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February 8, 2022
Lots of mail and interesting comments. Let’s get right to them. And please continue the conversations below in the increasingly interesting comment threads.
Notes and comments from readers —lightly edited —- along with my responses
Some letters reference items in last Thursday’s Picayune Sentinel.
Pete Z. — The procedure for selecting Supreme Court justices is working just fine. "Most qualified justice" is a weird concept. How could we ever begin to agree what that means?
As it stands, the president identifies judges who are "qualified" — who have experience handling appeals — and then selects one that helps him politically. The Senate reviews the choice to be sure no improper person is installed on the bench. That person becomes a justice for life so he/she does not owe any favors to the Senate or President.
It is a political process with checks and balances as our Founding Fathers envisioned. Of course there will be disagreements and push back. That’s part of the process. When did this idea of one "most qualified justice" pop up?
Maybe when Poppy Bush called then-newbie Judge Clarence Thomas the “best qualified” person to assume a seat on the court? I dunno. I don’t have a historical compendium of presidential puffery to consult.
But no, the Supreme Court selection system is not working “just fine,” unless you’re a conservative who is thrilled with the current balance of the court. And, by the way, it’s inevitable that conservatives will seeth and rage should the happy day ever occur when the court is dominated by liberal justices largely appointed by presidents elected with a minority of the popular vote and OK’d by senators representing less than half the population are tinkering with the law.
Partisanship — amplified and distorted by the undemocratic defects built into our republic — has broken the system and turned the Supreme Court into a political body. Relative youth and ideology trumps “experience.” “Improper” to members of the Senate is a nominee who has a different political philosophy than their own.
The way Senate Republicans thwarted President Barack Obama’s nomination to fill the seat of Antonin Scalia and then rushed through the appointment of Amy Coney Barrett during the twilight of Donald Trump destroys the notion that there is anything high minded about the process anymore
Comfort yourself all you want that this is just what the Founders envisioned. But first plow through their writings to find support for your view that this is how it’s supposed to work.
J.K - What if, after the Senate narrowly confirms President Joe Biden’s nominee to the Supreme Court, Justice Stephen Breyer simply decides to stay on the court? Adding an extra liberal would be a small measure of payback for the way Republicans took advantage of the rules with the last two nominations.
I failed in my first several attempts to research the question of exactly what a senate confirmation resolution says — if it says that the confirmed justice is filling an specific, existing vacancy or if it just confirms him or her to the Supreme Court. But let’s say for the sake of argument that Breyer could say “y’know, on second thought…” after a Biden nominee is confirmed and withdraws his resignation. If deemed legal, it would only set the table for future rounds of payback when Republicans control the Senate, which they surely will again.
The Founders in whom Pete Z. above places so much trust, didn’t limit the number of justices on the Supreme Court. Originally there were six. At one time there were 10. Tradition since 1869 has been nine, and at this point a simple Senate majority could add justices willy nilly without Breyer having to change his mind.
Both parties would play at that game, of course, and pretty soon we might see dozens of associate justices and a court even more blatantly partisan than it is now.
I’d favor a Constitutional amendment to limit the number of justices — given the diversity of our nation at this point I’d argue for 13, but a decent case could be made for an even number of justices (as George Washington had). Each would serve a limited term, and it would probably also be a good idea to balance the court so that Republican presidents and Democratic presidents would have a roughly equal number of appointees on the bench at any given time.
R.L. — Regarding Whoopi Goldberg getting suspended from ABC’s “The View” for two weeks for saying the Holocaust wasn’t an example of racism, the United States Census question about racial identity lists “White, Black or African American, American Indian or Alaska Native and Native Hawaiian or Other Pacific Islander.” The Census Bureau says “People may choose to report more than one race to indicate their racial mixture, (and those) who identify their origin as Hispanic, Latino, or Spanish may be of any race.”
Jewish isn’t one of the options Should it be? Lots of people are racially mixed. How do we know which label to put on a person? What’s the percentage of Hispanic origin a person needs to be in order to qualify as Hispanic? Why does all of this matter anymore?
