“A victory for LGBT rights” – but a trashing of separation of powers

The New Neo Posted on by

I’ve already written about yesterday’s SCOTUS decision in which the majority said that the 1964 Civil Rights Act prohibits employers from firing gay or transgender people because of those traits. But I want to add some further thoughts.

In Justice Alito’s dissent, he wrote this summary of what the Court was asked to do, and I think it states the situation quite well:

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

This outcome of this case underlines larger principles. The first is one I’ve discussed many times before: content vs. process. People who are applauding the content, which is the expansion of LGBT rights, are ignoring the process. Alito is emphasizing that accomplishing this end through a tortured and unjustified re-interpretation of the 1964 bill is the wrong process, and a dangerous one at that. It appeals to emotion rather than cognition, and ignores the long-term negatives of achieving a goal this way. At least theoretically, either side could use arguments like this to circumvent the protections built into the Constitution, protections that involve the separation of powers.

The left is far less threatened by the precedent of overreach, because the left knows conservatives are ordinarily big on process and are less likely to do that. Conservatives tend to hold the line rather than invent rights that never existed before (such as liberals did in Roe).

For liberal judges to justify what they do is easy. For supposedly conservative judges who want to vote with the liberals it’s harder. But where there’s a will there’s a way (for example, Roberts is a master of the technique, Humpty Dumpty-esque in his ability to find his own meanings in words).

And if judges and SCOTUS justices can do it, why not everyone else? Journalists certainly have no trouble with it, so that the LA Times op-ed headline reads, “The Supreme Court victory for LGBTQ rights is also a triumph for the rule of law.” The first part of that title is correct, the second incorrect. The op-ed (but perhaps not the title?) was written by the dean of the UC Berkeley School of Law, and the reasoning is similar to that of the majority opinion. The vast majority of people reading that op-ed won’t even understand the conservative argument against it, much less agree with it.

The decision is certainly not a triumph for one of the most important principles of our Constitution, separation of powers, but that phrase doesn’t appear in the piece. The fact that the proper route to have achieved this same “victory for LGBT rights” is the Congressional one – an approach which has been tried but so far has been unsuccessful – is completely lost in the celebration over the outcome.

I think for conservatives the really hard thing about this decision is twofold. One is that the twists of reasoning that Gorsuch and Roberts had to go through to get to their desired result are unusually convoluted. The other is that although conservatives are used to Roberts voting with the liberals, so much so that he has almost become a swing vote, the defection of Gorsuch was unexpected.

Many people are puzzled and angered by the tendency of liberal judges never to defect from the liberal line while conservative judges often do. I’m really not puzzled by it, and I don’t ascribe to the usual conspiracy or “stab in the back” theories to explain it. I actually think it’s rather simple.

Justices are human beings, and human beings have a strong tendency to rationalize cutting corners to get where they want to go emotionally. Judges and SCOTUS justices are hardly above that urge, and what’s more, they are given enormous power. If an ordinarily or previously conservative judge has sympathy/empathy for a cause – let’s say it’s the right of a gay person not to be fired for being gay, which is a principle with which many if not most Americans would agree, as long as religious rights are preserved – then that judge just might try to find a rationale and/or rationalization for getting there. Judges are good, really really good, at argument. And so, in their haste to reach that goal, and succumbing to the temptation that is always present when a person is given great power, they sometimes find a reason to justify the result they want. They then tell themselves they’ve done the right thing. Their conservative colleagues who hold the line (Alito, Thomas, and Kavanaugh in this case) are seen by much of the public as the old meanies who are out to harm gay and trans people. That’s a difficult position to be in.

The poet Shelley famously wrote that “poets are the unacknowledged legislators of the world,” a sentiment I’ve never quote understood. I don’t think he meant it the way I would rephrase it, which is that emotions drive a great deal of what passes as reasoning. Judges are not poets. But judges have become the true “unacknowledged legislators of the world.”

[ADDENDUM: See also this for my take on the “Bill vs. Amy” argument presented here.]

