Author Archives: SHG

Was the 1619 Project Squandered By Its Falsehoods?

By this point in time, reactions to Nicole Hannah-Jones’ “1619 Project” have largely been divided into two camps. One camp is filled with history scholars who have pointed out that her claims are largely false, baseless and ahistorical. The other camp doesn’t care much about facts or history because they like, or at least feel compelled to like lest they be called racists by their dear friends, the message.

That the New York Times “quietly” changed one of the most ridiculous claims, which Hannah-Jones denied making to her discredit, either proved the point or proved nothing, depending on how dedicated to the secular religion of social justice one was. But is there a middle ground, where one can appreciate the “message” without getting hung up on the boldly false assertions that will make up the curriculum in woke school districts? Nicholas Guyatt tries to find it. Continue reading

Judge Hurd Rejects “All Men Are Guilty”

The facts in Doe v. RPI are of the sort that typically make a federal judge cringe. No one needs to know this much about the sexual claims of college students. It’s not that they don’t know it happens, but no one wants the image in their heads. Nonetheless, Judge David Hurd in the Northern District of New York told the ugly conflicting stories.

Both Doe, the male student, and Roe, the female student, agree that she plied him with vodka to get him drunk while she remained sober, and they then had consensual sex, as they had numerous times before. What happened after that is in dispute.

However, Doe eventually gave in and had sex with Roe again. Plaintiff claims that he remembers only pieces of this round of intercourse, but he claims to distinctly remember that Roe asked him to put his hands around her neck, even though this made him uncomfortable. Plaintiff eventually complied, if only briefly. Roe agrees that she requested that plaintiff put his hand on her neck and provide pressure, but she claims that this happened during their first, consensual encounter on that night. Continue reading

Cattle Calls And Elevator Racism

New York’s Chief Judge, Janet DiFiore, called for a study to be done to ascertain the extent of racial bias in the court system.

DiFiore said in June that her request for the report was spurred by the killing of George Floyd and came two days after a Brooklyn court officer allegedly posted a racist illustration depicting President Obama with a noose around his neck, which Johnson says “peeled the lid off of long-simmering racial tensions.”

Long-simmering, indeed. Continue reading

The Evil DiFi (And Us)

Some years ago, people marched for racial equality, and to a huge measure, helped to make the nation better, more equal, even if there remains much work to do. We now have a name for these people. White Supremacists.

As July 4 and its barbecues arrived this year, the activist and former N.F.L. quarterback Colin Kaepernick declared, “We reject your celebration of white supremacy.”

The movie star Mark Ruffalo said in February that Hollywood had been swimming for a century in “a homogeneous culture of white supremacy.” Continue reading

The Biden Wars Have Begun

As Trump’s hopes of ever being invited to dinner by the old guard of Palm Beach swirl around his gold-plated toilet bowl, sucking with it the possibility of Republicans holding the Senate, the real battle for the future of a nation has begun. The shot heard round the capital has now been fired.

Every new president has around 4,000 political appointments to make across the executive branch — and for Democrats, who actually care about governing competently, it’s important to fill those jobs with people who know what they’re doing.

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The Crash of Real Problems

It’s not that the Virginia lege isn’t trying. The problems it’s addressing are undoubtedly real and serious, even if they also happen to be unduly popular at the moment. Cops profile. Cops use traffic stops as pretexts for searches. Sometimes, they just make up reasons to stop people, because they can. This happens disproportionately to black people, and minor problems, a headlamp out for example, end with serious problems. Something must be done.

This is something.

The legislation bars police from stopping drivers for a wide range of vehicle equipment infractions — from tinted windows and faulty brake lights to loud mufflers and objects dangling from rear view mirrors. Continue reading

Short Take: Should Vance Be Anti-Racist?

There is a serious question whether it’s wise to pursue Amy Cooper for falsely reporting an incident in the third degree. For one thing, she’s already suffered substantial consequences for what happened without benefit of due process. Yeah, yeah, we all know how every woke anticarceral activists wants her to be burned at the stake. No need to explain why killers deserve our empathy but Cooper deserves life plus cancer. We got it.

