Sunday, December 10, 2017

In Gay Wedding Cake Case, Equal Rights at Stake

      Every trial lawyer knows the key to success in the courtroom is a good story to engage the sympathy of jury, judge, or both. So the opposing parties in the gay wedding cake case at the Supreme Court rushed from the courtroom last Tuesday [Dec. 5] to waiting news cameras and microphones to try to sell their competing stories of victimhood to the American public.
      Charlie Craig and David Mullins, the gay couple turned away five years ago in their search for a cake for their pre-wedding reception, introduced themselves as "regular guys" with no agenda other than a desire to be treated equally, as Colorado law seemingly requires. Craig and Mullins had come to Jack Phillips' Masterpiece Cakeshop in the Denver suburb of Lakewood that summer day because they liked the cakes Phillips had displayed in the bakery's catalogue.
      At the other end of the sidewalk, Phillips was explaining that he had "respectfully" declined to make a cake for the couple once he learned that the cake was to celebrate a wedding that his Christian faith prohibited. Down at the other end, Mullins recalled that he and Craig were "stunned" by Phillips' refusal and still pained by "the memory of the humiliation, the mortification."
      Craig's mother had accompanied the couple to the bakery and attested to her son's shock that day. "I saw that my grown son was starting to shudder," Debbie Munn recalled. "We don't want another couple to go through"  that kind of treatment, Mullins said as he wrapped up the news scrum.
      Down the sidewalk however, Phillips was himself donning the cloak of victimhood. He and his family had suffered years of "harassment" after having been found to have violated the state's civil rights law, Phillips told the reporters and assembled spectators. He also took a substantial financial hit by dropping wedding cakes altogether to avoid further legal entanglements.
      Inside the courtroom, the Court's liberal and conservative blocs used their questions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission to construct opposing stories aimed at framing the legal issue best for their opposing sides. Liberal justices Sonia Sotomayor and Elena Kagan warned that ruling in favor of Phillips' compelled-speech doctrine argument would open the door to pleas for similar civil rights exemptions for photographers, florists, chefs, make-up artists, and hair stylists with religious scruples to participating in same-sex weddings.
      Some of those scenarios might seem even less plausible than viewing a cake as speech, but in fact a florist in Washington and a photographer in New Mexico had earlier claimed religious exemptions from their state laws, like Colorado's, that prohibit discrimination on the basis of sexual orientation. The supreme courts in those states spurned the pleas, and the U.S. Supreme Court declined to take up the florist's or the photographer's appeals.
      From their side, conservative justices conjured up sympathetic hypotheses about other kinds of individuals who they said might be forced into conscience-straining services if the Court found that Colorado's civil rights law trumps First Amendment pleas. Justice Neil Gorsuch suggested that an African American baker might be forced into baking a cake adorned with a Ku Klux Klan cross. Justice Samuel A. Alito Jr. raised the possibility that  a Jewish baker might be forced to decorate a cake to commemorate Kristallnacht, the Nazi-inspired destruction of Jewish synagogues and businesses in 1938.
      Those hypotheses were enough to help persuade at least one prominent newspaper to take Phillips' side. "Imagine a Jewish baker being required to put a swastika on a cake," the Chicago Tribune wrote in an editorial. As Lambda Legal attorney Eric Lesh noted in a tweet, however, "Nazis are not a protected class." David Cole, the ACLU lawyer representing Craig and Mullins, made the same point during oral argument. "The Ku Klux Klan as an organization is not a protected class," Cole responded.
      Cole began his allotted 15 minutes by acknowledging the sincerity of Phillips' convictions about same-sex marriage but warning that a ruling in his favor would have "unacceptable consequences." He echoed a concern that Justice Elena Kagan had raised that the same religious-based objection might be raised, for example, against providing services for a gay funeral. And he rejected as impossible any effort to draw a line between valid and invalid refusals based on the supposed "expressive content" of a cake as opposed to flowers or makeup or whatever.
      From the start of what proved to be 90 minutes of arguments, all eyes were naturally on Justice Anthony M. Kennedy, the author of the Court's four landmark gay rights opinions over the last 20 years and the Court's most consistent defender of free-speech rights. He gave conflicting signals about his eventual vote.
      Kennedy signaled sympathy for Phillips at one point by complaining of a remark that one of the seven Colorado civil rights commissioners had made criticizing the use of "religious rhetoric" to deny equal rights. At another point, the justice aptly noted that a bakery that posted a sign "no gay weddings" would be "an affront to the gay community."
      Along with Alito and Gorsuch, Chief Justice John G. Roberts Jr. clearly signaled sympathy for Phillips; Clarence Thomas, silent as usual, was also counted as a likely vote. But none of the conservatives seemed to offer a clear line that, as Justice Stephen G. Breyer put it, "will not undermine every civil rights law."
      The case, it turns out, is not about a cake. It is about equal rights, just as Craig and Mullins have maintained throughout. With many observers predicting a ruling for Phillips, the real victim in the case could be the advancing national commitment to equal rights for LGBT individuals.

Sunday, December 3, 2017

At High Court, Party Labels Matter in Patent Case

      The Supreme Court was simultaneously at its best but also its worst during oral arguments last week [Nov. 27] in a closely watched, high-stakes patent case. The question presented in Oil States Energy Services, LLC v. Greene's Energy Group, LLC was whether Congress had created a rights-violating, fast-track procedure for the U.S. Patent and Trademark Office (PTO) to invalidate a previously issued patent as part of an omnibus reform bill six years ago.
      Congress approved the new administrative procedure in 2011 as part of the America Invents Act in response to widespread concern in the intellectual property world that the PTO was impeding instead of promoting innovation by issuing too many patents of dubious validity. The bill, cosponsored by Vermont's Democratic senator Patrick Leahy and Texas's veteran Republican congressman Lamar Smith, was approved by substantial bipartisan majorities in both the House and the Senate.
       Despite that record of bipartisan support, the justices appeared to divide mostly along party lines in either supporting or opposing the new procedure with their questions from the bench during the hour-long arguments. Republican-appointed justices seemed inclined to rule the law unconstitutional while three of the four Democratic-appointed justices clearly signaled they were ready to uphold it.
      The issue in the case is one of those legal questions with no evidently correct answer based either on precedent or constitutional logic. Yet the justices split predictably along party lines, defying efforts by Chief Justice John G. Roberts Jr. among others to portray judges as  something other than politicians in black robes.
      The case pitted two companies in the oilfield services business, one with a patent that the other challenged under the new procedure. Oil States was awarded a patent for apparatuses and methods of protecting wellhead equipment during hydraulic fracturing, according to the summary of the case in the American Bar Association's publication Preview.
      Oil States accused Greene's of infringing the patent, but Greene's responded by successfully challenging the patent as invalid before the newly created Patent Trial and Appeal Board (PTAB) and prevailing in Oil States' appeal of that decision to the U.S. Court of Appeals for the Federal Circuit. In taking the case to the Supreme Court, Oil States argued that the new administrative procedure violated the protections in the Constitution's Article III and the Seventh Amendment for trials before judge and jury in "suits at common law," such as patent disputes.
      The new procedure, known as inter partes re-examination, expanded the PTO's previous procedure known as ex parte re-examination by allowing an outside party to initiate reconsideration of a patent. Liberal justices saw the logic of the new procedure. "There must be some means by which the patent office can correct the errors that it's made," Justice Ruth Bader Ginsburg said as soon as Dallas lawyer Allyson Ho had finished listing five reasons why the procedure violated Oil States' rights.
      Liberal justices Elena Kagan and Sonia Sotomayor echoed Ginsburg's view. Kagan was incredulous that the government could be challenged for creating "a set of procedures that will actually increase the government's accuracy in figuring out whether it made a mistake." For her part, Sotomayor countered Ho's concerns by noting that a PTAB ruling invalidating a patent could be appealed, just as Oil States did, to a federal appeals court.
      Roberts and the court's newest Republican-appointed justice Neil Gorsuch were clearest of the conservative bloc in questioning what the three liberals depicted as eminently sensible. Both raised unrealistic hypotheticals to test the arguments defending the new procedure from Greene's attorney, Tallahassee lawyer Christopher Kise, and deputy solicitor general Malcolm Stewart arguing for the government.
      With Kise at the lectern, Gorsuch asked whether the government could re-examine a land patent — legal jargon for a land grant — "at any time, even hundreds of years" after the land had been farmed, sold, and developed. With dripping disdain, Gorsuch asked whether the hypothetical land grant could be "revoked by the government by bureaucracy in, I suppose, the Department of the Interior" — referencing one of the least popular federal agencies in Gorsuch's native Colorado.
      Gorsuch tied up the analogy by citing precedents and the Constitution as describing patents as a property right. "[O]nce it's granted," Gorsuch concluded, "it's a right belonging to the inventor." Gorsuch renewed the point when Stewart stepped to the lectern by returning to a question about investments and reliance interests that Justice Stephen G. Breyer had raised earlier. Stewart stood his ground. "It has always been part of the scheme that a patent could be re-examined," the veteran government lawyer said.
      Stewart also turned aside a hypothetical that Roberts had posed to Kise to allow the government to fire an employee based on a coin toss instead of a formal adjudication. No, Stewart said in returning to Roberts' question, "the procedures still have to be fair." Roberts, a stickler for judicial powers with a record of throwing barbs at administrative agencies, was evidently unpersuaded.
      By the hour's end, the pivotal vote seemed likely to lie with Justice Anthony M. Kennedy, the only one of the nine who regularly crosses the court's ideological fault line. His questions seemed to indicate an open mind on the case. But conservative justice Clarence Thomas, silent as usual, and fellow conservative Samuel A. Alito Jr. seemed likely to stick with their Republican-appointed colleagues Roberts and Gorsuch.
      Gorsuch quotably rejected party labels when up for confirmation this spring. "There's no such thing as a Republican judge or a Democratic judge," he told the Senate Judiciary Committee. But with Gorsuch on the bench, the Roberts Court remains as neatly divided along party lines in close cases as it has been ever since the retirements of two line-crossing Republican-appointed justices, John Paul Stevens and David H. Souter. Judicial purists may resist this description, but in this case and many others party labels matter very much at One First Street even if the justices wear black robes on the job.

