The Hillary Clinton Supreme Court

I’ll leave aside specifics of Democratic Party Presidential candidate Hillary Clinton’s goals in appointing Supreme Court Justices.  The overriding goal of Clinton is to appoint Justices who meet a series of litmus tests, none having to do with the Justice candidate’s view of the Constitution.  A potential appointee must explicitly agree that Citizens United must be reversed.  A potential appointee must explicitly agree that limits to individual Americans’ right to keep and bear Arms must be subject to further government restrictions—including Government determining what weapons are fit for Americans to have (no “assault” weapons—defined by her Government—for instance).  A potential appointee must explicitly agree that voter ID laws, which protect the sanctity of an American’s vote, are anathema.  A potential appointee must explicitly agree that religious freedom is a matter of government determination with nothing to do with individual conscience.

Clinton’s goal, then, is to turn the Supreme Court away from an impartial judicial institution into one that is explicitly political, and one that will serve Progressive goals.  Regardless of what the Constitution actually says.

It won’t take many Clinton appointments, either, to turn the Court into her completely political institution.  Four of the existing Justices already are political judges rather than judges who uphold the Constitution.  Justices Stephen Breyer and Ruth Bader Ginsburg have said they consider the Constitution to be a living document that lives through “updating” reinterpretations to fit their views of the times—Article V and We the People be damned.  Ginsburg has gone even farther, deliberately entering the political fray and publicly stating her views of the unfitness of one of the current Presidential candidates, thereby prejudicing in advance her decisions on any case in which that President’s administration might become involved.  Justice Sonya Sotomayor has said the Court benefits from her “wise Latina” and empathetic talents—again, a political position and not a legal one.  Justice Elena Kagan has said that a judge’s personal values must guide the judge’s development of her opinion, not solely what the Constitution says—still another political, rather than legal, position.

Elections have consequences, and this one’s will last far longer than just the term of one administration.

A Court Gets One Right

In a sexual orientation case involving an adjunct professor who claimed she was denied “full time employment and promotions based on sexual orientation,” the 7th Circuit ruled unanimously that her employer can, indeed, do exactly that.  In particular, Title VII, under which the case was brought, does not apply to sexual discrimination in the workplace.

The reason the Court got this one right has little to do with discrimination—and everything to do with it—rather, it’s centered on what the law actually says, and what the judges said about what the law actually says.

…a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry an ‐ other person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.  …  Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation.

Because the law, Title VII as it’s written, doesn’t address that question.

There’s more [emphasis added]:

…the distinction between gender nonconformity claims and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those plaintiffs meet society’s stereotypical norms about how gay men or lesbian women look or act…. By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII, although why this should be true is not entirely clear.

Yet, this [emphasis added]:

[T]he paradox is not our concern. Our task is to interpret Title VII as drafted by Congress, and as we concluded in Ulane, Title VII prohibits discrimination only on the basis of gender.

Regardless of what we might think of the particular ruling—concerning a woman who was denied advancement on the basis of her sexual orientation (assuming, arguendo, that her claim was accurate)—or of other rulings involving actual firings over sexual orientation, this court got this ruling right.  The court is right because it applied the law as it was written, and not as it might have preferred it to have been written or as a government agency (EEOC had sided with the professor) wanted it to have been written.

The court also was right because it didn’t stop there.  The court went on to point out that while the law in question, as it was written, conflicted with other laws—one driving the Supreme Court’s ruling on gay marriages, for instance—the court was powerless to resolve the conflict.  Such a resolution is a political decision, not a judicial one; it’s for the people and their elected representatives to alter the law(s) in directions they see fit; no court can do that.

The court’s ruling can be read here.

Racism in Student Governments

Here’s an example.

The vice president of the Student Government Association at the University of Houston was punished by the Student Senate for a Facebook post that read, “Forget #BlackLivesMatter; more like #AllLivesMatter.”

The “offending” Facebook post by SGA VP Rohini Sethi has since been deleted, but below is an image of it.LivesMatter

UofH’s response at the demands of the Black Lives Matter movement?

[A] 50-day suspension beginning August 1, mandatory attendance of a diversity workshop, mandatory attendance of three cultural events per month, a reflection letter, and a public presentation at the Student Government Association meeting on September 28[.]

If she doesn’t complete this Mao-ist reeducation camp requirement, the SGA will banish her from their organization.  And expose her to continued harassment for her effrontery.

It is rank racism that proclaims the perhaps lives matter, but especially some lives matter more than others.

Two Mistakes

…are made in a recent The Diplomat piece about the British referendum to leave the EU and our own Founders’ view of popular (direct) democracy.

One is the conflation of a single referendum with direct democracy.

[I]he whole spectacle of a referendum—a “device of dictators and demagogues,” in the words of Margaret Thatcher—underlined a salient point: our soundbite culture, combined with political populism, renders direct democracy in the form of a referendum entirely unsuitable as a tool for deciding complex policy issues.

Or any other culture, apparently.  Notice that, though: a referendum.  Not routine referenda for making all national decisions, which would be popular democracy governance.  No, this was a single referendum to make a single decision; it was no pattern, it set no precedent, and it was entirely appropriate.

This referendum was entirely appropriate because the representative democracy government was itself divided on the matter.

The referendum was especially appropriate for a much larger reason, though.  It’s entirely appropriate, necessary even, for the a representative government to go back to the people as a whole on occasion to get their instruction because that’s how the representatives as a whole (re)calibrate their ties to the people they claim to represent.

The other mistake is claiming that the people are just too stupid to make their own decisions; they need to listen to their Betters and otherwise be quiet.

The voices of reason were further drowned out….

And

T[he Brexit referendum illustrates as much the failure of the experts and elected politicians as it shows that relying on the masses and populism can lead to suspect and potentially damaging decisions. In that sense, we have to guard ourselves against direct democracy being hijacked by demagogues and populists lest we have to endure the “tyranny of the majority” at the expense of wiser policies.

This would be true of a direct democracy; however, see above: a single referendum does not make for a direct democracy means of governance.  The Diplomat‘s piece illustrates, on the contrary, the need for the occasional national referendum.  Experts are in a tizzy because the masses rejected their wisdom and made that damaging decision—at least in the minds of those Betters.  What a representative democracy must especially guard against, though, is being hijacked by demagogues and elitists lest we have to endure the tyranny of the Betters at the expense of the people.

Tony Blair Misunderstands

Great Britain’s Ex-Prime Minister Tony Blair has sensed danger from the Brits’ vote to leave the European Union.

Blair said in a Friday column in The Daily Telegraph that the future of the United Kingdom is at stake as the country faces negotiations on the terms of leaving the European Union.

Of course there’s danger—there always is when a change as large as this is embarked on.  But Great Britain didn’t get to be as great as it was and still is by being timid.  This move is a great opportunity for the nation, much more so than it is a risk, however real that risk is.

Blair also worried:

Britain is dangerously divided, with “profound dismay” felt by many of the 48 percent who wanted to remain in the EU.

He’s missing the other question, though: would Great Britain be any less divided had they voted to Remain?  Not a bit.

Look forward, not backward.