The Bookworm Beat 7-7-15 — the “some things never get old” edition and open thread

Woman-writing-300x265None of these links have current dates because they’ve been sitting on my spindle for a while, but each addresses a current issue, and it would be criminal if I didn’t share them with you:

Nevada puts education power back in parents’ hands

People who oppose the power of the teachers’ unions and who believe in parents’ rights to educate their children as they, not the government, see fit, should keep an eye on Nevada, which makes it possible for all Nevadans to opt out of the public school system:

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Here’s something to give you nightmares — Obama on the Supreme Court

Yes, he’s not even out of office, but the Lefties are seeing which way the wind blows — and that is to an unanswerable Supreme “Court” that operates to permanently enshrine Leftist initiatives.  What better place for Obama?  And so it is that I find this poster popping up all over my Facebook feed:

Obama for Supremes

“He’s a superb writing, a former constitutional law professor, and has the right temperament and values.”  I disagree with every single statement in that sentence.  When others don’t write for him, he’s a turgid, ponderous, and sometimes incoherent writer and speaker; he was a “lecturer,” not a “professor,” with the former having lower status than the latter; he has a vindictive temperament; and his values are hard Left, anti-American, anti-Israel, pro-sharia, and generally distasteful and dangerous.

No wonder the Lefties want him to be their chief rubber-stamper.

How the Supreme Court should have ruled on the gay marriage question

Supreme CourtAs we all know to America’s cost, when confronted with the question of gay marriage under the Constitution, Justice Kennedy found the right lurking in the heart of the Constitution, right between the Amendments about unicorns and leprechauns.  In other words, he made it up out of whole cloth.  

The correct ruling, of course, would have been to say that the Constitution is silent on all marriages, let alone gay marriage, but is quite loud about religious freedom. Therefore, to the extent that “marriage” is inextricably intertwined with religion, the answer isn’t to add gay marriage to the Constitution but, instead, to take all state-sanctioned marriage out of the Constitution, reserving it solely for religious institutions. The states would have to be content with issuing licenses for “civil unions.” These unions would be subject to each state’s determined about what is best for the state’s (and its children’s) overall well-being. End of story.

Of course, the sad truth is that not a single one of the Leftists on the Supreme Court (and that includes Justice Kennedy) is either as intelligent or as principled as I am. 😉 That’s a shame too, because we’re going to have one Hell of a mess in this country in the coming years (as I predicted long ago) thanks to the Supreme Court’s inevitable bow to political correctness and delusional takes on reality.

The Bookworm Beat 6-29-15 — the “house divided against itself” edition and open thread

Woman-writing-300x265My dog woke me early, which bothered me at the time but now seems like a good thing, since I can get a little blogging in before the work day begins. Without further ado, a few posts I think are worth you time:

On Democrats and racism

If you read one thing today, you have to read Jeffrey Lord’s open letter to Debbie Wasserman-Schultz asking her when Democrats are going to confess to and apologize for the fact that racism is their legacy to America — and one that they pursued aggressively for more than a century.

After you’ve read it, if you won’t turn yourself into a pariah amongst family and friends, share it around. After all, two can play at the Alinsky game, but for conservatives, the Alinsky game is one in which each individual conservatives must be an activist, because there won’t be a media/Hollywood conglomerate around to do the heavy lifting.

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If you read one thing today, read Andrew McCarthy’s take on the U.S. Supreme Court

Supreme CourtAndrew McCarthy outdid himself on this one, honing in on the giveaway that the Supreme Court is a legislative branch of the Progressives:

Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta.

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.

But not the Court’s lefties, not on the major cases.

And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.

But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.

That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.

Please be sure to read the whole thing. And then start thinking about how to mobilize a grassroots force that addresses this damage to our constitutional system.

#LoveWins — A Supreme Court Romance *UPDATED*

Justice KennedySometimes the best romances come from unexpected sources.  There are frustrated souls, living desiccated, dull lives who, through their writing, can explore their deepest unrealized fantasies. Such is the case with Justice Kennedy’s decision in Obergefell v. Hodges.  It is littered with burning, passionate phrases that transform an ordinary Supreme Court opinion into an unexpected romance.

Of course, the confines of a Supreme Court decision mean that the true import of those burning phrases is hidden from most Americans.  I therefore have taken it upon myself to pen the actual romance Justice Kennedy so clearly wanted to write.