The enforcement of ideological purity: how the topic of black-on-black crime is handled by the left

The New Neo Posted on by

Matt Taibbi writes

Probably the most disturbing story involved Intercept writer Lee Fang, one of a fast-shrinking number of young reporters actually skilled in investigative journalism…

Yet Fang found himself denounced online as a racist, then hauled before H.R. His crime? During protests, he tweeted this interview with an African-American man named Maximum Fr, who described having two cousins murdered in the East Oakland neighborhood where he grew up. Saying his aunt is still not over those killings, Max asked:

“I always question, why does a Black life matter only when a white man takes it?… Like, if a white man takes my life tonight, it’s going to be national news, but if a Black man takes my life, it might not even be spoken of… It’s stuff just like that that I just want in the mix.”

That seems pretty straightforward to the rest of us, right? Fang interviews a black man in an inner city neighborhood, a person whose family has suffered from crime at the hands of other black people. No one can deny such violence occurs with unfortunate frequency and causes great harm in the US, and that the primary burden is borne by lower-income black people whose plight and suffering the left claims to care about a great deal.

But the left sees something quite different in this interview, and although the quoted black man escapes criticism, the left makes clear to Fang that Fang has transgressed in one of the worst possible ways. He has discussed a forbidden topic:

Shortly after, a co-worker of Fang’s, Akela Lacy, wrote, “Tired of being made to deal continually with my co-worker @lhfang continuing to push black on black crime narratives after being repeatedly asked not to. This isn’t about me and him, it’s about institutional racism and using free speech to couch anti-blackness. I am so fucking tired.” She followed with, “Stop being racist Lee.”

The tweet received tens of thousands of likes and responses along the lines of, “Lee Fang has been like this for years, but the current moment only makes his anti-Blackness more glaring,” and “Lee Fang spouting racist bullshit it must be a day ending in day.” A significant number of Fang’s co-workers, nearly all white, as well as reporters from other major news organizations like the New York Times and MSNBC and political activists (one former Elizabeth Warren staffer tweeted, “Get him!”), issued likes and messages of support for the notion that Fang was a racist. Though he had support within the organization, no one among his co-workers was willing to say anything in his defense publicly.

Like many reporters, Fang has always viewed it as part of his job to ask questions in all directions. He’s written critically of political figures on the center-left, the left, and “obviously on the right,” and his reporting has inspired serious threats in the past. None of those past experiences were as terrifying as this blitz by would-be colleagues, which he described as “jarring,” “deeply isolating,” and “unique in my professional experience.”

To save his career, Fang had to craft a public apology for “insensitivity to the lived experience of others.” According to one friend of his, it’s been communicated to Fang that his continued employment at The Intercept is contingent upon avoiding comments that may upset colleagues. Lacy to her credit publicly thanked Fang for his statement and expressed willingness to have a conversation; unfortunately, the throng of Intercept co-workers who piled on her initial accusation did not join her in this.

In another article I read about what happened to Fang – which I unfortunately can’t locate at the moment – there was an even fuller explanation of why discussion of black-on-black crime is considered racist by the left. It’s what you’d expect, if you’re familiar with leftist thought on race. First of all, such talk is verboten because it’s an argument that the right sometimes uses, which of course makes it racist by definition because everyone knows that the right is racist. But it’s also racist because it blames black-on-black crimes on black people, as though they are at fault, which of course they’re not because everything seemingly bad that a black person does is a result of systemic racism at the hands of white people. So to mention black-on-black crime without blaming white people for it is to be racist. QED.

Forget about Maximum Fr, whose family is outraged and grieving at what happened to their loved ones. Maximum Fr is not to be blamed, though, because in the mind of the left he doesn’t know any better. He said what he said about black-on-black crime because he’s not educated as to the real causes. He’s not an anti-black racist, he’s just ignorant. His opinion does not count. It’s the young reporter Lee Fang, whose progressive credentials are peerless (ThinkProgress, The Nation) who’s to blame because he should know better.

Even the fact that Fang was quoting another person such as Maximum Fr rather than making the statement himself is no excuse, because such remarks must be censored no matter who utters them. They inflame the tender sensibilities – not of inner city black people such as Maximum Fr – but of Fang’s mostly white leftist colleagues. Fang (who I’m going to assume is most likely an American of predominantly Chinese heritage, which would give him no favored-group status at all) has transgressed and must be made to apologize or become an unperson. One never knows if the apology will be enough, but apparently in this case it was.

For now.

