Law & the Courts

Rachel Maddow and Pig Fat

In addition to her racial smear of Second Circuit nominee Steven Menashi (which I addressed here and here), MSNBC’s Rachel Maddow also attacked Menashi for recounting a mistaken story about General John Pershing’s supposed use of “bullets dipped in pig fat” to execute Muslim terrorists in the Philippines early in the last century. During the course of his presidential campaign, Donald Trump used this story to argue (in Maddow’s words) that “that’s how we got rid of Muslim terrorists in the past and now we’re too wussy to do that.”

Maddow complains that Menashi “told that same fake story in the course of his academic career,” and she contends that he “made that same argument that Trump made on the stump.” Her complaint is very misleading, and her contention is wrong:

1. The story from Menashi that Maddow objects to opens a book review that he published in April 2002. Just months earlier, as this Los Angeles Times article reports, Democratic senator Bob Graham, chairman of the Senate Intelligence Committee, told the same story:

Senate Intelligence Committee Chairman Bob Graham (D-Fla.) cited as an example a dinner he attended last week with people who work on intelligence issues and have connections to the intelligence community. The dinner conversation ranged in part on how U.S. military commander “Black Jack” Pershing used Islam’s prohibition on pork to help crush an insurgency on the southern Philippine island of Mindanao after the Spanish-American War at the turn of the last century.

In one instance, Graham explained in an interview, U.S. soldiers captured 12 Muslims. They killed six of them with “bullets dipped into the fat of pigs.”

After that, Graham said, the U.S. soldiers wrapped the Muslim rebels in funeral shrouds made of pigskin and “buried them face down so they could not see Mecca. Then they poured the entrails of the pigs over them. The other six were forced to watch. And that was the end of the insurrection on Mindanao,” Graham noted.

Evidently this false story was circulating widely in intelligence circles at the time.

Menashi wrote this review shortly after he finished college and before he began law school—not during his time as a law professor and thus not at a time when most people would understand him to be “in the course of his academic career.”

2. Nowhere in his book review does Menashi argue in favor of such anti-terrorism tactics. On the contrary, he faults the author whose book he is reviewing for promoting a view of American power that “would divorce itself from a special concern for human rights” and for amorally “sanction[ing] brutal tactics for maintaining order.” Menashi argues that “we need good values” (his emphasis) and that while we should not ignore the reality of power politics, “we also should not be so brazen as to lose sight of our moral aims.”

In short, unless you’re going to hold a junior researcher to a higher standard than the Democratic chairman of the Senate Intelligence Committee, it’s difficult to see how Menashi’s innocent error can fairly be counted against his nomination.

Law & the Courts

This Day in Liberal Judicial Activism—August 20

1985—Extending an error it made two years earlier, the Sixth Circuit (in Policy v. Powell Pressed Steel Co.) distorts ordinary contract principles as it construes a collective bargaining agreement to confer lifetime health-insurance benefits on retirees. Never mind that the agreement contained a provision providing for the continuation of pension benefits, but not of health-insurance benefits, after the expiration of the agreement.

Thirty years later, the Supreme Court will finally put an end to the Sixth Circuit’s presumption (unique among the federal courts of appeals) that collective bargaining agreements confer on retirees a vested right to lifetime benefits. In M&G Polymers v. Tackett, the Court will rule unanimously that such a presumption is incompatible with ordinary principles of contract law.

Law & the Courts

SCOTUS Must Reaffirm the Meaning of ‘Sex’ in Antidiscrimination Law

The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

On Aug. 16, R. G. and G. R. Harris Funeral Homes filed its brief with the U.S. Supreme Court, urging the court not to interpret the word “sex” in federal nondiscrimination law to include “gender identity” because doing so will cause problems in employment law, reduce bodily privacy protections for everyone, and erode equal opportunities for women and girls.

Yet that is exactly what the American Civil Liberties Union is pushing the U.S. Supreme Court to do. My employer, the Alliance Defending Freedom, is representing the funeral home.

