We Don't Need No Stinkin' Affirmative Action

Sorry, but I couldn't prevent myself from paraphrasing the immortal lines from The Treasure of Sierra Madre spoken by the Mexican Bandit leader as portrayed in the movie, above, in referring to another decision of the Supreme Court.  This one is about Affirmative Action, or rather the demise of that program or policy, as a result of the opinion in the case involving Students for Fair Admissions (as opposed it seems to Students for Unfair Admissions).

The Equal Protection Clause is at issue in the case.  That Clause was adopted just after the end of the Civil War, and it seems beyond dispute that it was adopted to prevent governments from engaging in racial discrimination of the sort which continued despite the defeat of the rebellion.  It seems curious, therefore, that it is claimed in this opinion that a policy intended to remediate the results of racial discrimination violates the Equal Protection Clause, which is intended to prevent it.

Such, though, is the result when we reverse course in this fashion, and declare that a policy which had been determined to serve a vital governmental interest doesn't really do so anymore, which is what I think is the position taken by the majority of the Court.  It is acknowledged, though in a somewhat grudging and dubious manner, that prior cases sanctioned the consideration of race in admission to institutions of what used to be called "higher learning" as serving such an interest.  But, one gathers from the opinion, it no longer does so, if it ever did.  Why?  Because there just isn't all that much racial discrimination going on now in higher education.  It is so limited at this time that the extraordinary decisions of the past no longer apply.

The fact that Affirmative Action existed always made some uncomfortable in light of the unambiguous language of the Equal Protection Clause.  Affirmative Action by its nature gave preference to certain students based on their race, and so favored them in consideration for admission to an institution, based on their race.  Clearly, if white applicants were given preference, it would constitute a violation of the law.  Why should that not be case if black or other applicants are given preference?

It was thought that it should not be the case because black and other applicants or minority status had been wronged, discriminated against, where others were favored.  That should be fairly clear, one would think.  If strict application of the Equal Protection Clause has the effect in certain circumstances of preventing its purpose from being accomplished, it isn't unreasonable to believe exceptions are appropriate in extraordinary circumstances.  

So, the majority doesn't maintain that Affirmative Action always violated the Equal Protection Clause.  Instead, it's reduced to claiming that Affirmative Action just isn't necessary anymore.  Curiously, it refers to language in prior opinions which spoke of the sunset of Affirmative Action.  It was estimated that 25 years should suffice to dissipate the harmful effects of discrimination due to race, and behold!  Twenty years later  discrimination is no longer a significant concern, and least in the admissions process.  We should congratulate ourselves.

Some disagree with the comforting conclusion of the majority.  And it does seem to be a decision which should have more support in a factual record than this opinion does, limited as it is to consideration of the policies of two institutions in particular.  

Most peculiar, I think, are statements made in the majority opinion which state that nobody doubts that applicants of a particular race may note in an essay submitted for consideration the impact that racial discrimination has had in their lives.  So, it seems race may be mentioned, at least in an essay, according to the Supremes.  Nonetheless, though, it cannot be considered.  What can be considered is how the applicant as an individual derived from that discrimination some sort of ability which would contribute to the university.  If an applicant is black, therefore, the majority thus asserts that while that fact may be significant in developing certain abilities and characteristics due to discrimination--may have indeed been necessary to that development--it cannot be considered in the admission process.  Instead, the individual, which apparently isn't black or isn't deemed black, is what is to be considered.  

It will be interesting to see how this bit of conjuring will play out.

We Don't Need No Stinkin' Code of Ethics

William Howard Taft was the 27th President of the United States, and the 10th Chief Justice of the Supreme Court.  Though known primarily for his size (these days) he was also remarkable in other respects.  For example he is the only person to be both a President and Chief Justice, as already noted.  That is so notable that I might be forgiven for noting it twice.

Taft's quote appearing at the top of this post makes an important point; one he was uniquely qualified to make.  The Supreme Court and its decisions go on forever, or will go on until that Court is disbanded for one reason or another.  The Justices of the Supreme Court also go on, seemingly forever to those who dislike them, but at least until such time as they die, retire or are otherwise removed.  The only way in which they may be removed without their consent is through the cumbersome process of impeachment.

