Former chairman of the Republican National Committee Ken Mehlman opened fire with both barrels: an amicus brief in the trio of cases coming before the Supreme Court, Zarda, Stephens and Bostock, and an op-ed in the New York Times.

Polls consistently show a high percentage of Americans think that firing people or denying them jobs or promotions because they are L.G.B.T.Q. is wrong and that it should be prohibited under our nation’s civil rights laws. A full 92 percent said so in an April poll by Quinnipiac University. That’s in part because basic protections against job discrimination are fundamental to core American values of fairness.

This isn’t a new idea, or a partisan one. Abraham Lincoln wished for all workers to have an equal chance to acquire property and to gain wealth. “When one starts poor, as most do in the race of life,” he said, “free society is such that he knows he can better his condition.”

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Why can’t we have it all?

Well, the laws of physics could be a problem, since we can’t be in two places at the same time. When you’re a criminal defense lawyer, and your client is standing in court in front of the judge, and there’s some other place you would rather be, whether at your beloved child’s soccer game or having a little “me time” because aren’t you entitled to take care of your mental health, Lara Bazelon explains why this can be a problem. Continue reading →

Did anybody have “busing” on their Democratic Debate Bingo Card? I sure didn’t, and yet Kamala Harris, latching onto a race issue that didn’t involve her imprisoning black people or defending cops who killed them, nailed the landing as far as her supporters are concerned.

Some have complained that Harris has diverted attention away from things that matter today to rehash the 70s, a time when Biden is exposed if viewed through the lens of today’s social justice. Back then, Biden worked with, was civil with, segregationists to get things accomplished in Congress. Today, the nicest he would be allowed to be is to milkshake them on the Senate floor, and still be subject for criticism for not punching a Nazi or a small gay conservative man. Continue reading →

The New York Times Never-Trump Token Conservative (NYTNTTC) Bret Stephens made a fairly banal observation about the Dem candidates fighting over who was the most left of the most left wasn’t making fans of a lot of Trump-haters.

Here’s what: a party that makes too many Americans feel like strangers in their own country. A party that puts more of its faith, and invests most of its efforts, in them instead of us.

Oh noes. He wrote “them” and “us,” for which he was dutifully ripped to shreds. My pal Elie made a tasteful analogy. Continue reading →

Marshae Jones is an odd choice of hero for the cause, which is going to make the made-for-cable-TV movie a bit more difficult if they don’t take serious liberties with the facts.

Ms. Jones was five months pregnant and working at a company in Pleasant Grove that sells fuel for fires, when she got involved in an altercation in the parking lot of the Dollar General store.

The fight stemmed from a long-simmering feud with a female co-worker, Ebony Jemison, 23, over a man who worked at the same company. Ms. Jones spotted Ms. Jemison in the parking lot and started a fight with her, according to a law enforcement officer with direct knowledge of the investigation who did not want to be identified. By the officer’s account, Ms. Jones was winning the fight and had Ms. Jemison pinned in her car. Continue reading →

The nature of lawyers who work at New York City’s Legal Aid Society has always been extremely liberal, deeply passionate about equality. Even back in the 70s, when LAS lawyers were known as party animals, they sobered up when it came to their politics, and stood fearless against those who would hate their clients. This probably comes as no surprise, but it needed sayin’.

Lawyers at the Legal Aid Society of New York have been telling me their stories of hysterical baby lawyers attacking their more experienced colleagues.* Other than Appellate Squawk, no one wanted to go public. My guess is that they put the mission of LAS ahead of their treatment at the hands of the ideologically-stunted children, and took the hit rather than harm the cause. Of course, they also could have feared the retaliation by the outraged mob.

Finally, one experienced Legal Aid lawyer, Cynthia Taylor, was pushed too far and sued for its hostile work environment and wrongful termination. Continue reading →

Whoever is in charge of the the New York Times Opinion twitter account chose to pick this pull quote to send out to the twitterverse.

The American Bar Association should signal that anyone who defends the border patrol’s mistreatment of children will not be considered a member in good standing of the legal profession.

Some lawyers, being insufferably myopic, naturally parsed this for the immaterial aspects, that the ABA doesn’t get to decide who is a “member in good standing of the legal profession” and would never do that anyway. Obviously, the ABA is irrelevant to that call, it did put its two cents in on the wrong side of the salient issue. And given Model Rule 8.4(g), it’s not much of a stretch. Continue reading →

It’s understandable why Bari Weiss began her column with a swipe at renowned prude and former Attorney General John Ashcroft. First, he deserves whatever ridicule he gets. Second, it’s a reminder that such ridiculous and disgraceful conduct isn’t only the province of one team. But third, even Ashcroft wasn’t censorious enough to destroy history to create his “safe space.”

Still, the analogy fell flat. Ashcroft was vindicating his personal, sexually-twisted fantasies, even if he adopted the idiot’s rallying cry that he was doing it for the children. The San Francisco school board is doing it for social justice. The Taliban destroying the Buddhas of Bamyan would have been more apropos.

Victor Arnautoff, the Russian immigrant who made the paintings in question, was perhaps the most important muralist in the Bay Area during the Depression. Thanks to President Franklin Roosevelt’s Works Progress Administration, he had the opportunity to make some enduring public artworks. Among them is “City Life” in Coit Tower, in which the artist painted himself standing in front of a newspaper rack conspicuously missing the mainstream San Francisco Chronicle and packed with publications like The Daily Worker. Continue reading →

Judges are people just like us. Sure, they wear robes and have incredible power over our lives, liberties, and property. We still need to cut them some slack from time to time because underneath that black robe is a person, who when tested can make unsound judgments.

Three years ago, Georgia Superior Court Judge Bryant Durham Junior met Denver Fenton Allen for an advisory hearing that arguably turned into the worst day of Judge Durham’s life. Allen was charged with murdering his cellmate. Allen also didn’t care too much for his court-appointed public defender.

It’s worth pausing here to note a later judge handling Allen’s case found him mentally incapable to stand trial. This bit of information may help explain what happened next. Continue reading →

When our host posted Lessons From Fabian’s Viral Video, I was dumbstruck by the outpouring of hatred regarding Ms. Fabian.[i] See, e.g., Manny Fernandez, Lawyer Draws Outrage for Defending Lack of Toothbrushes in Border Detention, New York Times (June 25, 2019) (quoting Howard Dean, the former governor of Vermont and presidential candidate, stating that Fabian “needs to be fired and prevented from ever holding another government job.”)

Having had my ass kicked many a time while arguing before an appellate court, I decided I would take a deep dive into the record to see whether Fabian deserved the attacks. I read the Flores agreement, I read Judge Gee’s opinion in the District Court, and I read the briefs filed in the Ninth Circuit. I also read Ken White’s piece in the Atlantic. Additionally, I watched the entirety of the oral argument in the Ninth Circuit which lasted about an hour. Hell, I even read pieces about Fabian written by Joe Patrice at Above the Law.

For what it may be worth, let me give you my opinion. Ms. Fabian is not the Devil’s Advocate.

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