Sunday, November 26, 2017

The 'Misguided' War Against the Administrative State

      Federalist Society members were in high spirits at their annual convention in Washington this month, genuinely giddy after a keynote speech by the self-identified "committed originalist and textualist" justice Neil Gorscuh they helped install on the Supreme Court. Thirty-five years after its founding, the conservative-libertarian assemblage of law students, lawyers, and judges was also celebrating its quasi-official role in vetting nominees for President Trump for federal judgeships and its increased influence among Republican lawmakers on Capitol Hill.
      Thus energized, the society decided to use three days of programs to renew and reinvigorate the war that the group's political and intellectual forbears fought and lost to the New Deal 80 years ago. Speaker after speaker echoed the theme that the federal appeals court judge Edith Jones struck in introducing the opening panel [Nov. 16] by attacking the so-called administrative state as a "nonelected, nonaccountable branch of government."
      To its credit, the Federalist Society typically includes one liberal to speak for the opposing side in its four-person panels. That role fell in the opening panel to Gilliam Metzger, a professor at Columbia Law School, who had just published a widely noted article in the Harvard Law Review warning that the administrative state was "under siege." The attacks, she told the audience, are "misguided."
      The judicial underpinnings of federal regulatory agencies are well established, but completely illegitimate, to hear Federalist Society members tell it. Independent agencies such as the Federal Trade Commission (FTC), founded in 1914, can be created by Congress to combine three kinds of power: rulemaking, enforcement, and adjudication. And the members of those multimember commissions can be given fixed terms, subject to removal by the president only for cause.
      In a paradoxical footnote, that principle comes from the Supreme Court's decision in a case called Humphrey's Executor that rebuffed President Franklin D. Roosevelt's decision to fire FTC commissioner William Humphrey for not supporting FDR's policies. The 1936 ruling was unanimous, but former federal appeals court judge Michael McConnell was warmly received when he called for overruling it.
      Under a more recent pair of cases, all federal agencies, including those in the executive branch such as the Environmental Protection Agency (EPA), get the benefit of a generous amount of judicial deference for their rulemaking powers. The Supreme Court's unanimous decision in Chevron U.S.A. v. Natural Resources Defense Council (1984) held —  in upholding a deregulatory move by the EPA —   that agencies are entitled to deference if they adopt "a permissible construction" of a statute that vests discretion in the agency.
      A decade later, the Court held —  in another unanimous opinion, this one written by Justice Antonin Scalia —  that federal agencies are also entitled to deference when they interpret their own regulations. Before his death, Scalia publicly voiced doubts about his opinion in Auer v. Robbins (1997). Those doubts have been picked up by, among others, Scalia's colleague, Clarence Thomas, and his successor, Gorsuch.
      The legal doctrines are far removed from the real political issue: efforts by business interests and committed small-government conservatives to undo regulations designed to protect, among other things, the environment, public health, consumers, workers, and investors. Gorsuch mocked Metzger's article in his black-tie dinner speech and warned against what he saw as the risk under the administrative state of "moving from liberty to tyranny."
      Metzger labored, to no apparent effect, to rebut the depiction of federal bureaucracies as either undemocratic or tyrannical. The administrative state "performs some very important constitutional functions," she explained. In her article — the Foreword for the  Harvard Law Review's annual Supreme Court edition — she wrote more forcefully of what she called "the administrative state's essential place in our constitutional order."
      Administrative agencies are far from unaccountable, Metzger argued in her article." Anti-administrativists fail to recognize that the key administrative state features that they condemn, such as bureaucracy with its internal oversight mechanisms and expert civil service, are essential for the accountable, constrained, and effective exercise of executive power," she wrote.
      In place of the accountability built into bureaucratic structures, the Federalists want to strengthen the power of the president and/or Congress to override regulatory decisions. President Trump's chief spear carrier in the so-called deconstruction of the administrative state drew raucous cheers when she described the administration's policies. Neomi Rao, administrator of the White House's Office of Regulatory and Information Affaires (ORIA), promised that the administration will do better than Trump's executive order to eliminate two regulations for every new regulation put in place.
      Sen. Tom Cotton, an Arkansas Republican, was similarly well received when he noted that Congress has used the previously obscure Congressional Review Act to repeal more than a dozen so-called "midnight regulations" that the Obama administration adopted in its final months. The law had been invoked only once before.
      Presidential or congressional overrides are poor substitutes for administrative accountability, however, according to dissenting speakers. Lisa Heinzerling, an environmental law expert at Georgetown Law School, cited President Obama's decision to overturn an EPA decision on ozone as an example. Obama provided little by way of justification for his action, she said. In like vein, Peter Strauss, a professor at Ohio State's Columbus School of Law, said that Congress had failed to justify its recent action to override a regulation issued by the Consumer Financial Protection Bureau (CFPB) to prevent banks and other financial institutions from using mandatory arbitration clauses to block lawsuits by disgruntled customers.
      Metzger concedes that the anti-administarativists are gaining traction with their arguments — not just in the Trump administration and in Congress but also at the Supreme Court. She counts Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. as sympathetic to the critique, along with the committed critics Thomas and Gorsuch. Are we one justice away from a fundamental transformation of administrative law? Metzger thinks not, but Federalist Society members seem to think their goals within reach.

Saturday, November 18, 2017

Impeaching Trump: Here's the Beef

      Donald Trump marked a historic milestone this week when he became the first president to be confronted with a resolution calling for his impeachment and removal from office within his first year in the White House.
      The 25-page resolution  introduced on Wednesday [Nov. 15] by six Democratic members of the House of Representatives lays out five articles of impeachment that recite familiar stories relying for the most part on undisputed facts. Trump is charged with obstructing justice — most specifically, by firing FBI director James Comey to try to thwart the Russia investigation. He is also accused of violating the Constitution's foreign and domestic emoluments clauses and with undermining the independence of the judiciary and the freedom of the press.
      As to each of the counts, the resolution lays out a strong case that the president, quoting now, "has undermined the integrity of his office, brought disrepute on the Presidency, and betrayed his trust as President in a manner subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States." With the issues so familiar, the resolution's sponsors rightly view impeachment as the only means for ending what the lead sponsor, Tennessee's Steve Cohen, in a press release calls Trump's "reckless and harmful behavior" in office.
      By historical standards, the resolution is as dense and detailed as the only successful impeachment resolution to date: the three articles adopted with bipartisan support by the House Judiciary Committee on July 27, 1974. The committee's action, combined with the Supreme Court's decision in the Watergate tapes case, forced Richard M. Nixon to resign the presidency within a matter of days to avoid all-but-certain conviction and removal.
      By contrast, the Trump impeachment resolution is far more detailed than the impeachment measures brought, unsuccessfully, against Andrew Johnson in 1868 and Bill Clinton in 1998. The Senate fell one vote short of the two-thirds majority needed to convict Johnson on charges of violating the Tenure in Office Act by removing Edwin Stanton as secretary of war. The Senate fell short of a simple majority on the two counts against Clinton: 45-55 on perjury for lying to a federal grand jury and 50-50 on the related obstruction of justice count.
      Impeachment is a powerful weapon, so it is probably good that it has been wielded against the president infrequently and successfully only in Nixon's case. History has long approved of Johnson's acquittal: his removal for firing a member of his own cabinet would have gutted the president's authority over the executive branch. Decades from now, history is also likely to judge that the Clinton impeachment was more a partisan power grab than a principled effort to punish presidential misconduct.
      Six other presidents have been the targets of impeachment resolutions, according to a detailed report by the Congressional Research Service. John Tyler became the first impeachment target, two years into his presidency in 1843, for exercising the president's constitutional power to veto a bill passed by Congress; the House rejected the resolution. None of the others was brought to the House floor.
      Three presidents faced possible impeachment on their way out of the White House. Grover Cleveland faced a miscellany of politically charged accusations in an unsuccessful resolution introduced in the final year of his second term. Herbert Hoover similarly faced a mishmash of politically motivated accusations in December 1932 after he had been defeated for re-election. In a more recent instance, Harry Truman faced impeachment in his final year in office for seizing the shut down steel mills to keep them operating during the Korean War.
      Two presidents, Ronald Reagan and George H.W. Bush, were accused in unsuccessful impeachment resolutions of exceeding presidential powers by launching overseas wars: Reagan's invasion of Grenada in 1983 and Bush's Desert Storm war in Kuwait in 1991. Reagan also survived a second-term impeachment attempt over the Iran-contra affair.
      Those efforts, just like the one against Trump, arose from partisan disagreements whatever their underlying substance. In Trump's case, the accusations stand of their own weight despite their partisan motivations; the president and his supporters have little by way of defense except to rely on immunity supposedly created by winning election.
      Trump himself admitted, belatedly, that he fired Comey to thwart the Russia investigation. That may not be obstruction for criminal law purposes, but qualifies in an impeachment trial. He has clearly violated the Foreign Emoluments Clause from the patronage of foreign governments at Trump properties, including the Trump Hotel in Washington, and from regulatory benefits extended to Trump businesses in many countries — China, most recently. As for the Domestic Emoluments Clause, the White House itself is paying Trump properties for all the days that the president has spent at Mar-a-Lago, among others.
      Trump is accused of undermining the independence of the judiciary and the rule of law by his race-based campaign-time criticism of the federal judge overseeing the civil suit against Trump University, his White House criticism of the judges handling the Muslim travel ban cases, and his pardoning of Arizona's contempt-of-court sheriff Joe Arpaio.
      As for freedom of the press, Trump commended a literal "beat the press" policy to his supporters during the campaign and has kept up his "Fake News" drumbeat in the White House. The specifics cited make clear that Trump's efforts to undermine the press go far beyond the ordinary, to-be-expected adversary relationship between the White House and the press.