In 2007, the funeral home hired a male employee, Anthony Stephens, to work as a funeral director, the “face” of the business. Stephens agreed to and abided by the funeral home’s professional codes of conduct and dress, including a sex-specific dress code. Nearly six years later, Stephens informed the funeral home’s owner, Tom Rost, that Stephens planned to begin dressing and presenting as a woman while working with grieving families. But the funeral home’s dress code is industry standard, complies with federal law, and is integral to the 100-year-old business’s goal of helping grieving families heal. Tom could not agree to Stephens’s plan.

Stephens filed a complaint alleging employment discrimination, and now the U.S. Supreme Court will hear the case on October 8.

The high court will decide two questions: (1) whether the term “sex” in federal employment nondiscrimination law, Title VII, includes “gender identity,” and (2) whether it is unlawful sex stereotyping to administer a dress code based on biological sex rather than gender identity.

The meaning of “sex” depends on the term’s public meaning in 1964, the year Congress enacted Title VII. Interpreting laws this way ensures that it remains constant and reliable over time. Business owners across the country rely on Title VII when making business policies.

There is little dispute that, in 1964, the term “sex” was publicly understood, as it is now, to mean biological sex: male and female. After all, the term “gender identity” wasn’t even part of the American lexicon at the time. Its first use was at a European medical conference in 1963. And no semblance of it appeared in federal law until 1990. So Title VII’s prohibition on sex discrimination has always been a ban on disfavoring one biological sex versus the other because of sex.

As to sex stereotyping, Title VII has also barred employers from using sex stereotypes (such as the idea that men should be aggressive, but women should not) to favor male employees over female employees. Stephens, through his ACLU attorneys, is asking the Supreme Court to turn this concept on its head and force employers to allow men to dress as women as long as they fit the female stereotype.

Stephens testified earlier in the case that Harris should have let him dress as a woman, but an employer need not allow a balding man with a beard and mustache to wear a dress while working with grieving families. Why not? Because such a male employee “doesn’t meet the expectations of a female” or “adhere to the part” he’s playing.

So, according to the ACLU, all sex-specific policies must depend, not on sex, but on whether a certain employee looks or acts enough like a man or woman. Not only is that standard unworkable for any employer, it enshrines the very stereotyping Title VII rejects.

Such a policy also threatens to unleash legal chaos and adverse consequences for everyone.

If “sex” is governed by “gender identity,” organizations will no longer be able to maintain sex-specific sleeping facilities, showers, restrooms, and locker rooms. Men can take jobs reserved for women, such as a position playing in the Women’s National Basketball Association, or a job as a female nurse hired to care for an elderly woman’s private needs. Scarce jobs requiring fitness tests, such as police and fire positions, can exclude women as they are forced to compete against men who identify as female.

As this moves to analogous nondiscrimination laws in education and housing, equal opportunities and bodily privacy protections for women and girls will be lost.

We are already seeing this across the country where similar state housing and education laws have been changed or interpreted to include “gender identity.” For example, in Connecticut, two boys competing as girls have set state meet records in 15 track events over the past two years, costing girls over 40 chances at next-level races. And in Anchorage, Alaska, a federal court had to enjoin the city from using a gender-identity nondiscrimination law to insist that a women’s shelter allow a man who identifies as a woman to sleep in a common room mere feet away from women, many of whom have been trafficked, abused, or sexually assaulted.

These examples highlight why courts are ill-equipped to make such a significant change in the law. And that is why Harris Funeral Homes is urging the Supreme Court to reaffirm the long-standing meaning of sex discrimination in Title VII and the protections for women that it has always ensured.

Law & the Courts

Re: Rachel Maddow’s Racial Smear of Second Circuit Nominee Steven Menashi

A couple of follow-on points to my original post:

1. Second Circuit nominee Steven Menashi’s critics object to passages in which he states things such as: “These findings confirm that the solidarity underlying democratic polities rests in large part on ethnic identification.”

It’s essential to have in mind that Menashi’s concept of “ethnic identification” is very expansive. On numerous occasions, for example, he uses the term ethnocultural as a synonym for ethnic. As I showed in my first post, far from being some narrow concept (much less reducible to race), ethnic and ethnocultural in Menashi’s usage encompass multiple possible elements, including historical, cultural, linguistic, religious, ideological, geographical, and territorial. Indeed, in explaining how “ethnocultural ties” give rise to the “sentiment of nationality,” Menashi quotes this passage from John Stuart Mill:

This feeling of nationality may have been generated by various causes. Sometimes it is the effect of identity of race and descent. Community of language, and community of religion, greatly contribute to it. Geographical limits are one of its causes. But the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past.