I have made some changes, of course.  First, I’m embarrassed to admit this, but I’ve been forced to write from a completely cisgendered heteronormative perspective, because that is all I know.  Second, not only am I not the best romance writer, I’m experiencing Justice Kennedy’s passions second hand, so this brief romantic vignette is slightly stilted and sterile, when it really should be something that could be recited to the throbbing, romantic music from that racist, Confederate flag-based movie, Gone With The Wind.

My apologies for my limitations. I invite other, better writers to try their hands at writing Justice Kennedy’s #LoveWins romance.

(All text in red comes directly from the Supreme Court’s decision.)

Corinna stood at the side of the crowded ballroom, watching longingly as dozens of other couples swirled about the room, keeping perfect time to the lilting rhythm of the latest waltz. She felt terribly alone, the only wallflower in the crowd.

Of course, she knew it wasn’t true that she was the only lonely one. Just a few paces away from the delicate gilt chair on which she sat, her voluminous lilac-colored skirts spilling gracefully over the side, stood a young man only a few years older than she was.

From his posture, Corinna could tell that the man was feeling as awkward as she was. Even though he affected a casual slouch, his posture was so rigid it was obvious that he was practically holding up the wall against which he leaned. His face was still, but his blue eyes blazed under straight black brows.

Looking at him, Corinna knew that this man felt as she did. Indeed, her soul understand that, though they’d never met, she knew this man with every fiber of her being.  She understand that, despite the cheerful, crowded room, both felt the universal fear that a lonely person might call out only to find no one there.

Corinna’s sense of fellowship with the young man was so strong she couldn’t stop herself, and giving into a most basic human need, she disregarded the precepts bred into her that a young lady never approached a strange gentleman. Standing up resolutely, Corinna turned his way.

For a moment, Corinna paused, afraid. Like all other young ladies, she had those yearnings for security, safe haven, and connection that express[] our common humanity. If she got a reputation for being “fast,” would she suddenly find herself socially isolated, an outcast, unmarriageable, never able to be one who learned experienced first-hand the transcendent importance of marriage?

No. Something drew her to that lonely stranger, with a force stronger than her fear. Gathering her courage, Corinne patted the exquisite flowers bedecking her golden curls, and went up to the young man, bit her already-rosy lips, and walked resolutely towards the stranger. Placing herself in front of him, Corinne’s courage failed and she was suddenly at a loss for words. She stared at him; he stared back at her.

“H-h-hello,” Corinna finally choked out. “I’m Corinna Merryweather. Have we met before?”

The man smiled at her, revealing even white teeth. Corinna blinked in surprise. He was more handsome than she had realized. She smiled back, her clear gray eyes twinkling.

“No, I don’t believe we have,” he replied in a deep, velvety voice. “I’m Sebastian, Lord Abermarle. Now that we’ve introduced ourselves, may I ask you to dance?”

“Oh, no!” Corinne exclaimed. “I mean, I would love to dance, but since we haven’t yet been formally introduced, I’m afraid we cannot. But perhaps we can sit together and . . . and speak.”

Lord Abermarle’s sable eyebrows rose, but he immediately led Corinne towards two empty chairs, seating her in one, and taking the other for himself. They were silent for a moment.

Corinne took a deep, gulping breath. “Forgive me, Lord Abermarle, for what I am about to say. My family and friends often tell me I am too forward and fanciful, but I could not help but believe that we may be sharing the same feelings, feelings that separate us from the others in the ballroom.”

“Go on, Ms. Merryweather,” he said encouragingly.

“I do believe that those choices people make can shape an individual’s destiny. I believe too in soul mates. I believe that some of us are lucky enough to find the person for whom we were destined. “

Corinne stopped, panting slightly from the emotional stress of speaking to a stranger about matters that went far beyond the polite banalities of the ballroom.

Lord Abermarle remained silent, his gaze moving between her sparkling eyes and her heaving, white bosom. Corinne wasn’t sure what she saw in his eyes, but as it was neither anger nor disdain, she plowed onwards.

“When we are among the lucky ones to find our soulmates,” she said, “two people become something greater than they once were. Even people lacking in spiritually, who shy away from the concept of a soul, know that this coming together is still a unique fulfillment to those who find meaning in the secular realm.

“Why are you telling me, a stranger, all this, Miss Merryweather?” asked Lord Abermarle, his deep voice suddenly husky.