Sunday, November 12, 2017

Impeaching Trump? Nailing Jello to the Wall

      President Trump has quite possibly committed what the Framers of the Constitution would have considered an impeachable offense. That is the takeaway from an hour-long, ostensibly nonpartisan presentation by a leading expert on impeachment at the National Constitution Center last week [Nov. 6].
      Cass Sunstein, a Harvard Law School professor and author of the just published title Impeachment: A Citizen's Guide (Harvard University Press), pointed most specifically to the investigation by special counsel Robert Mueller of the Trump campaign's possible collaboration with Russia during the 2016 campaign. In Sunstein's recounting, the Framers worried at the Constitutional Convention about the possibility that the president might attain office through some corrupt means.
      The possibility of enlisting a foreign adversary to gain the White House? "That's worse," Sunstein told his interviewer, Jeffrey Rosen, the center's president and a law professor at George Washington University. To avoid the partisan pitfall, Sunstein, a former Obama administration official, elaborated not by referring to Trump but by re-hypothesizing a collaboration between a Democratic candidate and a different foreign adversary, China.
      With each passing day, it becomes more evident that the Trump campaign behaved as though it had been corrupted by Russian agents, but the evidence of active "collusion" is fragmentary and disputed. Son-in-law Jared Kushner's meeting in June 2016 with a Russian lawyer who promised dirt on Trump's Democratic opponent Hillary Clinton would seem to be a smoking gun but for Kushner's insistence that nothing came of it.
      Trump himself has repeatedly denied any collusion with the Russians and belittled the accusations and the accusers. He went even further over the lines of normal respectability this weekend [Nov. 11] by telling reporters after a meeting with the Russian president Vladimir Putin that he credits Putin's denials of meddling over the formal assessment to the contrary by the U.S. intelligence community. Adding gratuitous insult to traitorous injury, he dismissed the former CIA director John Brennan, the former director of national intelligence James Clapper, and fired FBI director James Comey as "political hacks."
      Trump's own CIA director, Michael Pompeo, responded with a statement reaffirming his belief in the January 2017 assessment. "The intelligence assessment with regard to Russian election meddling has not changed," Pompeo said blandly. Sen. Ben Cardin, a Maryland Democrat and member of the Senate Intelligence Committee, called Trump's statements "outrageous." From a different perspective, Bill Kristol, a "Never Trump" conservative columnist, called Trump's statements an effort to "help lay the groundwork for ending" the Russia investigation.
      The focus on the Russia investigation is understandable, but it partakes to some extent of what Sunstein described as the error in treating impeachment in legal instead of political terms. The Framers adopted the phrasing "high crimes and misdemeanors" as a term well understood in the 18th century to denote misconduct in public office. At the Constitutional Convention, James Madison called impeachment a remedy "against the incapacity, negligence, or perfidy of the chief Magistrate." In Federalist No. 65, Alexander Hamilton called impeachment a "political" action to be taken against an official for "the abuse or violation of some public trust."
      Thus, as Sunstein put it, some presidential crimes may not be impeachable offenses —  for example, jaywalking or tax fraud —  and some impeachable offenses may not be crimes at all. Trump's firing of Comey might have been "fine" in a general context, Sunstein said, but arguably an impeachable offense if the aim was to "prevent an investigation of horrible things." That would be true, Sunstein added. even if it did not amount to obstruction of justice. "I wouldn't make a fetish of the term," he said.
      In like vein, several legal commentators have cautioned against overemphasizing "collusion" as the object of the Russia investigation — a term, they note, with no special legal significance. "There is a range of different kinds of collusion," says Ilya Somin, a constitutional law professor at George Mason University's Antonin Scalia Law School, "and a range of degrees of collusion." In any event, Somin adds, "we simply don't have enough evidence yet to know."
      The liberal billionaire Ton Steyer, who claims to have 2 million signatures for his petition to impeach Trump, has a scatter-shot bill of particulars against Trump that goes beyond the Russia issue. He accuses Trump of exploiting the presidency "for his personal gain" and treating the government "like a family enterprise." Those accusations seem to channel Madison and Hamilton, but others go somewhat afield into policy disagreements on issues ranging from immigration and health care to climate change and North Korea. 
      The conventional wisdom, ever since John F. Kennedy celebrated President Andrew Johnson's acquittal in his book Profiles in Courage, has argued against Congress impeaching the president over policy disagreements. On health care, however, Steyer aptly calls Trump's "sabotage" of the Affordable Care Act a failure to execute the law. Articles of impeachment could cite Trump's careless attitude toward the Take Care Clause in other contexts. Steyer cites Trump's "conduct during Charlottesville." Somin points to Trump's campaign and post-election "encouragement of violence" and, more generally, his "breach of constitutional norms."
      The case for Trump's impeachment, in short, is substantial even if a political impossibility as long as Republicans cling to their historically unpopular president. The case for impeaching Trump for "high crimes and misdemeanors" is long and strong, but is akin to nailing Jello to a wall. There is a lot there, but it's very hard to make it stick.
      More on the topic next week.

Sunday, November 5, 2017

From Death Row, a Plea on 'Ineffective Assistance'

      Carlos Ayestas has spent almost 20 years on death row in Texas, sentenced by a jury that heard none of the evidence that might have spared him the death penalty. Ayestas was convicted along with two others of strangling an elderly woman during a home invasion in a cut-and-dried, two-day guilt phase trial. The subsequent capital sentencing hearing — required under Supreme Court precedents — was even shorter, woefully deficient even by Texas's low standards.
      Two decades later, Ayestas is before the U.S. Supreme Court, seeking funds that his current lawyers say are needed to show his previous attorneys violated his Sixth Amendment rights by providing "ineffective assistance" at trial and in a subsequent state habeas corpus proceeding. Those lawyers all but completely ignored evidence of possible mental illness and head traumas suffered by the Honduran immigrant as a youngster — information that jurors might have found to be "mitigating circumstances" weighing against imposition of a death sentence.
      The arguments in Ayestas v. Davis last week [Oct. 30] illustrate the importance of the court's continuing role in policing what the late justice Harry A. Blackmun famously referred to near the end of his career as "the machinery of death." The Roberts Court seems unlikely to declare capital punishment flatly unconstitutional under the Eighth Amendment and has repeatedly refused to find the current three-drug lethal injection protocol unconstitutionally "cruel or unusual." Year after year, however, the court throws out death sentences or capital murder convictions based on narrower constitutional violations.
      Many of those cases come from Texas, far and away the leading state in executions since the Supreme Court's decision in 1976 allowing the resumption of capital punishment. Just last term, the court told the state to update its definition of intellectual disability used to determine eligibility for the death penalty (Moore v. Texas) and threw out a black inmate's death sentence because of sentencing-hearing testimony linking future dangerousness to race (Buck v. Davis).
      Ayestas's case presents an even starker illustration of the low standards that the Lone Star State sets for justice in capital cases. To appreciate the extent of the injustice to Ayestas, death penalty cases need to be understood today as focusing less on guilt or innocence than on aggravating or mitigating circumstances as presented by opposing lawyers in the post-verdict sentencing hearing. A properly staffed capital defense team today includes not just lawyers and a Paul Drake-type investigator, but also a "mitigation specialist" with a combination of investigative and interviewing skills needed to ferret out details of a defendant's social history to use as mitigating circumstances in the capital sentencing phase.
      Ayestas's two defense lawyers learned just before his 1997 trial that the twenty-something immigrant had suffered repeated head traumas as a youngster and presented some symptoms of mental illness. In their two-minute presentation of mitigating evidence, however, they introduced nothing more than three letters from a teacher at the Harris County jail that Ayestas was a "serious and attentive" student in her English as a second language class and was making good progress.
      With his conviction and sentence affirmed on appeal, Ayestas was given a new lawyer to challenge the conviction through a state habeas corpus proceeding. That lawyer also failed to investigate Ayestas's medical and mental health issues, much less challenge the trial lawyers as "ineffective" for having failed to do so. He argued only that Ayestas's trial lawyers were deficient for failing to get his family from Honduras to the trial to testify in his behalf. State courts again upheld the conviction and sentence.
      A decade later, a new legal team filed a federal habeas corpus petition for Ayestas that, for the first time, claimed ineffective assistance of counsel based on the failure to investigate the mental illness and medical issues. By this time, a prison psychiatrist had also formally diagnosed Ayestas with schizophrenia  a condition likely to have been diagnosable earlier. The federal district court judge who heard the case, however, dismissed Ayestas's petition as procedurally defaulted because he had not raised the ineffective assistance claim earlier.
      A pair of Supreme Court decisions effectively required the district court to reconsider the issue, but the judge again rebuffed Ayestas's plea. Ayestas also asked for funds, as provided by a federal law, to investigate and present the claim. The Criminal Justice Act provision guarantees death row inmates the funds "reasonably necessary" to present post-conviction challenges in federal habeas corpus proceedings.
      The Fifth U.S. Circuit Court of Appeals, the federal court with jurisdiction over Texas, has adopted a unique interpretation of that provision to require funds for federal habeas corpus cases only if the inmate demonstrates "a substantial need" for the money. No other federal circuit has put this gloss on the seemingly straightforward phrasing from the statute itself.
      In Ayestas's case, a panel of three Republican-appointed judges upheld the judge's decision. "The district court did not abuse its discretion when it declined to authorize a mitigation specialist for Ayestas before it determined the viability of Ayestas’s claim," the court wrote in an unsigned opinion.
      At the Supreme Court, University of Maryland law professor Lee Kovarsky argued in Ayestas's behalf that the Fifth Circuit's rule, in effect, allowed the court improperly to "guess" what a properly funded investigation would show. Liberal justices evidently sympathized, while conservatives fretted about issues of jurisdiction and judicial administration. Troublingly for Ayestas's chances, Justice Anthony M. Kennedy sat silently and expressionlessly throughout the hour. "Without Kennedy asking any questions," Kovarsky remarked afterward, "it's really hard to know where you stand."