For another thing, we’ve promoted the notion that women are entitled to feel threatened, even if irrationally, to make false claims because that’s “their truth” twisted by the litany of excuses as to why it’s too hard to be rational and honest when one’s emotions run rampant. Except when it’s caught on video against a black guy, in which case every absolute tenet of social justice flips on its head and the woman becomes the criminal. Continue reading

Tool Of The Heart

Among the casualties of an otherwise remarkably uncontroversial hearing for a Supreme Court justice, perhaps due to Michael Avenatti’s bond conditions precluding his trotting out some handsome stud to allege he was sexually molested, are certain interpretative methodologies used by judges, originalism and textualism. Their meanings have been twisted.

“Originalism” would mean, among other things, that women couldn’t vote, that black people wouldn’t be people, that religious and ethnic abuse and exploitation of minorities and say gay people would be perfectly acceptable. When ACB uses that word, think about all that.

Well, no. None of that is even remotely accurate. It’s in the universe of mind-numbingly stupid things to say. Perhaps even Judge Kopf, who’s no close friend of originalism, would agree. What it means is that the Constitution (which includes the amendments to it) and statutes should be understood to mean what the original public understanding of its text meant. In other words, the word “sex” in the Civil Rights Act of 1964 should mean what “sex” was understood to mean in 1964 when the law was enacted as opposed to its expansive and fluid meaning of the moment.

There’s a reason for this. If the word “sex,” for example, was now understood to mean robots, although everyone acknowledges that no one in Congress ever gave robots a thought back in 1964 as being covered by the law, does the redefinition of the word “sex” mean that a law passed decades ago now makes it unlawful to discriminate against robots? Would it have been enacted if that had been the case? What if all the dictionaries decided to change their definition of sex to include robots today. Does that change the law? Are today’s dictionaries masters of what a law passed in 1964 meant? Is a petition by ten million robot advocates persuasive? What about the poor robots?

An argument can be made that if Congress wanted to preclude robots from the definition of sex, it could have done so. It didn’t, thus proving that at best, it meant for robots to be included, and at worst, it didn’t mean for robots to be excluded. But that’s not how writing laws work. No one can anticipate the myriad shifts in language over time so as to write in preclusive definitions just in case. Nor, more importantly, can one anticipate the deliberate change in language, to manufacture a shift in meaning so that a word already in a law is intentionally changed by well-intended schemers to include robots because there are people out there working for robot rights.

It’s not that either originalism or textualism answers all questions. As Judge Kopf rightly notes, it’s not as if the original public meaning of words or phrases is easily or necessarily understood. Judges aren’t legal historians. Perhaps more pointedly, most of what ends up in law is a compromise, and doesn’t have as precise a meaning as we would hope. They settle on words that convey a general impression that both (or more) sides can live with to be hashed out later. It’s lazy legislating, but it’s the only way a law gets passed when squabbling over a word here and there might otherwise sink a law that otherwise enjoys general approval.

Even worse, nobody other than the drafter bothers to read or ponder the specific words, and laws get enacted more on their general purpose than the specific details. Why did they chose that specific word? Not only does nobody know, but nobody gave it much thought at the time. As significant as it might be in some future case, it just wasn’t a big deal when Congress approved it. As laws got longer and more prolix, lots of words were tossed into them and reading them was a huge time sink when there were hearings to be had with TV cameras present. Priorities.

But if not originalism, not textualism, then what is the alternative? As much as these methodologies became dogma to Nino Scalia, what method should a judge employ if not a left-handed monkey wrench?

