"Judge Block once told a defendant of Asian origin that, if he skipped bail, the judge would 'have egg foo yong on my face.'"

"He told a Black prosecutor in 2015 that it was 'good to see so many dark faces in the courthouse,' and called a discrimination case a 'stupid little trial' within earshot of a juror.... [W]hile presiding over a trial of a drug dealer in 2007... [h]e told prosecutors in the case that seeking the death penalty was 'absurd' and a waste of taxpayer money.... Judge Block stands by his approach, noting that in the case of the Asian defendant, 'everyone in the courtroom laughed,' and that he would 'do the same thing again.' Though he said he regretted the 'dark faces' comment, he said it was taken out of context, and that he meant it as a compliment. 'I’m the least bigoted judge on the bench,' Judge Block said."

From "At 91, an Idiosyncratic Judge Prepares for His Latest Big Case/Judge Frederic Block will oversee the prosecution of Rafael Caro Quintero, a Mexican drug lord, which could end in the death penalty. In the meantime, there’s stand-up comedy to keep him busy" (NYT).

"The Justice Department... signaled that it was reviewing claims of discrimination against white men at The Harvard Law Review..."

"... and accused the renowned publication of destroying evidence in an open investigation. The administration demanded that Harvard 'cease and desist' from interfering. In a series of letters that have not been previously reported, the government also disclosed that it had a 'cooperating witness' inside the student-run journal. That witness now works in the White House under Stephen Miller, the architect of the administration’s domestic policy agenda, Trump officials confirmed.... Harrison Fields, a White House spokesman, praised Mr. Wasserman as a whistle-blower and encouraged more students to speak out. 'Harvard is violating federal law with its discrimination, and a student was brave enough to call them out on this,' Mr. Fields said....."

From "A Stephen Miller Staffer and Tough Talk: Inside Trump’s Latest Attack on Harvard/The Justice Department opened an investigation into the student-run Harvard Law Review. The startling accusations show how the Trump administration is wielding power in pursuit of its political agenda" (NYT)(free-access link).

The Times article links to this Free Beacon article, "Exclusive: Internal Documents Reveal Pervasive Pattern of Racial Discrimination at Harvard Law Review." Excerpt:

How strategic was Trump's lawyer's choice of the word "haughtiness"?

I'm reading — in The New York Times — "Trump Prosecutor in Georgia Seeks to Avoid Testifying in Colleague’s Divorce Case/Fani T. Willis was subpoenaed in the divorce case of a colleague she hired to manage the Trump prosecution in Georgia, with whom she is accused of having a romantic relationship."

I already think it is a huge problem when someone who wields prosecutorial power — threatening the liberty of private citizens — asserts that she is the real victim here, the victim of racial prejudice, racial prejudice bubbling under the surface.

But look at this:

"'Do my work, ignore the distractions,' she said God told her."

"She" is Fani T. Willis, the district attorney in Fulton County, Georgia, who wants us to think God speaks directly to her.

I'm reading "Atlanta D.A. Defends Qualifications of Outside Lawyer She Hired for Trump Case/At a historic Black church, Fani T. Willis pushed back against an accusation that Nathan Wade, the special prosecutor she brought on, was unqualified for the job" (NYT).

We're told "Ms. Willis said she turned to prayer last week, at one point even writing a letter to God in which she expressed self-doubt." Expressed self-doubt but also seems to have reprimanded God for not telling her how challenging life would be:

"I see myself as something of a Yente the matchmaker... that character from 'Fiddler on the Roof.'"

"I seek out individuals or jurisdictions, corporations who have been discriminated against in various endeavors because of their race and ethnicity. Over the years, my outreach has diminished because I guess I’m a more high-profile individual and people contact me. I pair them with lawyers. Then if the lawyers believe that there is a cause of action, I go out and try to raise money to pay for the lawyers. Now, philosophically, there’s a common theme in all of this. Like the vast majority of Americans, I believe that an individual’s race and ethnicity should not be used to help them or harm them in their life’s endeavors. And those life’s endeavors include, you know, if they’re gerrymandered into a voting district because they’re a certain race, if they’re applying for a job that they’re not going to get because they’re a certain race or they’re applying to a college or university that they won’t be admitted to because of their race or ethnicity."

