.

Alito points out that the District Court that upheld New Haven’s decision to discard the test results knew all about these machinations — and ignored them. They were present in the District Court records, so the 2nd Circuit also knew about them — and ignored them. This Circuit Court decision was signed and concurred with by President Obama’s putative nominee to replace Justice Souter on the Supreme Court, Judge Sonia Sotomayor.

What we’re looking at is the machinery of leftist racial politics in a leftist-controlled, college town. They have a goal of numerical racial parity or superiority. Parity itself is not a bad thing, except that they do not take merit into account, and they also do not take the law into account. They are willing to ignore the law, ignore clear violations of the law, and ignore the starkest racism, in fact to do anything within their power, legal or illegal, fair or foul, to achieve this parity. And in the process, they will trample on the hard work and discard the deserved promotions of men whose expertise may determine the life or death of their customers.

Their victims are guys who still believe they can get ahead by hard work. Listen to Alito’s description:

Petitioners are firefighters who seek only a fair chance to move up the ranks in their chosen profession…Petitioner Frank Ricci, who is dyslexic, found it necessary to “hir[e] someone, at considerable expense, to read onto audiotape the content of the books and study materials.” App. to Pet. for Cert. in No. 07–1428, at 169a. He “studied an average of eight to thirteen hours a day . . . , even listening to audio tapes while driving his car.” Ibid. Petitioner Benjamin Vargas, who is Hispanic, had to “give up a part-time job,” and his wife had to “take leave from her own job in order to take care of their three young children while Vargas studied.” Id., at 176a. “Vargas devoted countless hours to study . . . , missed two of his children’s birthdays and over two weeks of vacation time,” and “incurred significant financial expense” during the three-month study period. Id., at 176a–177a.

Let’s be clear, racism is racism, regardless of the skin color of the person committing it, and racism in judgment discourages the excellence that we need in crucial civil services — really, that we need in everything. Ultimately, though, racism of this sort hurts those it intends to help. Barone finishes:

We ought to reserve some of our sympathy for the purported beneficiaries of this wretched discrimination, the black firefighters. Their champions — Kimber and DeStefano, Bazelon and Judge Sotomayor — are telling them that their way up in life should not be determined by the content of their character or by mastery of their worthy craft, but by the color of their skin. Not by a fair and unbiased test, but by dishonest wire pulling and threats of political retaliation.

This is what Barack Obama has nominated to the Supreme Court — one of the engines of this machine. Welcome to Barack Justice.

07/02/2009 (6:45 pm)

Ricci's Baby Step Toward Real Progress

Earlier this week blog chatter focused briefly on the US Supreme Court’s decision in the case of Ricci v DeStefano, in which the Court upheld the complaint of white and Hispanic firemen whose promotions had been deferred because not enough minority candidates had performed well enough on exams to earn promotion. What made the case news was the lower court opinion of Judge Sonia Sotomayor, President Obama’s nominee-apparent to replace Supreme Court Justice David Souter. What made it interesting to me was the looming and welcome threat to Title VII.

The New Haven, CT Fire Department spend oodles of bucks devising a battery of tests for promoting candidates to Lieutenant and Captain that would both fulfill their requirements under their union contract, and meet their legal requirements under the Civil Rights Act. After paying consultants, screening the questions through a minority-heavy sample of officers, screening them again through independent, outside fire safety professionals, the fire department was dismayed to learn that the pass rate on the Captain exam was 64% for whites, but only 38% for both blacks and Hispanics. The Lieutenant exam was only slightly better: the pass rate was 58% for white candidates, 32% for black candidates, and 20% for Hispanic candidates.

A series of meetings ensued while the department tried its best to find a way of avoiding all appearance of discrimination without offending the officers who had studied hard and performed well, earning promotion according to the standing rules of the department. In the end, they decided to simply discard the results of the tests and find another way to evaluate candidates. The officers who had earned immediate promotion, 17 whites and 2 Hispanics, sued for relief under Title VII of the Civil Rights Act, claiming they had been discriminated against solely on the basis of their skin color.