Sunday, October 29, 2017

Teen Immigrant Abused by Anti-Abortion Policy

      The teenaged girl known in court papers as Jane Doe crossed the U.S.-Mexico border into Texas in early September, fleeing an abusive family in her native land in Central America. But Jane escaped one abusive situation only to be abused again, this time by the U.S. government, intent on forcing her to carry an unwanted pregnancy to term despite her constitutional right in the United States to an abortion if she satisfied certain legal standards.
      Apprehended near the border city of Brownsville after her illegal crossing, Jane was held in a federally funded shelter used to detain illegal immigrants. As a would-be refugee, her case fell within the jurisdiction of the Office of Refugee Resettlement (ORR), a unit within the federal Department of Health and Human Services (HHS).
      Scott Lloyd, the Trump-appointed head of the office, brings to the position no training in health or human services but years of experience as an anti-abortion zealot with the Knights of Columbus, the Catholic charitable and humanitarian organization, and a lawyer for a "crisis pregnancy center" in Fort Royal, Va. Lloyd has eagerly taken to enforcing the policy adopted in May that prohibits immigration detention shelters from taking "any action that facilitates an abortion without direction and approval" from him as ORR director.
      Supreme Court decisions extending from Roe v. Wade in 1973 to Whole Women's Health Center in 2015 protect a woman's right to choose an abortion before fetal viability and prohibit the government from imposing any "undue burden" on the woman's exercise of that right. Lock-and-key for a woman held in detention is more than a burden but tantamount to a prohibition.
      Jane's story ends happily for her with a lopsided federal appeals court ruling [Oct. 24] that ordered the government to stop blocking her from going to a medical clinic for the abortion that she had chosen to undergo and to which she had a constitutional right. Jane underwent the procedure the next day as the government. The 6-3 decision by the U.S. Court of Appeals for the District of Columbia Circuit in Garza v. Hargan reversed the earlier, divided ruling by a three-judge panel that had allowed the government to continue to block the abortion even as the risks of the procedure increased with each passing day.
      Jane underwent the procedure the day after the D.C. Circuit's en banc decision and, in a later interview with VICE News, reaffirmed that she felt incapable at age 17 of caring for a child. "I don't feel sure of having a child," she told interviewer Antonia Hylton with her back to the camera and her name still withheld.
      The Trump administration policy directive asserts a government interest in protecting human life, but the government's overriding interest seemingly should be enforcing the law of the land — abortion rights — whatever the political views of what the British like to call "the government of the day." Lloyd's anti-abortion views are a matter of public record, as BuzzFeed News unearthed in a story published as the controversy swirled.
      Writing for the Christian website Ethika Politika in 2011, Lloyd urged state legislators to enact laws requiring a woman to notify the putative father of her decision to abort and to obtain his consent even though Supreme Court decisions clearly prohibit any veto power for a man over the woman's decision. Later, Lloyd recommended that women obtaining government-funded birth control sign a contract promising not to undergo an abortion if the contraceptive failed.
      Lloyd's work with Knights of Columbus entailed advocacy for protecting religious and ethnic minorities victimized by ISIS, the self-styled Islamic State. That experience left him completely insensitive, it appears, to Jane's plight, as a pregnant teenager who had witnessed her parents beat her older sister after having discovered her pregnancy.
      Jane arrived in the United States as "a child . . . alone in a foreign land," as Judge Patricia Millett explained in what amounted to the majority opinion for the six Democratic-appointed judges in the D.C. Circuit majority. Lloyd's version of helping her consisted of allowing her to be taken not to a clinic but to a so-called crisis pregnancy center, where a counselor tried to dissuade her from the planned abortion. "They took me to the clinic," Jane told her interviewer, "and they prayed for me."
      Significantly, Jane's legal team from the American Civil Liberties Union (ACLU) had already convinced a state court judge in Texas that she was mature enough to make the decision to undergo the abortion. The Justice Department attorneys representing HHS in the case stopped short of arguing that Jane had no constitutional right to abortion, merely that the government did not have to "facilitate" the procedure. Millett aptly accused the government of "verbal alchemy" by attempting to "categorically blockade" the abortion.
      Writing for the three Republican-appointed dissenters, Judge Brett Kavanaugh said the decision amounted to "a radical expansion of the Supreme Court's abortion jurisprudence." Separately, Judge Karen Lecroft Henderson argued in a sole dissent that Jane in fact had no constitutional right to abortion since, technically, she had never "entered" the United States. That issue remains open since Jane's case was litigated, under tight deadlines, solely as an individual case. The ACLU lawyers are pursuing a broader class action aimed at invalidating the refugee office's "no facilitating" directive en toto.

Sunday, October 22, 2017

Trump's Lawyer a Poor Fit for Federal Bench

      President Trump has been neck-deep in a swamp of legal troubles, some political and others quite personal, from the very first days of his presidency and even before. Since entering the White House, he and his staff have relied to some extent on legal advice from Gregory Katsas, an experienced Washington attorney chosen by Trump as deputy counsel to the president.
      Trump has now nominated Katsas to a lifetime federal judgeship: a seat on the United States Court of Appeals for the District of Columbia Circuit, often referred to as the country's second most important federal court. On paper, Katsas is eminently qualified for the bench, as seen in the questionnaire he filed with the Senate Judiciary Committee. Katsas has two Ivy League degrees, Princeton and Harvard Law School; three judicial clerkships, including one term with Supreme Court Justice Clarence Thomas; eight years in ranking positions in the Justice Department; and nearly two decades with a prominent Washington law firm.
      Among all these accomplishments, however, Katsas's most important qualification for Trump's consideration may have been his three decades of active and prominent membership in the Federalist Society. The conservative-libertarian organization has been both the feeder and the screener for Trump's judicial nominees, including the eventual Supreme Court justice Neil Gorsuch.
      Republican senators heaped praise on Katsas during his two-hour hearing before the Senate Judiciary Committee last week [Oct. 17], but Democrats pressed him hard on his ability to be independent of the White House if confirmed. Katsas's assurances on the point left the committee's ranking Democrat, California's Dianne Feinstein, plainly unconvinced.
      Trump has behaved with legal recklessness from his very first week in office — most notably, in issuing as an executive order a travel ban so blatantly anti-Muslim that federal courts had no choice but to strike it down, now even its third iteration. Katsas listed the travel ban as one of many issues on which he had advised the president and the White House staff.
      The sins of the client are  not necessarily sins of the lawyer, but the travel ban was poorly lawyered, to say the least. The executive order was "badly drafted, badly executed, and badly defended," as Jonathan Turley, a George Washington University law professor, remarked at a Supreme Court preview program in September. Nothing has been reported from this very leaky White House to suggest that Katsas voiced any doubts about the ban or counseled against it in any way.
      Katsas listed the travel ban as one of several of Trump's controversial policy moves on which he had advised as deputy counsel. He also acknowledged working on the Emoluments Clause litigation and more specifically pledged to recuse himself if the case eventually came before him.
      Judicial appointments entail some inevitable risks of future recusal — as seen, for example, in Justice Elena Kagan's recurrent need in her first years on the bench to step out of cases that she had helped oversee while serving as U.S. solicitor general. Given his White House role, Katsas would face recusal issues more frequently — arguably, in any of the slew of cases likely to reach the D.C. Circuit challenging Trump administration policy initiatives by executive branch agencies.
      Presidents typically do not nominate White House lawyers for federal judgeships, as the Washington Post noted, "because of questions inevitably raised about the nominee's legal advice." President George W. Bush's nomination of his White House aide Brett M. Kavanaugh to the D.C. Circuit stalled for three years before finally winning Senate approval in May 2006 on a 57-36 vote.
      Trump's utter disregard for administrative law and order casts a darker cloud over Katsas even if, by all accounts, he has a good reputation for honesty and integrity. By way of historical analogy, it seems unimaginable that President Richard M. Nixon, in the midst of the Watergate scandal, could possibly have installed one of his lawyers onto the federal bench. The Senate's then Democratic majority would have rejected the nomination without a second thought.
      Unfortunately, the Senate's current 52-vote Republican majority has shown no hesitation whatsoever in confirming a succession of dubiously qualified, doctrinaire conservative Trump nominees to the federal bench. Katsas will be confirmed, just like those others, unless at least three Republicans are moved by constitutional conscience or, improbably, political calculation to stand up for an independent and politically respectable federal judiciary.
      Katsas was also questioned in regard to his eight years at the Justice Department under President George W. Bush. The Bush administration was also frequently in hot water legally on matters before Katsas in his oversight of the civil division. He acknowledged defending the ultimately unsuccessful effort to block Guantánamo prisoners from any judicial review of their detention, but he claimed credit for faithfully complying with the eventual Supreme Court's decision protecting the prisoners' right to federal habeas corpus.
      If confirmed, Katsas would succeed the hard-line libertarian-conservative judge Janice Rogers Brown, who was reported in early July to be planning to retire after 12 years on the bench. With Brown's retirement, the court's active judges include seven Democratic appointees and three Republican appointees.
      Katsas was asked about his interest in the seat on July 7, according to his account, and five days later agreed to a request by his boss, White House counsel Don McGahn, to undergo a background check. He passed, according to the Trump White House standards, but his work in two legally suspect presidential administrations cries out for the Senate to say no.

