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February 25, 2022

Huzzah: Prez Biden reportedly to nominate Judge Ketanji Brown Jackson to the Supreme Court

Download (23)It was just over six years ago, a few days after the surprise death of Justice Antonin Scalia, that I started to talk up then-US District Judge Ketanji Brown Jackson as my favorite SCOTUS short-lister.  As I then explained, though Judge Jackson was only 45 years old back in 2016 and had then served only three years as a federal district judge, her impressive professional history and especially her criminal justice experiences — as a federal public defender, as a member of the US Sentencing Commission, and as a sentencing judge — would make her an especially valuable addition to the Supreme Court.

Disappointingly, Prez Obama back in 2016 decided to nominate yet another former prosecutor to SCOTUS when he tapped then-Judge Merrick Garland rather than a former defender like Judge Brown Jackson.  But, of course, Republicans Senators refused to even have a hearing to consider Judge Garland and so Justice Scalia's seat remained unfilled until Prez Trump was elected and named now-Justice Neil Gorsuch to the Court.  Fast forward six years, and Merrick Garland is now serving as US Attorney General and many press outlet (such as Fox News here) are reporting that Prez Biden will now nominate Judge Brown Jackson to replace the Justice she clerked for, Justice Stephen Breyer.

I had the honor of meeting Judge Brown Jackson back when she was a member of the US Sentencing Commission, and I have been a fan of her work for quite sometime.  For all sorts of reasons, I think this is a terrific choice by Prez Biden and continues his impressive record on judicial selections.  I will likely have a number of posts about Judge Brown Jackson and her potential impact on the Court (with an emphasis on sentencing, of course) in the weeks ahead.  For now, I will conclude with another HUZZAH!

A few prior related posts:

February 25, 2022 at 10:24 AM | Permalink


Her record in supporting race-based admissions policies at Harvard are disqualifying.

Posted by: Federalist | Feb 25, 2022 10:35:13 AM

Should have said “is” disqualifying.

Posted by: Federalist | Feb 25, 2022 10:38:01 AM

I came here just to see Bill Otis refer to yet another black person as being engaged in "shuck and jive". Come on Bill, you can do this! It is only a SCOTUS judge.

Posted by: waiting | Feb 25, 2022 4:16:17 PM

waiting --

Please provide the cite to anything I wrote, ever, where I used "shuck and jive" in reference to a black person or anyone else.

You're a joke, although I have to admit you're being so yellow that you won't sign your name is prudent.

P.S. Of course if you'd like to comment on this quite recent NYT smear on Clarence Thomas on account of his bi-racial marriage to a conservative woman, I'm sure we'd be all ears.

Posted by: Bill Otis | Feb 25, 2022 6:23:11 PM

waiting --

Here's the NYT article: https://www.nytimes.com/2022/02/22/briefing/ginni-thomas-clarence-thomas-russia-ukraine.html

Posted by: Bill Otis | Feb 25, 2022 6:24:26 PM

Excellent choice! Upon reflection as former federal public defender in Hawaii, Los Angeles, and Portland , I say superb choice!!

Posted by: Michael Levine | Feb 25, 2022 8:41:52 PM

@Federalist: If anything is “disqualifying,” I don't see why her support for race-based admissions would be any more so than the dozens of other liberal views she has. I mean...this is pretty much what you were going to get with a Democratic president. The vast majority of judges appointed by Democratic presidents in the last several decades would have substantially agreed with her.

Posted by: Marc Shepherd | Feb 26, 2022 8:35:44 AM

She is not capable of providing equal justice.

Posted by: Federalist | Feb 26, 2022 9:20:40 AM


Posted by: Federalist | Feb 26, 2022 10:02:44 AM

Are you asserting, Federalist, that anyone who has ever supported race-based college affirmative action "is not capable of providing equal justice"? Or do you have other bases for this claim you are making regarding Judge Jackson?

Posted by: Doug B. | Feb 26, 2022 10:05:03 AM


Aren’t her positions more important than where she worked? What specifically are they that make you support the choice?

It’s no different than saying, “Because she is a black woman.”

Posted by: TarlsQtr | Feb 26, 2022 4:49:50 PM

Hey Tarls, I had a lengthy discussion with Bill Otis over at Crime & Consequences about why I have been rooting for a long time to have some professional balance on the Supreme Court in light of how many prosecutors/government lawyers have been elevated. You can find our full back-and-forth at this link in this comments: https://www.crimeandconsequences.blog/?p=5893#more-5893

Here is a portion of my last entry in the comment thread there:

"I am a big fan of human liberty and freedom and I am generally wary of any and all efforts by governments to restrict human liberty and freedom. When governments seek to use the immense powers of our criminal justice systems to restrict human liberty and freedom, I think it especially critical for our legal system to have lots of structural checks and safeguard for individuals to reduce the risk of misuse or overuse of these immense powers. I strongly believe that our great Constitution embodies these commitments in many ways, most particularly (though not only) through the Bill of Rights. (Notably, the only king-like power preserved by the Framers for the Prez was the clemency power which is a one-way ratchet that only benefits individuals against police power.) Arguably every original amendment in the Bill of Rights except the Seventh is about providing (numerous and varied) safeguards for individuals to reduce the risk of misuse and overuse of government (criminal) powers.

"And yet, despite a founding charter that starts with a stated interest in securing the “Blessings of Liberty,” our nation has the highest rate of incarceration and imposes many extreme liberty-depriving punishments (e.g., LWOP for non-violent offenses) that much of the rest of the world views as human rights violations. I sincerely believe the Framers would be shocked and deeply disappointed that, despite their efforts to make the US a beacon of human liberty and freedom, we are now most distinctive as a nation for how we use state police powers to deprive humans of liberty and freedom....

"I would like to see a nine member court include a Justice who had defended individuals in the face of the awesome power of the state. The state has great power and can feel to the individual and his counsel like a bully even when state actors are trying their hardest to act in the public interest. I am certain the 8 current Justices who are former prosecutors and/or DOJ lawyers all worked hard not to be bullies and all were sincerely committed to always act in the public interest when helping to wield the vast powers of the federal government. But none of them in that role ever for a moment had to worry about what if the lawyer on the other side decided to be a bully or just was too full of what they thought the government could or should try to do. Only a criminal defense lawyer really knows what the law looks like on that other side, and only she fully understands that the only real counterweight to awesome government power are provisions that the Framers and others placed in the text of the US Constitution. I want at least one Justice who has real experience on that other side, and I suspect John Adams and Alexander Hamilton and likely a lot of other Framers would like to see that, too."

But another way, Talrs, not only do I think where someone "worked" as a lawyer serves to shape and inform her "positions," but I think it especially valuable that a multi-member court have a variety of lawyers who worked and developed positions in a variety of different fields. Lots of folks, I fear, including probably many Senators who will vote on Judge Jackson's nomination, will care only about "positions." But I think a heck of a lot more should be involved in picking and/or assessing a potential Justice.

Posted by: Doug B. | Feb 26, 2022 5:51:00 PM

First, let me give a more accurate description of what I mean. When I said “positions,” I did not mean it in the sense of, “Will this potential justice overturn Roe v Wade?” I was referring to judicial philosophy, although that obviously has a huge impact on cases such as Roe.

What I hate is a diversity scorecard. This is true of race, sex, religion, or whether the person was a prosecutor or defense attorney. Don’t get me wrong. I’m not naive and understand that both sides are guilty of this (although the left has historically had many more litmus tests than the right).

I don’t know anything about the woman, but hearing “huzzah” based on nothing but her being a black female and defense attorney does not fill me with any confidence. I’d be much more likely to support her nomination if, “Huzzah: Good Jurist,” was the headline. Hell, Saul Goodman was a defense attorney. 😉

Posted by: TarlsQtr | Feb 26, 2022 9:55:17 PM

The ability of a person to be involved in the sickening discrimination against Asians ( much of which is based on ugly stereotypes) disqualifies her from polite society.

Posted by: Federalist | Feb 27, 2022 10:53:22 AM

In this post, Tarls, I did not reference Judge Jackson's race or gender, but rather said that I thought "her impressive professional history and especially her criminal justice experiences — as a federal public defender, as a member of the US Sentencing Commission, and as a sentencing judge — would make her an especially valuable addition to the Supreme Court." For your benefit, I will further elaborate.

Judge Jackson has seen federal law in operation from more important vantage points than perhaps any other person ever nominated to SCOTUS: out of law school she clerked for a US District Judge (appointed by Prez Clinton), then for US Circuit Judge (appointed by Prez Reagan), and later for a Justice (appointed by Prez Clinton). I am not aware of any SCOTUS nominee with three years of clerking experiences at three different levels of the federal judiciary.

Between and after her clerkships, I believe she worked for a number of different law firms. Though I am not familiar with the work she did with various firms, I view experiencing how law is practiced in the private sector (and in various settings) to be an important type of experience for understanding how the law actually functions in our society.