The case was mostly interesting to newsies because the District Court’s decision to allow New Haven to toss out their own job testing over affirmative action concerns had been upheld at the 2nd Circuit by Judge Sotomayor. Sotomayor (and others) let stand uncontested a District Court ruling that permitted the city of New Haven to discard the test results for no reason other than that it had produced disparate results, adding the fascinating and frankly amusing claim that the city’s dismissal of the results was race-neutral (more on this below). The controversy in law raised by their dismissal was that under existing Title VII law, the employer can only violate Title VII and deliberately throw out the tests if it can be shown that their tests do not rest on business necessity, or that other, satisfactory tests would produce more racially balanced results. Neither the District Court nor the Circuit Court raised this point.

Everyone wondered what the Court would say about Sotomayor’s reasoning. The consensus on that score was that her candidacy for the Supreme Court seat took some flak. Not only did the majority, represented in the opinion by moderate Justice Anthony Kennedy, vote to overturn the District Court’s decision, but the dissenting opinion, written by Justice Ruth Bader Ginsburg and signed by leftist Justices Souter, Stephens, and Breyer, also explicitly rejected Sotomayor’s reasoning, insisting that they should have held hearings to evaluate the issues of business necessity and alternative testing procedures. This probably will not stop her confirmation (unfortunately), but it will certainly not improve her standing in the eyes of Senators whom she needs for her confirmation.

The more interesting question, to me, was the review of Title VII of the Civil Rights Act. Title VII bans employment discrimination on the basis of race, color, religion, sex, either deliberate and direct or by way of indirect criteria designed to exclude certain groups. Direct discrimination is called “disparate treatment,” whereas indirect discrimination is called “disparate impact.” An example of the former is “We don’t hire blacks.” An example of the latter might be extra weight given to recommendations from current employees, if none of the current employees are members of a minority group; this would tend to exclude minority candidates.

Nobody reading the description of the machinations the New Haven, CT Fire Department went through while considering how to decide whom to promote would have the slightest doubt that they very badly wanted to avoid both real discrimination, and any appearance of discrimination. In fact, I was appalled at the amount of trouble they went to specifically to avoid any problem with Title VII. They spent literally hundreds of thousands of dollars on evaluating the testing regimen both before the test, and afterward, when they learned that all ten of the candidates approved for immediate promotion to Lieutenant and 7 of the 9 candidates approved for immediate promotion to Captain were white. The entire process took months, not counting the court battle that has followed. The extensive, painful process was described in detail in the majority opinion, expanded upon in the dissenting opinion, and expanded upon even further in Justice Alito’s separate concurring opinion. Even without the Court challenge, the entire process was a nightmare. If Title VII were repealed tomorrow (from my keyboard to God’s eyes,) GDP would instantly rise 2 percentage points, just by eliminating burdens like these. Now, that’s stimulation.

Unfortunately, the majority opinion was a Kafkaesque maze of rationalizations, trying desperately to make Title VII work. Justice Kennedy ducked the main question of whether reverse discrimination is a violation of the 14th Amendment’s Equal Protection clause, by focusing his attention first on the statutory question of whether the dismissed candidates had received disparate treatment under Title VII. After spinning profusely, he concluded that they had, in fact, been discriminated against under TItle VII — so the Court didn’t have to cover the Equal Protection question after all.

Only Justice Scalia’s separate, concurring opinion, brought this up. Kennedy’s meanderings through the arcane tunnels of Title VII made it crystal clear, though, that the disparate impact requirements of Title VII cannot be enforced without instituting racial quotas — something the Title VII law specifically says cannot be done. It’s a self-refuting law. It cannot possibly be enforced without breaking itself.