The Founding Fathers of our Great Republic were so eager to assure an "independent judiciary" that they provided for this in the Constitution.  The idea was that the Supreme Court would thus be removed from political influence. It's questionable, however, that the Justices can reasonably be considered independent in such a sense, particularly in these disturbing times.

The process by which they obtain their high places is already entirely political.  If we pay attention to it, we'll observe the machinations of members of Congress designed to assure that Justices toe a particular political line.  Prospective Justices may wriggle as much as they wish, and give lip service, at least, to the maxim that judges should not prejudge cases which may come before them, but ultimately they must surrender or compromise if they want Congressional consent to be given.  It's a sad display, but that may be said of most of the actions of our representatives in Congress assembled, shackled as they are by their devotion to money and those who have and spend it or may withhold it.

Once they've ascended to the Court, the salary they're paid is relatively small--roughly $275,000 dollars, more but not less.  But they can easily enough supplement that income by writing, or giving speeches, and in that fashion can be rewarded in millions of dollars.  It may reasonably be said that they make a comfortable living.

Lately we learn that certain of them enjoy the friendship of fabulously wealthy people, Republican donors, who have funded expensive, extravagant and exotic trips and vacations they take, gratis.  It seems that those individuals or companies in which they hold an interest have been parties to or interested in matters which come before the Court, but that the Justices in question have declined to recuse themselves.  We're assured by them, however, that they haven't discussed such matters or it seems anything of significance with their benefactors, and that all is well.  The expensive gifts of such travel have had no impact upon them, particularly where their judicial duties are concerned.

Those like me are unimpressed by such responses.  It's true that enjoying the blandishments of the very wealthy isn't in itself illegal.  But there remains the significance of avoiding the appearance of impropriety, something public officials of all kinds are urged to do.  It's difficult to understand that the Justices in question would maintain that no such appearance arises.  Claiming that one has good, very wealthy friends who lavish money on you merely because they treasure your company doesn't strike me as a reasonable explanation, no matter how conceited one may be.

The Justices are fortunate, though, that there is virtually no legal limit on their venality.  Nor do they show any inclination to accept a limit.  Supposedly, they have agreed to follow the Code of Ethics which applies to all other federal judges, but as they are themselves the sole judges (well, I know, but it's true) of their own conduct, only their personal honor is at stake if they decide not to consent to the Code in particular circumstances.  It's pleasant to believe that those who are in effect immune from sanction and in a significant position which they hold during their natural lives will be rigorously honorable, but there is no need for them to discipline themselves. 

Once more, we have the Founding Fathers to thank for the untouchable status of the Justices.  Congress and the executive are powerless.  Any effort to restrain the Justices will be subject to attack as unconstitutional, even if the restrictions are unobjectionable.  Then there is the problem that there can be no tribunal higher, or more supreme, than the Supreme Court itself.  A Justice may be impeached, and in that case the legislature may review and condemn conduct or a particular kind, but as far as I am aware there has been only one impeachment trial of a Justice in our nation's history; that of Justice Samuel Chase in 1804-1805.

It's likely that the most that can be expected is that the Court will deign to police itself.  The reaction of the Justices in question to the revelation of their acceptance of the vast generosity of those willing, apparently for no practical reason, to expend huge sums on their entertainment, doesn't suggest that any real policing will take place.  They seem stunned anyone would have the temerity to question their ethics and take refuge in claims of innocence and assurances they receive from those in no position to supervise them.

Perhaps the publicity regarding the acceptance of lavish gifts of this kind from interested political agents, and the inference that their actions will be scrutinized in the future, will serve to make Justices more discreet, at least, and more inclined to decline favors from those anxious to endear themselves to them.  If not, however, there is the risk that the Justices will come to be seen as craven as most of our elected officials.

 

Your World Frightens And Confuses Me

I'm a great fan of Keyrock, the Unfrozen Caveman Lawyer, played by the late, great Phil Hartman in several sketches on Saturday Night Live.  As I grow older in this profession, I come more and more to think, if not to say as he did:  "Your world frightens and confuses me."

Though I'm not an unfrozen caveman, I am an old lawyer, and am feeling my years.  I expect to retire next year.  When I began practicing, carbon paper was still in use.  Electronic typewriters with limited memory were available, but no word processors, and no computers.  Fax machines made an appearance after a time, but used thermal paper, which curled annoyingly.  There were no cell phones and certainly no smart phones.  Car phones were available, but were costly and cumbersome.  Research was done using books.

