The All-Star Team Of Evil

With each new rumor, screams were heard. Rudy Giuliani as Attorney General? As Secretary of State? Chris Christie as White House doorman? The runt of the Sessions litter? Steve Bannon as anything? How could this be? They’re awful, terrible, racist, sexist, xenophobic, homophobic, white supremacists+. How was it possible that the president-elect chose these horrible people?

Early signs of what the Trump administration may look like: A man associated with white supremacy and misogyny will be White House chief strategist; a man rejected for a judgeship because of alleged racism will be attorney general; and an Islamophobe who has taken money from Moscow will be national security adviser.

No, this is not satire.

I’ve repeatedly noted that my side lost this election, that elections have consequences, and that President-Elect Donald Trump should be given a chance. He seems intent on blowing that chance.

Given a chance to do what, exactly? Make Lena Dunham Secretary of Education? Put Lady Gaga in charge of wardrobe? It’s not that the people being chosen, or whispered about, or rumored to be something, aren’t the people I would choose if I was president, but I’m not president. Neither are you. Continue reading

Guest Post: See Something, Say Something (Like Bullshit)

Ed. Note: Long time reader and commenter, Patrick Maupin, provides an answer to a question that so many have asked, “what can I do?” He saw the opportunity to be heard and did something. It worked, so I asked him to write a post about it. Thank you, Pat.

Back in July, I received a pre-recorded call on my cellphone. It was a breathless, chirpy female voice, probably Rachel from cardholder service’s little sister:

Hi! We haven’t heard from you after the recent disaster in your area! Call the Wells Fargo Disaster Recovery Team at 1-888-818-9147 if you need financial assistance or need help rebuilding!

In order to look outside and verify that the sun was still shining and the birds were still singing, I had to use my window — the walls and roof of my domicile seemed quite intact, so I wasn’t exactly sure what the disaster was, or what I was supposed to be rebuilding. The whole spiel sounded as bad (or as good) as the IRS calls, so I duly wrote down the number in preparation for explaining to Wells Fargo that they should warn their customers about this scam. Continue reading

A (Relatively) Open Thread: Identity First (Update x2)

Mark Lilla, who gets a paycheck for, of all things, teaching humanities at Columbia University, took his career into his hands by writing an op-ed entitled The End of Identity Liberalism. Oh boy.

But how should this diversity shape our politics? The standard liberal answer for nearly a generation now has been that we should become aware of and “celebrate” our differences. Which is a splendid principle of moral pedagogy — but disastrous as a foundation for democratic politics in our ideological age. In recent years American liberalism has slipped into a kind of moral panic about racial, gender and sexual identity that has distorted liberalism’s message and prevented it from becoming a unifying force capable of governing.

While I would take issue with his characterization of liberalism, which I view as a conflation of liberalism with progressivism, that’s just my pet peeve. I’m big on definitions, which have gone out of fashion among intellectuals. But putting aside the labels, he makes a point that must have been painful:

One of the many lessons of the recent presidential election campaign and its repugnant outcome is that the age of identity liberalism must be brought to an end.

Continue reading

The $2 Chemist Rule

It’s given the name “probable cause” even though it’s neither probable nor cause. The law likes to do that, because it lets good people sleep at night believing that there is a viable system in place that both protects them from the bad guys and preserves their freedom.  Yay, law!

But probable cause is a rhetorical trick. Doggie sniffs, which are basically coin tosses with cute puppies who, when ordered, will bite your head off, continue to impose their tyranny on the public because judges aren’t cat people. When there’s no doggie to be had, what’s a cop to do?

When officers tested the powder using a $2 narcotics identification kit, it was identified as a controlled substance.

