Announcing You're Going to Discriminate + Discriminating = Liability for Discrimination

When the Trump administration's Muslim ban was moving through the courts, there was the weird debate people were having about whether it was fair to use Donald Trump's explicit statements announcing a discriminatory motive for the ban as evidence that the ban was discriminatory. The debate was weird because in any other circumstance the answer is obvious -- of course it's evidence. It's close to dispositive evidence. That's how anti-discrimination law works.

For example, this past week the Eleventh Circuit decided the case of McCarthy v. City of Cordele. Here are the relevant facts:

Joshua Deriso campaigned for election as chairman of the City Commission of Cordele, Georgia, by publicly stating his intent to “replace Caucasian employees with African Americans”; to lead “an entirely African American” City Commission; and to replace Roland McCarthy, the white City Manager, with a black City Manager. On social media, Deriso declared, “Structure needs to change . . . More Blacks!!!”; “The new City Manager should be Black”; and “it is time for African Americans to run our city.” Deriso won the election. The same day he and fellow commissioners took their oaths of office, the Commission voted on racial lines to fire McCarthy and to replace him with a black City Manager.

"The question," the court continued, "is whether those allegations permit the inference that the City Commission fired McCarthy because he is white." They quite reasonably answered "yes". When you publicly campaign on "I am going to racially discriminate", and then you do exactly what you promised to do, it's entirely reasonable to conclude that what you've done is engage in racial discrimination. And that inference is valid notwithstanding the fact that under normal circumstances the city council has wide discretion in hiring or terminating its city manager. This is not hard.

There's no pay off here other than to reemphasize the lawless anomaly that was Trump v. Hawaii. The pass it gave to blatant, undisguised discrimination is completely at odds with the doctrine both before and after the case. Judges fully understand how senseless Trump's rule is in other cases (especially, one must observe, in cases of "reverse discrimination"). Indeed, while Trump v. Hawaii was under consideration I observed that in any remotely analogous circumstance involving "Smallsville, Anystate" the case is an absolute dunker as a clear and obvious legal violation. It is only Donald Trump who received and continues to receive these ridiculous one-offs as the Supreme Court's special favorite.

.... And Getting Worse Roundup

This will not be my cheeriest roundup. But there are a bunch of links burning a hole in my pocket, so here you go.

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Apropos yesterday's post on Fugitive Uterus Laws, a Washington Post article on similar efforts underway to set up checkpoint towns in Texas designed to capture any pregnant women who has designs on leaving the state for freedom.

North Carolina Republicans considering impeaching a state supreme court justice because she talked about racism. While I can't fault Slate for juxtaposing this against the undisclosed largesse heaped upon Justice Thomas, my mind more rapidly went to efforts in Wisconsin to impeach a state supreme court justice because she might vote for democracy.

A politically engaged fifteen year old kid asked a (not even that tough!) question that made Ron DeSantis uncomfortable on the campaign trail. So he sent his goons to rough him up.

You see, the real problem with the "War on Drugs" is that it's too metaphorical.

The latest Fifth Circuit crack-pottery: it's probably illegal for the FDA to tell humans they're not horses (yes, this is the latest conservative institution to burn its remaining dignity in defense of ivermectin conspiracies).

Georgia school district: saying the word "gay" around fifth graders is like graphically describing the horrors of the Holocaust to kindergarteners. 

If You Add an "e" and Take Away "alist" That Spells Globe!

 

If you asked me to write a parody of what folks bleating on about DEI indoctrination sound like, I couldn't do a better job than how Georgia Republican Kandiss Taylor's rants about "globes".

No, not "globalists". Globes. As in, the earth being round. Seriously:

“All the globes, everywhere” Taylor said later in the discussion. “I turn on the TV, there’s globes in the background … Everywhere there’s globes. You see them all the time, it’s constant. My children will be like ‘Mama, globe, globe, globe, globe’ — they’re everywhere.”