Fang, of course, had a choice. He didn’t have to apologize. If he didn’t apologize, he wasn’t going to be executed or even sent to an actual Gulag – just a social one. He would have become persona non grata at every liberal media outlet in the US, and apparently he was not willing to do that. A conservative outlet might have hired him, but he wasn’t ready to cast his lot with a group he probably still considers The Enemy. So he apologized and kept his job.

But maybe, if he’s a true person of the left, his apology wasn’t just pragmatic. It may have been sincere. Like Winston Smith at the end of Nineteen Eighty-Four, and in Fang’s case without even the need for torture and major re-education, perhaps he was ready to sincerely admit the error of his ways. If that was the case, to me it’s even more frightening than if Fang had just sucked it up in order to keep his job. But if he was sincere, it’s a demonstration of how leftists manage to absorb new information and to integrate it into their pre-existing mental map of what’s acceptable and unacceptable. Depending on how far left Fang is, he might just decide that if all the other leftists say he’s guilty of thoughtcrime here, it must therefore be so.

I know nothing of Fang except this anecdote and his previous credentials, so I haven’t a clue what’s been going on in his head. But in either case, what happened to Fang is an example of what’s been happening all over the nation at the hands of the left: the enforcement of ideological purity. Anyone truly moderate has already been purged from the group or never was part of it in the first place. Now we see the further refinement of what’s acceptable and what is not, a narrowing-down of the list of allowable thoughts and statements, and the continuing shift further and further to a unitary doctrinaire ultra-left point of view.

Conform or be shunned, shamed, and ostracized. Only the most courageous of individuals who think for themselves can defy that – and the left is not loaded with that sort of person to begin with. I’m not sure how common such traits are in general, either, but my guess is they’re rather rare.

Shhh! Contact tracers for COVID cannot ask about attendance at protests or riots

The New Neo Posted on by

They are oh-so-serious about contact tracing – except:

The supposed army of 1,000+ pandemic contact tracers in New York City will hit a roadblock this week as they assess the risk of disease spread from COVID-19 positive patients. Mayor Bill de Blasio has forbidden the tracers from asking sick patients if they attended one of the many George Floyd related protests in the nation’s most populous city, giving the tracers an insurmountable barrier as they ostensibly keep New Yorkers safer.

“No person will be asked proactively if they attended a protest,” de Blasio spokesperson Avery Cohen told The City. Surveyors recruited as part of de Blasio’s “test and trace” campaign will instead ask a series of indirect questions about whom the sick individual may have contacted in recent days.

There is nothing at all surprising about this. The protestors and rioters have been protected classes from the start, allowed to gather freely in huge numbers and as close as they like. And not just any protestors – only those protesting the Floyd killing, not those protesting (for example) the shutdowns.

And de Blasio continues his war on Chasidic Jews:

New York Mayor Bill de Blasio ordered gates at a park in a Jewish area welded shut to keep people out despite simultaneously approving numerous mass gatherings of BLM protesters.

In other news, de Blasio is out sick with GI problems that are among those listed as possible COVID symptoms but refuses to take a COVID test.

SCOTUS justices legislate from the bench again

The New Neo Posted on by

The issue was job discrimination:

The Supreme Court ruled 6-3 in a decision that protects LGBT people from job discrimination.

They decided “that an employer who fires a worker for being gay or transgender violates Title VII of the Civil Rights Act, which already protected people from sex discrimination.”…

Title of the Civil Rights Act of 1964 “prohibits employers from discriminating against workers, including in hiring and firing decisions, based on an employee’s sex.”

Gorsuch and Roberts voted for the majority opinion.

Well, I’m not a SCOTUS justice. Obviously. But I have an opinion, too, and it’s that this sort of thing is the job of the legislature. In 1964, there already were homosexuals out in the world of employment, and if the legislators had meant to include them they would have done so. Now, I don’t see that such legislation would even be hard to pass. But Congress has not yet passed it.

So SCOTUS took matters into its own hands, which it has done so many times before, and broadened the definition of a word to include phenomena it was not meant to include.

I’m with dissenter Kavanaugh on this:

Kavanaugh wrote that “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” He cited the Constitution’s separation of powers.

Seems blatantly obvious to anyone who knows even the rudiments of the Constitution.