Prior to her appointment to the US Sentencing Commission, Judge Jackson also served as special counsel to the USSC and as a federal public defender. In these important lawyering roles, Judge Jackson not only got experience representing individuals against the awesome power of the federal government, but she also helped to represent a government agency tasked with trying to effectively calibrate just how this awesome power should be used to punish convicted federal defendants.

Thereafter, Prez Obama appointed Judge Jackson to the USSC, where she spent four years tasked with directly crafting the rules and moving forward federal sentencing policy for the USSC. That direct rule-making responsibility surely gave her a distinctive and special view on how our federal criminal justice system functions all across our great nation (rather than in just one district or circuit). Then, Prez Obama appointed Judge Jackson to the US District Court. I have been one of a number of court-watchers who have long suggested that SCOTUS would benefit from having more Justices with trial court experience in order to better understand how (often opaque) SCOTUS rulings actually play out for actual litigants on a day-to-day basis.

I was rooting for Prez Obama to nominate Judge Jackson to SCOTUS right after Justice Scalia's unfortunate death in 2016 because I felt that even three years of district court experience --- along with all that came before --- was more than "enough" to ensure she could and would be an important and valuable addition to SCOTUS. But move ahead six years, when now Judge Jackson has had 8 years on the trial bench and now an additional year as a circuit judge, and I am keen to speculate that she might have one of the most impressive and dynamic professional histories of any person nominated for SCOTUS in my lifetime.

It is perhaps unfortunate, though hardly surprising, that the press and other are inclined to focus on what makes Judge Jackson most distinctive as a nominee (her work as a public defender, her race and gender) rather than her full impressive professional history.

As for "judicial philosophy," it often seems to me that judicial "philosophies" are typically deployed only justify certain "positions" --- from my view, more than a few so-called "originalists" and "textualists" do not really seem to care much about original meaning or the text when the text or original meaning seems to favor a criminal defendant. (Consider, eg, Scalia/Thomas dissent in Plata v. Brown saying the "proper outcome ... ought to shape the law, rather than vice versa"). I do not say this to suggest "judicial philosophy" is unimportant or inconsequential as much as to just explain why I doubt we will hear any Prez or Senator or advocate soon saying something like "I really favor and support that jurist and his philosophy even though I disfavor all of his positions/votes on all major cases."

Posted by: Doug B. | Feb 27, 2022 11:59:34 AM

Federalist, I will ask again continuing to seek clarity: Are you asserting that anyone who has ever supported race-based college affirmative action "is not capable of providing equal justice"? You claimed that Judge Jackson "is not capable of providing equal justice," and I am still eager to understand the basis for this assertion.

Posted by: Doug B. | Feb 27, 2022 12:22:53 PM

Anyone who thinks that it is ok to give preferences based on race is not fit.

Here’s the thought experiment—to the extent she has been a part of race-based preferences that exceed constitutional limits, then it’s invidious discrimination. Harvard has gone way beyond what is ok under existing precedent. And anyone participating in invidious discrimination is disqualified under any standard.

Posted by: Federalist | Feb 27, 2022 1:09:04 PM

Doug --

I'm skeptical of the Judge for exactly the same reason you're enthusiastic, to wit, that there's too much of a chance she'll be result oriented. Result orientation is fine in the political branches, indeed one might venture that that's what the political branches are about. But it introduces a distorting bias when it seeps onto the bench.

The basic theme you've sponsored for years is that sentences are too long and we have too many of them. You like KBJ because you think, almost certainly correctly, that she will ordinarily vote for lower sentencing outcomes. I'm suspicious of her because I don't think looking at probable outcomes is the correct method for selecting justices. Instead, it should be fidelity to the text of the Constitution irrespective of what outcome that will produce in a given setting.

(Relatedly, to note my agreement with Federalist, I've been looking for some time for the "diversity" exception in the Equal Protection Clause and I just can't find it. Thus it seems to me that racial preferences, whether disguised or quasi-disguised or what have you, cannot be squared with the Clause. I would note that, just this week, Judge Claude Hilton of my old stomping grounds in EDVA seems to hold the same view in his opinion banning an effective anti-Asian American fancy-dance admissions mechanism for the elite Thomas Jefferson High School in Fairfax County, VA, see https://abcnews.go.com/US/wireStory/judge-admissions-policies-elite-school-discriminate-83116700).

Posted by: Bill Otis | Feb 27, 2022 2:55:11 PM

Federalist: Both the US District Court and the First Circuit ruled that Harvard's admission policies DID NOT "exceed constitutional limits" and were "ok under existing precedent." That is not a "thought experiment," but rather the current state of the law. Consequently, unless and until a competent court rules otherwise, Harvard is fully complying with the law and you are applying what appears to be a completely lawless standard. (The Supreme Court might soon change its constitutional interpretation of whether and how affirmative action may function; until it does, what Harvard is doing is entirely lawful according to the courts that have judged its policies).

As a matter of policy, you can dislike Harvard's currently lawful admission policies and think poorly of those who developed and apply them. (I am not sure Judge Jackson ever had any real role in Harvard admissions as part of its Board --- I know it would be quite strange at my institution if an OSU Board member sought to change the admission policies adopted by the law school.) But it seems you want to claim that anyone who was possibly ever associated in some way with Harvard's now-entirely lawful admission policies should not be a judge. Especially given that Justice Barrett likely had a more direct role in Notre Dame Law's likely comparable preference giving, I am not seeing anything more than you expressing your political preferences.

Put simply, you want to criticize Judge Jackson for allowing Harvard to follow the actual law rather the law as you wish it to be. And here I thought there might be something to all those claims that we want our judges to follow the actual law rather the law as they might wish it to be.

Posted by: Doug B. | Feb 27, 2022 3:18:54 PM

Bill, we have been through this dance a bit at your blog where I highlighted that your steady pro-state, anti-defendant, pro-government power, anti-individual rights sentiments are plainly a reflection of your policy preferences, but anything but a principled approach to the Constitution that reflects "fidelity to the text of the Constitution irrespective of what outcome that will produce in a given setting." In that context, I asked for you to list some “pro-defendant” SCOTUS rulings that you think showcase “fidelity to the text of the Constitution.” I do not believe you listed even one, let alone one for each of the many clauses of the Bill of Rights that plainly set forth criminal defendant rights and look to protect the individual from the awesome power of the state. In that discussion, I suggested that such a list from you is needed to prevent me from concluding that you are the one who is truly "result-oriented" with no sincere concern for the actual text of the Constitution or its commitment to protect individuals from state power in various ways.

Put another way, I complain about various aspects of the extreme punitiveness of our criminal justice systems because I sincerely think true "fidelity to the text of the Constitution" would place more limits on state power when the state seeks to punish individuals. I suspect you fear Judge Jackson's addition to the Court because you think she can and will show faithfulness to the text by reading it to sometimes limit state criminal powers rather than read it always in the result-oriented way you prefer that places seemingly no real checks on state criminal powers. But, as I suggested over at C&C, you can undercut my cynicism about your results-oriented, pro-state, anti-individual policy preferences by simply listing some “pro-defendant” SCOTUS rulings that you think showcase “fidelity to the text of the Constitution."

Posted by: Doug B. | Feb 27, 2022 3:35:54 PM

Doug --

"I suspect you fear Judge Jackson's addition to the Court because you think she can and will show faithfulness to the text by reading it to sometimes limit state criminal powers..."

Where are you getting that I "fear" her appointment? I think many others are better qualified, you bet, including our friend Judge Amul Thapar, whom Biden preemptively disqualified solely because of race and sex. Do you approve? But the allegation that I "fear" KBJ is baloney, although not quite on the level of your ally (on this thread) Mr. "Anon", who says that I refer to black people as "shuck and jive." You know that's a lie, but I don't see you saying so.

As to substance: A justice should not "read" the text to do this or do that. He/she should take the text as written and apply it. Full stop. You want KBJ because you wisely suspect that she will bring an ideological pro-criminal agenda with her, said agenda having been shaped by her years of eager service to criminals from the not-so-bad to the disgusting and sadistic.

I don't see that as disqualifying, but, unlike you, I don't see it as a plus either.

Again, the main reason you want her is that you believe she's likely to implement your preferred policies whether or not they have any realistically plausible anchor in the text. The main reason I'd prefer e.g. Judge Thapar is that while as a policy matter he sometimes agrees with you and sometimes with me, he leaves policy at home when he goes to work. But he wasn't good enough for Joe Biden to give him ten seconds of consideration because of (a) Biden's political deal with Clyburn and (b) Biden's need to goose his hard-Left base to try to mitigate the margin by which his disastrous performance in office is going to lose Congress for him.

You can be as enthusiastic about that method of justice-picking as you like. I respectfully dissent.

Posted by: Bill Otis | Feb 27, 2022 10:52:01 PM

Apologies, Bill, for suggesting you "fear" KBJ rather than just "disfavor" her nomination. But I still surmise what you disfavor is that KBJ may show true “fidelity to the text" of all of the Constitution, including all those many parts of the Bill of Rights protecting individuals from the power of the state in the arena of criminal law.