The practice of law changed with the technology, and while I have a working knowledge of what is essential to practice in these times, there's much I'm unaware of for the simple reason that there's been no need to encounter it--yet.  But those who are young in the law can do much I cannot do, and know much I haven't convinced myself that it's useful for me to know about the practice, and about the world.

That world frightens and confuses me.  So, in some ways, does the practice of law.  But the world is far more frightening to me than the changing, and changed, practice.  

Each year since 1996 I've attended a two day seminar in an area of law I've made something of a specialty of over the years.  This year it served to remind me of my age more than it served to educate me of anything else.  It did so by the youth of its attendees, but also by the subject matter of its presentations.  I had no idea that there are groups of people who carry cameras and microphones into city and town halls and courthouses for the purpose of filming and haruanging those trying to work there, hoping that they may find them so annoying as to engage with them.  When they do, they post the hapless and usually harmless people to YouTube.  The more obnoxious they are the more they are able to obtain clips which show those filmed in a bad light and which provide them with the opportunity to pontificate.

These folk are apparently called, for reasons unclear to me, "First Amendment Auditors."  Their antics may be dealt with easily enough with some training and signage, fortunately, but those ignorant of them (as I was until recently) will be annoyed and befuddled needlessly.   Some of them are actually paid for their sad displays, likely through advertisers who hope to influence their viewers.  It's astonishing--and frightening and confusing to me--what people will pay for in this bizarre new world.

Another presentation dealt with AI and the practice of law.  AI may be used to prepare memoranda of law which will adequately describe, in a general way, information on particular legal topics.  If care is not taken to review the product, though, the results can be devastating for counsel and clients.  A horror story was told of an experienced lawyer who presented a brief to a court, filled with argument and citations to case law.  The lawyer who filed it didn't bother to check the citations, but opposing counsel did and found that the cases referred to were fabricated by the AI.  It made up cases, apparently taking names which it found in the vast reaches of the Web which seemed related to the subject matter of the case.  The case involved airline liability, so the cases generated included names of defendants which included the word "airlines" thus seeming to be airline companies.  The lawyer was sanctioned by the court.  What befell the client wasn't mentioned.

I'll depart from the practice of law relatively soon, but when I'll depart this world is unclear and can't be determined.  Until I do, I'm in a world that seems designed to frighten and confuse.

As that world is more and more one generated by computers,  I'm reminded of a description of the product or data produced by computers I've heard--"garbage in, garbage out."   Bad data downloaded, means bad product.  I see no limits on the garbage entered, or the resulting garbage.  Do we live in a "World of Shit" (Full Metal Jacket reference)?  Where no effort is required, no discipline is needed.

What nobody seems to have considered thoroughly, it seems to me, are the characteristics of those who enter data into the system and those who view the results.  There is a demand for garbage, and an endless supply of it.  Welcome to the new world.

Inside the Box(es)

Later today, a former president of our Glorious Union will, once more, appear in court in response to an indictment.  It may not be the last time he does.

This particular indictment appears, on a review, to be as some have already noted very damning.  The photographs accompanying it are themselves baffling.  Consider the one shown above, in which archive boxes filed with documents and other things carried away from the White House are shown to have been deposited in a bathroom.  What they portray is reminiscent of what one would see in the home of a hoarder; those unfortunates who cannot part with items regardless of any need for them, and so decide to live in squalor.  This impulse carried to extremes may be a sign of a disease or disorder of some kind.  

Perhaps what has brought us to this sorry day is evidence of a personal problem.  Perhaps the hoarder derives a sad kind of satisfaction having such documents in his possession.  It's difficult to say what would motivate someone to act as he has in these circumstances.  It's clear from a reading of the indictment that that any wounds resulting from it can fairly be described as self-inflicted. Had all the documents in questioned been returned to the Archivist, the Department of Defense or whatever or whoever the proper custodian may be, there would have been no indictment--certainly no indictment as "damning" as this one.  

Instead, it seems a sometimes rather laughable effort was made to withhold them.  Boxes were moved from place to place to avoid discovery; even his own attorneys were, apparently, misled and misinformed.  Most remarkably, statements were made by the named defendant and others in his circle which are incriminating, were witnessed, and even recorded with his knowledge and approval.  Certain documents regarding a possible military operation were actually displayed by him to others, and he acknowledged he was acting improperly when he did so.  He seems to have been bragging when he made this impressive misstep.  