If there is a throughline in Ginsburg’s constitutional approach, it was an effort to make invisible people visible to her colleagues at the court and, if that failed, to the country and the world. Whether it was male caregivers trying to benefit from tax laws, or female cadets at Virginia Military Institute, or Lilly Ledbetter being denied a remedy for persistent, systemic pay discrimination, or the workers of Walmart, or the employees of Hobby Lobby, or minority voters in the South, or immigrants, prisoners, LGBTQ Americans, or Milwaukee voters vainly attempting to vote during a pandemic, Ginsburg saw them, and understood that her actions would influence their lives.

While it’s fair to say that Judge Barrett has been nominated to fill Justice Ginsburg’s seat, it’s nonsensical to argue that ACB is obliged to further RGB’s jurisprudence. Even so, Dahlia Lithwick’s characterization of how RGB ruled is a gross misrepresentation. It was not simply that the powerless won and powerful lost. Women didn’t always prevail over men just for being women. Black people didn’t prevail over white just for being black. Workers didn’t prevail over corporations just for being workers. Justice Ginsburg’s rulings were not Lithwick’s simplistic outcomes for the people who made Dahlia sad.

This isn’t “judicial activism” or “legislating from the bench,” but rather a lifelong effort to broaden the notion of equality to include marginalized, powerless, forgotten, and invisible groups.

What RBG did wasn’t necessarily “judicial activisim,” because what she did wasn’t this woke idealization that Lithwick describes. While Justice Ginsburg had a deep appreciation of the impact of her decisions on the “marginalized,” her rulings were grounded in law and reason, even if one disagreed with them.

Barrett has a constitutional worldview, and that is her prerogative. It may be a mechanistic, automatic, and even on occasion “humble” judicial enterprise. But it will have a real material effect on Americans’ lives, and no amount of empathy and compassion or quotes from Ginsburg will reverse those consequences.

The question isn’t whether Supreme Court decisions have “a real material effect on Americans’ lives.” Of course they do. That’s the point. The question is how they’re to be decided, based on who touches Lithwick’s broken heart or some rational jurisprudential method. If she feels horrified and exhausted by the discriminatory treatment of robots, does that mean a “good” justice will interpret “sex” to include them because they’re “invisible” no matter what the law says or meant when enacted?

Or does it mean that a justice can appreciate that the choice between competing sound, rational constitutional or statutory interpretations should be informed by whether the decision serves to ameliorate an outcome that’s unduly, even needlessly, harsh to a maligned party?

When the monkey wrench can be used by either hand, it can go either way. Wield the tool of law fairly, rationally and for the benefit of the maligned party, but don’t toss the tool aside and become a tool of the heart. No, your favored party won’t always win, and isn’t always right, but it’s the best a justice can do. As for robots, they have no heart and lack the capacity to care either way.

Confirmation Bias

There are many generic arguments against the Senate’s confirmation of Judge Amy Coney Barrett to the Supreme Court, bearing on the timing, the rush and the institutional hypocrisy that can only be denied by people with their eyes wide shut. But that’s a slam on the process, not Barrett, although it’s hard these days to separate the two.

At the close of questioning, Judiciary Committee chair Lindsay Graham made the point that, for a nominee from a Republican president, she was fully qualified, just as was Justices Kagan and Sotomayor as nominees from a Democratic president. Yet, that’s not quite the way it’s being seen.

They have the votes to confirm her, and confirm her they will, but her insistence that she is an “originalist,” along with her refusal to answer any questions on topics relevant to the present, including on racial prejudice, climate change, voter suppression, and so on, have made her extremism clear.

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The Radical Right To Rights

During his questioning of Judge Amy Coney Barrett, former Connecticut attorney general, now senator, Richard Blumenthal, claimed that Barrett “admitted” her dissent in a Seventh Circuit Second Amendment case, Kanter v. Barr, was “radical.”

“Did I say it was radical in the opinion?” Barrett asked.

“I think you said, quote, ‘it sounds kind of radical to say felons can have firearms.’ That’s a direct quote.”

“I didn’t remember that particular language,” Barrett said, adding that she did not want to nitpick.

“We can look it up,” Blumenthal said.

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