As you know, the text of the Constitution provides multiple protections for the individual against the power of the state in the criminal justice arena, and you yet again fail to cite any “pro-defendant” SCOTUS rulings that you think showcase “fidelity to the text of the Constitution." If you actually did care about fidelity to the text, it ought not be hard for you to list a number of cases since so much of the Bill of Rights is about articulating rights that protect individuals from state power. But, again I am left with the feeling that one ever-angling for an ideological judge who will implement your preferred policies of limiting individual rights against the state, whereas I favor one who is deeply committed to “fidelity to the text of the Constitution," including those parts of the Bill of Rights protecting individuals.

Posted by: Doug B. | Feb 27, 2022 11:49:44 PM

Doug --

Some questions. I believe they can be answered yes or no (followed by any discussion you care to give).

1. Judge Thapar would bring just as much first-time-ever diversity to SCOTUS as Judge KBJ (if one thinks that what a person looks like is important, which I don't for these purposes). But Judge Thapar was preemptively disqualified by Joe Biden solely because he's not the RIGHT race or the RIGHT sex. Do you approve?

2. Biden selected a black woman in significant part because it was a political payoff to Jim Clyburn. Do you disagree? Do you think that's the best way to select SCOTUS nominees?

3. A second reason Biden limited his choice to (the relatively tiny population segment of) black women is to goose his base, which he needs to turn out big time to avoid an even worse drubbing in Congress than the one he's headed for now with his abysmal 37% approval rating (https://www.washingtonpost.com/politics/2022/02/27/biden-post-abc-poll/). Do you think that's the best way to select SCOTUS nominees?

4. I've said that you want Judge KBJ principally because you wisely suspect that she will bring an ideological pro-defendant policy agenda with her, said agenda having been shaped by her years of service to defendants from the not-so-bad to the disgusting and sadistic. Do you disagree with that?

Posted by: Bill Otis | Feb 28, 2022 12:45:50 AM

Doug, did you see some of the evidence in front of the District Court? The ugly idea that somehow Asians can’t be leaders? It’s revolting. And it’s very unlikely that Harvard will prevail. But even if it does, Brown was part of this awful awful process. It’s racial discrimination, and she’s a part of it.

Posted by: Federalist | Feb 28, 2022 9:09:38 AM

There are lots of things I find "revolting" done by lots of institutions, Federalist, but I generally not think anyone who might be viewed as a "part" of them are disqualified. Especially in the context of racial discrimination, the crack-powder disparity and stash-house stings involve racial stereotypes contributing to the federal government incarcerating many black persons for many decades. Would you think it fair for anyone who finds these ugly realities to be "revolting" examples of "racial discrimination" to consider every federal executive official disqualified for being a part of this revolting realities? That would, I think, bring down a number of the current Justices.

Posted by: Doug B. | Feb 28, 2022 9:44:06 AM

Bill, I addressed some of these issues in our conversation at C&C, but I will readily say many aspects of how Biden approaches many issues disappoints me. But you have far more inside-the-Beltway access than I do, so you can just share your political concerns with your pals at the next Georgetown cocktail party as you try to figure out when to start creating a SCOTUS short list for Trump or DeSantis for 2024. I hope Judge Thapar and Justice Kruger will be on those lists, and feel free to contact me for more suggestions since you didn't last time and curiously left off OSU alum and brilliant Judge Jeff Sutton. (I would love to hear more about why Judge Sutton was left off the lists, and I am inclined to assume there was a lot of politics rather than concern for constitutional fidelity in play.)

Now that KBJ is the choice, let's focus on her. I do disagree with statement #4 and your criticism of KBJ because I expect her to be more committed to “fidelity to the text of the Constitution" (especially in the criminal justice arena) than many others. I also hope her background could lead SCOTUS to address a lot more criminal justice issues that have divided lower courts. However resolved, I think a lot more of these issues need to be taken up ASAP.

In this context, we really need to start with your vision of what you think “fidelity to the text of the Constitution" means. Protecting individual rights against the government (in criminal cases and others) to me demonstrates "fidelity to the text of the Constitution" because that text often sets out rights of the individual against the government. But I sense you think this means something else. So, I keep asking for you --- but not getting any response --- to list some “pro-defendant” SCOTUS rulings that you think showcase “fidelity to the text of the Constitution."

I keep asking, Bill, because your criticism of KBJ is not principled in any way unless and until you can explain what you mean by “fidelity to the text of the Constitution" other than the policy positions of Bill Otis. Not being afraid to protect the individual rights that appear expressly in the Bill of Rights against the claims of governments seems fundamental to constitutional fidelity, but you seem to have a bizarro-world view that a Justice protecting the individual is not being faithful to the Constitution. Maybe Putin's constitution can be reasonably thought to prioritize government power over the individual, but the US Constitution is expressly contrary.

But maybe I do not really understand what you mean, so I will ask you again if you can list some “pro-defendant” SCOTUS rulings that you think showcase “fidelity to the text of the Constitution." Let's start there and then see what sensible questions follow.

Posted by: Doug B. | Feb 28, 2022 10:20:02 AM

If you can’t see the difference between the crack-powder distinction and intentional discrimination against college applicants, then there isn’t much to say. KBJ was a part of racial discrimination against 18 year olds. Let that sink in.

Posted by: Federalist | Feb 28, 2022 12:57:09 PM

I agree, Federalist, that we ought not bother to continue this discussion if you find that race impacting who the federal government locks in cages for decades (many of whom are teenagers) is less "revolting" than how Harvard admission officers make decisions. That is sinking in, and is a good reminder of where your values lie.

Posted by: Doug B. | Feb 28, 2022 1:20:50 PM

Doug --

Quickly for now, more later.

1. Thapar will be on the list if I have anything to do with it. You and I agree that Sutton is first-rate, but he'll be 65 in 2025 when President Cotton is inaugurated. That's probably too old unfortunately (and it's doubtful that there will be a vacancy that year anyway).

2. You give a hint on Questions 1, 2, and 3 but avoid a direct answer. I continue to think you would have made a fortune as a defense lawyer. On the other hand, you might not need a fortune given the moola a chaired professor makes.

3. What I mean by "fidelity to the text of the Constitution" is easy. It means look at the words written down there and give them the meaning the Framers understood them to have. Full stop. It does NOT mean reading in any broader agenda under some high-sounding, wildly elastic rubric like "protecting individual rights against the government." That is importing what you take to be the Framers' intent. You might be right about that in some instances and wrong in others, but the whole point of constitutional textualism is to avoid arguing about intent and look only to THE WRITTEN WORD. We textualists do this on the theory that, if the Framers "intended" to do X, they could easily have written it in expressly. When they didn't, purporting to rely on "intent" is just a clever way to make the Constitution say what the liberal jurist wants it to say, and thinks it should have said, but the Framers were just too absent-minded or stupid to include. Instead, I believe, with Justice Scalia, that "the Constitution says what it says and doesn't say what it doesn't say."

4. Let's assume arguendo that I'm a hypocrite (or an axe murderer or child rapist or any of the other defense bar idols). So what? I'm not the SCOTUS nominee, so my personal characteristics make no difference in this discussion. But Judge KBJ's do. So the question is whether SHE will adhere to the text of the Constitution, or will instead adopt your "well-I-think-this-liberal-idea-du-jour" is what the Framers INTENDED to say, or should have said, or would say today, etc., etc. view of things.

You make it clear that you believe she will. I believe she will as well. That's why you support her and I don't.

Posted by: Bill Otis | Feb 28, 2022 2:33:50 PM

Wow. So Doug, you equate results disparity with active racial discrimination and insinuate that I’m the bad guy? Ha ha. Murder statutes have a disproportionate impact too.

I don’t think crack powder distinction was racist. I don’t think that the death penalty is racist either even though whites are over represented in terms of those executed, given that non-Hispanic whites don’t makes up a majorly of the killers.

Posted by: Federalist | Feb 28, 2022 2:39:19 PM

No, Federalist, I do not equate results disparity with active racial discrimination. But I do think there is strong reason to suspect active racial discrimination has played a number of roles in the development and continued application of crack-powder distinctions (including in the stash-house stings and other settings). Unfortunately, SCOTUS blocked inquiry into some of these matters in Armstrong. I asked previously if you thought Armstrong was wrongly decided, and I hope you will say clearly whether you think there should be an ability for defendants to investigate active racial discrimination in criminal prosecutions. Indeed, I wonder how you can be so confident about the lack of problems in the crack criminal prosecution setting in light of your claims that racism impacted DOJ work in the Arbery case and your concerns about bias in the Jan 6 prosecutions. Are you saying that you think DOJ is racist, but only toward white defendants?

Posted by: Doug B. | Feb 28, 2022 3:07:31 PM

Surprise, surprise, Bill, a lot more words from you and still no examples of any “pro-defendant” SCOTUS rulings that you think show “fidelity to the text of the Constitution." I am not asking about intent, I am asking about text. Perhaps because you cannot get away from your obvious pro-state policy commitments to actually engage with that simple inquiry, we should turn to text, particularly this text from Article III: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." As I read that text with a focus only on the text, I see no basis for bench trials or alternatives to jury trials, or even for judge-findings on any disputed significant punishment facts given that, as Justice Thomas rightly explained in Alleyne, "common-law and early American practice understood ... that any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime."