“I know not,” Corinne replied. “No, that’s a lie. Years ago, I went to a gypsy who told me that, when I saw the face of my future husband, I would recognize him immediately. I laughed at her. I was a giddy fifteen and never wanted marriage for I feared I would be tied-down, like my mother, trapped in a loveless union that, every year, drained away her warmth and joy.”

“You speak truly,” said Lord Abermarle. “We in the ton have less freedom than the simplest country couple. We marry for property and title. We most certainly to not marry for love, and no dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. That bliss is the commoners’ lot, not ours.”

Corinne nodded gravely, speaking to this man as if she had known him years, not mere minutes. “Yes, that’s what I thought too. But the gypsy promised me that there are some lucky ones who find the person who is essential to our most profound hopes and aspirations. When I saw you, I knew that I was one of those lucky ones.”

Lord Abermarle looked down at her. “And you believe that I am your soul mate?”

“Yes,” said Corinne resolutely. “Yes, I do. I know this sounds as if I’m fairy-touched, but I do believe that, were we to marry, ours would be a marriage that embodies a love that may endure even past death.”

Corinne stopped speaking, horrified by her boldness, but feeling that magical pull that told her she had done the right thing.

“I would scoff,” said Abermarle, “but I cannot. The moment I walked into this ballroom and saw you, I knew that you were my destiny. I have spent the entire evening fighting the impulse to gather you into my arms, sweep you out of this room, and escape with you to Gretna Green so that we can be joined together swiftly and forever.”

He paused a moment, gently stroking her soft, white cheek with his strong, lean hand.

“I should have known Fate wouldn’t allow me to turn away from this gift. Even as I resisted, you came to me. I thank God for your forwardness. Were it not for that, my failure to accept my destiny would have condemned [me] to live in loneliness, excluded from one of civilization’s oldest institutions — forever denied that enduring bond that ensures that two persons together can find other freedoms, such as expression, intimacy, and spirituality.

Swift, happy tears rose to Corinne’s eyes. Lord Abermarle again lifted his hand to Corinne’s cheek, this time gently wiping away the traces of those tears.

“Come, my love,” he said. “Let us go find your parents so that I may ask for your hand. This is the moment of transformation — strangers into relatives, binding families and societies together.

Lord Abermarle stood, extending his hand to the now-radiant Corinne.  The two of them, still holding hands, plunged resolutely into the crowd, searching for her family, secure in their loving, transcendent future together, one that would be celebrated by all regardless of the fact that none could understand the strange dynamics that brought these two loving people together.

THE END

UPDATE: David French makes a more serious and worrisome point about Kennedy’s unseemly passion.

Thoughts about the Supreme Court’s same-sex marriage decision and an open thread *IMPORTANT UPDATES*

Supreme CourtAs you all know, the Supreme Court this morning issued a 5-4 decision, authored by Anthony Kennedy, finding a hitherto hidden right to same-sex marriage in the American Constitution.  I have not yet read the decision, but nevertheless I have a few points to make regardless of the reasoning that necessitated 103 pages to explain.

This ruling may be the most consequential ruling ever to issue from the Supreme Court. Why? Because the Left will use it to destroy all religions except Islam (which they’re afraid to touch). They’ll use a magical new right to destroy one of the bedrock First Amendment rights.

This is not speculation, incidentally. We’ve already seen the playbook in action with the attack on Christians who politely refuse to provide their services to same-sex weddings. In a free society, the gay patrons would go down the block to find a bakery that will serve them. In the coming totalitarian society, the gays will use the machinery of the state to destroy working class Christian people. The Supreme Court’s ruling will provide the full arsenal they need to stop focusing on an individual here and there and, instead, to wage all-out war on any religious conservatives who get in their way.

More profoundly, this is the weapon gays need to complete their assault on religious institutions (rather than just upon religious people). Up until the Court’s ruling, traditional religious institutions had the First Amendment to protect them: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”

Now, however, the Supreme Court has bypassed the prohibition against Congressional action and found buried in the bowels of the 14th Amendment a brand new right to gay marriage. (And who else finds it ironic that, just the other day, the Supreme Court concluded that Congress’s intent trumps everything in interpreting a statute, but today the Supreme Court entirely ignores the fact that the sole intended purpose behind the 14th amendment was to give black people full civil rights?)