Think about it. How is it possible to say “There are not enough from group X in this result” without a clear idea of what “enough” would be? And if one comes up with a definition of “enough” to satisfy Title VII, how is that not a quota?

Title VII law is apparently full of quandaries like this, as we see in the mishmash that Kennedy works himself into here:

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination… And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

He’s trying to balance case law that says “an employer can break the law (e.g. discriminate in reverse) when it looks like otherwise he’ll be breaking the law in the other direction,” with other case law saying “you can’t be so restrictive as to only allow a remedy when the employer will be breaking a law otherwise.” So, somebody explain to me the difference between “a strong basis in evidence of disparate-impact liability” and “a provable, actual violation.” Isn’t there a violation when there’s a strong basis in evidence that a violation has occurred? Basically, Kennedy is reduced to saying “You can, only you can’t,” and calling that a clear rule of law.

Fortunately for Kennedy, he’s being less laughable than the dissenting opinion, in which Justice Ginsburg relies on the “The dog ate my homework” defense. I’m not kidding. Listen:

At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and “wait a month and a half for some of the books because they were on back-order.” Id., at A858. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the over whelming majority of minority applicants were “first generation firefighters” without such support networks.

Wow. This is what affirmative action enforcement has come to: the highest court in the land feels it must remove the liberty of the people in order to settle a disparity between people who have to buy the books, and people who can borrow them from a relative. She also got into “Objective tests don’t really show what you know, anyway.” For real. And the minority candidates couldn’t study because their grandmothers died (ok, now I’m exaggerating). Maybe the Court will order the minority officers to spend less time at cheerleading practice, or assign them more homework. Good grief, did Ginsburg actually expect to be taken seriously when she wrote this? My kids knew better than to raise such lame excuses by the time they were 10.

To Ginsburg also fell the task of explaining how discriminating against the white candidates did not constitute a racial quota, forbidden by Title VII. Good luck with that, sez I. Here she explains the District Court’s reasoning:

Respondents were no doubt conscious of race during their decision making process, the court acknowledged, but this did not mean they had engaged in racially disparate treatment. The conclusion they had reached and the action thereupon taken were race-neutral in this sense: “[A]ll the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion.” Id., at 158. New Haven’s action, which gave no individual a preference, “was ‘simply not analogous to a quota system or a minority set-aside where candidates, on the basis of their race, are not treated uniformly.’ ” Id., at 157 (quoting Hayden, 180 F. 3d, at 50). For these and other reasons, the court also rejected petitioners’ equal protection claim.

Right. “We’re going to discard the results if it produces too many white faces. Then we’ll discard them again if the new procedure also produces too many white faces. And we’ll keep discarding them until we see enough black faces. But because every time we discard the results, we discard them for everybody (which we’ll continue doing until we see enough black faces), we’re being racially neutral.” Got that?

Scalia, meanwhile, is sitting off to the site, casually humming, and just waiting for the case that will finally allow him to point out that Title VII is completely unenforceable. You can’t remedy discrimination by forcing discrimination. He knows it. The rest probably know it, too; they can’t be impervious the onerous burden that’s been laid on all employers by this monstrosity. Not to mention that the entire Civil Rights Act constitutes a massive assault on limited federalism, forcing the national government to invade the minute decision-making of every business in the nation. This explains the angst exhibited by leftists like this one, who can’t understand why the Supreme Court is engaging in judicial activism by interfering in a strictly local matter. I had to remind him — they’re doing it because the Congress passed a law making every employer’s decisions a federal issue if it might involve discrimination. If he wants to protect limited federalism, the right way to do it is to repeal the Civil Rights Act.