The only problem with the $2 testing kit, available at a K-Mart near you, is that it’s prone to false results. This isn’t a secret. So why use it? Did you not read that it only costs $2? The government has a duty to protect the public fisc. That’s your taxpayer money they’re spending, you know. And besides, they’re out there doing god’s work nailing criminals, and of all the things not worthy of your hard-earned tax dollars, who is worse than criminals? Continue reading

There Is No “Morality” Exception

As charged, Josh Kendrick made the argument that the defense lawyer should put the needs of the defendant ahead of any societal desire for racial neutrality on the jury. Not only is this a reflection of the ethical duty to zealously defend, but the recognition that in the clash between the Sixth Amendment right to counsel and the Equal Protection Clause, a defense lawyer’s duty is to the former.

For having done as charged, he received this reaction:

The question is: Do the ends justify the means? Seems like a decided question. As Caleb writes, “Unequivocally, the answer is no.”

You have defined the ends as “win, win, win.” You don’t care if the client is innocent or guilty. You don’t care if you destroy a witness’ reputation or career by admittedly misrepresenting and distorting the truth. Your goal is to get every client off so nobody ever goes to jail. And you think morals are relative.

I just can’t find a bit of this persuasive. Do lawyers study moral philosophy or jurisprudence anymore?

Continue reading

But Korematsu? Never Again

Most young people had never heard of Korematsu until yesterday, when Carl Higbie, another name no one ever heard of until he appeared on Megyn Kelly’s Fox show, did the unthinkable.

During an appearance on Megyn Kelly’s Fox News show, Carl Higbie said a registry proposal being discussed by Trump’s immigration advisers would be legal and would “hold constitutional muster.”

“We’ve done it with Iran back awhile ago. We did it during World War II with the Japanese,” said Higbie, a former Navy SEAL and until Nov. 9, the spokesman for the pro-Trump Great America PAC.

This is lunacy of the worst order, and yet another reason why we shouldn’t look to Navy SEALs to explain law. They’re great at killing Osama, but really lousy at constitutional interpretation. Continue reading

Aggravated Felonies And Aggravating Hysteria

One of the most moving, tearful expressions of deep concern came from César Cuauhtémoc García Hernández:

We are one week into the age of Trump. Two months remain before he takes office. A man who campaigned on a platform of rhetorical violence will soon occupy the highest political office in the United States. Already the effect has been unmistakable. Incidents of hateful attacks have risen sharply. Among the millions of people who fit a description that Trump ridiculed or demonized, fear has become palpable. I have seen the tears and heard the despair. I have felt the threat seep into my daily experience.

He doesn’t hate undocumented immigrants. He doesn’t hate illegals. He has a blog with the cutesy name crImmigration, and appears to want to be empathetic toward the fearful. So why is he doing everything possible to scare the shit out of them?

As a teacher and scholar of crimmigration law, I realized that over the next four years, migrants, our families, and our communities will not simply suffer from a continuation of the nightmare of the last eight years. In the age of Trump, the destructive, heavy-handed immigration law enforcement strategy favored by the Obama Administration will be merely the foundation on which to build. If a President Trump implements what candidate Trump promised—what he continues to promise—the fear that I have heard and seen, the fear that I feel, will become nothing short of terror on overdrive.

Continue reading

The Future Of OCR’s Dear Colleague

At Minding the Campus, K.C. Johnson tries to discern the implications of a paradigm shift in governance on what it means for Title IX. The foundation, mentioned here on occasion, produced a scenario of devastation for some, jubilation for others.

Since 2011, the federal government has made successful and devastating efforts to undermine civil liberties on campuses. The surprise outcome of the presidential election raises at least the possibility that this illicit campaign, based on a vast extension of Title IX, will be reversed. Thousands of students accused of sexual misconduct but denied due process have been victimized by the frenzy stimulated by the Education Department’s Office for Civil Rights (OCR), and by the unfair procedures that OCR has championed. (Consider events at Amherst or Yale or UVA or Brandeis, for starters.)

From the perspective that the evisceration of due process, the extension of Title IX into campus adjudications of every ill, real or perceived, was lawful, that a post-factual society is better than a factual society* is a bad thing. Will it be fixed?