Said Edward Blum, responding to a question about why he's involved in so many different cases, from affirmative action to gerrymandering. He's quoted in "He Worked for Years to Overturn Affirmative Action and Finally Won. He’s Not Done. Edward Blum’s latest victory at the Supreme Court is the culmination of a long fight to take race out of college admissions. Is the workplace next?" (NYT).

The NYT interviewer, Lulu Garica-Navarro, pushes him about his Jewishness: "I know you were raised in a liberal Jewish family. What made you break from the way that you had been brought up?" That question contains an assumption, and Blum doesn't accept it. He puts it very politely, like someone who knows not to take bait: "It’s easy to characterize someone like me, who is against racial preferences and classifications, as someone who has broken with standard Jewish philosophy and Jewish heritage. I disagree with that."

"The court came to Monday’s argument equipped with hypotheticals — mall Santas who might refuse to take photographs with minority children, political speechwriters..."

"... who might be forced to write for the opposition, newspapers or websites told they could not choose which wedding announcements to publish. Justice Ketanji Brown Jackson brought up the mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie 'It’s a Wonderful Life' might be able to exclude Black children. Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit. When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race, Alito said it would be unlikely that his example would be a Black child.... Colorado Solicitor General Eric R. Olson said Smith was conflating speech with commerce. A store would be free to sell only Christmas items if it wanted to, Olson said. But it couldn’t post a sign that said 'No Jews allowed.'"

From "Supreme Court seems to side with web designer opposed to same-sex marriage/Colorado’s Lorie Smith says being forced to create websites for gay couples would violate her right to free speech" by Robert Barnes , reports on the oral argument in 303 Creative v. Elenis in The Washington Post.

For more background on the case, see the post I wrote this morning, before the argument, based on the NYT article by Adam Liptak.

"Instead of trying to legislate within the lines of Supreme Court case law — lines that might be redrawn tomorrow — liberal lawmakers should view the court primarily as a hostile political actor..."

"... with its own distinctive political incentives, internal divisions and weaknesses.... To confront a hostile Supreme Court, the people and their elected leaders need to be confident that they, too, have the power and the obligation to interpret the Constitution.... To persuade Americans that stern court-curbing measures are necessary, progressives must first convince enough Americans that the court is dead wrong about the Constitution.... This term, this court will decide how far to go in shutting down both affirmative action and race-conscious protections for equal opportunity in the voting arena.... [T]he right-wing court has decided that these amendments prohibit race-conscious efforts to redistribute some political and economic power and opportunity to Black Americans. Progressives today should do more than argue that such efforts are something the Constitution permits. They should explain instead — as Justice Ketanji Brown Jackson did on her first day on the bench — that the Constitution here means just the opposite of what the Supreme Court majority says. Measures like the Voting Rights Act, which the court has been gutting, are what the Constitution demands.... The rights this court denies and the laws it strikes down are often ones the Constitution demands...."

From "How Liberals Should Confront a Right-Wing Supreme Court" by lawprofs Joseph Fishkin and William E. Forbath in the NYT.

Presented for discussion, not in agreement, though I don't disagree with every word of it.

The reference to Justice Jackson is to the oral argument in Merrill v. Milligan (beginning at page 57 in the transcript):

Is there really much expression of "fealty to the ideal of being open to the ideas of others" these days?

I'm reading John McWhorter, in the NYT:

In our moment, we talk a lot about the dismaying degree of partisanship in our nation. We declare fealty to the ideal of being open to the ideas of others. Yet [Mitchell] Jackson exemplifies a sense that when it comes to [Clarence] Thomas, none of this interest in comity applies and that it qualifies as insight to discuss him as a horrid, pathetic figure. 