What we have now is a terribly dangerous clash of constitutional rights: The explicit right to the free exercise of religion (which reaches right up into every religious institution’s right to follow its core doctrines) versus the magical new right for same-sex couples to marry. In today’s environment, want to bet which right wins? Obama’s “Justice” Department will come down like a ton of bricks on any religious school that preaches traditional marriage or any tax-exempt church that refuses to marry a gay couple.

Again, I know this for a fact because the gays and their fellow travelers on my Facebook feed have already been demanding that the feds repeal the tax exempt status given to religious institutions. (In this new dawn of “freedom,” the faithful will be forced to give up their faith.) What these people fully understand is that the reason religious institutions are tax-exempt is to ensure that the government cannot destroy any or all houses of worship by taxing them out of existence.

Nor is this a situation analogous to abortions, which upset religious conservatives, but didn’t destroy them. Religious institutions and Pro-Life people don’t perform abortions. Religious institutions and traditional marriage people do, however, perform marriages, whether in a church, temple, or mosque, or in a courthouse. They will be attacked and destroyed. (Again, don’t just take my word for it. Look at France.)

The situation also isn’t analogous to the short, ugly interlude in America when Southern states barred interracial marriage. Irrespective of skin color, heterosexual couples of whatever race have the necessary biological equipment to procreate: Tab A inserts into slot B. That is how Mother Nature intended human joining to occur. Not to deny gay couples the pleasures they find in bed, but Nature had nothing to do with Tab A has fun with Tab A or Slot B romps with Slot B. They are not two halves of the same whole. They are the functional equivalent of two Left shoes (pun intended).

Thomas Lifson has the right of it (pun intended, again), when he notes that the decision will also open the door to lots of other things that will be very problematic:

I have not read the entire decision but wonder if there are any grounds in it on which polygamy can be ruled anything other than a fundamental right. And after that, incest and every other marriage taboo. Once marriage becomes a matter of personal gratification, the doors seem wide open.

It will be very expensive once we’re required to recognize polygamy. Living as we do in a welfare state, we’ll find ourselves in the same position as those European countries that recognize all the wives their newly immigrated Muslim citizens bring in. Welfare won’t be limited to a nuclear family. Instead, it will include Ali Baba, his 40 wives, and his 200 children — and in the next generation, those children’s families too.

Finally, to all the people on my Facebook page trumpeting ” love wins”: You are morons. Marriage is not about love. It’s about religion, money, parenting, and social structure, all of which are intended to protect society as a whole. Love is just a pleasant byproduct and one can love without the state’s imprimatur.

By the way, you know how you can tell that this is a made-up right? The 103-page opinion. If this were a real right, it wouldn’t take anywhere near that long to explain it. When you’re telling a legal lie, though, you have to add a lot of detail to hide the empty center. That’s why Leftist Supreme Court decisions are invariably longer and more complex than conservative ones: they’re making it up as they go.

For more on the terrible problems with the decision, including a lengthy (and extremely intelligent statement from Roberts’ dissent), go here.

And what do all of you think of the decision?

UPDATE:  Had I read Scalia’s dissent, I would have seen that he too understands that the florid, overwrought, extremely long brief is something that is full of sound and fury in an effort to hide the reality, which is that nothing lies at its heart:

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? . . .

I’ll say it again: Leftist opinions (that is, opinions that advance Leftist causes, rather than just opinions written by Leftist judges) are always excessively long because they are making it up as they go.

UPDATE 2: Ace has a remarkably good riff about the fact that states recognize marriage for pragmatic purposes (mostly raising children), not LOVE. He’s absolutely right, and spells that point out in much more detail than I did.

UPDATE 3:  In April 2015, Trevor Loudon wrote about the Left’s real agenda with gay marriage.  It bears re-reading now:

The Left uses “rights” agendas to wrap itself in the mantle of righteousness and seize the moral high ground, tactically putting us on the defense in the process. But they couldn’t care less about the actual issue except in its ability to facilitate their path to power.

The agenda is never the agenda for the Left. And this is especially true for gay marriage. Homosexual marriage is a Trojan horse tactic. The true agenda is to establish the primacy of homosexual rights over the First Amendment’s guarantee of the free exercise of religion. Our nation was founded on this principle, and the gay marriage movement seeks to destroy it.