So, based only on the text here (and not even looking to the complementary Sixth Amendment text about jury trial rights), wouldn't someone voting for pro-jury jurisprudence be showing much greater "fidelity to the text of the Constitution" than someone who supported doctrines eliminating or limiting juries from the operation of our federal criminal justice system? Like you, I have no real idea what the Framers intended when they said in the text that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." But I know what they actually wrote means that constitutional doctrines that are pro-jury would seem to be showing much greater "fidelity to the text of the Constitution" than doctrines limiting the role of the jury. So, rulings like Apprendi and Blakely and Alleyne seem to me to be more faithful to the constitutional text. Will you agree on that modest proposition --- that the majority in the Apprendi line of cases are showing more fidelity to the constitutional text than the dissenters --- before we turn to other anti-textual pro-state doctrines like "reasonable suspicion."

Posted by: Doug B. | Feb 28, 2022 3:33:28 PM

Doug --

The reason that I have not scurried to comply with your demand that I produce cases is principally that I don't take homework assignments. If I were enrolled in your class, I would have a different attitude. A second reason is that any case I produced you would explain away and demand another....and another, and another, etc., etc. Not getting on that train. And the third reason is, as I just explained (but you walk past), the question is about KBJ's theory of interpretation, not mine. The old trick of turning the discussion to my putative deficiencies is inappropriately personal and, more importantly, diversionary. The subject from which you wish to divert is KBJ's probable ideological bent to side with criminals simply because she's spent years siding with them. It's her disposition, not mine, that is the question of the day.

Your second paragraph reveals nothing so much of the breathtaking disconnect between legal academia and the real world. Wanna end plea bargaining and take every case to trial? Fine -- go to court and win your argument that the Constitution requires that result (and while you're at it, tell the defense bar to stop demanding and signing so many thousands of plea bargains). Want jury sentencing only? Fine -- ditto, go to court and win your case. Want to legalize all drugs because "the Constitution is about personal liberty"? Fine -- ditto, go to court and win your case. Want to end qualified immunity, want to end sentencing based on acquitted conduct, etc. etc.? Same deal.

In fact, all those "defendants-are-wonderful" items on the woke agenda have been to court again and again and have lost again and again, before judges left, right and center. But it just makes no difference. The academic beat goes on. Courts are wrong, the public is a bunch of racist yahoos, prosecutors are thugs, cops are Nazis, dada, dada, dada.

Really. Blogs are neat, I like them, I like this one, but using them to repeat and repeat and repeat shopworn staples from Mother Jones is not getting us anywhere. Go to court and win your case.

Posted by: Bill Otis | Feb 28, 2022 4:14:39 PM

You can’t see how the J6 defendants were treated and think that politics wasn’t a consideration.

I think the DOJ is much more likely to go after instances of white peep hate crimes. Recall the dismissal of the NBPP judgment under Holder.

Posted by: Federalist | Feb 28, 2022 4:45:28 PM

Federalist: many folks say that you cannot look at how crack defendants and stash-house defendants have been treated (relative to powder defendants and many others) and think that race wasn’t a consideration. The point fundamentally is that different people see bias in different places, though I still lack an answer from you about whether you think Armstrong should be reversed so that all criminal defendants would be able to investigate reasonable concerns about racial bias in the decisions of prosecutors.

Bill: Funny how you seem to want to champion "fidelity to the text of the Constitution," but refuse to name a single SCOTUS pro-defendant case that you think reflects this virtue. And then, when I suggest we talk about the jury trial text of Article III and ask if you think (as I do) that Apprendi line of cases is faithful to the text, you shift to talk of "the real world." I agree that, problematically, "in the real world" there are judges who are not faithful to the individual rights spelled out in the text of the constitution. That is why I am so eager to having Justices and judges who demonstrate "fidelity to the text of the Constitution" that so often provides protections for the individual against the awesome powers of the state --- like those Justices in the Apprendi majority.

I am not discussing any "woke agenda," I am talking about jury trials and jury trial rights (if that is a woke agenda, I guess the Framers were OG woke). And I am now focused on cases won by defendants, saying that I think the SCOTUS majority got it right --- as a matter of textualism and original meaning --- in rulings in Apprendi and Blakely and the Booker merits opinion and Cunningham and Southern Union and Alleyne. And, no homework, just a simple question: Do you agree in this line of cases that the Court majority showed more "fidelity to the text of the Constitution" than did the dissenters? The criminal defendants won all those cases because, as I see it, more Justices showed "fidelity to the text of the Constitution." Do you agree, yes or no?

Posted by: Doug B. | Feb 28, 2022 5:44:57 PM

Doug --

You crack me up, honest. You keep wanting me to name the cases when (as I've known all along) you know at least two of them yourself (Blakely from Scalia and Alleyne from Thomas). Even if I did take homework assignments generally, I doubt I'd do so when your copies of last year's homework suffice.

When I asked four yes-or-no questions earlier on this thread, you ducked on three of them and largely ducked the fourth. But now you want me to answer yes or no. Cool! But as you know, I'm Mr. Nicey, so I'll go along. Give peace a chance, so they say.

I think Scalia in Blakely and Thomas in Alleyne made sincere, plausible and good-faith efforts to comport with the text of the Constitution, but I don't know that I agree with their outcomes. But as respects KBJ, that's beside the point. The question with her is whether she is going to make such efforts at all, or whether instead she's a "living Constitution" jurist who sees the text as malleable (if not dispensable) and thus accommodating of the liberal ideas du jour (including, to give one example, that the death penalty is "unconstitutional" nowadays despite its express recognition in the Constitution and wide use at the time of the Founding). If she does (as Breyer does and Ginsburg did), then that would weigh heavily against confirmation.

Now let me ask you: Do you really think the text of the Constitution prohibits plea bargaining? Your arguments seem strongly to suggest that, but I want to ask to be sure. Because while it's true that only trials are designated in the text as a means for resolving criminal charges, I have been unable to locate the language stating that the defendant cannot waive his trial rights in exchange for other considerations he finds more valuable. Where's that? Did SCOTUS render such a holding while I was at one of my fancy-schmancy Georgetown cocktail parties?

Posted by: Bill Otis | Feb 28, 2022 8:18:52 PM

Bill, I sincerely do not know if you think Apprendi and Blakely and Allenye are good examples of "fidelity to the text of the Constitution," and which is why I was asking your opinion on these cases. I surmise you think, like Justice Breyer in Apprendi/Blakely, that these cases are are wrongly decided because you do not like the policy implications of respecting jury rights for facts that increase punishment. That fine, but it is obviously your policy preferences, not "fidelity to the text of the Constitution" at work here.

You started all this by saying we should evaluate judges based on "fidelity to the text of the Constitution irrespective of what outcome that will produce in a given setting." But, as I have suspected and as you continue to reveal, it seems you just favor pro-government constitutional outcomes, and that is the fundamental foundation for your disaffinity for certain judges or Justices. That's a policy preference, not a principled approach to constitutional interpretation.

As for plea bargaining, I think it quite clear that the text of the Constitution does not clearly condone nor clearly condemn plea bargaining. In other words, the constitutional text does not resolve the question. What then? I would think a principled jurist committed to "fidelity to the text" would be concerned about doctrines that unduly undermined jury trials, since, as you note, jury trials "are designated in the text as a means for resolving criminal charges." That why I think more regulation and limits on plea terms would show greater "fidelity to the text" which the Framers gave us. This matter is subject to reasonable debate, as are so many questions not plainly resolved by the text. And that is why I favor a diverse group of Justices with a diverse set of backgrounds so the justices can, in good faith, discuss and debate what the text should be understood to mean in a variety of contexts when the text does not plainly resolve the question.

Posted by: Doug B. | Feb 28, 2022 11:03:29 PM

The Doug miasma continues. Judge KBJ is knee-deep in actual racial discrimination. She was part of a system that used racial classifications to harm people on the basis of race. You offer up the idea that because minorities commit certain crimes at a rate higher than their proportion in society or as compared to other racial breakdowns of other criminal behavior that somehow we should flyspeck every prosecution?

It’s patently obvious that there is a thumb on the scale with respect to how Flynn was treated, Clinesmith and thr J6 defendants, but you want to focus on the crack powder distinction which was agreed to by members of the CBC.

Posted by: Federalist | Mar 1, 2022 7:37:10 AM

Federalist: we are not talking about crime rates. We are talking about whether race served as, in your words, "a thumb on the scale" in how the 100-1 crack ratio was applied or the stash-house stings have been conducted which have lead to tens of thousands of people being prosecuted and caged for decades longer by the federal government. In an effort to understand if you really are concerned about the worst possible forms of racial stereotypes and alleged government biases, I keep asking you whether you think Armstrong was wrongly decided and should be overruled. You keep failing to answer and keep being eager to whistle past well-documented racialized prosecution patterns, which suggests you are quite selective in the racial and government biases that you express concern about.