McWhorter is addressing an Esquire article by Mitchell Jackson, "Looking for Clarence Thomas/He grew up speaking a language of the enslaved on the shores of Pin Point, Georgia. He would become the most powerful Black man in America, using the astonishing power vested in a Supreme Court justice to hold back his own people. Now he sits atop an activist right-wing court poised to undo the progressivism of the past century. What happened?"

McWhorter continues: 

Once again, apparently, there is a single Black way to think, with Black conservatism valuable only as a demonstration of what Black opinion is not supposed to be. It’s worthwhile, one would think, to assume first that people’s intentions are good ones. Writing someone off as monstrous should be a matter of last resort. To go with that immediately makes for good theater, but it’s also a kind of ritualistic hostility.  

"If you can shoot someone for throwing popcorn at you under Florida’s flawed Stand Your Ground law..."

"...it would be hard to convince a jury that a person’s not allowed to hit someone who instigated a confrontation by storming into their business and barking the most aggressive and inflammatory term in the English language in their face."

Said Andrew Warren, the state attorney for Hillsborough County, quoted in "Customer’s Racial Slur Drew a Fatal Punch. The Sentence Is House Arrest. A plea deal in a confrontation at a Dunkin’ shop in Tampa, Fla., 'holds the defendant accountable while considering the totality of the circumstances,' the prosecutor said" (NYT).

The sentence was 2 years of house arrest.

Breyer will retire!

Big news! 

I'm reading the report in the NYT:

Justice Stephen G. Breyer, the senior member of the Supreme Court’s three-member liberal wing, will retire, two people familiar with the decision said, providing President Biden a chance to make good on his pledge to name a Black woman to the court.

Oh, so there's a "pledge" and he'll need to "make good" on it. 

ADDED: We've already got affirmative action on the Supreme Court's agenda this year as we move toward the elections, and if Biden fulfills this pledge, it will intensify the political theater. He already fulfilled a black-woman pledge in selecting his Vice President, and there's a fair amount of disappointment in her. (She's got worse poll numbers than he does.) But that doesn't mean he should violate his pledge. (I'm assuming it is, indeed, a pledge.) He should elevate an extraordinarily impressive black female judge, so that the political theater is highly supportive of this kind of selection process, and the resonance with the pending cases helps the pro-affirmative-action side win favor with the people. 

ALSO: At WaPo, Neal Katyal, the former Solicitor General and a former law clerk to Breyer, has an op-ed that was all ready to go: "Breyer’s act of listening will pave the way to a healthier democracy." I thought the "act of listening" was going to be the act of listening to people who were telling him he needed to retire to give Biden a chance to nominate somebody before Republicans took back the Senate, but no, it's about judging cases:

A deep part of his listening practice was to pay attention to experts in the field. He often said federal judges are not experts on national security, or the environment, or the economy, and that a deep part of wisdom was deference to expertise. Breyer’s path was to triple check his personal impulses, and particularly so if they conflicted with the views of true experts on the question before him.

That's pretty sober and lofty, but here's how Katyal brings it in for a landing:

Consider just how different that is from the political debates today, where extremist ideology has attacked things that should be noncontroversial, from wearing masks to taking vaccines, from addressing global warming to protecting voting rights.

America stands at a crossroads. On one path is more toxic extremism, the culmination of which we witnessed on Jan. 6. Despite that armed insurrection, the path remains just as seductive as ever to many.

Armed insurrection?

The other path is quieter and more difficult to practice. It is a path forged by Breyer: respect for others, reverence for the law, and most of all, a commitment to listening to and learning from one another.

You know, if you want to be quieter and reverent and committed to listening to and learning from one another, you wouldn't have written "armed insurrection." Or "toxic extremism." This gets my "civility bullshit" tag.

And why shouldn't we be able to debate wearing masks and the best way to protect voting rights and whether we're getting accurate reports of the science about vaccines and global warming? We are not deciding cases and dictating what other people must do, the way the Court does. We're exchanging opinion in the public forum, debating and expressing ourselves! 

That's not "toxic extremism." It's toxic extremism to say that it is!