Consider that Annise Parker, the lesbian mayor of Houston, Texas, demanded to review pastors’ church sermons before public outrage forced her to back off. We have already seen how small businesses have been singled out and attacked for refusing to provide certain services to gays.

What is less known is that these gay couples are frequently part of the movement. They deliberately seek out businesses known for their Christian owners. They deliberately demand a service they know in advance will be refused. When the inevitable happens they use it as pretext to destroy the business and savage its owners. Doesn’t it amaze you how quickly legal groups immediately materialize to assist in the attack? The fact that they got unexpected push back through a spontaneous crowd sourcing campaign to support one pizza shop will not dissuade them from future efforts. If gay marriage is adopted, their current bullying behavior will look like child’s play compared to what’s coming.

This is a highly organized, nationwide campaign of vilification against Christians. But even Christians are not the ultimate target. If the First Amendment can be challenged this way; if a certain group’s “rights” can trump the U.S. Constitution, and if the Supreme Court can actually issue an edict making it so, then the entire Constitution has become meaningless. This is the Left’s true agenda and it always has been. This is the Cultural Marxists’ endgame. The issue is not the issue. The issue for them has always been destroying our country to impose socialism — with them in charge, of course. In order to do that they have to strip America of its culture, its traditions, and most importantly, the most important law of the land, the U.S. Constitution.

The Bookworm Beat 3-5-15 — “I’m still standing” edition and open thread

Woman writingLast year I had virtually no work; this year, if the pace keeps up, I’ll be working almost full time. Frankly, I preferred no work.

Fortunately — and the lawyers amongst you will appreciate this — I’m getting access to Westlaw again, and won’t be trapped in Lexis hell. When it comes to Westlaw, it’s a brilliant interface and I feel like a brilliant practitioner when I use it.

I’m not going to stop blogging, though, just because of a little legal work.  I’ve been collecting interesting information, and now I get to share it with you:

Obama’s misguided (or evil) efforts to spin his Middle Eastern failures as successes

I’ve been trying to have a more optimistic view of things in my life lately, along the lines of “when life hands you lemons, make lemonade.” Traffic tickets are an opportunity to be a better driver. Joint problems are a reminder to repair my body before old-age makes doing so impossible. Things like that — seeing problems as opportunities for improvement.

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Crony capitalists fear that the Supreme Court might gut Obamacare

The reality of ObamacareBack in August 2009, I wrote about a conversation I had with a Leftist physician regarding the upcoming legislation that would turn into Obamacare. One of my contentions was that Obamacare was a step to single payer and would end up bankrupting America’s existing medical establishments. He disagreed. Here’s the relevant part of my post about that conversation:

What this doctor likes about mandatory universal health care is that it forces the voluntary uninsured into the system.  He thinks it grossly unfair that they are not paying into the system, while people who need insurance are paying.  If there were more money in the system, the person with a preexisting condition would not be required to pay as much for his insurance.  In other words, he thinks that the insurance system should be a cross between an uninsured motorist requirement and social security.  He freely admits that this is a government mandated spread the wealth approach, and one of which he approves.

Because he has a philosophical approach that requires everyone to be in the health care market, whether they want to be or not, he is unperturbed by CBO numbers projecting vast increases in the cost of health care under the new plan.  He thinks the CBO people, being accountants and not doctors, have no idea what they’re talking about.  What he envisions is a brave new world in which the government simply provides more insured people who will use medical services.  He finds it inconceivable that universal health care (which is a system by which all people are insured, but medical care providers continue to be privately owned) can shade into a single payer, government-owned system.

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The DOJ’s claim that communications between Mr. and Mrs. Eric Holder are privileged reminds me of a sleazy attorney I once knew

Eric Holder and his wifeSince you’re all very well-informed, it won’t be news to you that Eric Holder’s Justice Department, in yet another effort to frustrate a Freedom of Information Act (“FOIA”) request about Fast & Furious documents, claims that Eric Holder’s communications with both his wife, a private practice physician, and his mother are subject to executive privilege:

The document details the Attorney General Holder’s personal involvement in managing the Justice Department’s strategy on media and Congressional investigations into the Fast and Furious scandal. Notably, the document discloses that emails between Attorney General Holder and his wife Sharon Malone – as well as his mother – are being withheld under an extraordinary claim of executive privilege as well as a dubious claim of deliberative process privilege under the Freedom of Information Act. The “First Lady of the Justice Department” is a physician and not a government employee.

