3:31 PM, Nov 7, 2013 • By TERRY EASTLAND
“Detroit civil rights lawyer Shanta Driver made a last-minute decision to argue in a high-profile Supreme Court affirmative action case on Oct. 15 in part, she said, because so few African-Americans appear before the justices.”
That is how Tony Mauro of the National Law Journal began his story of October 30 explaining why that last-minute decision was made. You’ll notice the story came well after the oral argument in Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, known as BAMN, which has challenged the constitutionality of that part of the Michigan civil rights initiative (approved by voters in 2006) that prohibits the use of race to either favor or disfavor applicants in admissions decisions in public higher education. Understandably, it took Mauro a while to find the answer to a question that had puzzled court watchers.
Driver’s law partner George Washington had been scheduled to argue the case for the “by any means” coalition, but not until minutes before the session began did the court clerk’s office learn that Driver, who is national chair of BAMN, would take his place. Neither Washington nor Driver wanted to comment on why the change was made, Mauro wrote. As it happened, however, after the argument Driver went outside the Court and spoke about it to a sympathetic audience. Driver’s talk was recorded and posted on YouTube by some unknown but apparently friendly party, perhaps to enable Driver to answer inquiries the way she did Mauro’s, who wrote that “a response to a message sent to Driver’s Facebook page pointed to her post-argument speech outside the Supreme Court, available on YouTube.”
In any case, to judge by what she said in her remarks on YouTube, that Washington happens to be white and Driver black clearly figured in the decision to switch lawyers. As Mauro wrote, “Driver cited [to her audience] the statistic, drawn from a May 2013 Associated Press article, indicating that in the roughly 75 hours of oral argument last term, only 11 minutes were presented by an African-American.” She then told her audience, “I do think, particularly for the judges on the left, that was really important, that there was somebody up there and who was fighting, who really could speak for the movement and was of the movement.” That “somebody,” had to be “of the movement” in a literal racial or ethnic sense, as Washington could not be, because he is white. And that somebody also had to be not only a BAMN-defined minority but also one that fights and really speaks for the movement, a definition that Driver satisfies, as a few minutes on a search engine will demonstrate.
Ken Jost, editor of CQ Press, thinks that BAMN may have weakened its slim chance of victory by “playing the race card on game day in front of the Justices.” Maybe the justices noticed the sudden switch in lawyers from Washington to Driver, and maybe they noticed Driver’s post-argument comments outside the court. And maybe they were offended for one reason or another. But it’s hard to imagine that any votes actually changed on account of the switch.
Regarding Driver’s argument before the court, it did not get high marks from court watchers, as Jost reports in his post. Most remarkable was her willingness to say that the Fourteenth Amendment protects only minority rights against a white majority, a position that no case of the Court has ever embraced, as an exchange between Driver and Justice Scalia made clear. Just as remarkable was Driver’s belief, evident in her post-argument talk, that it was good litigation strategy to take that position, since it would “help bring that left-wing [of the court] to life [and] make them assert themselves”—as though the votes of the judicial liberals in the case will decide it, which they will not.
“I did great,” Driver told supporters. And in her world, if nowhere else, she did.
12:12 PM, Jun 26, 2013 • By ADAM J. WHITE
Much will be written about Chief Justice Roberts's opinion for the court in Hollingsworth v. Perry, holding that supporters of California's Proposition 8 lacked constitutional "standing" to defend in federal court California's ballot initiative against same-sex marriage. (Whether or not same-sex marriage will destroy traditional marriage someday, it's certainly destroying Twitter this morning.) But one ironic twist deserves immediate mention.
3:52 PM, Jun 4, 2013 • By DANIEL HALPER
President Obama today nominated three liberals to fill longstanding judicial vacancies on the important Court of Appeals for the District of Columbia. Will the Senate rubber-stamp the president's nominees—even though the court's fine as it is, with the eight judges currently serving enjoying the lightest caseload in the country? In 2006, when the Senate refused to consider the nomination of Peter Keisler to that court, Senator Ted Kennedy stressed that “we should consider these caseload declines carefully before we fill the current vacancy. American taxpayers deserve no less.” Since then, the court has only added more judges and heard fewer cases.
7:32 AM, Mar 27, 2013 • By JONATHAN V. LAST
Yesterday the Supreme Court heard oral arguments on California’s Proposition 8, which defines marriage as being between couples of the opposite sex. Today they’re hearing them on the Defense of Marriage Act, which defines marriage as a union of one man and one woman at the federal level. Like Roe v. Wade, the high court’s decision on these cases is likely to fuel the culture war for a generation or two, at least. Unlike with Roe, the Court seems to understand that it’s been handed an issue of enormous consequence.
“Now I’m up to 20 push-ups.”10:48 AM, Mar 20, 2013 • By DANIEL HALPER
Justice Ruth Bader Ginsburg talks about her work outs in an interview with the Washington Post. “When I started, I looked like a survivor of Auschwitz,” she tells the paper. “Now I’m up to 20 push-ups.”
4:20 PM, Jan 29, 2013 • By JEFFREY H. ANDERSON
On Friday, a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously declared President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) to be unconstitutional.
6:18 PM, Oct 24, 2012 • By DANIEL HALPER
Attorney Gloria Allred has reportedly been planning a pre-Election Day surprise targeting Republican presidential candidate Mitt Romney. The key for the attention-seeking lawyer, it seems, is to uncover "Mitt Romney’s 1991 testimony in the divorce of Staples founder Tom Stemberg," the Boston Globe reports. But a document revealing the judge's ruling on the case in 1994 suggests the case has long been legally settled.
4:23 PM, Aug 9, 2012 • By DANIEL HALPER
As the New York Times reports, "The Federal Trade Commission on Thursday fined Google $22.5 million to settle charges that it bypassed privacy settings in Apple’s Safari browser to show advertisements, and violated an earlier privacy settlement with the agency."
7:37 AM, Jun 1, 2012 • By DANIEL HALPER
Steve Hayes, with Juan Williams, Dana Perino, and Charles Krauthammer, last night on Fox News:
But how much more?12:00 AM, Apr 20, 2012 • By ADAM J. WHITE
Last week, a federal judge in Washington issued a truly extraordinary opinion. Judge Janice Rogers Brown, of the U.S. Court of Appeals for the D.C. Circuit, went out of her way to challenge one of bedrock achievements of the 20th Century liberal legal establishment: the de-emphasis of economic rights, relative to other "fundamental rights," as a matter of constitutional law. Judge Brown's opinion already has sparked controversy, and it deserves closer scrutiny.
3:27 PM, Apr 4, 2012 • By JEFFREY H. ANDERSON
Yesterday, President Obama said, “We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre-New Deal.”
12:29 PM, Apr 4, 2012 • By ADAM J. WHITE
Last week, President Obama clumsily announced that it would be "unprecedented" for the Supreme Court to strike down "a law that was passed by a strong majority of a democratically elected Congress." This week, his words are already having an effect in the courts—but not the effect he hoped for.
3:00 PM, Apr 3, 2012 • By ADAM J. WHITE
Not even a full year into President Obama's first term, Politico observed that he had reached the point of caricature in using the term "unprecedented" to describe basically anything that occurs during his presidency. By now, Americans have learned to shrug off his use of this rhetorical tick.
7:18 PM, Mar 27, 2012 • By ADAM J. WHITE
Yesterday, we endured an esoteric debate over a jurisdictional statute that practically no one expects to actually affect the Supreme Court's review of Obamacare. Today, by contrast, was the argument we've all been waiting for: the challenge to the constitutional merits of Obamacare's individual mandate.