On this broad understanding of ethnic and ethnocultural, does anyone really dispute that the “sentiment [of nationality], which facilitates democratic government, rests upon ethnocultural ties”? Does anyone imagine that, say, the people of Europe (or of the world, if you prefer) could be randomly redistributed among the nations with no negative effects on how democracies operate?

2. The assumption by many that Menashi welcomes his conclusion that “the solidarity underlying democratic polities rests in large part on ethnic identification” is beyond bizarre. That is a conclusion that Menashi, the descendant of Jewish refugees, draws heavily from the horrific failure of European states to protect the rights of their Jewish citizens and of Jewish refugees. As Menashi puts it, “the failure of liberal universalism to address the worst human-rights crisis in history revealed that a liberal scheme of human rights requires a system of particularistic nation-states.”

In other words, Menashi has millions of reasons to wish that “liberal universalism” had proven itself a solid foundation for a democratic polity.

It is appalling that those who oppose the existence of Israel as a refuge for Jews are prominent among those viciously and baselessly attacking Menashi as a racist.

Law & the Courts

This Day in Liberal Judicial Activism—August 19

The Washington Post Company building in Washington, D.C. (Jonathan Ernst/Reuters)

2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth.

Law & the Courts

This Day in Liberal Judicial Activism—August 18

(Photo: Shutterstock)

2010—In American Atheists, Inc., v. Duncan, a Tenth Circuit panel holds that the state of Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths.

In dissent from his court’s denial of en banc review, Judge Neil Gorsuch will decry that the Tenth Circuit applies its dubious “reasonable observer” test by using an observer who “continues to be biased, replete with foibles, and prone to mistake.”

In a lengthy dissent from the Supreme Court’s failure to grant certioriari, Justice Thomas will lament that the Court “rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”

Law & the Courts

Does Rachel Maddow Put Israel and White Supremacy in the Same Category?

MSNBC debate moderators Chuck Todd and Rachel Maddow during the first Democratic presidential debate in Miami, Fla., June 26, 2019. (Mike Segar/Reuters)

Last night, Rachel Maddow launched a lengthy smear of Second Circuit nominee Steven Menashi based on a grossly distorted summary of a law-review article he wrote in 2010, in which he stated that “ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law.” She accused Menashi of nothing less than making “a highbrow argument for racial purity in the nation-state.”

Ed Whelan effectively debunks the notion that the article did any such thing. I will make a few additional points.

Maddow completely ignores the context of Menashi’s article, which was a defense of Israel’s legitimacy as a Jewish homeland. In fact, her extended discussion of the article does not once mention Israel or the persecution of Jews that played a central role in the establishment of Israel. To add insult to injury, she even began her segment by defining the “ethnonationalism” Menashi wrote about with reference to “white nationalism, which is the new branding that domestic terrorists are using in this country for white supremacy.”

Not only is this a gross distortion of an article that mentioned Israel well over 100 times and barely mentioned the United States. It rises to the level of a calumny — and a particularly despicable one.

It might not be surprising that the Republican Jewish Coalition is among the numerous critics who have called out Maddow for her defamation. But the reasons for doing so transcend politics. Menashi is himself of Middle Eastern ancestry, with Jewish grandparents who made their way from Iraq to Iran before finding their home in Israel. His grandmother survived a violent pogrom in Baghdad, and his in-laws are Soviet Jewish refugees who emigrated to the United States. Of course, you would have heard none of this background from Maddow, who baselessly claimed that Menashi’s definition of “national community” is “everybody having the same ethnicity.”

A question remains for Maddow: Is her commentary the product of intellectual dishonesty alone, or does she sincerely believe Israel deserves to be associated with the white supremacy of domestic terrorists?