Boy, did that parental privilege claim trigger a flashback for me. You see, exactly twenty years ago, I worked on a case opposite the most unethical lawyer I’ve ever seen, and he too made that claim on his client’s behalf.

I won’t name names, because the lawyer is still practicing and he’s an extraordinarily litigious guy, who will sue anyone and everyone on the drop of a dime.  Once he’s initiated the litigation, he clings like grim death to the case until the opposing party simply wears out and gives up. It’s a form of greenmail: settle now, on my terms, or I will bankrupt you for having the temerity to oppose my frivolous lawsuit against you. Most people gave up without much of a fight.  For convenience, I’ll call this human pit bull Attorney X.

Thankfully, there were a few people willing to stand up to Attorney X. Indeed, there’s a wonderful California Appellate Court decision, written by a judge I knew personally (I used to babysit for his kids) and therefore knew was one of the kindest, gentlest people in the world, but his opinion is neither kind nor gentle. It lambasted Attorney X for being an utterly unprincipled practitioner who always skates just on the right side of the law while nevertheless making a mockery of the entire system. My story of dealings with Attorney X precisely reflects this dynamic.

At the time, I was working for an attorney who had the backbone not to back down in the face of Attorney X’s greenmail-style litigation. (That attorney, incidentally, is a staunch conservative, and someone I credit with my political conversion.)  Every time Attorney X pushed, we pushed back harder.

A lot of this pushing took place during the discovery phase of the trial. Despite representing the plaintiff who filed suit (i.e., the one claiming to have a colorable lawsuit), Attorney X and his client refused to produce any of the documents we requested, even though they were manifestly related to the allegations in the complaint.

We’d serve a document request and Attorney X would come back with objections about attorney-client privilege (even though no attorney was involved in the communication), or attorney work product (even though there was no attorney work at issue), or relevance (even though the language of the request parroted a claim in the complaint), or any number of other manifestly spurious objections. So every time, we’d have to spend the money to file a motion to compel discovery.

I’m pleased to say that we won almost all of those motions.  Unfortunately, though, even though we won the motions, the discovery commissioner never imposed sanctions on Attorney X or his client. This was because Attorney X positioned himself as the little guy against the big guy (even though our clients had even fewer resources than he and his client did).  At least back then, San Francisco Superior Court bench was all about the 99% long before that Leftist idea surfaced in street protests.

Anyway, the only time I ever thought that we might actually lose a valid discovery motion was when Attorney X made the most spurious, risible, unprincipled objection I’d ever seen. To understand precisely what happened, you need to know that in a California civil case you can depose a third party and even ask that third party to bring relevant documents to the deposition. However, for certain categories of third parties who are asked to bring a consumer’s “personal records,” you need to go through a special notice procedure in order to protect the consumer’s statutory privacy rights.

Here is a list of the third parties who are subject to special notice for a deposition subpoena:

“Personal records” means the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any “witness” which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in Section 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by this state to make or arrange loans that are secured by real property, security brokerage firm, insurance company, title insurance company, underwritten title company, escrow agent licensed pursuant to Division 6 (commencing with Section 17000) of the Financial Code or exempt from licensure pursuant to Section 17006 of the Financial Code, attorney, accountant, institution of the Farm Credit System, as specified in Section 2002 of Title 12 of the United States Code, or telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, or psychotherapist, as defined in Section 1010 of the Evidence Code, or a private or public preschool, elementary school, secondary school, or postsecondary school as described in Section 76244 of the Education Code. (Calif. Code Civ. Proc. sec. 1985.3)

In English:  If the third party is employed in the medical, legal, financial, or educational field, and if the subpoena asks for a consumer’s documents or other information from that third party, the subpoena is subject to special procedures in order to ensure that the consumer’s privacy rights are respected.  The specialized notice procedure is called “a 1985.3 notice.”

Well, we served an ordinary deposition subpoena (including a document request) on the mother of Attorney X’s client. This was entirely reasonable because the complaint mentioned the mother, Attorney X’s client derived her alleged claim through her mother, and the mother was a major player in many of the events Attorney X had asserted in the complaint. As a matter of both fact and law, Attorney X had no valid objections to make to the discovery request.  He therefore made an invalid objection:  He contended that we had failed to serve the deposition subpoena properly because we hadn’t complied with sec. 1985.3’s stringent notice and timing requirements.