“That’s what they do, to brainwash,” she added. “For me if it’s not a conspiracy. If it is real, why are you pushing so hard everywhere I go? Every store, you buy a globe, there’s globes everywhere. Every movie, every TV show, news media — why? More and more I’m like, it doesn’t make sense.”

Listen, she just wants to have a debate. What are they afraid of? 

Things People Blame the Jews For, Volume LXIII: Transgender People

Many, many people have noticed the degree to which the ascendent anti-trans hysteria has been bathed in antisemitic subtext (or, just as often, text-text). A recent incident in metro Atlanta is barely even distinctive, it just happens be the one that happened within the past few days.

More antisemitic flyers have been distributed around metro Atlanta, about a month after the last time people found similar flyers in their neighborhood.

On Sunday, Atlanta police issued a statement about flyers found in East Atlanta titled “Who is behind the rise in transgenderism?” that feature a large rainbow-colored Star of David, and display QR codes with links to websites with anti-Jewish and anti-transgender statements.

Police said they were aware of the flyers and the Atlanta Police Department’s Homeland Security Unit was notified and is investigating.

The flyers' centerpiece is an attack on Magnus Hirschfeld, a German sexologist who was an early target of the Nazis. So it's nice we're circling all the way back to that. 

On the other hand, the flyers also make note of how the Talmud recognizes eight genders (which is accurate -- take that, "Judeo-Christian" tradition!) and Jewish families which have embraced trans youth with open arms. The flyer, of course, presents this as an indictment. But I prefer to think of it as giving credit where it's due.

Sweet Home Georgia

(It's not a mistake, it's a Dollhouse reference)

Georgia heads back to the polls for two Senate run-off elections today, and I honestly don't know what to expect.

On the side of evil:

• Perdue barely missed taking an outright majority in the first round, and the combined GOP vote in the special election was I believe ahead of the combined Dem vote.
• As everyone knows at this point, Dems historically underperform in Georgia run-offs.
• Polls have shown a deadlock, but it seems as if the polls this cycle have had a slight D slant, so a deadlock may translate to a slight R advantage.

On the side of good:

• Early vote turnout figures look excellent for the Democratic candidates. And it seems plausible that in a run-off it will be easier to turn out the early vote than the in-person vote.
• It's also not implausible that Republicans are demoralized after the 2020 election (even if they somehow actually think they won and it was "stolen", they might be less than keen to participate in an election they think will be "stolen" again).
• Donald Trump being, shall we say, "distracted" might also undermine GOP enthusiasm.
• The blue shift in highly-educated suburbs is, among other things, a shift in a relatively high-turnout constituency, which may undercut some of the historical "Dems struggle to turnout in run-offs" baggage.

Honestly, I don't know what to think. But here's hoping that these months where we Warnock-ed our Ossoff pay off!

How Does a Defeated Trump Affect the Georgia Race?

Barring a turnaround in North Carolina or a surprise upset from Al "Bear Killer" Gross in Alaska (and the latter does say he think he'll win after all the mail-ins are counted), the season finale of the horror series known as "2020" will be a royal rumble Senate two-fer in Georgia. Incumbent Republicans David Perdue and Kelly Loeffler will face challenger Democrats Jon Ossoff and Raphael Warnock in a state that Joe Biden just squeaked out a victory in.

Other have written on the best positive strategy for Democrats to take in the race (pushing the "3 M" approach -- Medicaid expansion, minimum wage increase, and marijuana legalization). And it's well-known that Democrats have severely struggled in Georgia run-offs in the past. But right now, I'm curious how the shadow of a defeated Trump affects the dynamics of this race.

It is (as much as I hate to admit it) a truth that Donald Trump has been a big turnout booster for Republicans. Witness Texas, where Joe Biden swelled Hillary Clinton's vote tally by 1.4 million, but Trump managed to keep pace with 1.2 million additional votes of his own. Even without him at the top of the ticket, it's possible that Trump could boost GOP turnout in the run-off if he campaigned aggressively for the GOP ticket, feeding on resentment and spurious claims of voter fraud, inspiring red staters looking for vengeance and the need to head off a Democratic Senate majority.

