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Thursday, May 28, 2009

Against the Anti-anti-racism crowd.

Hardship Matters

A man stands up at a Weight Watchers' meeting and says, "I used to weigh 350 pounds, but today I made my goal weight."
A man says, "My parents couldn't pay for my college, so I worked in a kitchen for room and board, and joined the Navy to pay for my tuition."
A man says, "Addiction runs in my family, so I have very specific strategies to avoid becoming hooked on alcohol and nicotine."


Should someone who got in shape by losing 8 pounds, or someone whose parents paid for his or her college, or someone who has never had the slightest inclination to abuse alcohol or tobacco be offended by these things? Is the man wrong to take some pride in these things? Wouldn't overcoming these hardships give the man experiences that would transfer to other walks of life than losing weight, washing dishes or being sober?

Perspective Matters

When interviewing for my Arizona Supreme Court clerkship, I told Justice McGregor that something I brought to the table that students with higher GPA's or from more prestigious schools didn't may not is a better understanding of the people affected by cases before the court. I don't know how important that was in her decision to hire me, but I think it was certainly the best thing I had to offer the position. So much of the law turns on what is reasonable and on balancing tests. It is naive to the point of absurd to suggest that a judge just compares facts to laws like a photo-radar camera set to take your picture at 11 mph over the speedlimit.

Being a Latina Matters

I think a portion of the anti-anti-racist problem comes from White men who don't understand that it is a hardship to not be a White man. Having experienced a handful of incidents where they are mistreated for their race & gender they believe they are approaching parody with those who are looked down upon almost every day of their lives.

If you are a middle-aged White Guy (MAWG), I urge you to take just a moment the next time you're in a store or an office or a courtroom and look at how the non-MAWGs are treated. There is hardship associated with being a Latina.

There is also a diversity of experience. What the reasonable MAWG would do, may not be what the reasonable Latina would do. A Latina might weigh the mitigation of being born with fetal alcohol syndrome against the aggravation of committing a murder while committing another felony differently than a MAWG.

Rush Limbaugh and Newt Gingrinch are wrong. Sotomayor's pride in her background and belief that as a result of that background she brings something valuable to the court does not mean she is racist.

Is it racist to insist that being a MAWG carries no advantages? Is it racist to demand that non-MAWGs never mention their ethnicity and certainly take no pride in it? Hmm. Yep. I think it is.

I think I should just say I am against the racism crowd.

Mentor & Friend

Today is Chuck Blanchard's last day at Perkins Coie Brown & Bain. He is off to begin his work in the Obama administration as General Counsel to the Air Force. It is a great opportunity and a good fit for him--he served as General Counsel to the Army under Clinton. Still, I am sad to see him go. He was my first introduction to the firm, and I have had the pleasure of working for him on some of the most interesting political law cases we've had a PCB&B. He will be missed.

Tuesday, May 26, 2009

Sad, but maybe right.

According to CNN, the California Supreme Court rejected the notion that Proposition 8, "alters California's Constitution and, therefore, under state law, was a revision that requires a constitutional convention," but did not invalidate the marriages that took place before the anti-gay Proposition passed.

The Court explained that unlike the other cases to consider marriage equality, today's ruling, "the principal issue before [the Court] concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution."

The Court concludes that the effect of Proposition 8 is not retroactive, but that Proposition 8 indeed amended, rather than revised, the California constitution. This seems to be a very California law specific question, with which I am not qualified to quibble.

Here's my reaction to all of this:
* This may very well be the right decision based on California law
* It is nonetheless a tragic day for gay couples in California who live through another official condemnation of their love
* It is incumbent on those of us who believe in marriage equality that we make the case that it is wrong, not unconstitutional, to exclude gay people from marriage. (Even if we believe it is, in fact, also unconstitutional.)

Oh yeah, the 185 page opinion is available here.

Empathy

Let us say that the there is an established principle of law that says, when two parties enter into a contract drafted by one of the parties, and where the non-drafting party has no opportunity to negotiate the terms of the contract (that is, it is a take it or leave it situation), the terms of the contract are nonetheless valid, except in situations where no reasonable party would have accept the term if the party understood the term. (see adhesion contract) Interpreting this principle to apply the law to it requires understanding where the non-drafting party is coming from. To simply always interpret the concept in favor of the business is an exercise is activism, by removing the teeth of this modest principle of consumer protection.

Let us say that there is a provision in the Constitution which does not provide strict guidance on its restriction on State power. Rather it provides a general principle like prohibiting excessive fines or cruel and unusual punishment. (see 8th Amendment) There is no strict letter of the law to apply there. The Constitution says, "Hey, Congress, hey Supreme Court, figure this out." To use only ivory tower elite definitions of excessive fines or cruel and unusual punishment is contrary to the democratic spirit of the Constitution.

A major role of the law is to provide stability. But another major role is to protect the less powerful from the more powerful by setting out rules and limits. It would be good to have a justice who at least thought about the latter.

Monday, May 25, 2009

Memorial Day

I guess I really should write. Today President Obama challenged us to respond to “the legacies of an unbroken chain of proud men and women who served their country with honor; who waged war so that we might know peace; who braved hardship so that we might know opportunity; who paid the ultimate price so we might know freedom." He asked that we “commit to give something back to this nation--something lasting--in their memory; to affirm in our own lives and advance around the world those enduring ideals of justice, equality, and opportunity for which they and so many generations of Americans have given that last full measure of devotion.”

Obama's Speech.

Indeed. As I'm sure I've written Dad died as a result of a cancer that is linked to his exposure to Agent Orange while serving in Vietnam. So linked that his death was considered service related and Mom got some extra benefits as a result, eventually. Pat asked me after Dad died if I was doing anything sort of in response to Dad's death. I told her no back then, but I certainly was thinking about his starting pro-reconciliation interracial discussion groups in Muncie, Indiana when I proposed Chalice Christian Justice Ministries. (We're having a symposium in October, BTW, so it is going to be more than attending demonstrations.)

Obama's relentless calling us to action mixes well with remembering Dad. He was a man of action.

Just to continue the stream of consciousness half-thoughts format here, I am realizing that Dad dying so close to Memorial Day guarantees me an extended period of thinking about him every year. Which is not a bad thing.