As required by law, I wrote Attorney X a long meet-and-confer letter carefully explaining that a mother does not fall anywhere within sec. 1985.3’s parameters. Attorney X was unmoved. I had no choice but to file a motion to compel the deposition.  Attorney X’s opposition was gibberish — and how could it be anything else? He had absolutely no law whatsoever to support his claim that a mother falls within sec. 1985.3’s parameters.

The way it works in California courts is that, the day before the hearing, the court will issue a tentative ruling. Sometimes, both parties abide by the ruling and there’s no hearing. Sometimes, however, one party or another will oppose the ruling, and then both troop into court for a hearing. And rarely, very rarely, the court will refuse to issue a tentative ruling at all but instead will insist that the parties show up. This usually means that the judge is very uncertain about which way to rule.

To my great surprise, the tentative demanded our appearance. How in the world could the discovery commissioner need oral argument on this one? “Mother” is neither specified in sec. 1985.3 nor is it implied. What’s left then?

What apparently was left was a discovery commissioner who just couldn’t wrap his mind around the concept that there wasn’t some sort of privacy principle governing the mother-child relationship in the context of a lawsuit alleging that my client had stiffed the mother and child out of some money. After futile argument, I urged the commissioner just to read the statute himself, something he apparently hadn’t done before and he agreed to do so.  The commissioner sat down with the big code book balanced on his knees, and clutched tightly in both hands. He bent his head towards the text and, with his lips moving, began reading slowly and silently to himself.

After a good five minutes of this, he sat up, turned to Attorney X and said “She’s right. It doesn’t say mother in here. The motion to compel discovery is granted.”

Whew! At that point, I thought, “Surely the commissioner will impose sanctions against Attorney X for making a manifestly frivolous objection to a reasonable discovery request.” Wrong again! When I requested sanctions, the discovery commissioner said that it was a close call (!) and refused.

Right about now, I’m thinking that the discovery commissioner, someone I assumed had either stayed at San Francisco Superior Court or retired, in fact moved to the Department of Justice and was the one who came up with the Eric Holder “spousal executive privilege” objection to a FOIA request.

Oh, and if you’re wondering about that lawsuit, we won and we won big.  We were fortunate enough to get a trial judge who listened very carefully to all the evidence and realized that Attorney X and his client had no case. Not only did our clients walk away vindicated, we also got more than $1 million in attorneys fees (including fees for all the time wasted in those discovery motions).  Woo-hoo!!!

Sonia Sotomayor’s absolutely revolting racism

Justice SotomayorYesterday, Sonia Sotomayor announced that she is absolutely horrified that the 14th Amendment can be used to prevent state government from engaging in race-based discrimination. Some may be a little confused by her argument, given that the 14th Amendment explicitly states that ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In ordinary parlance, that means that all laws must apply equally to all American citizens, regardless of anything that distinguishes one citizen from another (such as race, color, creed, sex, etc.).

For sensible people who believe that all humans are created equal, the 14th Amendment is a good rule. But it’s not good enough for Ms. Sotomayor (and yes, I mean “Ms.” because, really, after what she just did, it seems so wrong to give her the honorific “justice”). What did Sotomayor do? She abandoned legal reasoning in favor of ill-informed, racist navel-gazing, and she used the most august court in the land for her platform in feminist, racist idiocy. (I say “feminist” because, even though the case was about race, Ms. Sotomayor promised from the beginning that, rather than following the law, she’d offer ruminations from a “wise Latina.” So all her stuff is a “girl thing,” you know?)

Anyway, in Schuette v. Coalition to Defend Affirmative Action, Sonia (I’m so disgusted by her right now, I don’t even feel like using the generic honorific of “Ms”), wrote a 52 page pile of touchy feely goop about the fact that minorities are inferior beings. Moreover, she felt so strongly about innate minority inadequacies that she felt compelled to read all 52 pages from the bench — clearly, part of the punishment she wished to impose on dead, or still living, evil white males the world over.

I’m not trying to be mean, or anything, but the woman is a walking, talking argument against affirmative action, which advances women, minorities, and other non-white, non-straight, non-Asian, non-Jewish people simply because they weren’t born white, straight, Asian, or Jewish.   Here’s the heart of Sonia’s insanely racist (and non-legal, non-factual, highly navel-based) rant. Sonia starts by attacking the US’s bad history:

For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor. Because the political-process doctrine is best understood against the backdrop of this history, I will briefly trace its course.