I learned from Whoopi’s very honest mistake, as did she. Her punishment was too severe.
It matters anymore because this sort of data is a way we attempt to monitor and improve how well we’re doing in realizing America’s promise of being a land where resources and political representation are fairly allocated. That’s my best stab at a quick answer.
Why Jews are difficult to put into particular categories was explained well last week by Yair Rosenberg in his Atlantic newsletter “Deep Shtetl.” I posted this quote last week, but here it is again:
Jewish identity doesn’t conform to Western categories, despite centuries of attempts by society to shoehorn it in. This makes sense, because Judaism predates Western categories. It’s not quite a religion, because one can be Jewish regardless of observance or specific belief. (Einstein, for example, was proudly Jewish but not religiously observant.) But it’s also not quite a race, because people can convert in! It’s not merely a culture or an ethnicity, because that leaves out all the religious components. And it’s not simply a nationality, because although Jews do have a homeland and many identify as part of a nation, others do not.
Goldberg’s honest mistake was not realizing that the Nazis’ murderous hatred was animated by a belief that Jews were an inferior race, and the controversy surrounding her remarks has actually served as a helpful reminder about the perilous toxicity of racism.
We need to have that conversation from time to time. I don’t think we need to punish people whose verbal blunders are born of their own misunderstandings.
We seem to be losing our ability to have conversations that promote understanding and healing. Instead we rush right to censure and punishment, assuming bad faith and the worst of intentions of anyone who steps out of line for any reason.
It ultimately drives us apart. I’m thinking here of the controversy at Mother McAuley Liberal Arts High School, about which I had a lot to say Monday on the radio with John Williamswhen I expressed views that I will be reprising in the upcoming free edition of the Sentinel.
Yes, I know, I’ve been circling back to these “cancellation” stories rather often, and usually in ways that don’t offer comfort to my more progressive friends. The news does keep serving them up, though, and I remain open to thoughtful counterpoints explaining why it’s a good thing that we’ve become wildly punitive over minor offenses.
J.H. — Regarding “hate crimes,” the difference between someone spray-painting a smiley face on a synagogue and someone spray-painting a swastika is the content of the criminal's speech. The sentencing enhancement for hate-motivated crimes is punishing the expressive aspect of their crime, just the thing the government may not do under the First Amendment. The latter is certainly more menacing and threatening, but you could surely say the same about a legal Nazi march in front of the same synagogue.
At the same time, the statute does not generally enhance a sentence for the threatening character of the vandalism. There is likewise a difference between spray-painting a smiley face on a police station and spray-painting a smiley face next to the words "Kill a Cop Save a Life."
I'm aware of no law that would punish the latter more severely.
RAV v. St. Paul, is a 1992 Supreme Court case that struck down a law that said: "Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."
The court held it unconstitutional because it violates the general rule that "the First Amendment prevents the government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed." In other words, it was impermissible viewpoint discrimination. I can well see the same argument applying to hate-crime sentencing enhancements.
My layman’s understanding is that you need a crime before you have a hate crime, and that “hate” crimes apply only to crimes animated by race, religion, color, disability, sexual orientation, national origin or ancestry, not chosen profession, such as police officer (though other laws do afford extra protections for public safety employees).
Consider Wisconsin v. Mitchell, a 1993 Supreme Court ruling, in which the unanimous court wrote:
Motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. ... Bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. …The State's desire to redress these perceived harms provides an adequate explanation for its penalty enhancement provision over and above mere disagreement with offenders' beliefs or biases.
I do, however, see where it’s a fine line and occasionally requires finders of fact to engage in some mind-reading. A number of you wrote to decry specific hate crime laws but to endorse the idea of harsher sentences for offenses plainly motivated by racial or ethnic animus. If you see a distinction there, fine.