Sunday, October 15, 2017

A Free Pass for Corporations in Human Rights Suits?

      Seven years after giving corporations a First Amendment right to unlimited spending in election campaigns, the Roberts Court appears ready to give corporations a free pass for serious human rights violations committed abroad. That result was the consensus prediction following arguments last week [Oct. 11] in a case seeking to force the Jordan-based Arab Bank to pay millions of dollars in damages to victims of violent attacks in Israel and the West Bank for helping to finance the militant Palestinian group Hamas.
      The plaintiffs in Jesner v. Arab Bank, PLC are relying on a 225-year-old federal law granting federal courts the power to hear damage suits for violations of international law. Congress included what is now called the Alien Tort Statute as a single sentence in the Judiciary Act of 1789, the foundational statute for the federal judiciary. The provision lay mostly dormant until the 1980s, however, when human rights lawyers in the United States began using it to haul accused international human rights violators into U.S. courts to be held accountable for their conduct.
      The Supreme Court has been less than receptive to claims under the law despite its seemingly clear "plain text." Federal courts, the law states, have "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations [emphasis added]." In a pair of recent decisions, however, the Court has moved to limit the scope of the law — its substantive content and its geographical reach — and questioned use of the law to sue corporations, not just individual defendants.
      In the present case, the New York-based Second U.S. Circuit Court of Appeals accepted arguments by Arab Bank and supporting U.S. business groups that the law does not authorize suits against corporations. Judging from the three-sided arguments at the Supreme Court, the four most conservative justices along with Anthony M. Kennedy are ready to agree despite the four liberal justices' evident doubts about the basis for any broad exemption for corporations.
      Representing the plaintiffs, Jeffrey Fisher, a Stanford law professor and director of the school's Supreme Court litigation clinic, opened by stressing what he called the "traditional presumption that corporations can be held liable in torts." He acknowledged that the court's most recent decision, Kiobel v. Royal Dutch Petroleum Co. (2013), required that the alleged misconduct have some sufficient connection to the United States for a suit to proceed in federal court.
      The suit in Kiobel that the Supreme Court rejected stemmed from environmental depredation by the Dutch company from oil drilling in the Niger River delta in Nigeria. Fisher contended that the Arab Bank's financing of Hamas met the jurisdictional test  because the bank has a U.S. branch and its transactions clear through a New York financing facility.
      Representing the bank, Paul Clement, the former U.S. solicitor general and now the go-to Supreme Court advocate for conservative causes, discounted the claimed basis for federal jurisdiction over the suit. But he argued more broadly and most strongly that there was no "norm for holding corporations liable for violations of international law" in circumstances like those alleged in the suit.
      In a split-the-difference stance, the government agreed with Clement that the Arab Bank's use of a New York clearinghouse was insufficient to establish federal jurisdiction over the case. But Brian Fletcher, an assistant U.S. solicitor general, argued that Clement's argument for a "categorical rule" exempting corporations from suits under the law was "wrong."
      Chief Justice John G. Roberts Jr. led the conservatives in questioning the suit, just as he had done earlier in the Kiobel argument. He repeatedly voiced concern about the likely "foreign entanglements" if federal courts entertained suits arising from events abroad. Fisher and Fletcher both argued for dealing with those concerns case-by-case without any categorical exemption for corporations.
      All four liberal justices echoed those doubts in questions from the bench. Justice Stephen G. Breyer aptly asked who could be held liable for financing terrorism if not a bank: only a billionaire, he suggested. Justice Elena Kagan asked the same question about use of slave labor. And Justice Sonia Sotomayor answered the conservatives' doubts by noting that "many countries" hold corporations civilly liable in tort suits.
      From the conservative side, Justice Neil Gorsuch, he of the plain-text statutory construction school, questioned whether Congress in 1789 really had corporations in mind when it passed the law. The law originated from an assault on the French ambassador, an alleged violation of the international law of diplomatic immunity. Kagan batted away Gorsuch's doubts by asking "what difference" it would have made if the ambassador's assailant had been hired by a corporation.
      The U.S. Chamber and other business groups now count this as a major issue because of the proliferation of suits against U.S.-based multinational companies — for example, against Ford and IBM for supplying cars or computers to South Africa's apartheid regime or against Wal-Mart for buying from suppliers abroad with inhumane working conditions. With the conservative justices evidently sharing that concern, Fisher noted that the number of suits has dropped since the court's decision in Kiobel.
      The Roberts Court's conservative majority has been solicitous of business interests in a variety of areas — most controversially in the 5-4 decision in Citizens United v. Federal Election Commission (2010) giving corporations a First Amendment right to engage in political spending. Against that background, a decision to give corporations a free pass for violating international law seems a flat contradiction.

Saturday, October 7, 2017

'Makeweight Excuses' on Political Gerrymandering

      Justice Felix Frankfurter fashioned a strong legal argument in 1946 when he warned his Supreme Court colleagues not to step into a "political thicket" by agreeing to adjudicate a challenge to Illinois' badly malapportioned congressional districts. Frankfurter's views prevailed in a 4-3 decision, but two decades later the Court boldly stepped into the thicket by opening federal courts to reapportionment cases and establishing "one person, one vote" as a fundamental principle of American democracy.
      History has proved Frankfurter wrong and the later Warren Court right. But two of the Roberts Court's most vocal conservatives revived Frankfurter's misplaced fears last week [Oct. 3] in trying to steer their colleagues away from taking on a new generation of redistricting challenges to political gerrymandering.
      Frankfurter stated matter-of-factly that "of course," no court could redraw Illinois' districts to bring them into conformity with "standards of fairness for a representative system." Five decades of redistricting and reapportionment cases prove that Frankfurter was wrong. But Chief Justice John G. Roberts Jr. and the Court's newest member, Justice Neil Gorsuch, threw up their hands in surrender last week rather than require that district lines be drawn to conform with standards of political fairness for a two-party system.
      Roberts and Gorsuch offered only makeweight excuses for shrinking from the Court's promise of equal justice under law. Roberts feared that the Court would expose itself to partisan criticism from whatever political party a hypothetical anti-gerrymandering decision might disadvantage.
      That ship sailed in 2000 when five Republican-appointed justices in Bush v. Gore delivered the White House to George W. Bush rather than allow an unhampered recount of the popular vote in Florida. Roberts himself has exposed the Court to partisan criticism time and time again in politically charged cases, according to a compilation by Ian Millhiser on the liberal news site Think Progress Memo.
      In two of those cases, Citizens United v. Federal Election Commission (2010) and Shelby County v. Holder (2013), Roberts helped craft new constitutional doctrines to render decisions that evidently advantaged Republicans over Democrats. Whether right or wrong, surely the Court could not have declined to decide the cases because politically treacherous.
      For his part, Gorsuch wanted to take the Supreme Court out of the issue altogether. He offered the bizarre suggestion that Congress could use its constitutional authority to police the states in drawing state legislative districts.
      Back in 1946, Frankfurter had some basis for suggesting that Congress had the institutional capacity to enforce the federal law passed three decades earlier requiring equal-population congressional districts. As a sometime critic of congressional dysfunction, however, Gorsuch surely could not have been serious in suggesting that the 435-member House of Representatives could judge the fairness of legislative districts lines every 10 years in even one state, much less all 50.
      Roberts and Gorsuch made the comments during a spirited argument in a gerrymandering case from Wisconsin, Gill v. Whitford. With full control of state government for the first time in decades, Wisconsin Republicans drew state legislative districts in 2011 in a way that enabled the GOP to win 60 percent of the seats in the next election with less than a majority of the overall state vote.
      Democratic voters served as plaintiffs in a well-crafted constitutional challenge to the districting scheme. The plaintiffs and their legal team endeavored mightily to meet the test laid down by Justice Anthony M. Kennedy in an earlier case to offer a judicially manageable standard to determine when  politically motivated district maps go beyond constitutional bounds.
      Their theory relied in part on a quantifiable measure, a so-called "efficiency gap," devised by Nicholas Stephanopolous, a law professor at the University of Chicago. The efficiency gap compares the number of "wasted votes" for each of two parties: votes cast for the party in losing races and the "excess" number of votes in winning races.
      In Wisconsin, the Republican-drawn plan left Democrats with many more wasted votes than the GOP. Plaintiffs argued that an efficiency gap above a certain threshold could be seen as constitutionally impermissible. Roberts dismissed the theory as "sociological gobbledygook," while Gorsuch suggested it had no more exactitude than his recipe for turmeric-infused barbecue sauce.
      In a post-argument commentary for the online magazine Slate, Stephanopolous explained step by step the role that the efficiency gap could play in judging partisan gerrymanders. The test, he explained, would look first and second for partisan intent and partisan effect and then use the efficiency gap as a measure of partisan asymmetry. Plaintiffs could show the asymmetry unjustified by offering simulated maps with less asymmetry.
      The four-step test may sound complicated, but it is no more complex than the formula devised for judging mixed-motive cases in job discrimination suits. As for Gorsuch's concern about imprecision, the "one person, one vote" test itself is necessarily fuzzy: precisely equal population districts are impossible. Over time, the Supreme Court figured out how much variance the Constitution allowed: some but not too much, just like the turmeric in Gorsuch's barbecue sauce.
      Judges cannot shirk hard issues because they are hard. Notwithstanding Roberts' and Gorsuch's concerns, partisan gerrymandering is surely "distasteful," as Justice Samuel Alito Jr. himself opined from the bench. And plaintiffs' attorney Paul Smith was also surely right that the Supreme Court is the only institution that can limit the practice before a likely "festival" of copycat gerrymandering after the 2020 census.