But Trump is Trump, and he doesn't seem likely to react to defeat by working on someone else's behalf. He's going to be sullen and depressed and whiny, and I doubt he'll be much interested in intervening in the Georgia race at all. If anything, he might put Perdue and Loeffler into a tight spot by continuing to frivolously contest the validity of the election, forcing them to either actively disavow Dear (Fallen) Leader or come off like anti-democratic extremists.

More broadly, it is far from clear that Trumpists will continue to turn out once the aura of invisibility and the joy of "cry more libs" no longer can be guaranteed. It is wrong to say that Trumpism is dead in America -- it continues to be the dominant faction of the GOP, and that isn't likely to change anytime soon. But it is possible that Trumpists will find it difficult to replicate the enthusiasm Donald Trump inspired with their standard-bearer broken. Particularly if the GOP starts the fratricide before the run-off day, one could see a far more energized Georgia Democratic Party facing off against a demoralized, frustrated, "take my ball and go home" Georgia GOP. And that might give Ossoff and Warnock the space they need to pull what I still think would be an upset victory, and hand Democrats the Senate.

An Assurance on Antisemitism from the People Trying to Make Jason Lewis a Senator

The Jews who are backing the most antisemitic candidate running for election in Minnesota want you to know that it's scurrilous to accuse Georgia Senator David Perdue (R) of antisemitism just because his campaign released an ad where his Jewish opponent's nose was photoshopped to look bigger in the midst of accusing him and another prominent Jewish Democrat of trying to "buy Georgia".

So, you know, we should all take that real seriously.

No Lessons Tonight

I have no lessons to offer from the results of tonight's Georgia special election. Mostly, this is because any "lessons" you'll hear tonight will almost invariably be "Democrats should do the thing I already thought Democrats should do", and I doubt I'm so dispassionate as to be able to resist that inflection in my analysis.

To the extent I have a takeaway, well, I get -- and basically agree with -- the argument that these results still show a huge swing in the Democratic direction compared to previous House results. Taking a district where Republicans were winning over 60% of the vote and making it nip-and-tuck is a big deal.

At the same time, Jon Ossoff got roughly the same percentage of the vote in the GA-06 as Hillary Clinton did. By and large, the people who vote for Trump are and continue to be fundamentally fine with Trump. All that's happened, all he represents -- they're okay with it. They like it even. I suspect they revel in it.

So mostly right now I'm just sad. I'm sad because I get the sense that if the median Georgia Trump voter knew that I -- Berkeley-residing, academically-employed, advanced-degree-holding, Jewish David -- was sad, they'd be happy. They like that I'm sad. They like that I'm scared. It's high-time people "like me" (whatever that means) were a bit antsy. It's long past due that I recognized that this isn't my country, it's their country. If I'm unhappy, that isn't a regrettable byproduct of important policy reforms they deeply believe in, and it's not a challenge to try to reach out and make me believe that these reforms can speak to me too. It's not the means, it's the end. It's not part of the job, it's why they took the job.

Maybe I'm wrong. But I certainly don't get the sense that they care. One never sees the "middle-income conservative white Christians need to reach out and heal a divided country" take out of the right-wing press.

So I'm sad. And to be clear: Being sad doesn't mean you stop working. And it doesn't mean you stop believing in other people, or assume there's no hope for change. But you're allowed to be sad. You're allowed your sensibilities.

"This is a Big [Bleeping] Deal!"

Georgia Governor Nathan Deal (R) has vetoed a "religious liberty" bill that would have enabled widespread discrimination against gay individuals. Certainly, he was responding to pressure from business leaders. And absolutely, he was cognizant of the backlash against North Carolina and (earlier) Indiana when they put forward similar bills. But nonetheless, this is a significant turning point. Slight purpling not withstanding, Georgia is a reliably Republican, southern state. Nathan Deal is a reliably conservative Republican governor. When someone like him vetoes a bill like this, it marks a watershed moment for where gay rights are in American politics.