Marc. M. — Most Americans favor equal opportunity and also are in favor of assistance that creates a level playing field. I think that they also believe that substantial progress has been made over the last 60 years, which reduces the need for specific racial preferences. A tool designed to address needs 60 years ago is not the same tool needed today. The Harvard/University of North Carolina case before the Supreme Court also highlights one minority group (Blacks) getting preference over another minority group (Asians). I believe that most people really do want a color-blind society and believe that we are much closer to it. This is, of course, anathema to the equity/antiracist views.
Some of the poll results I cited last week suggest internal tensions between the desire to make sure that each demographic group enjoys the same opportunities in life (“equality”), and a desire to see similar outcomes for all demographic groups (“equity”).
There is also tension between the aspirations most of have for a color-blind society and the reality that, even some 60 years after the civil rights movement we aren’t there yet. And while there’s little doubt that diversity of all sorts — not just racial but ethnic, geographical, socio-economic, religious and gender — makes for a richer and more stimulating educational environment, it’s hard to realize diversity without abandoning some of our conventional notions of fairness.
J.H. — The New York Times just ran a front page news story that said that the GOP characterized the riot at the Capitol as legitimate political discourse. A headline in the paper used those words. Shocking if true. But not true. The Republicans' point, such as it was, was that the Jan. 6 commission was a witch-hunt ensnaring legitimate discourse, and they went out of their way to say that they weren't referring to the illegal acts of violence and rioting themselves.
The post-hoc parsing of the GOP resolution of censure against Reps Adam Kinzinger of Illinois and Liz Cheney of Wyoming to try to clean up the mess was as disgraceful as the resolution itself. “What we meant to say…” doesn’t change what they said. Stop fretting obtusely about the New York Times and take heed of what the National Review had to say:
Republicans who did nothing to encourage the mob — and there are many such Republicans — need not wear a hair shirt over January 6, but when they choose to talk about it, they should tell the unsparing truth. … There is also no conceivable political benefit to the Republican Party or its members — other than Donald Trump — in looking to defend or minimize January 6 rather than simply move on…
(The RNC statement) will, quite predictably and not wholly unreasonably, be read as an argument that the action of the mob was nothing but “legitimate political discourse” and that nobody should be prosecuted. It will be used against hundreds of elected Republicans who were not consulted in its drafting and do not endorse its sentiment. To the extent that the party did not intend this as the meaning — and RNC chair Ronna McDaniel, already doing damage control, says it was not meant that way — its wording is political malpractice of the highest order coming from people whose entire job is politics….
The RNC bought the entire party a bounty of bad headlines and easy attack ads. It did so for no good purpose, and its action will only encourage those who see riots as legitimate political discourse.
The resolution was a political misfire on the level of “I like people who weren’t captured” and “We're going to put a lot of coal miners and coal companies out of business.” It wasn’t up to the New York Times to reinterpret and but the best possible spin on it, nor was it up to Lisa Murkowski , Chris Christie or any number of prominent Republicans who joined in the expressions of flabbergast.
Ya’ gotta see these tweets!
I often run across tweets that are too visual in nature to include in the Tweet of the Week contest (the template for the poll does not allow the use of images). Here are a few good ones I’ve come across recently.
There’s still time to vote in the conventional Tweet of the Week poll!
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It doesn't matter whether or not Jews are considered a "race" based on some social science theory or genetic assessment. The Nazi's considered Jews as well as Poles and other Slavic peoples to be "inferior races" and that is what drove their policies. To say that the Holocaust and genocide the Nazi's practiced was not racially driven shows an egregious ignorance of history and a partisan attempt to rationalize away Goldbergs uninformed comments and views.
And please cancel my subscription.
Whoa - Eric - you did not answer my main point. I said the selection process results in a qualified Justice joining the Supreme Court.
Are you saying the last three Justices are unqualified?
Does being "conservative" equal unqualified?
You had a conservative (wacko) president with a conservative (wacko) senate resulting in the selection of three qualified conservative Justices. Want to blame someone - blame the American voters who put these folks in power. But show me these 3 folks are not qualified to be Justices.
So far all you got is political sour grapes. The system worked and reflected the political will of voters. (Not saying they were right - just saying what they waned).