AND: From right before the 1980 election: "Reagan Pledges He Would Name a Woman to the Supreme Court" (WaPo). In June 1981, Potter Stewart announced his retirement, and Reagan got his slot to fill. I had just graduated from law school, and I remember telling my father that I was excited about the first woman on the Supreme Court. My father scoffed and said he didn't expect Reagan to make good on his pledge. He confidently asserted that the nominee would be William French Smith.

"Having Barrett replace Ginsberg because they are women is like having Clarence Thomas replace Thurgood Marshall because they're black."

Top-rated comment on "Who is Amy Coney Barrett, the judge at the top of Trump’s list to replace Ruth Bader Ginsburg?" (WaPo).

From the article:

A devout Catholic who is fervently antiabortion, Barrett appeals to Trump’s conservative base. But Republicans also hope that for moderates such as Sen. Susan Collins (R-Maine), her gender makes her a more palatable replacement for Ginsburg, a feminist icon who spent her life fighting for gender equality....

Trump first nominated Barrett to the U.S. Court of Appeals for the 7th Circuit in 2017. Previously, she’d taught law at the University of Notre Dame for 15 years, so she had no previous judicial record to scrutinize. Democrats balked at her nomination, questioning whether the academic could be an impartial arbiter because of her deep religious convictions. Republicans accused Democrats of applying a religious test in their questioning.

That links to a September 7, 2017 WaPo article "Did Dianne Feinstein accuse a judicial nominee of being too Christian?"

Amy Barrett... has spoken often of her Catholic faith and drawn opposition from liberal groups, which argue that she'd place it above the law. Feinstein, the ranking Democrat on the Judiciary Committee, echoed those concerns Wednesday at a confirmation hearing, telling Barrett that “the dogma lives loudly within you, and that's of concern …”

I blogged about that at the time, here. Excerpt:

Is "dogma" a dog whistle, expressive of anti-Catholic bias or does it aptly characterize a person with fixed beliefs that interfere with understanding law in a properly judicial way?... We're being asked to rely on the decisions that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee....

A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism."

I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!

ADDED: Is it too late to be annoyed by the use of "they" in the quote in the post title? Also let me remind you of what Thurgood Thurgood Marshall said as he was retiring from the Court, before Clarence Thomas was nominated:

Q: Do you think President Bush has any kind of an obligation to name a minority justice in your place?

Thurgood Marshall: What?

Q: Do you think President Bush has any kind of an obligation to name a minority candidate for your job?

Thurgood Marshall: I don't think that that should be a ploy, and I don't think it should be used as an excuse one way or the other.

Q: An excuse for what, Justice?

Thurgood Marshall: Doing wrong. I mean for picking the wrong Negro and saying "I'm picking him because he is a Negro." I am opposed to that. My dad told me way back that you can't use race. For example, there's no difference between a white snake and black snake, they'll both bite. So I don't want to use race as an excuse.

"Just got attacked by an angry mob of over 100, one block away from the White House. Thank you to @DCPoliceDept for literally saving our lives from a crazed mob."

Rand Paul tweeted 7 hours ago.

He's getting pushback. I'm seeing tweets like: "We all saw the tape! No one 'attacked' you. They were protesting, and yelled at you while you were cowering behind a police escort." And: "The video proved that @randpaul is a liar. This was a stunt to send to #FoxNews." Where's the video? I see this, but I don't know what portion of the incident it shows.

There's also this tweet: "See, if the police provided this sort of protection to every person of color instead of firing bullets in their back, people would not be protesting in the first place." It seems to me, the reason the police were on the scene in the Jacob Blake incident was that they came to protect a woman who had called them. The woman had made a call and the call was responded to. Does this tweeter want the police to provide protection or not? If a woman calls and asks for help in a domestic situation, should the police leave her to handle her own problem?! Whatever happened to concern about violence against women?

ADDED:

Maxine Waters: “And if you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd. And you push back on them. And you tell them they're not welcome anymore, anywhere.” pic.twitter.com/1efIW8VI3e

— Kelb Hull (@CalebJHull) August 28, 2020

"Hours after the Fulton County district attorney announced felony murder and other charges against the former Atlanta police officer who fatally shot Rayshard Brooks... a number of Atlanta police officers called in sick just before a shift change Wednesday evening."