Sunday, October 1, 2017

A Republican Justice Settles In as GOP Cheers

      As a Supreme Court nominee, then-Judge Neil Gorsuch assured the Senate Judiciary Committee of his impartiality by saying that there is "no such thing as a Republican judge or a Democratic judge." Americans apparently disagree. Gorsuch's first few months in office have instantaneously raised Republicans' approval of the Court and driven Democrats' approval down to a near record low.
      A Gallup poll taken in the first week of September found that Republicans' approval of the Court had jumped from 26 percent a year ago to 65 percent as approval among Democrats fell from 67 percent to 40 percent. Whether wittingly or not, Gorsuch has fed the partisan reaction to his confirmation with his votes and opinions as justice and ethically dubious public appearances off the bench.
      Most troublingly, Gorsuch allowed Senate Majority Leader Mitch McConnell to take him along as a trophy of sorts as the justice spoke at two law schools last month in McConnell's home state of Kentucky. McConnell was responsible for stealing the Supreme Court seat that Gorsuch now occupies by leading the Republican-controlled Senate in refusing to consider President Obama's nominee for the position, Judge Merrick Garland. McConnell openly boasted of the nakedly partisan maneuver in an earlier home-state appearance by saying that the change in political climate in Washington could be summed up in "three words: Justice Neil Gorsuch."
      Gorsuch again put any concern for the appearance of impartiality off to the side by agreeing to speak to a conservative organization in Washington last week [Sept. 28] at the Trump Hotel. President Trump's financial stake in the hotel raises an issue under the Constitution's Emoluments Clause, an issue that is quite likely to reach the Supreme Court in one or more of the cases now being litigated in federal court.
      With no evident appreciation of the irony, Gorsuch used his appearance before the Fund for American Studies to call for civility in public discourse. “To be worthy of our First Amendment freedoms, we have to all adopt certain civil habits that enable others to enjoy them as well,” Gorsuch declared.
      Gorsuch spoke less than a week after President Trump had used his bullying pulpit to question the patriotism of National Football League players who "take a knee" during the pregame national anthem to protest racial injustice in the United States. Trump went even further by labeling the protesting athletes as "sons of bitches" and urging NFL owners to fire them.
      Gorsuch's host organization is nominally nonpartisan in its goal of promoting "limited government and free-market economics," but it is thoroughly Republican and conservative in its origins and current leadership. The Fund for American Studies was founded 50 years ago by, among others, the godfather of modern conservatism, commentator William F. Buckley Jr. One reporter at last week's luncheon reported that the audience was filled with "the conservative legal firmament."
      Gorsuch has already agreed to a second speaking engagement in November that will amount to a another victory lap for those responsible for putting him on the Supreme Court. Gorsuch will speak in Washington in November to the annual meeting of the Federalist Society, the conservative-libertarian organization that has touted its role in vetting Gorsuch for the Supreme Court seat.
      Writing in USA Today, Gabe Roth, executive director of the reformist organization Fix the Court, complained that Gorsuch's appearance before an audience of "well-heeled conservatives" illustrated the regrettable tendency of justices to “stick to U.S. audiences whose ideologies closely follow their own." Roth noted that in the previous year conservative justices but none of the liberals had spoken to Federalist Society events, while liberal justices but no conservatives had appeared before the progressive American Constitution Society (ACS).
      Roth's evenhanded plea for justices to get out of their ideological cocoons is well taken, but misses an important point. ACS has never played nor claimed a role in judicial appointments comparable to the role that the Federalist Society has played going back as far as the Reagan administration. Trump tasked the Federalist Society and the conservative Heritage Foundation during his campaign with vetting potential Supreme Court nominees. And he marked Gorsuch's confirmation in April by hosting Federalist Society leaders for a celebration at the White House the next day.
      The Gorsuch effect is seen not only in the shifting partisan lines on the Court's approval rating but also in the justices' case-selecting process. With Gorsuch in his first "long conference" last week [Sept. 25], the justices added nine new cases with unusual speed, including one that represents a major financial challenge to a core Democratic constituency: public employee unions (Janus v. American Federation of State, County, and Municipal Employees).
      Gorsuch, son of a Reagan-era Cabinet member, has cheered Republicans from Trump down by lining up with the Court's other archconservatives, Clarence Thomas and Samuel A. Alito Jr., on issues ranging from Trump's travel ban to capital punishment and gay rights. Democrats are left to rue the results of the Republicans' in-plain-sight theft of the seat. As NPR's Nina Totenberg recently remarked, "All those liberals who thought there might a liberal heart beating somewhere in Justice Gorsuch now know that is not true."

Sunday, September 24, 2017

'Straight Weddings Only' Equals Discrimination

      Carl and Angel Larsen wanted to break into the wedding video business, but as "Bible-believing Christians" they wanted to announce on their company's website that they would not shoot gay or lesbian ceremonies. Anticipating legal problems, the St. Cloud, Minn., couple filed a suit in federal court in Minnesota in December 2016 asking in effect for a constitutionally based exemption from the state's anti-LGBT discrimination law.
      In a thorough, 63-page opinion, Chief U.S. District Court Judge John Tunheim ruled that the Larsens' Telescope Media Group would be violating the state law by posting a notice that he likened to a "whites only" sign from the pre-civil rights era. "Posting language on a website telling potential customers that a business will discriminate on the basis of sexual orientation is part of the act of sexual orientation discrimination itself," Tunheim wrote in the Sept. 20 decision.
      The Larsens, represented by the anti-gay religious liberty group Alliance Defending Freedom, argued that the state law amounted to an attempt to stamp out opposition to same-sex marriage. Tunheim rejected the argument but specified that the couple was free to post a notice opposing same-sex marriage and free to decide not to post their videos of same-sex weddings.
      Tunheim's decision is in line with rulings in somewhat similar cases by state appellate courts in three other states: Colorado, New Mexico, and Washington. Over the span of a few years, the state courts enforced anti-LGBT discrimination laws by penalizing a photographer in New Mexico, a florist in Washington, and a baker in Colorado for refusing to provide services for same-sex weddings.
      The Colorado baker's appeal is now before the U.S. Supreme Court, which is likely to hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission during its December calendar. Despite the uniformity of rulings in such cases, however, Supreme Court advocates and experts previewing the case in advance of First Monday expect a closely divided decision with Justice Anthony M. Kennedy likely to cast the pivotal vote.
      The case was identified as one of the new term's potential blockbusters as soon as the justices finally agreed to hear Jack Phillips' appeal as the previous term ended in late June. The case drew that much extra attention when the Trump administration intervened earlier this month [Sept. 7] with a precedent-defying friend-of-the-court brief supporting Phillips' claim for a free-speech exemption from Colorado's anti-LGBT discrimination law.
      Phillips, a self-identified Christian like the Larsens in Minnesota, operates a family-friendly bake shop in the Denver suburb of Lakewood and views his personalized cakes as artistic expressions protected by the First Amendment. David Mullins and Charlie Craig came into his shop one morning in July 2012 to order a cake for a reception to celebrate their earlier wedding in Massachusetts. Phillips told them he would sell them an off-the-shelf cake but said he did not make customized cakes for same-sex weddings.
      Mullins and Craig got a cake, for free, from a different baker, but only after publicizing the confrontation and filing a complaint with the Colorado Civil Rights Commission. The commission ordered Phillips to make cakes for same-sex weddings on the same terms as opposite-sex weddings, to re-educate his staff on the state civil rights law, and to provide quarterly reports of compliance with the order. The Colorado Court of Appeal upheld the order, and the Colorado Supreme Court declined to review.
      Phillips raised separate but related constitutional claims in asking the U.S. Supreme Court to review the case. He contended that the order to serve same-sex weddings amounted to compelled speech in support of same-sex weddings and an unconstitutional burden on his free exercise of religion. The government had not been asked for its views, but the Trump administration backed Phillips in a brief signed by the then-acting solicitor general Jeffrey Wall but by none of the career attorneys in the solicitor general's office.
      The government narrowed the case somewhat by passing over the free-exercise issue and by acknowledging well known Supreme Court precedents generally rejecting claimed First Amendment exemptions from generally applicable public accommodations laws. Phillips' compelled speech claim was viewed as an exception, however, because a custom-made cake was an "inherently expressive" product — unlike, for example, a hotel room or a limousine for the happy couple.
      Earlier, the commission had urged the justices not to hear the case by noting that Phillips had cut Mullins and Craig off before they had any chance to ask for a particular design. Some commentators have now picked up on the point by suggesting the compelled-speech claim cannot be decided on the basis of this record.
      In the American Civil Liberties Union's term-opening preview, deputy legal director Louise Melling described the government's brief as the first time ever that the government had backed a constitutional exemption from anti-discrimination laws. As to the compelled speech claim, Melling contended that Phillips should still lose even if Mullins and Craig had asked for a design or decoration specifically celebrating same-sex unions.
      The case poses a seeming quandary for Kennedy, who can rightly claim gay rights and freedom of speech as parts of his three-decade legacy. The conservative bloc that dissented in the marriage equality decision two years ago, with Neil Gorsuch now in Antonin Scalia's seat, may have no qualms about narrowing rights for same-sex couples. But given the weight of authority, they should hesitate before blowing a constitutional hole through well-established anti-discrimination laws.