For me, racial stereotypes used by government actors to put people in cages for decades worry me more than the lawful affirmative action programs used by many schools around the country for distributing limited admission slots and scholarships. But if you sincerely think that any involvement with a lawful affirmative action program is disqualifying, I am curious if you have explored the connection a number of Trump judges who were academics may have had on AA admissions/scholarships at their schools. Justice Barrett, Judge Bibas, Judge Eid, Judge Larsen, Judge Myers and Judge Stras are just a partial list of Trump nominees who were at law schools that likely had some AA programs --- indeed, Judge Larsen was at Michigan during the time of the Grutter case, and Judge Myers was at UNC (now before SCOTUS). I do not recall you expressing any concern about the possibility that these judges might be involved in "actual racial discrimination" for their possible connections to (lawful) AA programs. Would you urge further investigation into these matters for these judges and/or should litigants be able to seek disqualification of these and other judges with a Federalist affidavit stating they are obviously "not capable of providing equal justice"?

Posted by: Doug B. | Mar 1, 2022 8:59:40 AM

I lived through the crack epidemic in NYC. The CBC was a part of that ratio because its members understood what crack was doing to the city. To talk about the ratio as if it were some racist scheme is just nonsense, and it deflects from the very real fact that the person you extol is knee-deep in discriminating against kids who don’t look like hers.

There are legitimate questions to ask about the ratio, but to attribute to racism is just daft. There are a ton of white drug dealers caught in the federal criminal justice system. This was a very long time ago, but I remember reading that LSD prosecutions could be super harsh because of what was included in the weight.

And let’s look at a prosecutor in a racially charged case. Remember Nifong? The victims were white, and he only spent a day in the slammer.

And let’s look at the prosecution of the bike cop in Baltimore. Poor guy was junior guy on scene, wasn’t responsible for the arrest, wasn’t responsible for strapping Freddie Gray in. But thr black prosecutor charged him with murder. That’s raw racism.

Your whataboutism is so weak. KBJ thinks it’s ok to discriminate. Period

Posted by: Federalist | Mar 1, 2022 9:39:42 AM

Federalist, you concede that "there are legitimate questions to ask about the ratio," and I am not asserting that racism only and fully accounts for its creation and persistence (just as I suspect that you do not think that racism only and fully accounts for all lawful AA programs and all those involved with them). And saying there are a "ton of white drug dealers caught by the feds" would be comparable to me saying there are a "ton of Asians admitted to Harvard." Would you really consider that the end of the matter? Moreover, keeping in mind the stash-house cases where the government lures only people of color into criminality, at issue in cases like Armstrong has been how prosecutors seek to apply severe crack sentences. I will ask again: would you support overturning Armstrong so that criminal defendants --- both white and black and Asian and all others --- could explore claims that "raw racism" impacted their prosecution? If you think racial bias is a real problem in the work of prosecutors, I would hope you would support discovery by all sorts of defendants to try to unearth these problems. (Notably, you are not claiming Maryland's murder statute is racist, just how it got applied in one case.)

It is telling, Federalist, that you seem to be largely unaware (or choose to be unaware) of all the evidence and allegations of racial bias in federal drug prosecutions, but you keep being eager to cite examples of where you think white people were victims of prosecutorial racism and bias. Your distinct concerns are clear (and I suppose I should expect you to soon express concern that we do not focus on Irish slaves enough when we think about the Civil War). Do you really believe there is only "raw racism" focused on whites in the CJ system and no comparable prosecutorial misbehavior directed toward others in the CJ system?

I do not know what KBJ thinks, nor do I know her role in Harvard's AA admission policies. I do know that a principled view that anyone connected to a lawful AA program should not be a judge would knock out a huge percentage of the federal judiciary, and that you seem disinterested in this reality because you only want your far-fetched assertion of "not capable of providing equal justice" to be applied to KBJ.

Posted by: Doug B. | Mar 1, 2022 10:39:24 AM

Once again, miasma and thinly veiled ad hominem. The fact is that crack drove horrendous suffering in urban areas in this country, and Congress acted. Perhaps you never lived in such a situation, but I have.

You decry the harsh punishments regarding child pornography. From what I understand, the perps tend to lean towards a certain demographic. I don’t really care.

KBJ was part and parcel of racial discrimination. Let’s get that right. As for your point about Irish slaves, I don’t really understand it. Victims are victims no matter what the color. But my focus, Doug, is generally on the law-abiding. I often will stand up for the rights of criminals. To tell an 18 year old that he’s not the right skin color is a revolting exercise that no decent person should be a part of. And your comment regarding the lower courts upholding this discrimination—well anti-gay bias was “legal” too, but the people who practice it aren’t fit for polite company.

You can attack me all you want, but just because KBJ has elite company doesn’t mean what she is a part of isn’t revolting.

Posted by: Federalist | Mar 1, 2022 11:10:24 AM

Federalist: I do not think you are asserting a big crime problem justifies racial discrimination in law making or in policing and prosecuting, but maybe that is what you mean. And are you saying you see racial bias in CP prosecutions? The more you talk about other issues or avoid a focus on evidence and claims of racial discrimination in federal drug prosecutions, the more confused I am. Perhaps we should conclude on that front and move on.

Moving on, I am especially drawn to your assertion that "people who practice [anti-gay bias] aren’t fit for polite company." Are you saying any and everyone who ever publicly opposed gay marriage is not " fit for polite company." That is a bold claim, and I wonder if it includes the dissenters in Obergefell. Tell me more what you think should be done to and and all judges and politicians who oppose marriage equality or otherwise practice anti-gay bias in any way.

Posted by: Doug B. | Mar 1, 2022 11:59:18 AM

Obviously, in my opinion, the Constitution does not require SSM recognition by states, and so I have no issue with the dissent. But anti-gay employment discrimination (other than in a religious context) or anti-gay invidious discrimination discrimination in other areas? Yep. Those who practice aren’t fit for polite society. But how is it different to discriminate against gays in college admission than it is on the basis of race or sex.

Gays in the military is another exception—it seems that this hasn’t hurt readiness.

Posted by: Federalist | Mar 2, 2022 1:09:40 PM

Obviously, in the opinion of every court so far to adjudicate the matter, the Constitution does not require Harvard to be race/gender/sexual orientation blind in admissions, and so I can understand why Harvard wants to consider these and many other matters when trying to build a diverse class.

You and I might think considering such matters a certain is bad policy, and you and others may even think it constitutionally suspect. But, as of now, Harvard's admission policies are constitutionally permissible (though states refusing to recognize SSM is not).

On this topic, I am curious: why do you recognize a religious exemption for anti-gay bias? Do you make such an exemption for racial bias? And why do you make another exemption for anti-gay bias for the military? Do you make such an exemption for racial bias?

It seems you are essentially saying, anti-gay bias is generally bad, but can be in some settings permissible when there is a good enough reason (respect for religious beliefs, defense concerns) to justify that bias. Most defenses of AA seem based in this very same logic: racial considerations are generally bad, but can be in some settings permissible when there is a good enough reason (creating diversity educational environments, facilitating access to elite education) to justify its consideration. You may not find this logic and the policy considerations as compelling in the education/race setting as you find them in the religious/gay setting. But the fact that you seemingly think anti-gay bias can be justified or permitted in certain settings suggests to me your thinking about personhood considerations is not so different than the thinking of those who develop and support various AA programs (many of which also consider sexual orientation).

Posted by: Doug B. | Mar 2, 2022 1:40:41 PM

Seriously? My point was that while AA may be “legal,” it is vile just as discrimination against gays in employment (excepting religious organizations), admissions etc. That does not mean that opposition to gay marriage is morally reprehensible. Well, opposition in terms of having an opinion against it—acting on that opinion to inflict direct harm on people is vile.

I’ll leave it at that. It should be clear what my views about tolerance are. I grew up in NYC, so i don’t really care about people’s love life other than I hope they are happy with it.

And give the prevalence of disgusting terms like “white privilege” and the drive towards pushing whites to acknowledge their personal responsibility for whatever sins have been committed, then that taints AA decisioning. And, as a practical matter, anytime there is a deviation from Supreme Court precedent on AA, you’re in the realm of civil rights violations, which should make those who practiced it a pariah.

What KBJ is participating might be “legal,” she is still a part of racial discrimination. We should start by getting that right.

Posted by: Federalist | Mar 2, 2022 3:00:38 PM

Federalist, have you thought deeply about why you seem so very quick to say it is not "vile" for religious organizations to discriminate against gays? I do not want to put words in your mouth, but I assume it is because you respect the traditions and sincerely held beliefs of people in religious organizations who are discriminating against gays --- though you have not answered whether you would respect religious or military discrimination based on race --- even though you might be keen to encourage religious organizations to not discriminating against gays. Similarly, you might be keen to encourage admissions officers not to consider race in college admissions, but while it is legal you might reasonably respect the traditions and sincerely held beliefs of college admissions officers who think it critical to achieving diversity educational environments and facilitating access to elite education. I think there is lots of evidence that religions can prosper without discriminating and that college admissions can function well without considering race, but I do not think folks with divergent views on these matters are "vile" or should be deemed "pariahs" while following existing law.