"The city was left scrambling to cover absences as the Atlanta Police Department tried to tamp down rumors of a mass police walkout that spread widely on social media.... 'We do have enough officers to cover us through the night,' Mayor Keisha Lance Bottoms (D) told CNN. 'Our streets won’t be any less safe because of the number of officers who called out.'... 'This is not an organized thing, it’s not a blue flu, it’s not a strike, it’s nothing like that,' Vince Champion, a spokesman for the International Brotherhood of Police Officers, told NBC News. 'What it actually is is officers protesting that they’ve had enough and they don’t want to deal with it any longer.'... Champion added that many officers felt prosecutors had not publicly shared sufficient evidence to back up the charges leveled against Rolfe, in part because the district attorney only released a video still that appears to show the former officer kick Brooks rather than the full video itself.... Although the quick action in Atlanta has been praised by civil rights advocates and hailed as a victory for activists, some in the police department have decried the quick process. Bottoms said that morale in Atlanta’s police department was at a low.... 'The thing that I’m most concerned about is how we repair the morale in our police department,” Bottoms.... 'and how do we ensure our communities are safe as they interact with our police officers.'"

WaPo reports.

In the comments over there, somebody says:

They harassed the guy for 45 minutes and when he panicked and grabbed their taser, they shot him when he was running away. Then kicked him. Sorry guys, if you think that's what policing is, you should be calling in sick.

Why do these cops think someone like Dylann Roof should be gently apprehended (and given a cheeseburger) but a black guy should be harassed? And that he isn't expected to panic? And that those cops couldn't let him run, and go after him later?

That draws this sarcasm:

Cops should wait until 0.1 milliseconds before the stun gun barb pierces the cornea of the eyeball before shooting the perpetrator in the kneecap of their non-dominant leg to slow him down and then snuggle him into compliance.

"This bill would cheapen the meaning of lynching by defining it so broadly as to include a minor bruise of abrasion."

Here's the transcript.

I seek to amend this legislation, not because I take it or I take lynching lightly, but because I take it seriously, and this legislation does not. Lynching is a tool of terror that claimed the lives of nearly 5,000 Americans between 1881 and 1968. But this bill would cheapen the meaning of lynching by defining it so broadly as to include a minor bruise or abrasion. Our nation’s history of racial terrorism demands more seriousness from us than that.... It would be a disgrace for the Congress of the United States to declare that a bruise is lynching, that an abrasion is lynching, that any injury to the body, no matter how temporary, is on par with the atrocities done to people like Emmett Till, Raymond Gunn, and Sam Hose, who were killed for no reason, but because they were black. To do that would demean their memory and cheapen the historic and horrific legacy of lynching in our country.... We have had federal hate crime statutes for over 50 years, and it has been a federal hate crime to murder someone because of their race for over a decade. Additionally, murder is already a crime in 50 states. In fact, rather than consider a good-intentioned but symbolic bill, the Senate could immediately consider addressing qualified immunity and ending police militarization. We can and must do better....

At the link — the heated response from Senators Kamala Harris and Cory Booker. Harris accuses Paul of having "no reason... other than cruel and deliberate obstruction on a day of mourning." Booker praises Rand Paul — doesn't "question his heart" — but stresses what it "would mean for America" to pass the bill right now instead of getting hung up on "legalistic issues."

"In 1972, the Supreme Court ruled that the Sixth Amendment guarantees a right to a unanimous jury – but that defendants in state trials do not have such a right."