Law & the Courts

Rachel Maddow’s Racial Smear of Second Circuit Nominee Steven Menashi

Rachel Maddow during the first debate of the 2020 Democratic presidential candidates in Miami, Fla., June 26, 2019 (Mike Segar/Reuters)

In a 2010 law-review article titled “Ethnonationalism and Liberal Democracy,” Second Circuit nominee Steven Menashi argues that “ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law.”

Menashi’s specific purpose in the article is to refute claims that “Israel’s particularistic identity—its desire to serve as a homeland for the Jewish people—contradicts principles of universalism and equality upon which liberal democracy supposedly rests.” In fact, argues Menashi, “[p]articularistic nationalism and liberal democracy … emerged together at the same historical moment and persisted in symbiosis.” Further, the “idea that a sovereign democratic government represents a particular ethnonational community has its root in the principle of ‘self-determination of peoples’ espoused at the foundation of the League of Nations and the United Nations.” Surveying the laws of European nations, he further explains that Israel’s Law of Return, which guarantees citizenship to Jews worldwide, is similar to kin-repatriation policies that are widespread throughout Europe. In sum, “[f]ar from being unique, the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states.”

In a lengthy segment on MSNBC last night, Rachel Maddow grossly distorts Menashi’s argument and tries to twist it into “a high-brow argument for racial purity.” (Video at 9:00-9:36.) She falsely claims that Menashi argues “how definitely democracy can’t work unless the country is defined by a unifying race.” (Video at 6:57-7:10.)

But Menashi’s argument about national identity is clearly not about “racial purity” or a “unifying race.” Indeed, the fact that Israelis from Ethiopia are black makes it impossible to take seriously the claim that Menashi is making a case for “racial purity.” Menashi further states that it “is not even clear … that Israel’s national identity can even be described as ‘ethnic’” (in a narrow sense of that concept), as Israeli Jews come from “Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen.”

What actually fosters “ethnonationalism”—what makes a population regard itself as a nation, what gives rise to national self-consciousness—is a complicated matter that is far beyond Menashi’s inquiry. He quotes at length from an International Commission of Jurists that explored whether the people of what is now Bangladesh constituted a distinct “people.” That commission’s discussion, which Menashi clearly finds intelligent, cites multiple elements—historical, racial or ethnic, cultural or linguistic, religious or ideological, geographical or territorial, economic—that might bear on whether a “particular group constitutes a people,” but it also states that none of those elements is “either essential or sufficiently conclusive.”

What matters for national identity, Menashi emphasizes—quoting John Stuart Mill—is that a people are “united among themselves by common sympathies which do not exist between them and any others, which make them cooperate with each other more willingly than with other people, [and] desire to be under the same government.” That—and not race—is clearly what Menashi means by his broader concept of ethnic, or “ethnocultural” or ethnonational, identification.

Israeli Jews and Palestinians clearly do not share an ethnonational identity. The United States is beyond the scope of, and barely mentioned in, Menashi’s article, but it’s plain from his analysis that all people, irrespective of race or of narrower concepts of ethnicity, who see themselves as part of the American national community do share an ethnonational identity.

Law & the Courts

This Day in Liberal Judicial Activism—August 16

Judge Stephen Reinhardt

1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review.

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.

Law & the Courts

This Day in Liberal Judicial Activism—August 15

Justice Stephen Breyer (Chip Somodevilla/Getty)

1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.”

2000—The New Jersey supreme court rules by a vote of 4-2 (in Planned Parenthood v. Farmer) that a state statute providing for parental notification for abortion violates the state constitution because it treats minors seeking abortion differently from minors who decide to carry their child to term.

Law & the Courts

Eleventh Circuit Judge Tjoflat to Take Senior Status

I’m reliably informed that Eleventh Circuit judge Gerald Tjoflat, who has served on the federal bench since 1970, has declared his decision to take senior status, effective on the confirmation of his successor. Tjoflat’s decision gives President Trump a seat to fill in Florida. That will be the president’s fourth appointment to the Eleventh Circuit.

Tjoflat, who turns 90 in December, is the longest-serving federal judge in active status. President Nixon appointed him to the district court in 1970, and President Ford elevated him to the appellate court in 1975. (Ford appointed Tjoflat to the Fifth Circuit, but upon the Fifth Circuit’s division into two circuits in 1981, Tjoflat began his service on the Eleventh Circuit.)

