“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.
We're way past overload on Trayvon Martin-George Zimmerman commentary, but there is a tiny tributary of the story that has been largely overlooked. And it's worth a moment because it points to a larger problem regarding both the state and the public.
In university classrooms, and across campuses nationwide, we hear it repeatedly: Ever--increasing calls for “social justice.” But not everyone is on board:
Social justice, it is well to remind these “forward-looking” professors, means in practice class justice, class justice means class war, and class war, if we are to go by all the experience of the past and present, means hell.
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.”
The death of Robert Bork this past December brought forth tributes to a man bearing no resemblance to the grotesque caricatures that emerged during the long debate over his 1987 nomination to the Supreme Court. Widely noted were his unswerving loyalty to friends and principles, his seminal intellect, his acerbic but not unkind humor and wit, and his lifelong sense of service and duty to his country.
On the morning of January 21, just before President Obama’s second inauguration, Rep. Paul Ryan, the Wisconsin congressman and House budget chairman who had run unsuccessfully as the Republican candidate for vice president, was roundly booed by the gathered crowd as he left the Capitol to attend the ceremonies on the Mall. Within minutes Daniel J. Freeman, a young career trial lawyer with the Voting Section of the U.S.
The Justice Department announced that 16 folks would be sent to prison for hate crimes against Amish folks. The defendants, who range in age from 23 to 67 and all lived in Ohio, were found guilty of "forcibly remov[ing] beard and head hair from practitioners of the Amish faith with whom they had ongoing religious disputes."
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.
Today, President Obama’s belief in a “living Constitution” came up against a ruling that enforced our fixed Constitution. A 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously declared Obama’s “recess” appointments to the National Labor Relations Board to be unconstitutional. In making those appointments when the Senate was still in session, Obama sought to do an end-around that deliberative body — a move made all the more striking by the fact that the Senate was, and is, controlled by his own party.
“There were giants in the earth in those days.” The death on December 19 of Robert Bork—superb legal scholar, preeminent constitutional thinker, principled public servant—calls to mind the other giants of American conservatism who have left us in the last decade: Bill Buckley and Irving Kristol, Milton Friedman and James Q. Wilson, Richard John Neuhaus and Jeane Kirkpatrick, Ronald Reagan and Jack Kemp. They were the greatest conservative generation. They rode into the valley of liberal orthodoxies and emerged sometimes triumphant, always unbowed. When can their glory fade? They left our nation stronger and better for their efforts.