"[Monday], by a vote of 6-3, the justices reversed course, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. The ruling is significant not only for the inmates who were convicted by nonunanimous juries in Louisiana and Oregon, but also for the extent to which the justices were deeply splintered as they debated whether and when to overturn longstanding precedent.... Justice Neil Gorsuch wrote for the majority, in an opinion that was joined in full by Justices Ruth Bader Ginsburg and Stephen Breyer and in part by Justices Sonia Sotomayor and Brett Kavanaugh....  Kavanaugh filed a concurring opinion that focused on his views on the application of stare decisis to this case.... [The question is whether the precedent is] 'not just wrong, but grievously or egregiously wrong'... whether the prior precedent has 'caused significant jurisprudential or real-world consequences'... [and] whether people have relied on the earlier decision... Justice Clarence Thomas... wrote separately to argue that this right applies to the states through the 14th Amendment’s privileges or immunities clause, rather than the due process clause. Alito’s dissent [premised on stare decisis] was joined by Chief Justice John Roberts and (for the most part) Justice Elena Kagan...."

Writes Amy Howe at SCOTUSblog.

You might enjoy the NYT "Daily" podcast with Adam Liptak discussing the decision. He thinks that Justice Kagan joined the dissent because she cares about preserving other precedent, specifically the abortion-rights cases.

I was glad to see that 1972 case (Apodaca) overruled. It was always a stumbling block when trying to teach this area of constitutional law (the "incorporation" doctrine). I always tried to convey an understanding that the cases and doctrine — right or wrong — make sense. Whether you yourself would have decided the case the same way, you need to work to see how it made sense to the judges who decided it. All the effort I put into trying to understand Apodaca so I could express the sense of it coherently to students! If only I could have seen into the future and been able to say: Don't worry about Apodaca — it will be overruled in 2020.

Here's the full text of the new case, Ramos v. Louisiana. From the Gorsuch opinion:

"A Cook County, Illinois, grand jury has returned a six-count indictment against actor Jussie Smollett for making false reports, a special prosecutor said Tuesday."

"Smollett, who is gay and black, he said he was the victim of a racist and homophobic attack near his Chicago apartment on January 29, 2019," CNN reports.

"The Hasidic Jewish community, in which men have a tradition of wearing fur hats or shtreimel, has also supported the fur industry, along with a group of African American ministers who described fur as a unique cultural symbol of achievement."

From "Fur is under attack. It’s not going down without a fight" by Robin Givhan (in WaPo).

Givhan quotes Kitty Block, president of the Humane Society of the United States: "I really take issue with the culture argument. Cruelty is not culture, and I think it’s kind of insulting."

Givhan adds: "Does culture have legal standing? Perhaps. Both California and New York have laws banning racial discrimination based on natural hairstyles."

If Hasidic Jewish men and African American ministers have a special cultural need for fur, should laws — like California's new law banning the sale of fur — be denounced as discrimination? Obviously, these laws are not intended to target Jewish men and successful African American ministers, so it's hard to picture a successful legal challenge.

It tends to be more effective to say that a law puts a burden on a religious practice, but the Hassidic shtreimel is perhaps not an obligation and as for African Americans and the outward display of success... well, you know what? I will get out of your way! Go ahead and argue that's religion.

But I doubt that Givhan means to hint that lawsuits against these anti-fur laws are plausible, only that the political push to get these laws passed can be met with a political argument that the urge to protect furry animals is outweighed by the interest in protecting the subjective preferences of people in minority groups that have experienced oppression.

"Some New Yorkers have jumped turnstiles in protest of the arrests of young black men and the handcuffing of a woman selling churros."

From "Tensions Over Subway Policing, Race and ‘Arrest Quotas’" (NYT).

Enforcement on the subway has surged over the past year. Police officers issued 22,000 more tickets for fare evasion this year compared with 2018, The Times reported.

Hundreds more officers have also been deployed in the transit system in recent months, sparking debate about overpolicing and the criminalization of poverty. Black and Hispanic people had already accounted for an outsize number of arrests on the subway.

Governor Cuomo has been sharply criticized for the expanded deployment, as the Metropolitan Transportation Authority is facing a looming financial crisis and struggles to provide reliable subway service.

Just make the subway free and increase all the taxes, tolls, and fees related to motor vehicles. Whatever it takes to make the subways free. Use the cops to ticket the hell out of all the cars that are always committing violations and make the fines as high as they need to be to cover all the free riding on the subway.