Kudos to Governor Deal, and to all those who helped make this day possible.

Quiet Riot Roundup

Yesterday was the birthday, tonight is the celebration. Not sure about the lack of blogging though -- it's not like I was busy.

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Right-wing mob urges the lynching of Attorney General Eric Holder -- ironically, because Holder wants to uphold rule of law.

The Winter Olympics start tonight, and Ghana will be representing for the first time.

In sadder news, a Georgian luger died hours before the opening ceremonies in a crash during a practice run.

Voters like gays and lesbians; homosexuals, less so.

Liberal Democrat (UK) MP Baroness Jenny Tonge was sacked from a high profile party position after demanding Israel undertake investigations of completely unsubstantiated allegations of organ theft in Haiti.

Meanwhile, this is a good post on the longevity and impressive staying power of organ theft rumors (not just about Jews or Israelis).

Jews face the highest rate of hate crimes of any religious group in the United States (Blacks are the most targeted overall).

A Tennessee Muslim community is the subject of a sensationalist CBS report questioning whether it is a secret terrorist training facility. It isn't, but gets hit with vandalism anyway in its wake.

It's nice that Glenn Beck disavowed 9/11 troofer-flirting candidate Gloria Medina, but to call it impressive would be to lower our expectations bar underground.

Hedging Hollywood -- a brilliant scheme to induce bad filmmakers to actively try and make their movies worse.

Davis Execution Stayed

The Atlanta Journal-Constitution reports that the Supreme Court has stayed Troy Davis' execution to allow him to present new evidence (over a dissent by Scalia and Thomas). I've written about the case here -- virtually all of the witnesses have since recanted, alleging the police intimidating them into saying what they wanted to hear (namely, that Davis is guilty). The prosecutors, for their part, say the high levels of recantations are themselves suspicious and raise the specter of guilt-tripping by groups like Amnesty International. It's an argument I do not find compelling, and this is a textbook case of why the death penalty just isn't working in American society.

UPDATE: Judging by these posts from Orin Kerr and Kent Scheidegger, the Court's move here was unusual bordering on unprecedented. My understanding was that "actual innocence", on its own, has never before been considered a valid ground for Habeas review -- there needs to be some sort of irregularity at trial to hang the hat on. Here, though, we might be seeing a rather significant turn in the Court's jurisprudence. Stay tuned.

A Minor Variation

Stephen Breyer's lecture detailing the history of the Cherokee nation's attempt to resist Georgia's theft and colonization of their land reveals something important. "State's rights" wasn't always just a fig leaf to promote White supremacy over Black people. Sometimes, it was used to promote White supremacy over Native Americans too. Georgia's action were in unbelievably flagrant violation of the law and dutifully signed treaty rights possessed by the Cherokee nation. It's the sort of thing that still outrages, 175 years later.

Wilson Execution Stayed

The 11th Circuit has stayed the execution of Troy Wilson. I grappled with some of the issues surrounding Mr. Wilson's potential innocence here. Recall that the U.S. Supreme Court gave a stay to Mr. Wilson earlier, only to later reject his appeal. So don't get your hopes up.

Prosecutor Speaks in the Troy Davis Case

Former federal judge, now law professor Paul Cassell links to the prosecutor's account of what happened in the Troy Davis case. You may know about his case: After being convicted of murdering a police officer, Davis has been pursuing a new trial ever since seven of nine non-police witnesses against him recanted their testimony, basically saying they were coerced into giving their statements by the cops.