We'll see how this plays out in the courts.  Judging only from the indictment and the scatter-brained and vituperative nature of its subject, there is certainly a possibility a prosecution will be successful.  What I find particularly surprising, though, and what I think would be a worthy object of study, is the fact that he has ardent supporters and their reaction to the indictment.

I find it difficult to understand why this flawed, sometimes incoherent, often stupid, ignorant, self-involved, malicious, arguably sociopathic individual is thought to be a kind of hero by some, and is being defended by people who I must assume think themselves to be reasonable.  I think those Republican politicians who leap to his defense may be dismissed as craven, venal and habitually (even necessarily) dishonest, being politicians.  There's no reason, normally, to think they believe what they say for public consumption.  

What of others, though?  What is it about him that excites their support?  H.L. Mencken believed that American style democracy would someday achieve the election of a moron to the presidency.  I think it's clear he thought most politicians were crooks already; it only remained for the people to find and place in office a particularly stupid crook.

Is it possible that people see in him something they think is familiar and satisfying, that they think him to be "just like us"?  Do they want to be like him?  Do they find his bluster and posturing admirable?  Do they delight in the fact that he is, according to certain accounts, considered a boorish dullard by people and leaders in other countries?  One hopes not.

My guess is that he, and others like the regrettable governor of Florida, are expressive of the resentment some feel about people who aren't like them having a respected part in our society and government.  We can be a very provincial people.  We don't take kindly to outsiders.  We see in others the sources of our problems, and will defend those who are like us, right or wrong.

Censors and Censurers

The Roman Censors (always one of two officials, until Augustus established the Principate) were men of consular rank elected to their posts every four or five years.  "Elected" in this context refers to the often fierce and sometimes violent struggles involving money, pandering, favors granted and owed, family affiliation, military support and prowess which typified elections under the Republic; not all so different, come to think of it, from elections taking place now.

The Censors possessed a variety of powers, related to taxation and other matters, but what they are most known for now was their authority over public morality.  Perhaps the most famous of the Censors appears at the head of this post.  Behold Marcus Porcius Cato, the Elder, who is said to have been particularly diligent in ensuring that Roman virtues were practiced and respected.  He's also famous for ending his speeches in the Senate, regardless of their topics, with the assertion that "Carthage must be destroyed."  Judging from his bust, he seems to have been someone who didn't smile easily.

Our Great Republic is now replete with censors or wannabe censors, i.e. persons who eagerly and often point out what they consider the failings of others.  Unlike the Censors of ancient Rome, though, our modern censors are entirely self-appointed. Also unlike the ancient Censors, modern censors aren't required to engage in arguably useful public action, like assessing and collecting taxes and keeping track of population.  They're entirely free to assess blame and find fault with any person, something it's quite easy to do in this age of limitless expression.  Since "censor" in modern use refers to prohibiting or ending communication, however, our modern censors are more appropriately considered censurers.  They freely criticize and assess blame but lack the authority to silence communications, though they may, if influential, manage to shame or berate others into silence.

Censurers are, by nature and definition, busybodies.  They scour the news, forums, the Internet generally, and having spied something they believe inappropriate they hurry to point it out.  It doesn't matter that they aren't involved in a dispute or discussion, they will intrude in one merely for the sake of preaching, merely for the purpose of displaying their own righteousness.  They comment and meddle.  That is, after all, what a busybody does.  

There are of course professional censurers, who are paid to vilify those who don't accept their standards and beliefs.  But compensation isn't required for a censurer to censure given our technology, which allows any one of us to pontificate and abuse publically and frequently.  

There have always been people who, unsolicited, intrude and meddle in the affairs of others, who gossip, criticize, are loudly self-righteous, who are preachers, who are Pharisees (which is to say "holier than thou").  The busybody is sometimes an object of contempt or laughter--there seems to be one in most every sitcom, usually a neighbor.  

There seems to be something in our nature which induces us to pry into the affairs of others and smugly degrade them.  It requires a meanness and pettiness of soul, and great self-regard, but these are characteristics which are encouraged in these times, or at least certainly tolerated, and are ubiquitous as they may be indulged in at any time.

Censurers are therefore dangerous, now.  They may remain objects of contempt but can do much damage to free expression and conduct, and cannot be effectively punished.