Sunday, September 17, 2017

Trump's Election Commission: A Fraud on the Public

      Justice John Paul Stevens delivered an impassioned dissent when the Supreme Court voted 5-4 in Bush v. Gore to block a complete recount of Florida's vote in the 2000 presidential election. "[W]e may never know with complete certainty the winner of this year's Presidential election," Stevens said. He added regret at what he saw as a loss of public confidence in the court as "an impartial guardian of the rule of law."
      With the wounds of the 2016 presidential election still fresh in mind, both of the rival candidates — Donald Trump and Hillary Rodham Clinton — are doing what they can to undermine confidence in the results of the election. Trump has peddled the blatant lie that he would have won the popular vote if not for a supposed 3 million to 5 million votes cast illegally by non-citizens.
      Clinton, in her sour grapes memoir What Happened, has complained with more substantiation that she might have won at least one other state, Wisconsin, and perhaps others if not for the vote-suppressive effects of  newly enacted state voter ID laws. Clinton lays blame for the Wisconsin law not only on the state's Republican legislature and Republican governor but also on the Republican-majority Roberts Court for allowing the law to stay on the books despite legal challenges.
      The effects of the various voter ID laws passed in Republican-controlled states over the past two decades would be a good subject for detailed, bipartisan examination by a presidential or congressional commission. But Trump's Presidential Advisory Commission on Election Integrity is intent instead on following its creator in perpetuating the completely fraudulent charge of widespread voter fraud in U.S. elections.
      Kris Kobach, the Kansas secretary of state who is the commission's vice chair and eminence grise, set the stage for the commission's second public session last week [Sept. 12] by describing the state's junior senator, Maggie Hassan, as holding a "stolen seat" because of supposed voter fraud in her 743-vote margin in the November balloting. Kobach's accusation is easily debunked, but it takes a paragraph or so.
      To start, the ostensibly bipartisan 12-member commission is fraudulent in its very composition: "flawed from the very start," according to the good-government group Common Cause. The seven Republican members are for the most part veterans of the voter ID law movement, which depends for its very existence on the imaginary epidemic of voter impersonation fraud. Besides Kobach, the other Republicans include Vice President Mike Pence, the nominal chair; Ohio's former secretary of state, Kenneth Blackwell; Indiana's current secretary of state, Connie Lawson; and two former officials in the Bush administration's Justice Department: Hans von Spakovsky, now with the Heritage Foundation, and J. Christian Adams, president of the self-styled Public Interest Legal Foundation.
      Before the selections, Von Spakovsky wrote an email to Attorney General Jeff Sessions urging him to keep Democrats or moderate Republicans off the commission entirely. Von Spakovsky denied writing the email after it surfaced in response to a Freedom of Information Act, but a Heritage spokesperson acknowledged his authorship. Von Spakovsky's advice may have been rejected, but the five Democrats on the commission are mere tokens: only two have statewide election responsibilities, Maine's Matthew Dunlap and New Hampshire's Bill Gardner, while the other three have only minimal expertise in the area.
      Kobach's imputation of fraud in New Hampshire stems from his discovery of 5,313 votes cast by individuals who same-day registered with out-of-state driver's licenses. But, surprise: New Hampshire allows anyone living in the state to vote even if their legal residence is another state. For example: college students. New Hampshire Public Radio easily ascertained that most of Kobach's supposedly fraudulent votes were cast in college towns. End of story.
      The commission's other evidence of voter fraud is a Heritage Foundation database that goes back to 1948 to identify 1,071 "proven instances" of election fraud cases. Out of nine categories, however, only two — and those with the fewest in number — might be prevented by voter ID laws: impersonation fraud and false registration. The other categories included absentee ballot fraud, vote-buying, vote-counting alteration, and so forth.
      In a detailed dissection, the Brennan Center on Justice concluded that the voter impersonation and false registration cases represented "a molecular fraction" of the total in the Heritage Foundation compilation. Heritage's database "undermines its claim of widespread voter fraud," according to Brennan Center senior counsel Rudy Mehrbani. Among ineligible voters who cast ballots, most had prior felony convictions and could have been unaware of their disqualification, Mehrbani suggested.
      In its critique, Common Cause recalled that three previous election commissions over the past two decades came up with useful recommendations that could be adopted by red or blue states alike. Those commissions were truly bipartisan, the group explained: the current commission "an aberration."
      The Trump commission's congenital defects are all the worse because of the many issues that Common Cause and others have identified as needing substantive and bipartisan attention. Those issues include "how to ensure access for all eligible voters; enhancing enthusiasm for and participation in our electoral processes; and modernizing voting machines and systems to ensure their safety from external interference."
      That last point deserves emphasis. Despite evidence of Russian election hacking attempts in 2016, state and federal election officials have done little to study the problem or prevent it in the future.

Sunday, September 10, 2017

For Workers, Trump's Policies Hurt More Than Help

      President Trump marked Labor Day with a perfunctory tweet that sounded "Make America Great Again" themes with only a glancing recognition of American workers. "We are building our future with American hands, American labor, American iron, aluminum and steel," Trunp tweeted. "Happy #LaborDay!"
      The tweet passed silently over the foreign-made goods sold by first daughter Ivanka Trump's company and similarly omitted any specific benefits for U.S. workers from Trump administration policies. Just as well: Nearly eight months into his presidency, Trump has done more to hurt than to help U.S. workers, as the New York Times former labor correspondent Steven Greenhouse pointed out in a Labor Day weekend article.
      Trump's photo-op events taking credit for keeping jobs in the United States have mostly been debunked. In addition, as Greenhouse and others have pointed out, many of the administration's deregulatory moves have actually weakened protections for workers in the workplace and reduced protections for workers' savings and retirement plans.
      Now, the administration is set to open the Supreme Court's new term next month [Oct. 2] by siding with business interests and against organized labor in a case testing employees' ability to join with other workers in contesting workplace policies that violate state or federal law. In a critical legal showdown, the Trump administration's solicitor general's office reversed the position previously taken by the Obama administration and decided to support employers' right to dictate contract terms that prevent workers from collective or class actions in job-related disputes.
      The three consolidated cases the justices will hear in its first argument of the October 2017 term pose a conflict between the pro-arbitration policy of the Federal Arbitration Act and the National Labor Relations Act's protection for workers' rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." The three employers involved in the cases — Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil Co. — all required employees to sign contracts agreeing to individual arbitration of any disputes.
      Federal appeals courts in Epic Systems and Ernst & Young ruled that the labor law's "concerted action" provision, enacted in 1935, overrides the provision in the 1925 law safeguarding enforcement of arbitration clauses in private contracts. The National Labor Relations Board (NLRB) similarly blocked enforcement of an arbitration clause in the third case, but on appeal the Fifth U.S. Circuit Court of Appeals cited the earlier law in rejecting the position that the agency had adopted in a 3-2 vote with the commissioners divided along partisan lines.
      The issue of seeking relief in individual arbitration versus class action whether in arbitration or in court may seem like the extra-credit question on a civil procedure exam. But the employer-dictated prohibition against any class or collective action can effectively prevent an employee from seeking any relief whatsoever.
      The employees in Epic Systems and Ernst & Young claimed that the companies had wrongfully classified them as exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) and sought to file class action suits in federal court on behalf of all other similarly situated employees. Business interests rail about the abuses of class actions, but as a practical matter employment law attorneys are unlikely to take on an FLSA case just to win a few hundred or maybe a few thousand dollars for an individual worker improperly denied overtime pay.
      The Roberts Court has continued the legal trend that first emerged under Chief Justice William H. Rehnquist of allowing the Federal Arbitration Act to take precedence over legal remedies allowed under other federal or state laws. Many of the decisions came on 5-4 votes with the justices divided along the usual conservative-liberal lines. The late justice Antonin Scalia was the most outspoken of the conservatives in criticizing the supposed abuses of class actions and defending the supposed advantages of arbitration.
      The labor law issue simmered at the NLRB for several years until several cases reached federal courts of appeals with decisions that resulted in a conflict between circuits: the Seventh and Ninth Circuits siding with employees in Epic Systems and Ernst & Young respectively and the Fifth Circuit ruling against the NLRB in Murphy Oil.
      Under the Obama administration, the solicitor general's office represented the NLRB in urging the justices to back the agency's position. In June, however, the solicitor general's office filed a new brief — "after the change in administration" — rejecting the agency's position. The NLRB did not give "adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA," the brief stated.
      For Trump, the change in position continued the trend of siding with business interests on regulatory issues over the forgotten American workers that he claimed in his campaign as his base. In other contexts, the administration has rejected an Obama era policy aimed at extending overtime protections to an estimated 4 million U.S. workers. Greenhouse also noted that the administration postponed rules to protect workers from silica dust; scrapped rules to require federal contractors to disclose labor law violations; and indicated likely rejection of the so-called "fiduciary rule" to require Wall Street to manage retirement funds in workers' best interests.
      In the Times, Greenhouse's article appeared under the headline, "Is Trump Really Pro-Worker?" Trump's tweets to the contrary notwithstanding, the answer is a resounding no.