However, I learned quite some time ago that people – and SCOTUS justices are people – will all too often cut corners to get what they want. In the process, they can and will use various rationalizations to justify what they do. Justices and lawyers are especially good at rationalizations, because their forte is argument. And so they take on powers they do not have, because they want certain results. The temptation is great, and it is often yielded to.

Roe v. Wade was a good example, one about which even many people who liked the result admitted that the method was faulty, and that SCOTUS had found a right where no such right existed. There are others, as well, and today’s decision falls squarely into that category.

[NOTE: I have not read the full decision, only some excerpts and commentary. This is based on what I’ve read.

I will add that I predict this ruling will be used not just to protect gay and transgender people from firings solely because of their orientation, but also that any such firings may end up presumed to be because of orientation, and it will often be up to the employer to prove that they weren’t. In that way, it may ultimately create a class of people especially protected from firings, period.]

[ADDENDUM: Alito agrees:

In a powerful dissent joined by Justice Clarence Thomas, Justice Samuel Alito condemned the ruling as “preposterous” and betraying “breathtaking” arrogance. He noted that Congress has tried and repeatedly failed to amend Title VII of the Civil Rights Act of 1964 in just this fashion and that no one interpreted the law this way until 2017. In this decision, as in Roe v. Wade (1973) and Obergefell v. Hodges (2015), the Supreme Court usurped the power of Congress by making “legislation.”

Exactly and precisely correct. And it should be correct whether you think such a law should be passed or not. But that’s not the way these things are going.

Alito added that the decision could ultimately end up affecting bathrooms and changing rooms, women’s sports, housing, religious employment, health care, freedom of speech, and constitutional claims. Please read the whole thing. Legislation might have addressed these issues, but the SCOTUS ruling leaves it all open. It’s so very much easier to legislate from the bench than from the legislature.]

Here’s a quiz

The New Neo Posted on by

Who said it?:

That is not a protest. It is not a statement. It’s people, a handful of people, taking advantage of a situation for their own purposes — and they need to be treated as criminals…

There’s no excuse for the kind of violence that we saw yesterday. It is counterproductive. When individuals get crowbars and start prying open doors to loot, they’re not protesting. They’re not making a statement. They’re stealing…

When they burn down a building, they’re committing arson. And they’re destroying and undermining businesses and opportunities in their own communities.

Hint: the quotes are from April, 2015.

If the blue states won’t do it…

The New Neo Posted on by

…maybe the feds will:

For a while it seemed that Trump was going to send troops to places such as Seattle. He certainly has stated that he has the right to do it. But he’s desisted. Apparently, at least for now, he’s decided to give them enough rope, while sending other “troops” – legal ones – after some of the worst offenders. The optics just aren’t the same for the left, who must be disappointed at the failure so far to generate another Kent State.

For perilous times

The New Neo Posted on by

I realize that compared to many eras of history – even recent history, such as the 30s and 40s – it may seem like hyperbole to speak of our times right now as perilous. Nevertheless, I don’t think it’s an exaggeration to say that the fate of the American experiment in liberty hangs in the balance.

Maybe it always does. But right now the danger seems extremely acute.

I’ve been spending more hours than usual every day trying to read as much as I can about it and then write. But there are only so many hours in the day, and I have to get outside and take a break sometimes, socialize and even eat now and then (and now and then…and now and then…).

So in this post I’m going to resort to a roundup of highly recommended readings, each of which could easily be the subject for its own post:

(1) This Democratic data analyst got fired for retweeting this study:

“Buh-bye,” said Shor’s employer.

(2) They’re coming for Anna Wintour of Vogue, not for anything she’s said, but just for being Anna Wintour.

(3) One of the most depressing things about the current climate is how few Democrats or so-called “liberals” are willing to stick their own necks out and condemn the witch hunt. No surprise; I repeat, no surprise. But depressing nevertheless.

There have been a few exceptions right along. They are not even necessarily Democrats or liberals; some are more accurately described as libertarians. But they’re not on the right, anyway, and they are speaking out. I bring you three, in addition of course to Jonathan Turley, about whom I’ve already written: Matt Taibbi on how the press is destroying itself (I’d say that was accomplished a long time ago, but lately they’ve gotten even worse), Andrew Sullivan on the press dropping even the final pretense of their objectivity in favor of expressing and enforcing their own “moral clarity,” and this by Glenn Greenwald on the politicization of science and scientists in their differential treatment of demonstrations and other gatherings, depending on the cause.