There's a lot of hand waving going on here, but basically the reliability of the recantations comes down to whether or not you think it is more likely that witnesses are subject to intimidation by police investigators, or by groups like Amnesty International investigating potential wrongful convictions. My default stance is to be suspicious of unrecorded police questioning in Black on White crimes in Georgia. The affadavits Amnesty provides are compelling to me because of their consistency -- they all give very similar accounts of police harassment, and come back to a consistent theme that the police wouldn't let the witnesses leave until they said what the police wanted to hear.

For his part, the prosecutor, Spencer Lawton, actually uses the 80% recantation rate as evidence in favor of collusion and manipulation. He raises the specter of anti-death penalty forces coming in, long after the event in question, and basically guilting the witnesses with the specter that their testimony may be putting an innocent man in prison. Is it possible you don't remember clearly? Are you sure that Davis is the shooter?

The problem with this defense is that it doesn't match up with the affidavits Amnesty actually obtained. They're not, by and large, based off fuzzy memories or unclear recollection of the events in question. They, nearly without exception, are premised off police intimidation to get certain testimony -- something unlikely to be that fuzzy and not premised off any difficulty in remembering the events of the murder. Lawton notes that the witnesses were questioned about this at trial and did not say anything about intimidation. But at trial the police threats (if they so happened) were likely to be fresh in the witnesses mind, and going against one's sworn statement raises the prospect of a perjury investigation (something which, if I were a sleazy cop, would be sure to remind my cowed witnesses of after they signed the document).

The other part of Lawton's argument, which is a bit more subtextual, is that the affidavits were acquired by groups with an anti-law and order agenda in general, who are motivated simply by blanket opposition to the death penalty. The problem is that Amnesty appears to have worked quite hard to acquire statements implicating another man in the crime. Opposition to the death penalty hardly seems consistent with trying to get another person convicted of capital murder (although they could hope that the new suspect would not get a death sentence).

All of this really just points back to my current, long-standing intuition about the death penalty. Our system is so badly broken that there is really no way that it can imposed in a fair and just manner, where we can be sufficiently assured of the defendant's guilt. When, for example, there isn't that essential trust that the police won't try and coerce testimony -- particularly when the victim was another officer -- it is simply impossible to evaluate the reliability of trial testimony in the face of future recantations. In such an environment, the death penalty cannot be justly put into practice.

The Godfathers

Sometimes, history is quite timely:

The bombing of a prominent Atlanta synagogue in 1958 claimed no lives, but the community outrage that it prompted helped galvanize the city's nervous Jewish community to embrace the civil rights movement.

Members of The Temple gathered Sunday for the blast's 50th anniversary, recalling its terrifying aftermath and the way it changed their congregation's mission to promote racial equality.

But it isn't the bombing that interests me. It was the response given by Atlanta Mayor William Hartsfield, during a synagogue visit after the attack:

Atlanta Mayor William Hartsfield visited the Temple and quickly went on television to condemn the bombers and the politicians who he said should share the blame.

"Whether they like it or not, every political rabble-rouser is the godfather of these cross burners and dynamiters who sneak about in the dark and give a bad name to the South," he said. "It is high time the decent people of the South rise and take charge."

Words to keep in mind, no?

Palin's Foreign Policy Interview

ABC has put up excerpts of Charlie Gibson's interview with McCain VP nominee Sarah Palin. It's essentially all about foreign policy, so no questions about earmarks or the bridge to nowhere or troopergate, which is unfortunate. Gibson also mischaracterized one of Palin's remarks about Iraq, saying that she stated that "Our national leaders are sending U.S. soldiers on a task that is from God." In actuality, it seemed clear to me from context that Palin was praying that "Our national leaders are sending U.S. soldiers on a task that is from God," which is perfectly reasonable. So it was unfortunate that Gov. Palin was forced to spend time discussing a question whose premise was essentially untrue.

As for the rest of the interview, it's difficult to know how Palin will come off from only reading the transcript. Most of her answers seemed a bit evasive or filibuster-y to me, but it's possible to do that quite effectively when it comes across the TV. The question is, will she come off as "strong on defense" (good) or "a crazy conservative hardliner" (bad). To the extent that she gave us policy, it's clearly the latter -- but I have no idea what the perception will be.