Put more simply, though I understand a basis for expressing policy disaffinity for AA programs, I think it strange and problematic to deem anyone who is in any way involved in now-lawful AA programs to be vile pariahs. And especially since I suspect Justice Barrett may have been involved in now-lawful AA programs (and/or discrimination against gays) during her time at Notre Dame, I have a hard time seeing your points as a basis for disqualifying a person from serving on the Supreme Court.

Posted by: Doug B. | Mar 2, 2022 5:12:32 PM

First of all, equating things like the refusal to hire a gay person to be a Roman Catholic minister or saying that Roman Catholic charities not wanting to place kids with gay families with intentional racial discrimination is a neat trick.

And, of course, you elide problems like the one at Yale Law School, where bureaucrats openly stated that things would be different (i.e worse) if the student in question were white. And doesn’t OSU have a similar problem with some administrator abusing staff in a racial manner? And these institutions are doing AA?

Racial discrimination is racial discrimination. KBJ is a part of it. Let’s start by getting that right.

Posted by: Federalist | Mar 4, 2022 10:25:52 AM

Intentional anti-gay discrimination is intentional anti-gay discrimination, even if it is done by the Roman Catholic church. Would you defend a church who would not hire an otherwise qualified person or a catholic adoption agency who would not place a child with a family expressly and only because they were black? Whether directed to sexual orientation or skin color, discrimination is discrimination. But, it seems, you think it is okay for religious institutions (and seemingly the military) to intentionally discriminate against gays. That's fine, but the question is why -- why do you think these forms of intentional discrimination should be allowed? I suspect it is because, for whatever reasons, you see such intentional discrimination against the LGBTQ community to be justifiable or at least somewhat benign. I do not think that makes you or others who practice or support this form of intentional anti-gay discrimination "vile" or "pariahs," though I do question whether it is ultimately good for society to permit such anti-gay discrimination.

Similarly, I surmise that supporters of AA in college admissions believe that consideration of race in admission decisions is justifiable or at least somewhat benign in service to the goals of creating diversity educational environments and facilitating broad access to elite education. I do not think that makes those who practice or support AA in college admissions "vile" or "pariahs," though I do question whether it is ultimately good for society to focus on race in this way -- ie, I have long thought socio-economic status or "first gen" status might capture a lot (but not all) of what race is being used for as a proxy/short-hand in the admission setting.

Perhaps you reveal your real concern when complaining about Yale bureaucrats and OSU administrators. I am not sure of your exact reference, but I am sure the bureaucrats and administrators of the Roman Catholic church seem to have a lot more harmful behaviors to explain away than university staff.

Posted by: Doug B. | Mar 4, 2022 5:32:45 PM

First of all, as I think you know, AA can’t be animated by bias. What happened at Yale Law shows invidious discrimination (it should go without saying that an institution cannot vary a disciplinary response based on race).

Second, you cannot seriously equate a religious entity that places children for adoption deciding not to place children with SS couples with discrimination on the basis of race in terms of college admissions, financial aid, jobs, promotions etc. And given all the nonsense that comes out of academia about “whiteness” etc., I’d argue that even under current precedent, AA is a problem.

But KBJ was part of racial discrimination—how can we be sure that she hasn’t cabines that activity to college admissions? Will she tip the scales on the basis of race in her decisions?

Posted by: Federalist | Mar 5, 2022 8:41:27 AM

Federalist: I am encouraging you to explore -- and ideally explain -- why you say religious entities and the military should be allowed to intentionally discriminate against gays. My supposition is that you apparently think, in some contexts, intentional discrimination can be justified or at least permitted to serve other important goals. That's the main point I mean to make: different folks in different settings in service to different values will see different reasons to make decisions with a concern for sexual orientation or race.

You can think Yale and lots of university officials are problematically much too focused on race in the work they do, and I tend to think many religious folks seem too focused on LGBTQ status is the work they do. But, again, these are on-going policy debates/concerns in a pluralistic society, not something that should lead to labels of being "vile" and "pariahs." Notably, SCOTUS stuck down as unconstitutional marriage discrimination by states, but you seem to acknowledge that the dissenters in that case (and I assume others who still strongly oppose SSM) are not "vile." Even if SCOTUS strikes down Harvard's AA program, I hope you can understand how good people can still believe an AA program is justifiable.

Indeed, if we focus on anti-LGBTQ realities, Justice Barrett in her years at Notre Dame was involved in an institution that intentionally discriminated against gays. (I think ND often ranked atop lists of LGBTQ-unfriendly schools during her time there.) How can we be sure that her involvement with a religion-based institution that discriminates could "tip the scales on the basis of [status] in her decisions"? I recall Senator Feinstein in 2018 expressed concerned about the prospect that ACB's religious beliefs could "tip the scales," and she was roundly attacked for mentioning the issue. Do you think Senator Feinstein was on solid ground in worrying about religiosity, given your " tip the scales" worries for KBJ?

Posted by: Doug B. | Mar 5, 2022 11:18:53 AM

I don’t think it’s true that the University of Notre Dame discriminâtes against gays—other that it doesn’t support gay marriage. So what? As for your question, the reason churches can do their thing is the First Amendment—surely you know that.


So when KBJ was a college student, she was part of an organization that invited the quack who believes in sun people and ice people.

Posted by: Federalist | Mar 7, 2022 9:38:57 AM

Just like the Constitution has currently been interpreted to allow churches to intentionally discriminate against gays (but not people of color, I think), the Constitution has currently been interpreted to allow race-based AA. If you think following the law can justify (or excuse) these matters, then this applies comparably to Notre Dame for Justice Barrett and Harvard for Judge Jackson.

As for who Harvard students invited to speak on a college campus 30+ years ago, that bothers me a lot less than who Donald Trump welcomed into the Oval Office in an effort to overturn a lawful election. Your gotcha partisanship is tiresome, Federalist, though I thought your tribe was for free speech and against cancel culture these days.

Posted by: Doug B. | Mar 7, 2022 9:49:10 AM

The Catholic Church has a right to believe that gay marriage isn’t ok in the sense that it is not God’s will. Personally, since I am an atheist/agnostic, it’s not my bag, but that’s what a pluralistic society is.

But those beliefs are not invidious, and your attempt to equate simple opposition to SSM to practicing racial discrimination against college applicants is just lame whataboutism. And you can say that my caring about a student organization inviting a sick racist with nary a peep from a member who now wants to be on the highest court in the land and who then goes on to get knee-deep in racial discrimination is pretextual, but whatever.

Perhaps, regarding the J6 incident, I’d have more sympathy for your point of view if you expressed any care that the national security apparatus and the DOJ colluded with the Clinton campaign to put its thumb on the scale in an election and tried to take down a duly elected President.

Posted by: Federalist | Mar 7, 2022 11:36:16 AM

It’s not just the Church being against SSM, and the simple fact you are entirely unaware of ND policies and practices when Barrett was there is the key point. And, as I have often highlighted here, the federal law enforcement apparatus has a lot to answer for. But you only seem to notice or care when it impacts your tribe.

Posted by: Doug B. | Mar 7, 2022 2:31:06 PM

That’s hardly the case—and pray tell which policies are anti-gay at Notre Dame? They don’t discriminate in admissions. They don’t believe in SSM.

Posted by: Federalist | Mar 7, 2022 2:38:43 PM

And where do you get the idea that I am only concerned about my tribe?

I think you can look at years of commentary, and I think you’d be shocked at how utterly principled it is.

Posted by: Federalist | Mar 7, 2022 2:40:59 PM

And how can you possibly defend KBJ being part of an organization that gave an invite to Jefferies?

Posted by: Federalist | Mar 7, 2022 2:42:07 PM

I am shocked you do not see your tribal tendencies. And I am on road, but found this with a quick Google search:

Posted by: Doug B. | Mar 7, 2022 2:44:07 PM

And this: https://www.theindianalawyer.com/articles/barrett-was-trustee-at-private-school-with-anti-gay-policies

To be clear, we need not to relitigate all the particulars, I just want to just highlight that the people who practice [anti-gay] bias aren’t fit for polite company" and have expressed concern about "how can we be sure" that discrimination in one setting will not extend to other.

If you are as "utterly principled" as you claim to be, why do I not recall you complaining about Judge Barrett's involvement with schools that have long practiced anti-gay bias --- and ever discriminated against the children of gay parents?

Posted by: Doug B. | Mar 7, 2022 3:19:17 PM

I was, of course, speaking in terms of employment, law enforcement, college admissions—not fundamental religious views. Seriously Doug, is this all you have—non-recognition of a lesbian/gay club? I couldn’t read the Indians Lawyer article, but I’m sure it’s pretty weak sauce,

KBJ participated in racial discrimination discrimination. And she was part of a group that extended an invite to an avowed racist. She’s the Trent Lott of the judiciary.