Sunday, September 3, 2017

Trump's Bid to Drop Arpaio Case Worse Than Pardon

      The disturbing news of President Trump's unprecedented pardoning of Arizona's federal court-defying sheriff Joe Arpaio reached me in Europe while trying to enjoy a vacation undisturbed by legal news. Back home, however, I learned the pardon was not the worst of Trump's offenses against the rule of law.
      Before the pardon, Trump violated a well established political and legal norm by personally asking Attorney General Jeff Sessions to drop the criminal charge against Arpaio. Trump apparently backed off after Sessions demurred, but in breaking the story, the Washington Post quoted Chiraag Bains, a former senior counsel in the Justice Department's civil rights division, as calling Trump's call to Sessions "beyond the pale."
      Former Attorney General Eric Holder had an apt if snarkier comment on Twitter. "Number of times over six years that President Obama called and asked me to think about dropping a case: ZERO." But a tone-deaf White House press secretary Sarah Huckabee Sanders saw nothing amiss. "It's only natural the president would have a discussion with administration lawyers about legal matters," Sanders was quoted as saying.
      The president has the broadly stated power under Article II, section 2 of the Constitution to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The impeachment exception implies a separation-of-powers concern, limiting the president's power to override a congressional judgment to remove a federal official after a conviction for "high crimes and misdemeanors."
      Trump's pardon of Arpaio for criminal contempt of court is apparently the first instance of a presidential pardon for violating a federal court order. The same separation-of-powers concern that underlies the impeachment exception ought to caution a president against using the pardon power to undermine a federal court's power to enforce its orders.
      Instead, Trump has absolved Arpaio of flagrantly defying a federal judge's order to drop the Maricopa County sheriff's unconstitutional policy of racial profiling against suspected illegal immigrants. In Trump's eyes, his onetime comrade in arms in the birtherism controversy is not a scofflaw but a "patriot," his documented abuses in running the Maricopa County jail not worth a mention.
      Presidential pardons are typically granted to defendants convicted under dubious circumstances, given unduly harsh sentences, or seen to be rehabilitated based on model conduct in prison. Politically motivated pardons, however, are not unheard of. The first president Bush granted pardons in his final month in office to six former Reagan administration officials who had been convicted of, for example, withholding information from Congress in the Iran-contra investigation.
      Frank Bowman, a law professor at the University of Missouri, argued in an article in the online magazine Slate that Trump's pardon of Arpaio amounts to an impeachable offense. Bowman called the pardon "a direct attack on the constitutional powers of the judiciary." Trump's action, he went on, "threatens to undercut one of the indispensable, foundational norms of American constitutional order: the rule of law."
      Bowman is legally correct, of course, in the sense that the House of Representatives has broad discretion to determine what counts as an impeachable offense. Politically, however, the current Republican-majority House of Representatives has shown even less interest in challenging Trump than the largely supine GOP-controlled Senate. Even with Trump's approval at the historic low level of 34 percent, impeachment is a dead letter in the House and conviction equally impossible in the Senate.
      Apart from the pardon, Trump's personal intervention in a pending criminal case ought also to be listed as an impeachable offense. Recall that the House Judiciary Committee in 1974 listed President Richard M. Nixon's intervention in the criminal justice system and the Internal Revenue Service's enforcement of tax laws as one of the particulars in Article II of the four articles of impeachment.
      Nixon, who famously maintained an "enemies list" of political critics and opponents, was accused of having directed the IRS to initiate or conduct tax audits "in a discriminatory manner." He was also charged with having "knowingly misused the executive power by interfering with agencies of the executive branch," including the CIA, the FBI, the Justice Department's criminal division, and the Watergate special prosecution force.
      Trump's interference in Arpaio's case represents abuse for the opposite purpose: preferential treatment for a political friend rather than discriminatory treatment for a political enemy. But his action represents the same constitutional violation laid to Nixon. As the ex-DOJ official Bains put it to the Post, Trump "has a sense that the chief executive controls everything in the executive branch, including the exercise of criminal power. And that is just not the way the system is set up."
      Trump's prospective pardon of Arpaio played well to the crowd at the campaign-style rally he held in Phoenix before the formal announcement, but it has played poorly in virtually all other quarters. The conservative Washington Times gave its blessing a week before the actual pardon, but House Speaker Paul Ryan distanced himself after the fact by saying that it would have been better for Trump to have allowed the appellate process to continue.
      Among prominent columnists, criticism came from both sides. The conservative Michael Gerson called the pardon "a further step in Trump’s normalization and entrenchment of bigotry in our public life," while the liberal E. J. Dionne called it Trump's "largest single step toward autocracy." Bigotry and autocracy: reprehensible, no doubt, and impeachable but for the lack of will on Capitol Hill.

Sunday, August 27, 2017

Up From Racism: An Autobiography

            As a young boy growing up in segregated Nashville, Tennessee, I harbored racial prejudice. But an offhand remark by my third-grade teacher helped to dispel the prejudice against Negroes, as African Americans were then called, and to instill in me what became a lifelong commitment to the cause of racial justice.
            Born in 1948, I lived in an all-white working-class neighborhood and attended an all-white church. every Sunday. I enrolled in an all-white public school four months after Brown v. Board of Education and, with the slow pace of desegregation, had no black classmates through ninth grade or in the all-white private high school from which I graduated in 1965.
            In my early life, the only "Negroes" I knew personally were Barnell and Fannie, the married couple who were the custodians at my elementary school. We called them by their first names, not their surnames. I thought kindly of them, but I disliked the musty smell of the janitors' room and must have associated that smell with blacks generally.
            From age six or so, I can recall being careful not to touch or accidentally brush up against a Negro on the street, in an elevator, or at a store. I must have thought of their black as "dirty" and my white as "clean."
            My epiphany came in third grade thanks to a chance remark by my teacher, not in the classroom but in the hallway. With race relations in the news, she said something like, "They're no different from us." She influenced me more than she ever knew or might have expected.
            My parents were not overt racists: I never heard the "n" word in the house. We drove past a black church every Sunday on the way to ours: nothing was said, one way or another.
            By age 15, I had become a civil rights liberal, thanks in part to the influence of friends at my new school and in part to the hopeful excitement of the civil rights movement itself. My parents disapproved of the marches and protests, but I wrote a story for the school newspaper in spring 1963 on the college student-led effort to desegregate the nearby diner.
            I must have watched President Kennedy's televised civil rights address in June 1963. As my school's representative to the American Legion's civic education program All-State that summer, I ran for governor and echoed JFK by calling for enactment of a state public accommodations law.
            Five people had signed my petition, but the reaction to my speech was so strongly negative that I had to withdraw. One of my signers did not get the word, so I ended up with one vote: not mine.
            Back in school, I became the editor of the school newspaper and drafted an editorial calling for the school to integrate. The editorial was censored; I responded with an editorial attacking the censorship. That editorial was published and then the earlier one as well. Unbeknownst to me at the time, the principal had begun before my graduation in 1965 to notify parents and alumni that the school was preparing to admit its first black students, in the elementary grades.
            As a student at Harvard College in the late 1960s, I had black classmates of course: but acquaintances only, none of them "close" friends. I covered the "smash ROTC" student strike in 1969 as a journalist for the student radio station, WHRB. Black students added a call for an African American studies department to the list of demands; I was an observer, not a participant, but I thought the proposal worthwhile and still do.
            After college, I came back to Nashville as a reporter at The Tennessean, which strongly supported civil rights under the leadership of a great American journalist, John Seigenthaler. The Tennessean newsroom included three black reporters during my six years there. All three were friends, but not among my closest friends. The racial divide is that hard to get across.
            In four decades as a journalist, the struggle for racial justice has been a recurrent topic, never far from my mind. My current beat is the Supreme Court. I am glad when the court advances racial justice and was distressed when, for example, the Roberts Court gutted the Voting Rights Act by falsely denying the present-day reality of racism.
            In the end, my story illustrates that Lieutenant Cable is only partly right when he sings in South Pacific, "You've got to be taught to hate and fear." We are born, I fear, with some innate aversion to others unlike us: in color, nationality, religion, or the like. But my third-grade teacher also shows that one can be "carefully taught" a broader tolerance and appreciation of diversity. That lesson cannot be taught often enough: by parents, by teachers, by preachers, and by public officials—up to and including, one would hope, the president of the United States.