(4) From the British Spiked, we have “Why Did the Protests Over George Floyd Turn Into Mass Hysteria”?. An excerpt:

One of the most distinctive things about the eruption of Black Lives Matter protests across the world is the speed with which they were endorsed by virtually every powerful institution and individual. From Hollywood to the churches, from big business to public-health officials, the word is out: support for BLM is essential, and in some cases mandatory…

There is something perplexing about the way that elite institutions and powerful people are falling over themselves to be on the side of the angels. It is almost as if they have concluded that unless they act with haste in relation to supporting BLM, they will be in trouble. In some cases, institutions and companies have gone so far as to attack other businesses and individuals who appear to have strayed from the party line…

In the current climate, there can be no ‘mistakes’. Your words will come back to bite you. Just about any gesture or statement can be branded as not only insensitive, but racist…

The climate of groupthink has now become a kind of mass psychosis among white people desperate to communicate that they ‘get it’. We have seen videos of groups of white people getting on their knees and begging for forgiveness for their sins. These disturbing images resemble a medieval ritual of self-abasement. All that is missing is actual self-flagellation.

The author blames it on the COVID lockdown accelerating previous trends, through a sort of pressurized isolation. I think the lockdowns increased stress, and the need to release that stress is at least partly a cause. But I think the trends we see right now had reached critical mass anyway, and something similar was planned to be unleashed at any possible opportunity prior to the November election. Floyd’s death provided the opportunity, but it would not have been the only one.

(5) This article by Lee Smith, entitled “Obama to the Rescue,” is both extremely chilling and spot on. I dealt with some of the same ideas a while back in this post from early May.

Jonathan Turley defends Professor Jacobson and criticizes Cornell

The New Neo Posted on by

Turley has taken up the cause:

Twenty-one colleagues at Cornell signed a June 9, a letter denouncing unnamed “commentators… attached to Ivy League Institutions” as calls were made to the Dean to have Jacobson fired. The professors lashed out against academic commentators who criticize the [post-Floyd] looting as effectively racists….

Not a word about academic freedom or free of speech; not a suggestion that critics of these protests could have anything other than racist motivations. It is the antipathy of the intellectual foundations for higher education. Rather than address the merits of arguments, you attack those with opposing views personally and viciously. That has become a standard approach to critics on our campuses. Unless you agree with the actions of the movement, you are per se racist…

…[I]t suggests that the presence of conservative (which they seem to view as synonymous with racist) scholars have no place at such schools. That last point is unfortunately the view of many faculty at top schools which are overwhelmingly if not exclusively liberal…

The message for other faculty by these Cornell clinicians is both clear and intimidating. Disagree with the BLM movement or the protests and you will be labeled a racist. Indeed, the letter ends on a menacing note: “And we will continue to expose and respond to racism masquerading as informed commentary.” Thus, if you attempt “informed commentary” on the costs of looting and the need for great law enforcement, you are a per se racist….

That last paragraph is especially important, and describes the larger purpose of leftist campaigns like the one against Professor Jacobson: to serve notice to others about what constitutes acceptable and unacceptable speech, and what the penalties are for the latter.

Turley’s letter also mentions other anti-free-speech actions on campus, against both professors and speakers. As we know, this has been going on for years, but I think they’re now emboldened by the Floyd killing and the widespread demonstrations and riots that have followed. The want to strike while the iron is hot, as it were.

One of the cases mentioned in Turley’s letter was unfamiliar to me, but this is an astounding example of the “logic” involved:

CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,” Bilek insisted that disrupting the speech on free speech was free speech.

The mental gymnastics involved must be painful, but to the leftist they have become second nature.

Here’s what Turley had to say about Bilek:

While Bilek says that the heckler’s caused only a “limited” interruption, Blackman says that it was prolonged and prevented him from being able to give his full speech.

The protesters reportedly chanted things like “legal objectivity is a myth” and called him “a white supremacist.”…

[Bilek] added “this non-violent, limited [8-minute] protest was a reasonable exercise of protected free speech,” adding that “it did not violate any university policy.”

