Friday, October 6, 2017

The most appalling thing a judge can say . . .

During the recent oral arguments of a hotly debated case -- Epic Systems Corp. v. Lewis -- Chief Justice John Roberts, in a back-and-forth with University of Virginia law professor Daniel Ortiz said the most appalling thing a judge can say: Let the desired results dictate the law.

In that case, Justice Roberts observed that a decision in favor of Ortiz’s client would invalidate employment agreements covering 25 million people – a step that several of the justices would be reluctant to take.

I find this appalling for Justice Roberts is not concerned with what the law requires, but rather with what effect enforcing the law will have.  This is contrary to the very spirit of the Rule of Law which requires that the law dictate the results, not the desired results dictates the law.

Stated another way, if those 25 million employment agreements violate the law -- and a very considerable weight of the legal analysis points to that conclusion -- then those agreements violate the law and they must be invalidated. Justice Roberts is arguing that certain cases are "too big" to be determined by law but rather must be determined by the amount of inconvenience to the employer.  Sickening from a jurist, particularly one who sits as Chief Justice of the U.S. Supreme Court.


Tuesday, September 12, 2017

Fort Sumter to Charlottesville: A letter from two Montgomery Blairs to two Presidents

On Friday, April 12, 1861, at 4:30 a.m., Confederate batteries opened fire on Fort Sumter in Charleston, South Carolina, firing for 34 straight hours.  On Saturday, April 13th, the Fort was surrendered by it commanding officer, U.S. Army Major Robert Anderson, and evacuated. Confederate troops then occupied Fort Sumter for nearly four years, resisting several bombardments by Union forces before abandoning the garrison prior to William T. Sherman’s capture of Charleston in February 1865.

Most historians agree that the abandonment of Fort Sumter by Major Anderson would play a major part in triggering the Civil War. In the days following the abandonment of the Fort, more Southern states including Virginia, North Carolina and Tennessee cast their lot with the Confederacy.  When the Civil War finally ended, some 620,000 people had been killed in the Civil War.

Could this Civil War slaughter have been avoided? And what does Fort Sumter have to do with the riots at Charlottesville, Virginia and subsequent masked insurrections by the oxymoronically-named anti-fascists --”antifa”?  The “antifa” group is known for its black-clad protesters wearing masks, physically attacking those it opposes and causing damage to property during its protests. One of its leaders, Scott Crow, said members use violence as a means of self-defense and they believe property destruction does not equate to violence. "There is a place for violence. Is that the world that we want to live in? No. Is it the world we want to inhabit? No. Is it the world we want to create? No. But will we push back? Yes," Crow said.

A month before the surrender of Fort Sumter, President Lincoln, on March 14, 1861, asked each of the members of his Cabinet their opinions on whether to provision or abandon Fort Sumter.  His Post Master General -- and my great, great, grandfather -- Montgomery Blair responded the next day by letter.  In that letter, Montgomery Blair wrote in part:

Post Office Department,
Washington, March 15, 1861.
To The President.  
Sir: In reply to your interrogatory whether in my opinion it is wise to provision Fort Sumter under present circumstances, I submit the following considerations in favor of provisioning that fort.  
The ambitious leaders of the late Democratic party have availed themselves of the disappointment attendant upon defeat in the late presidential election to found a military government in the seceding States. 
To the connivance of the late administration, it is due alone that this rebellion has been enabled to attain its present proportions.  It has grown by this complicity into the form of an organized government in seven States, and up to this moment nothing has been done to check its progress or prevent its being regarded either at home or abroad as a successful revolution.  
I, in common with all my associates in your council, agree that we must look to the people of these States for the overthrow of this rebellion, and that it is proper to exercise the powers of the Federal Government only so far as to maintain its authority to collect the revenue and maintain possession of the public property in the States; and that this should be done with as little bloodshed as possible. How is this to be carried into effect ? That it is by measures which will inspire respect for the power of the Government, and the firmness of those who administer it, does not admit of debate.  
They for the most part believe that the Northern men are deficient in the courage necessary to maintain the Government. The evacuation of Fort Sumter, when it is known that it can be provisioned and manned, will convince the rebels that the administration lacks firmness, and will therefore tend, more than any event that has happened, to embolden them; and so far from tending to prevent collision, will ensure it unless all the other forts are evacuated and all attempts are given up to maintain the authority of the United States.  
This would completely demoralize the rebellion. The impotent rage of the rebels and the outburst of patriotic feeling which would follow this achievement, would initiate a reactionary movement throughout the South which would speedily overwhelm the traitors. It will in any event vindicate the hardy courage of the North, and the determination of the people and their President to maintain the authority of the Government, and this is all that is wanting, in my judgment, to restore it  
I am, sir, very respectfully, Your obedient servant,  
Montgomery Blair 
The correlation of the “rebels”  of South Carolina with the “antifa” movement of today makes Montgomery Blair’s March 1861 letter as relevant and prescient today as it was 150+ years ago. Antifa has “availed themselves of the disappointment attendant upon defeat in the late presidential election” to justify their violent action against those they deem in opposition to their agenda.  As in 1861, “nothing has been done to check [antifa’s] progress or prevent its being regarded either at home or abroad as a successful revolution.”