Oh, my goodness, that felt good. Let me say that again: if we want to protect limited federalism, we have to repeal the Civil Rights Act, and allow state and local governments to pass their own anti-discrimination legislation — or to pass none at all, if that’s their preference. The price of genuine liberty is that social engineers have to keep their grubby hands off when a local government doesn’t do things exactly the way they’d like. Liberty, being the ability of the human soul to breathe, is actually worth that. Now, if we could just convince some “progressives” that that’s so…

I’m engaging in a mortal sin, I know. None of us are permitted to question the unassailable moral purity of the Civil Rights Act, the Most Moral Legislation in the History of the Universe. To even suggest that it might not have been necessary, or might not have been wise, is immediately to mark oneself a secret member of the Ku Klux Klan. Only, I’m not one of those. I just think self-government is a good idea, and that liberty is such a precious commodity that it’s worth enduring the temporary errors of some states in order to protect it. I don’t think there’s any question that racial parity would have arisen on its own, without Congress demolishing federalism; it might even have arisen faster. And don’t get me started on the War on Poverty…

It may be a footrace: can we get a true Title VII case in front of the Court before Obama packs the Court with radicals and changes the rules? I can’t say. My crystal ball is broken. But it would be worth the effort, with the Court conservatives alert to the possibility that TItle VII might inherently violate the 14th Amendment.

05/27/2009 (7:23 pm)

California Marriage is Still Marriage — For Now

The California Supreme Court announced its decision yesterday in Strauss v Horton, the case challenging the amendment to the state’s Constitution that explicitly defines marriage as between a man and a woman, passed this fall as Proposition 8. They declared the proposition constitutional, and have put a stop to the state of California issuing marriage licenses to same-sex couples for the time being. Meanwhile, some 11,000 same-sex couples who have been married since the same Supreme Court declared unconstitutional the statute defining marriage as between a man and a woman will be recognized by the state as legitimate, legal couples.

Take a minute with that. The state supreme court declared a statute unconstitutional, then declared more or less the same language proper when submitted as an amendment to the Constitution.

That’s not so surprising, when stated that way. What’s interesting is the reason they did it. In effect, they declared that gay marriage is an essential right, but calling it marriage is not part of that essential right. They claim that all the benefits of marriage have been obtained for gays already through other means, so gays have the same rights as straights. But, they said, there’s no Constitutional right to have what they’re doing called marriage, so Prop 8 passes muster. In effect, what they’ve just done is set up “separate but equal” for gay couples.

This is insane, and I’m guessing it will not survive.

On the same day, a challenge to Prop 8 was filed by David Boies and Theodore Olson. These are the two attorneys who argued Bush v Gore before the Supreme Court, Boies for the Democrats, Olson for the Republicans. Olson is a conservative stalwart, and I’m very disappointed that he’s participating in this case.

The challenge is apparently an Equal Protection claim, and given the fact that the California Supreme Court has just created the equivalent of what was going on in education before Brown v Board of Education in 1954, it may win. Volokh has details of the complaint.

This is all insane. There is no such thing as gay marriage. Marriage, by definition and under general agreement when just about all of these state statutes passed, means a union between a man and a woman. Such unions have been protected, encouraged, subsidized, and honored throughout human history primarily because they perpetuate our species.

There is no violation of any Constitution in any of the state laws concerning marriage; gays are permitted to marry just like anybody else. A gay man can marry any woman he chooses, if she consents, and the law does not ask him whether he’s gay or not, so there’s no discrimination. A gay woman can marry any man she likes, if he consents, and the law doesn’t care whether she’s gay or not, so there’s no discrimination. The fact that they don’t want to marry cross-gender does not mean a thing, legally, same as the fact that I don’t want to own a handgun does not mean the 2nd amendment does not apply to me. They’re protected equally under the law.

What’s going on is the same thing that’s been going on in America for about 50 years. Social progressives are forcing the nation to change in directions it does not want to change, by way of judicial tyranny. They can’t win in the legislature, so they bypass constitutionally proper procedures, pack the court system with activist judges who couldn’t care less what the law says, and force their agenda by creating rights where none existed before. This is why that now-infamous video of President Obama’s recent nominee to the Supreme Court, Sonia Sotomayer, is so important — the one in which she says “Appellate Courts make policy.” She immediately chuckles, backpedals, and says all the right words to mollify the people watching the tape, and the crowd laughs, but the cat was out of the bag; she knew the requisite words, but she also knew how progressives like herself use the courts, and so did her audience. Make no mistake, this is tyranny, and they know perfectly well what they’re doing.