Some of that is defensible, but Bilek lost me in the end. First, students clearly have a right to protest outside of the event. Stopping an event is not an act of free speech. It is the denial of free speech and should be punished by the school as such. For Bilek to say that it is not a violation of CUNY policy is alarming. Particularly in an academic setting where a variety of views and values should be allowed to be voiced, the shutting down of a presentation or speech is to deny the choice to others in exercising their rights. It is an act to prevent others from even hearing someone with whom you disagree.

And in particular, the broader aim is to discourage other conservative speakers from even trying to be heard and to get them to think: Who needs the aggravation? If the administrative won’t protect your right to speak, why bother?

And that, my friends, is a victory for the left.

I think it’s time to send people this Loury and McWhorter video

The New Neo Posted on by

I don’t send people links to articles or videos, ordinarily – and by “people,” I mean liberals, because most of the people I know fall into that category. I learned many years ago that (a) they were unlikely to look at them (b) if they did, they weren’t receptive to the content; and (c) they tended to become angry that I’d sent them the material in the first place.

In other words: it was counterproductive, and I stopped sending such emails over fifteen years ago.

But lately I’ve been thinking that things have gotten so bad in this country that it’s time to resume some of this. My idea is to send just one or two links to a small number of people carefully selected as the most potentially receptive and open-minded of the group.

You may want to formulate your own policy, or choose not to do it. But if you are going to send anything, I suggest this video by Glenn Loury and John McWhorter. It’s not only thoughtful, intelligent, and deep, but it’s a courageous discussion about what’s happening right now in America vis a vis race and police. Because of who these two men are, it might be hard for liberals to dismiss them out of hand. Loury and McWhorter are black, and both are intellectuals – professors at Brown and at Columbia.

So without further ado:

People are afraid – and rightly so

The New Neo Posted on by

Ever since I’ve been blogging, I’ve periodically received emails from people in academia about their fear of disagreeing with the herd of leftists. In the past few years it’s gotten even worse in academia, as well as the entertainment world and business and the MSM.

In fact, it’s everywhere, and it’s been everywhere for many years, but the New Red Guards are like sharks in the water now, smelling the blood and in a feeding frenzy. For years they slowly took over those areas, but even the last vestiges of thought that goes against the Party line – however minor the infraction, however earnest the mea culpas of the supposed culprits – must be stamped out.

It’s not just about getting rid of certain people. It’s about power and it’s about sending a message to the rest: we are in control, and you must obey in word and deed. And Silence is Violence, so you will be made to speak out in the ways we see fit.

I think sometimes of the bravery of Soviet dissidents, who were facing a more brutal system than we are at the moment. Could it get that bad in the US? Yes.

What it took to achieve the present situation in the US was to stop teaching children why it is so vitally important to protect liberty and how our Constitution was designed to do that, as well as why all those old-fashioned virtues that sound so boring are of the utmost importance. But we ceded our educational establishment to people who thought otherwise, and were dedicated to relentlessly – and through mendacity if necessary – achieving the indoctrination of generations of young Americans.

The left does not tolerate dissenting views. One reason is that they are drawn to power and control, but still another is that they know they can’t win in the forum of ideas so it’s best not to expose people to them. Therefore, they give to dissenting views labels that trigger revulsion – for example, racist – and then they summon the mob.

And they are masters of useful slogans. For example, “Black Lives Matter.” Of course black lives matter. Whoever says otherwise these days, except perhaps for a group of neo-Nazis so tiny and so rejected by both sides that they lack all influence? But one effect of the use of “Black Lives Matter” as a slogan is that one is no longer allowed continue to say, proudly – as was the ideal in my younger years – that all lives matter, and that the color of a person’s skin also doesn’t matter in that equation.

But people have lost their jobs merely for saying “all lives matter” (or even “all buildings matter,” about the buildings the rioters torched). This is madness. But though it be madness, yet there is method in it. Leftism has always been especially involved in language policing – as Orwell knew and described brilliantly over 70 years ago. Language is an easy way to indicate what is allowed and what is not allowed. But far more importantly, enforcing obligatory leftist language allows (or makes) people signal their conformity – or at least, intimidation into displaying the semblance of conformity – of thought.