The whataboutism is weak—as is the ad hominem.

Posted by: Federalist | Mar 7, 2022 9:00:24 PM

Federalist, you said "the people who practice [ant-gay bias] aren’t fit for polite company." Here is the AP story lead that Indiana lawyer piece is drawn from:

"Supreme Court nominee Amy Coney Barrett served for nearly three years on the board of private Christian schools that effectively barred admission to children of same-sex parents and made it plain that openly gay and lesbian teachers weren’t welcome in the classroom. The policies that discriminated against LGBTQ people and their children were in place for years at Trinity Schools Inc., both before Barrett joined the board in 2015 and during the time she served."

In addition, for many years while Justice Barrett taught at ND, the school did not change its anti-dscrimination policies to include the LGBTQ community.

So, if I have this right, your "principled" position is that "the people who practice [ant-gay bias] aren’t fit for polite company"... except "for those who claim a religious basis for that discrimination and then I see them as fit for the US Supreme Court." Your "principled" position is that a person's involvement with a school that lawfully applies affirmative action is "not capable of providing equal justice," but a person involved with schools that discriminates against people AND their children because of who they love is not a concern.

It is not whataboutism and ad hominem for me to simply observe that you persistently attack folks left of center and defend folks right of center without consistency -- eg, you are mute about the stash-house sting cases while bemoaning the J6 prosecutions; you attacked Obama's clemency record without comparably criticizing Trump's. Candidly, I appreciate the perspective you bring to this forum, because I do not want the comments to be an echo chamber, but there is a predictable pattern to your comments which I would not describe as "utterly principled." Still, as I recall, you predicted Trump would be a more moral Prez than Obama, so maybe I just do not fully understand your principles.

Posted by: Doug B. | Mar 8, 2022 8:21:05 AM

Hmmmm. So a Christian high school wants to maintain a Christian character. Not my bag, but not evil. That’s called religious freedom. And while I wouldn’t send my children to such a place, the idea that children should be schooled absent those influences isn’t crazy. I’ve seen up close some things that are hurtful to gender non-confirming kids, and I don’t care for it, but let’s face it, society’s influence on kids has led to some pretty crazy things, like transitioning adolescents. Also, I can see parents not wanting impressionable kids around those sorts of activities. None of this is invidious. As I’ve said, not my bag, my kids go to public school, and they are exposed to this. Other parents make different choices.

That’s not like racial discrimination in admissions, and it is certainly not like being part of an organization that invites racist looks like Leonard Jefferies. If a student organization invited David Duke, would we be as solicitous as you are for KBJ—yeah, I didn’t think so either. The fact is that KBJ was a driver of actual racial discrimination. Perhaps the reason you are so vehement is that you know I am right and have to lob the “everybody does it” defense. But upon examining the underlying facts, there is a wide gap between KBJ’s participation in racial discrimination.

As for my alleged inconsistencies, I think you’d have to search far and wide for anything of the sort. I wasn’t commenting here that much when the Trump jailbreak happened. I criticized Obama harshly for being misleading about the nature of those he let go. Of course, I always professed my hope that the recipients would go on to live productive lives.

Perhaps you should take a look at some of my defense of the rights of sex offenders, my comments on C&C regarding NYC’s stop and frisk policy and other comments decrying injustice—even the prosecution of John Edwards, which I found appalling.

I think, honestly, that you have double standards. KBJ’s racial discrimination is cool, but if there’s a racial disparity, it’s a call to action.

And by the way, KBJ wasn’t just associated with the school, she was part of the discrimination.

Posted by: Federalist | Mar 8, 2022 10:41:38 AM

Federalist, I do not think lawful race-based AA should be called "racial discrimination" for a variety of reasons, and I especially do not think KBJ's role at Harvard is nearly as problematic with respect to "equal justice" as ACB's history with anti-gay institutions. This is not an "everybody does it" defense --- this is AA having a long and rich history, repeatedly been upheld as constitutional, and never leading to attacks on other judicial nominees. Just as you are inclined to accept ACB's anti-gay bias based in concerns about "influences" and "parents not wanting impressionable kids around those sorts of activities," so too can parents (and young adults) be concerned about diverse colleges and educational environments and so be eager to have AA part of the admissions practices. These matters seem to me quite comparable, but you are eager to make weak arguments to justify anti-gay bias (after condemning it earlier). That's fine, but it does not seem "principled" to me.

And your eagerness to argue in 2016 that Trump could prove a more moral Prez that Obama was just another variation in what I see as your tendency to persistently attack folks left of center and defend folks right of center without 'nonpartisan" consistency. Being partisan is nothing to run from, but unless and until I see you complain about GOP members speaking this year at white nationalist events (and other GOP members still welcoming those folks in their organization), I have a hard time seeing how a speaker invitation from 30+ years ago (which I have not heard KBJ had any role regarding) should be a comparable worry for those truly troubled by racism.

Posted by: Doug B. | Mar 8, 2022 11:13:49 AM

Regarding KBJ’s membership in the organization—she didn’t protest or quit, and she had to have known about the issue given the publicity it got. And as for your “race-based” preferences aren’t racial discrimination, I don’t know what to say, other than it clearly is racial discrimination. And look at the ugly anti-Asian stereotypes? KBJ owns that.

Your attempt to equate racial discrimination in higher education with religious views on homosexuality are weak. And do we really think that yahoos who prattle on about white privilege should be making admissions decisions?

And Trump was a more moral president than Obama. Obama was pretty soft on race-based violence—see his reaction to the Jena 6. Or his desire to give Iran a bomb

Posted by: Federalist | Mar 8, 2022 12:34:44 PM

Your effort to make KBJ "own" a bunch of stuff she seemingly was not involved in, while apologizing for stuff ACB was seemingly involved in serves as a good example of a partisan approach to issues. As is your concern about "yahoos who prattle on about white privilege" without a concern for GOP House members speaking at white nationalist events. As is calling Trump "a more moral president" than Obama. Res ipsa.

Posted by: Doug B. | Mar 8, 2022 1:05:32 PM

I’d suggest you go back and read our exchange about Trump and Obama. And how do those two idiots showing up at a kooky group relate to sentencing. And given Al Sharpton’s involvement with Dem party politics, I’d suggest we don’t go down that road.

KBJ was on Harvard’s board—she was involved. ACB’s involvement with a private Christian school isn’t even close to the same thing.

And with KBJ, she is in the same position as Trent Lott (good riddance to that).

Posted by: Federalist | Mar 8, 2022 2:33:47 PM

I’d suggest you go back and read our exchange about Trump and Obama. And how do those two idiots showing up at a kooky group relate to sentencing. And given Al Sharpton’s involvement with Dem party politics, I’d suggest we don’t go down that road.

KBJ was on Harvard’s board—she was involved. ACB’s involvement with a private Christian school isn’t even close to the same thing.

And with KBJ, she is in the same position as Trent Lott (good riddance to that).

Posted by: Federalist | Mar 8, 2022 2:33:47 PM

My recollection of the Obama/Trump morality discourse was that you conceded Trump was a less moral person than Obama during their time before being President. I also recall that we were seeking to put aside policy issues to focus on the morality of their behavior as President. Even before Trump sought to overturn a lawful election by hook or by crook, I suspect most "non-partisans" would have been quick to say that Obama conducted himself in the Oval Office more morally than did Trump. I certainly can see how a partisan, particularly those who favor Trump's policies, might celebrate Trump's time is office more than Obama's. But I struggle, especially in light of what those who Trump hired say of him and his actions after Biden won the election, to see how one reaches a "non-partisan" conclusion that Trump was "a more moral president" than Obama. I welcome cites to any "non-partisan" who has even suggested as much.

We certainly are far away from sentencing, Federalist, because you put forward the ludicrous notion than anyone who supports an AA program is "not capable of providing equal justice." I challenged that claim, and note that you express no concerns about the last SCOTUS nominee who served at schools that discriminated against gays and their children. That you claim to see a big difference is what makes you partisan, as we explore whether you are a partisan or a non-partisan. I think a non-partisan would not equate support for AA to support for a segregationist. I think a non-partisan would see GOP House members speaking at a white nationalist event in 2022 as a bigger endorsement of racism than support for lawful AA programs used at thousands of schools throughout the country. I am not aware of any non-partisan who holds your curious views, and those views lead me to consider you a partisan.

Posted by: Doug B. | Mar 8, 2022 3:33:52 PM

Obama and Biden colluded to interfere with the peaceful transfer of power, and the 2020 election was beset with irregularities and a suspension of ballot integrity laws.

The underlying facts of the Harvard case are disgusting—they show that Harvard didn’t think Asian kids had the leadership qualities. Where was KBJ? That is invidious discrimination.

And you can say all you want, but is it too much to ask college students to leave organizations that give racist kooks a microphone with nary a word of criticism of said racist kook?