05/01/2009 (10:42 am)

Souter Outer

Supreme Court Justice David Souter has reportedly announced that he will retire at the end of this year’s session. Souter’s health is excellent, and he’s younger than many on the court, but it’s reported that he hates living in Washington, DC, and longs to return to New Hampshire. Thus does the replacement of liberal judges by liberal politicians begin.

Of course, Souter was not supposed to be a liberal judge. He was appointed by George Bush 41, and certified by John Sununu as a died-in-the-wool conservative. If I recall correctly, this was disturbed when Souter began absorbing the legal theories of Larry Tribe of Harvard Law School. Souter has since become one of the reliable liberals on the Court.

Replacing a liberal justice with another liberal justice will not change the composition of the Court this year, but law professor Eugene Volokh observes correctly that the new justice will probably remain on the court for close to 30 years, and will therefore affect the Court’s balance for much longer than Justice Souter would have on his own.

In a remarkable turn of fortune that nobody else predicted, Bill Jacobsen at Legal Insurrection reports that the defection of Arlen Specter to the Democratic Party actually confers on Republicans an unexpected opportunity to block President Obama’s judicial nominees in committee. It seems that the Senate Judiciary Committee has a rule that requires at least one vote from the minority party before a nominee can be sent to the general chamber for approval. Until now, that vote could be counted on from Sen. Specter. Since he’s now part of the majority, that vote will have to come from one of the other Republicans on the committee: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn. Graham is arguably the weakest link, but it’s doubtful that he’s as far to the center as was Specter.

01/14/2009 (12:08 pm)

Exclusionary Rule Reversed (Updated: No, It Wasn't)

The US Supreme Court ruled this morning that evidence obtained improperly due to an error in police records may be used in the prosecution of a criminal suspect, and need not be excluded. This is great news.

I wrote back in July that the Supreme Court would be hearing a case in October, and that it looked as though the Exclusionary Rule would be reversed. The exclusionary rule is the one that says evidence obtained in violation of constitutional procedure must be excluded from trial, and any evidence obtained as a result of evidence obtained that way must also be excluded. The US is the only nation in the free world that uses the courts to enforce a rule like this; most other nations use laws that permit the court to evaluate the seriousness of the violation of rights, and balance that against the seriousness of the crime in question.

Without reading the decision, it’s hard to say exactly how drastically the rule has been changed. I’m sure the decision will be posted within the next 48 hours or so, and I’ll explain further then. In the meantime, the only clue I’ve seen is this brief comment from the New York Times:

… Chief Justice John Roberts, writing for the court, said the evidence may be used ”when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements.”

The vote from the Court was along ideological lines. Roberts wrote the decision, supported by Alito, Scalia, Thomas, and Kennedy. Ginsberg wrote a dissent, joined by Breyer, Souter, and Stephens.

For the time being, the Court remains the only major organ of government from which we can expect even occasionally to hear good sense. Ginsberg and Stephens will most likely be resigning in the next year or two, undoubtedly to be replaced by hard liberals like themselves. The long-term mix of the Court will be determined by who’s President, and who’s in Congress, when the next conservative jurist resigns.

UPDATED 1/17/09: After reading the decision, it’s clear that the Court simply applied and extended an existing “good faith” rule. The “good faith” rule makes it unnecessary to exclude evidence when it’s clear that the police acted on “objectively reasonable reliance” that a warrant was sound, and the clerical error that rendered the warrant invalid was not part of a widespread pattern of negligence or recklessness. The Exclusionary Rule survives to ruin another day, but at least the Court ruled reasonably today.

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