“You will not tell me what I can and cannot say” became an act of bravery quite a few years ago. Now, with the death of George Floyd and the elevation of Black Lives Matter to a position that is quasi-sacred, statements that are defined by the left as being against it (although the “all” in “all lives matter” is inclusive rather than exclusive) are sacrilege and blasphemy.

And so we have a host of professors and others who are in trouble for not exhibiting sufficient obeisance to the Black Lives Matter religion. Note that there is no assertion that these people have displayed any racist behavior outside of forbidden language, or that they don’t think that in fact black lives matter. They have not been rude to anyone of any race, nor have they discriminated against any person, nor even spoken harsh words about members of a race. They have merely spoken forbidden words that are deemed to be racist code words.

And for that they must be shunned and shamed, and perhaps have their livelihoods taken away, as a lesson to them and even more importantly as a warning to the rest of us.

What are many of the people who acquiesce in this afraid of? That it will happen to them, of course. Shunning is effective among the Amish, but it’s effective everywhere. We are for the most part social creatures. How many people have the strength to go it alone? How many will take the risk, both financial and social?

I will close with something I was reading today, and not coincidentally. It is from the book Defying Hitler, by Sebastian Haffner. The author was a young man in Germany during the 30s and ended up escaping to England, but the book is his memoir of the Nazi takeover times in Germany. Among other things, he wrote this on the subject of why a great many Germans joined the Nazi Party in March 1933::

They did it for many reasons, often for a whole tangled web of them, but however hard one looks, one will not find a single, solid, positive, durable reason among them – not one that can pass muster. In each individual case the process of becoming a Nazi showed the unmistakable symptoms of nervous collapse.

The simplest and, if you look deeper, almost always the most basic reason was fear. Join the thugs to avoid being beaten up.

Haffner adds that too many Germans were devoid of the following:

…a solid inner kernel that cannot be shaken by external pressures and forces, something noble and steely, a reserve of pride, principle, and dignity to be drawn on in the hour of trial…At the moment of truth, when other nations rise spontaneously to the occasion, the Germans collectively and limply collapsed. They yielded and capitulated, and suffered a nervous breakdown.

Haffner’s book is a great one, and I recommend it highly. But I think he’s too hard there on the Germans – or rather, I think he may be too hard on the Germans in particular. I wasn’t there and he was. But there certainly were Germans who didn’t go along. And sadly, I think the Germans were not as unique in their capitulation as I once thought. In the last two decades in particular, and accelerating rapidly in the last couple of years, I have entertained increasingly grave doubts as to whether Americans will pass the test that the German people failed.

I hope so.

Judge Gleeson’s brief in the mandamus case

The New Neo Posted on by

In his defense of Judge Sullivan’s bizarre actions in the Flynn case, Judge Gleeson has apparently written something that just might be one of the worst documents ever submitted by a judge. For example:

You know a lawyer’s bluffing if he inundates the court with case authority for an ostensibly simple principle. The amicus brief that Judge Gleeson filed with Judge Sullivan in the Flynn case has those string cites. Gleeson’s bluffing. Worse, he’s lying.

It’s typical for dishonest attorneys to use fake citations – cases that do not stand for the principles asserted — in their endless string sites, hoping no one will check. This what Judge Gleeson did in his brief: Every one of his 14 citations in footnote two on page 1 is a lie. That’s all you need to know about his brief.

See also this, this, and this.

That last one is from Jonathan Turley. Here’s an excerpt:

Thus, according to Gleeson, the Court should first sentence a defendant on a crime that the prosecutors no longer believe occurred in a case that prosecutors believe (and many of us have argued) was marred by the own misconduct. He would then punish the defendant further by treating his support for dismissal and claims of coercion as perjury. That according to former judge Gleeson is a return to “regularity.” I have been a criminal defense attorney for decades and I have never even heard of anything like that. It is not “regular.” It is ridiculous.

That’s what we’re talking about here.

Paul Mirengoff, who has listened to the oral arguments today, seems to think the court will not rule for Flynn, and will decide that it is okay to let the thing play out and see what happens. Astounding, and incredibly depressing, if that comes to pass.

Even if you put aside the injustice that’s been perpetrated on Flynn, this sets a tremendously dangerous precedent for our entire criminal justice system. If a judge is allowed to do this, no defendant is safe.