Law & the Courts

ABA Double Standard?

As I have made clear before, I think that it’s entirely reasonable for the American Bar Association’s judicial-evaluations committee to want nominees for federal district judgeships to have substantial trial experience. But it’s also important for the ABA committee to be consistent in its treatment of nominees of different presidents. And on that measure the ABA committee’s recent “Not Qualified” rating of federal district nominee Justin R. Walker seems difficult to defend.

As the ABA committee explains in its letter to the Senate Judiciary Committee, its negative rating of Walker rests entirely on its conclusion that Walker “does not presently have the requisite trial or litigation experience or its equivalent.” Specifically, the committee objects that Walker “has never tried a case as lead or co-counsel, whether civil or criminal.” At the same time, the committee states that it “does not have any questions about Mr. Walker’s temperament or integrity” and, in light of his other impressive credentials, affirms its belief that he “has great potential to serve as a federal judge.”

Eight years ago, when President Obama nominated Alison J. Nathan to a federal district judgeship in the Southern District of New York, the ABA committee gave Nathan an overall rating of “Qualified.” (A minority of the committee rated her “Not Qualified.”) But as I pointed out at the time, it had to disregard its stated criteria in order to give Nathan a favorable rating. Nathan did not have the “substantial courtroom and trial experience” that the ABA committee says is so “important” for district-court nominees. Of the ten “most significant litigated matters” that she identified in her Senate questionnaire response, there was no sign that any of them involved her actually appearing in a trial court to examine witnesses or even to argue a motion, much less “tr[ying] a case as lead or co-counsel”.

To be sure, the ABA committee says that “a nominee’s limited experience may be offset by the breadth and depth of the nominee’s experience over the course of his or her career.” But it’s difficult to see any meaningful difference on this score that would cut in favor of Nathan:

Nathan had been a member of a state bar for eight years before her nomination. Walker has been a member of the Kentucky bar for some ten years, since 2009.

Nathan was a law clerk for Ninth Circuit judge Betty Fletcher and for Justice Stevens. Walker was a law clerk for then-D.C. Circuit judge Brett Kavanaugh and for Justice Kennedy.

Nathan had her undergraduate and law-school degrees from Cornell. Walker has his from Duke and Harvard law school.

Nathan worked as an associate at a law firm for four years, taught at law schools for three years, worked in the White House counsel’s office for 18 months or so, and was special counsel to the New York solicitor general for nine months. Walker worked as an associate at a law firm for two years, had a solo practice for six years, has taught at a law school (where he is now tenured) for four years, and is now also of counsel to a law firm.

Law & the Courts

This Day in Liberal Judicial Activism—August 13

(Photo Illustration: NRO)

2015—In State v. Santiago, the Connecticut supreme court rules by a 4-3 vote that the death penalty “as currently applied” violates the state constitution. (Under some quirk of Connecticut procedure, the “official release” date of the ruling is August 25.)

The majority relies heavily on the fact that the Connecticut legislature prospectively repealed the death penalty in 2012. It thus effectively expands the legislature’s prospective-only repeal into a retroactive repeal of the death penalty for the twelve convicts who were sentenced to death for crimes committed before the 2012 enactment.

The court’s ruling ought to make it more difficult for other legislatures to repeal the death penalty prospectively. Any such purported prospective-only repeal will now be known to present a huge risk that a state court will determine that the death penalty cannot be applied at all. And the specific heinous criminals who will benefit from that abolition will be easy for legislators and their constituents to identify, as the last several pages of associate justice Carmen Espinosa’s powerful dissent make clear.

Law & the Courts

This Day in Liberal Judicial Activism—August 12

Californians duel on Proposition 8

2010—In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal.

Law & the Courts

This Day in Liberal Judicial Activism—August 11

Judge Rosemary Barkett.

2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Rosemary Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.”

What exactly Barkett means by “mental age” is confused. At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.” But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.” Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.”

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18. Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child. Does This Day perennial Barkett “understand why the rules exist”? Does she “appreciate the consequences of breaking them”—through her lawless judicial activism? Does she “consistently make judgments based” on those understandings? From the evidence that pervades This Day entries, the answers are no, no, and no.

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