Then, as now, the question is “How is [the establishment of federal authority] to be carried into effect? That it is by measures which will inspire respect for the power of the Government, and the firmness of those who administer it, does not admit of debate.”  In 1861, the necessary “measures” were the provisioning of Fort Sumter so it could resist any attempt to remove it from federal control.  In 2017, the virtual Fort Sumter at issue is the ability of Citizens to exercise their First Amendment right to “petition” peacefully without the threat of violence by antifa.

Hence, were Montgomery Blair writing President Trump today, I believe he would recommend measures against antifa-like violence from whatever part of the political spectrum it emanates that would “inspire respect for the power of the Government” to maintain the cornerstone right to peacefully assemble to petition.  This being done regardless of the odiousness to the sensibilities of the public at large of the substance of the “petition” being made.

Montgomery Blair today would write President Trump and recommend "provisioning" the Department of Justice to investigate, and when warranted, criminally prosecute antifa members and their cohorts on the opposite end of the political spectrum for their grotesque 18 U.S.C., Section 241 - Conspiracy Against Rights violations.

As Montgomery Blair noted, “It will in any event vindicate the hardy courage of the North, and the determination of the people and their President to maintain the authority of the Government.”


Monday, February 27, 2017

America’s Got Talent, My Grandmother, My Mom and Planned Parenthood

Recently, Singer and America’s Got Talent host Nick Cannon doubled down on his criticism of Planned Parenthood, saying the abortion provider was designed to “exterminate” black people.

Grandmother Virginia Blair

I can't speak to what Planned Parenthood has become, but I must speak for my Mother and Grandmother -- as they can't -- as to what Planned Parenthood was designed to do and did during their tenure.  My Grandmother, Virginia Blair, was on the original Board of Directors of Planned Parenthood when Margaret Sanger founded the Planned Parenthood Federation of America (PPFA) in 1942. Among other initiatives, PPFA: "worked to publicize health problems of African Americans and the scarcity of contraceptive services in black communities."  I can say unequivocally that "exterminating" black people was never on my Grandmother's agenda. Indeed, just the opposite.
Mom, a/k/a The Rev. Blair

My mother was even more involved.  Starting in 1962 as a "dirty volunteer", Mom would clean the exam rooms in the Rochester, New York Planned Parenthood clinic after each gynecological examination  In due course, she rose to become President of the Rochester, New York Planned Parenthood, then President of Planned Parenthood Northeast and ultimately from 1974-1976 the Executive Director of the National Abortion Rights Action League (NARAL).   

Thus for Mr. Cannon to exclaim through his public megaphone that Planned Parenthood was designed to "exterminate" black people, is not only offensive, but it is simply ignorant.  Had he known my Grandmother and Mother, he could not in good conscience utter such an offensive remark.

Mom gave an extensive interview to Radcliffe College in 1976 about the early days of Planned Parenthood.  I find it interesting that back then Mom, when talking about Planned Parenthood and the African-American community, said: "We'd been through the closing of the clinic and seen the black women insisting that we open the clinics. Oh, this happened in Pittsburgh. The black people, the black males, had said this is genocide and forced 'the clinic to closeand the black  women said, "You're not raising the babies, we want the clinic."

So Mr. Cannon, perhaps you know not of what you speak. Just because fate has given you a public megaphone doesn't relieve you of the truth from Mark Twain's famous quote:
It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.