Those two Congressmen are embarrassing—but I don’t recall anyone caring when a Mechista gave a keynote speech at the Dem National

Posted by: Federalist | Mar 9, 2022 10:19:46 AM

And, as I explained, the gay stuff is completely different.

Posted by: Federalist | Mar 9, 2022 10:20:35 AM

Ah yes, Federalist, you parrot the Big Lie talk while attacking Obama and Biden for interfering with the peaceful transfer of power, and yet you claim to not be a partisan. Wow. And after you were the one saying the "gay stuff" is similar -- your words: "the people who practice [ant-gay bias] aren’t fit for polite company" --- when I effectively highlight ACB's significant record of anti-gay bias, now you say "the gay stuff is completely different." Uh... okay.

Posted by: Doug B. | Mar 9, 2022 2:08:36 PM

I was speaking in terms of employment, college admissions and things like that. Not primary education. You can use all your sophistry and word twisting—but my points shine through..

ACB isn’t “anti-gay”. And KBJ participated in racial discrimination.

Posted by: Federalist | Mar 9, 2022 6:18:36 PM

I was speaking in terms of employment, college admissions and things like that. Not primary education. You can use all your sophistry and word twisting—but my points shine through..

ACB isn’t “anti-gay”. And KBJ participated in racial discrimination.

Posted by: Federalist | Mar 9, 2022 6:18:36 PM

Your partisanship shines through, Federalist, that is for sure.

Posted by: Doug B. | Mar 9, 2022 8:03:41 PM

Calling me a partisan is just rank ad hominem. You and I both know that sexual orientation, minors and religion present different issues from outright racial discrimination in employment or in college admissions that, in the case of Harvard, are in part based on invidious stereotypes. In other words, you don’t get to point to a religious high school’s policies and say that Harvard’s view that Asian students just don’t have the intangibles that non-Asians do. This is revolting, and KBJ was a part of this. On a personal level, my children have been exposed to gay people from a very young age. Other parents make different decisions. And I don’t question parental decisions.

As for KBJ’s silence when an organization that she was a member invited a racist kook, is clearly an issue, particularly given her position, years later, as someone who engaged in racial discrimination, whether “legal” or not. All decent people would have objected to the invite, unless, of course, there was someone else invited to challenge that nonsense. As for my criticisms of Obama, Biden, Trump and others, once again you can look to lots of things. By the by, what’s your view of Obama getting a variance on a sea wall rebuild? That’s bad for the environment, and it appears he’s getting special treatment.

It is a fact that the outgoing Obama administration hamstrung Trump by using intelligence assets and the DOJ. This was wrong.

Posted by: Federalist | Mar 10, 2022 10:18:52 AM

That you changed your tune on anti-gay discrimination once I reminded you of ACB's record, and that you now want to out-of-the-blue bring up "Obama getting a variance on a sea wall rebuild" is why I describe you a partisan, Federalist. You regularly whistle past worrisome issues involving members of "team red" while actively looking for ways to attack members of "team blue." Lots of folks do this both for the red team and the blue team, so you are hardly unique in this respect. And calling those who persistently do this "partisan" is merely a fair description.

Posted by: Doug Berman | Mar 10, 2022 12:56:22 PM

I did not change my tune—I just was thinking about a different context. I don’t support anti-gay bigotry—I find it disgusting. I just don’t think that religious freedom is a problem, and I think that religious organizations, particularly those in the context of education of children get to make certain choices without being labeled as bigots. Notre Dame’s decision falls in that same vein.

KBJ participated in racial discrimination. And if you dig into the decisionmaking process, you should be appalled.

Posted by: Federalist | Mar 10, 2022 1:56:00 PM

And other people just don't think AA is a problem and think that private colleges, particularly those interested in creating diversity educational environments and facilitating broad access to elite education, get to make certain choices without being labeled as bigots. You are particularly troubled by how Harvard admissions officers behaved; others were particularly troubled by how the schools ACB worked for and with behaved. Seems pretty comparable to me, though I can see how partisans may see matters differently.

Posted by: Doug B. | Mar 10, 2022 3:07:59 PM

Oh good grief —are you seriously arguing that racial discrimination is the same as religious views that result in the education of children being free from those influences and a religious institution withholding its recognition of a club? This is the sort of lack of tolerance that a pluralistic society needs.

Your shopworn technique is really weak. Because Roman Catholicism considers homosexual acts a sin, and says so, somehow, KBJ is absolved in participating in a process that actively discriminates? And that she’s absolved of any personal responsibility when a racial affinity group she is associated with invites a racist kook to speak?

Posted by: Federalist | Mar 11, 2022 10:39:06 AM

I am saying that being involved with a school that considers race and a host of other factors in service to creating diversity educational environments and facilitating broad access to elite schools --- in other words, running a constitutionally permissible admissions process as thousands of schools now do --- is no more worrisome with respect to someone being "capable of providing equal justice" than is being involved multiple schools that actively discriminate against gay people and their children. I am not absolving anyone, I am saying AA programs and active religious discrimination against the LGBTQ community are both mainstream realities (and well as now constitutionally blessed) that trouble some and not others for various reasons.

Oh yeah, I am also saying you are a partisan on this issue and many others (eg, Trump was "a more moral president" than Obama).

Meanwhile, some have complained to me that some folks who comment on this blog are racist and sexist. Is every other person who comments on this blog who does not call out others who comment bear "personal responsibility"? Does any GOP party member who thinks MTG is a "racist kook" bear personal responsibility for not seeking to kick her out of the GOP?

Your partisan perspective is always interesting, Federalist, though also far outside the mainstream in various particulars.

Posted by: Doug B. | Mar 11, 2022 11:27:40 AM

Barack Obama released Ali Husain Daqduq, a man responsible for the murder of US servicemen. And when I say murder, I don’t mean killed them in honorable combat. They were captured by perfidy and then murdered. If this weren’t bad enough, a few years later, when they were trying to justify the release of terrorists to get Bergdahl back, thr Administration spoke in terms of thr “sacred” bond between thr Commandrer in Chief and American servicemen. The level of cynicism needed to pull that off is beyond my comprehension. It was truly evil fit him to do that, and any decent person would recoil from that. Nothing Trump did approaches that.

The thought of that turns my stomach. Where the F was Biden when that was going on? Too busy flying his son on Aur Force 2 to pick up a diamond from a CCP official?

Posted by: Federalist | Mar 11, 2022 4:18:33 PM

Always interesting to see what your partisan perspective leads you to emphasize in these settings, Federalist. Also, I believe Daqduq's middle name is "Mussa" not "Husain." Perhaps your partisan disaffinity for Prez Obama led you to think of is middle name in the wrong context.

Posted by: Doug B. | Mar 12, 2022 9:56:59 AM

The classic non-defense defense. There’s no defense to Obama’s disloyal act and utter cynicism, so you try to smear me.

Obama’s act was vile. It was disloyal, and for him to shamelessly yap about the sacred bond. That evil and disloyalty permeates the entire Dem party.

Posted by: Federalist | Mar 12, 2022 10:31:35 AM

I am not sufficiently knowledgeable about national security issues to speak to these matters thoughtfully or at length, but I know partisanship when I see it. That you close here attacking as "evil" the “entire Dem party” leads me to now want to apply the label “rank partisan” to you, not as a smear but just as a description. Thanks for proving my point.

Posted by: Doug B. | Mar 12, 2022 12:02:56 PM

Weak. And yes, the entire Dem party owns what it’s leader did—just like it owns a Mechista speaking at the convention.

There was no natsec reason for Obama’s disgraceful decision, and once he made that disgraceful decision, he should have had the decency to refrain from yapping about the “sacred bond”.

Nothing Trump did remotely approaches this disgrace.

Posted by: Federalist | Mar 12, 2022 4:19:43 PM

The Dems also owned Ted Kennedy.

Posted by: Federalist | Mar 12, 2022 4:30:16 PM

Not sure why you want to continue on with these various oft-topic partisan complaints about "the Dems," but if you need to keep vent your tired partisan disaffinity for folks who have been dead for over a decade, so be it.

Posted by: Doug B. | Mar 12, 2022 5:09:48 PM

You’re the one who dredged up the Trump v. Obama debate.

And it’s funny that you claim ignorance re: Daqduq, but then claimed I was a partisan. Perhaps you’ve just lived in the media bubble for so long you just think that Obama’s betrayal and subsequent cynicism just cannot be.

KBJ participated in ugly stereotyping—let’s get that right.

Posted by: Federalist | Mar 14, 2022 1:20:49 PM

I dredged up the Trump v. Obama debate because it is a fine example of your partisanship, as has been many of your comments in this thread. I never know what to find more amusing, Federalist, your partisan comments or your eagerness to claim you are non-partisan while randomly bashing "the Dems." There is nothing shameful in having a partisan view of the world, but you ought to be prepared to own it at least in threads where you demonstrate it again and again.

Posted by: Doug B. | Mar 14, 2022 8:00:07 PM

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