"They put a gun in my daughter's face, and you're asking me about drawers?... My family has been through enough. You see in the video the fear. The sounds of my daughters crying, and you're asking me about some drawers? That's insensitive, that's insulting... I thought we were all going to be executed. By the grace of God, someone was there to video this."

Said Dravon Ames, quoted in "Phoenix PD releases surveillance video showing moment four-year-old girl stole a doll and her father shoplifted underwear from Family Dollar store before family was held at gunpoint by cops... Family is now suing the city for $10million and Jay Z is paying their legal bills" (Daily Mail).

This connects to the Oberlin story we were discussing 2 days ago, when I blogged that I understood the argument that the accusation of racism did not depend entirely on the question whether the suspected shoplifters were guilty. I wrote:

The store clerk seems to have suspected shoplifting not because of the person's race but because he could see 2 wine bottles hidden under his coat, but he "chased the student out onto the street and tackled him," and that's what's racist (in this view). If the chase-and-detain approach is racist, even when the shopkeeper is right about the theft, then it's not false to accuse the shopkeeper of racism.

There's a very long comments thread at that post, and while I haven't read it all, I know many of you resisted what I was saying. I encourage you to continue the conversation here, where the police went wild confronting shoplifters.

ADDED: If I weren't taking this legal issue so seriously, I would be sorely tempted to say now we can replace the question mark in the famous "South Park" mystery....

Phase 1: Collect underpants
Phase 2: ?
Phase 3: Profit

Phase 2 is bring a $10 million lawsuit.

"The Washington Post spoke to seven scholars of the eugenics movement; all of them said that Thomas’s use of this history was deeply flawed."

Does anyone read something like that and simply trust the "scholars" to give the true account of the eugenics movement and what today resembles it? I say no, because I'm not including the trust that skips a step and believes the the scholars because they want to preserve abortion rights and they need Clarence Thomas to be wrong. My question is whether scholars these days are trusted as a source of truth about a hot social issue.

WaPo has 7 scholars, and they deliver the conclusion — "a gross misuse of historical facts,"  "amateur historical mistake," "really bad history," "historically incoherent," "ignorant and prejudiced," "just not historical." That's the bottom line if that's all you need, but I need the article to quote Thomas, accurately and in context, and to have the historians specify what is bad, otherwise I don't know whether they are doing the same thing they say he's doing, using what they can find and making interpretations that serve their policy preferences. The fact that they're "scholars" doesn't work anymore (if it ever did).

“Eugenicists were initially hostile to birth control because they knew that the women who would use it were the type of women they would want to encourage to reproduce, so-called ‘better’ women — upper-middle-class women,” said Kevles, the Yale professor. “When they finally came around to it, they did it in the face of a practical reality — they caught up to what their constituency was doing.... I’ve been studying this stuff for 40 years, and I’ve never been able to find a leader of the eugenics movement that came out and said they supported abortion,” Lombardo said. 

Thomas cited high rate of abortion for fetuses diagnosed with Down syndrome in developed countries (98 percent in Denmark, 90 percent in the United Kingdom, 77 percent in France and 67 percent in the United States, according to the statistics he cites), the practice of sex-based abortions in Asia (to eliminate female fetuses), and statistics that show higher rates of abortion among blacks than whites, to make his argument that abortion is akin to eugenics.

But many of the historians were quick to point out that abortion — a personal choice by an individual — differed significantly from the state-mandated programs foisted involuntarily on others by eugenicists.

That's not a disagreement about history, their area of expertise. That's an argument about how far to go in using history. I agree with the historians about the distinction — and said so when the case came out, here — but I didn't use historical analysis to arrive at that view. The historians are reaching beyond their area of expertise and doing legal analysis. That's fine. They're entitled to participate in the debate about the meaning of legal rights, but the idea that because of their scholarship their opinion trumps Thomas's fails.

WaPo quotes a historian whose book was cited by Thomas — "It was absolutely decontextualized" — and a reaction from Ed Whelan at the National Review — "just another in the sorry genre of 'you properly cited my work in the course of an argument I don’t agree with.'"