President Obama’s two heads of the OCR have ignored the requirements of the Administrative Procedure Act and imposed their dubious interpretations of Title IX without required notice and comment. They never offered a convincing explanation as to why, in part because Congress only rarely pressed them; outgoing OCR head Catherine Lhamon purported to justify OCR’s actions in this exchange with Tennessee senator Lamar Alexander, but only revealed herself to be ignorant of congressional authority. Continue reading

Stuck In The Middle With You

In the aftermath of the election, Democratic Party stalwarts began the Five Stages of Grief.

  1. Denial
  2. Anger
  3. Bargaining
  4. Depression
  5. Acceptance

The good news is that they’ve already hit the bargaining stage, so they’re almost halfway through, though they haven’t completed the anger stage* as yet. What’s the deal?

Fine, but anti-racism, anti-sexism, and anti-queerphobia are nonnegotiable.

Despite the tempting desire to explain the mechanics of negotiation, bear in mind this is just the vagary of a view that has nothing with which to negotiate. In an op-ed, Ohio Senator Sherrod Brown tries to thread the needle. Continue reading

When Batson Bumps Into the Sixth Amendment

There was a debate at Fault Lines yesterday between Caleb Kruckenberg and Josh Kendrick, criminal defense lawyers both. The question posed was,

Should a criminal defense lawyer use peremptory challenges to strike jurors based on race if it was in the defendant’s interest?

Caleb was charged with arguing that reverse Batson, exercising peremptory challenges based on race, was just as wrong when done by defense counsel as the prosecution.

Using racial bias in jury selection, even if you can get away with it, is also wrong on a deeper level.

Discriminatory acquittals have real impacts on society beyond their individual cases. Lynchings were about racial intimidation and protecting the rules of segregation. Discriminatory acquittals were about putting state approval on such violence. Overt racial bias in jury selection is a way to enforce discrimination in a broader context and insulate crimes against minorities.

Continue reading

Dog Whistling Past The White House

Who is President Obama’s chief strategist? No fair, googling. That’s right. Nobody knows, and yet many have become hysterical about Trump naming Breitbart’s chairman, Steve Bannon, as the winner of the consolation prize. Be hysterical now, avoid the rush.

To assuage the fears of a nation that the next president wouldn’t pander to the worst of his base,* Bannon was possibly the worst choice he could make. It feeds the belief that Trump is the anti-Christ (actually, Hitler). Aside from the shrieking, but IT’S A FACT, by the people who got Trump elected, there appear to be three arguments in support of the contention that Bannon is a white nationalist.

First, there is the content at Breitbart, which consists of a lot of clickbait alt-right batshit crazy nonsense, the mirror image of the crap at the SJW-pandering websites. Second, allegations made 20 years ago in an affidavit by his ex-wife during a divorce. Third, that neo-Nazis at groups like Stormfront cheered his appointment as chief strategist.

Does this make him a racist and white nationalist? Not exactly, but it does send a message that no seasoned politician would have missed. And so it was hammered home:

Anyone holding out hope that Donald Trump would govern as a uniter — that the racism, sexism, anti-Semitism and nativism of his campaign were just poses to pick up votes — should think again.

Continue reading

The News That’s Fit To Print

No, the Pope didn’t endorse Donald Trump. He didn’t endorse Hillary Clinton either. And there is no newspaper called the Denver Guardian.  None of these things, however, is Mark Zuckerberg’s fault.

There is just one problem with these articles: They were completely fake.

This is not an anomaly: I encountered thousands of such fake stories last year on social media — and so did American voters, 44 percent of whom use Facebook to get news.

If you look closely, with eyes wide open, you might begin to see the problem. If you are one of the 44% of American voters (a highly suspect statistic, since FB users aren’t likely to vote since it requires them to leave the house) who get their “news” interspersed with cute cat pix, that could explain why you are so easily fooled.

Mark Zuckerberg, Facebook’s chief, believes that it is “a pretty crazy idea” that “fake news on Facebook, which is a very small amount of content, influenced the election in any way.” In holding fast to the claim that his company has little effect on how people make up their minds, Mr. Zuckerberg is doing real damage to American democracy — and to the world.

Continue reading