But the was one major, major gaffe I saw that could set the tone for the entire coverage. It was when Gibson asked her about allowing Georgia to join NATO:

GIBSON: Would you favor putting Georgia and Ukraine in NATO?

PALIN: Ukraine, definitely, yes. Yes, and Georgia.

GIBSON: Because Putin has said he would not tolerate NATO incursion into the Caucasus.

PALIN: Well, you know, the Rose Revolution, the Orange Revolution, those actions have showed us that those democratic nations, I believe, deserve to be in NATO.

Putin thinks otherwise. Obviously, he thinks otherwise, but...

GIBSON: And under the NATO treaty, wouldn't we then have to go to war if Russia went into Georgia?

PALIN: Perhaps so. I mean, that is the agreement when you are a NATO ally, is if another country is attacked, you're going to be expected to be called upon and help.

But NATO, I think, should include Ukraine, definitely, at this point and I think that we need to -- especially with new leadership coming in on January 20, being sworn on, on either ticket, we have got to make sure that we strengthen our allies, our ties with each one of those NATO members.

We have got to make sure that that is the group that can be counted upon to defend one another in a very dangerous world today.

Committing to war with Russia? Yeah, that's bad. And that's the problem with putting Georgia in NATO. It's a commitment that there is simply no way we'll be willing to keep. Russia knows we won't keep it, and if they call our bluff, the entire premise of NATO collapses. It is under no circumstances responsible policy-making -- but it is the upshot of the recent conservative foreign policy doctrine that thinks more bluster is the solution to every problem.

We Didn't Hear You The First Time

Another Georgia Republican -- this time the House candidate running against perpetually-endangered Democratic Jim Marshall -- called a Black man he didn't like "uppity".

What is with these people?

Rain Rain Go Away

I want to stress that there is nothing funny about the crippling drought that is currently affecting the state of Georgia. It's truly hurting a lot of people, and that's no laughing matter.

The timeline of Sonny Perdue's rain-prayer, however, is quite funny:

1. Georgia is in severe drought
2. Governor Perdue decides to pray for rain on Tuesday
3. Forecast called for rain Tuesday
4. Prayer service goes ahead as planned
5. Skies completely clear up immediately following prayer service
6. No rain

Maybe God doesn't like ostentatious displays of religiosity? Or maybe he just doesn't like Sonny Perdue?

PS: I was going to tag this post "climate", but then had to correct myself and write "weather", as the former would have been technically inaccurate. Score one for my Conservation Biology course!

Deep South Rumblings

Good news and bad news for Democrats in the heart of Dixie.

The bad news: Freshman Senator Saxby Chambliss (R-GA) has comfortable leads over most of his potential Democratic challengers. The match-ups don't include a rematch between Chambliss and former Senator Max Cleland, whom Chambliss knocked off in 2002. Cleland hasn't expressed much interest in the race, however.

The good news: The rumors that Mississippi Republican Thad Cochran will retire continue to get stronger. The Democrats actually have a really strong candidate waiting in the wings in former Attorney General Mike Moore, who is wildly popular in the state. If Cochran bails and Moore runs, there is a serious chance the seat will flip.

Could Cleland Avenge Himself?

A new poll indicates that Senator Saxby Chambliss might be vulnerable in a rematch with former Georgia Senator Max Cleland. Chambliss is up 36%-24% over Cleland, with 40% undecided. Those are terrible numbers for an incumbent.

Cleland hasn't expressed interest in the race, which makes sense given how he was treated in the first go around. Still, I hope he jumps in and obliterates Chambliss, who is without a doubt one of the most repulsive members of the US Senate (starting with how he got there, with the paradigmatic slime ad connecting war hero and triple amputee Cleland with Osama bin Laden). He deserves to go down hard, and I can see no better justice than Cleland being the one send him back to whatever cesspool he emerged from.