She’s right, of course. Italians, Irish, Germans, Jews, Russians, Chinese, Japanese, East Asian, etc., all faced horrific discrimination. Peculiarly enough, once the discrimination ended as to these disparate groups, all were able, without any further effort on the government’s part, to ascend to the halls of wealth and power. Sonny’s problem (yeah, I’m at the point where even calling her by the pretty name “Sonia” irks me) is that she firmly believes that what worked for every other minority — just to be left alone — won’t work for blacks and Hispanics.

Before Sonny gets to her conclusion that blacks and Hispanics are inherent deficient (her thoughts, not mine), she takes us on an endlessly boring journey of efforts to discriminate which have all been done away with. Even as she tries to paint America as racially evil, she inadvertently keeps pointing to its self-correct mechanisms.

I sort of fell asleep somewhere when reading her tripe, but when I awoke, I found her claiming that there’s nothing in the 14th amendment that prohibits discriminating on the basis of race, because America’s educational institutions are improved by racial discrimination. No, really. That’s what she said:

Rather, race-sensitive admissions policies further a compelling state interest in achieving a diverse student body precisely because they increase minority enrollment, which necessarily benefits minority groups. In other words, constitutionally permissible race-sensitive admissions policies can both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit of racial minorities.

The above stunning quotation is followed by a lot more soporific stuff. Considering how plagued I am by insomnia, I really should have a copy of Sonny’s dissent by my bedside. It makes for exhausting reading. The only downside, of course, would be the inevitable nightmares flowing from her racially carved up universe.

So, anyway…. Blah, blah, blah. And then this, the moment at which she states that the only way to make effective the 14th Amendments constitutional guarantee not to discriminate is to . . . wait for it . . . discriminate:

That view [that the 14th amendment means that the law applies equally to everybody] drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why?

Did she just end that deconstructionist, magical thinking rant by asking “Why?” Well, I’ve got the answer, so you can ignore Sonny’s new-Age, victim-based, PC bibble-babble version of an answer. The obvious reason Sonny believes that the government must discriminate, world without end, on behalf of blacks and Hispanics is that, in her mind, these two racial groups are congenitally incapable of partaking in the political process without Mommy and Daddy government holding their hands. Unlike all other minorities who pulled themselves up by their own bootstraps, her posse can’t do it. And if that isn’t the most vile racism you ever heard — a Supreme Court justice saying that blacks and Hispanics are defective and will always need government help just to get back — I don’t know what is.

I’m now bored with Sonny. Sonny is pathetically burdened by an unpleasant reality:  she got into college and law school and government work and the Supreme Court thanks to affirmative action.  She had neither the brains nor the self-discipline to make it on her own (unlike the legions of Jews, Italians, Irish, Asian, and East Asian immigrant kids who looked at their often squalid surroundings and made the decision to be the best and, without either government discrimination or aid, rose to the heights.  This painful knowledge goes some way to explaining her embarrassingly self-referential opinion. She knows that she’s inadequate and, rather than admitting to her own mental infirmities, makes herself feel better by telling the American people that all blacks and Hispanics are just as mentally deficient as she is.

Let me say this again: for every other group in America that suffered government sponsored discrimination, after the government stopped discriminating (either against or for them) that group was able to achieve social, economic, and political success within one generation. Sonny is too scared to give blacks and Hispanics that same chance. In order to justify in her own eyes the unfair advantage she got at every stage in her career, she wants to ensure that no black or Hispanic ever has to compete on a level playing field.

Part of Sonny’s decision is her racism, a disdain for blacks and Hispanics that would fit comfortably on a KKK Imperial Wizard’s lips. And the other part of it is her fear that, if they succeed, she’ll have to acknowledge the failure that lies under all the undeserved accolades and professional advancements that came her way.

Justice Alito’s footnote sums up everything that is wrong with our judicial system

I haven’t had the heart or the stomach to read the Supreme Court decisions that came out today.  (It’s not about content.  It’s about the fact that, with rare exceptions, I find most Supreme Court decisions too horribly written and turgid to read.)  I therefore didn’t discover this gem from Justice Alito in the DOMA case  Instead, I’m passing it on to you from Paul Mirengoff at PowerLine, including the emphasis Mirengoff added:

The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55)(“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”).

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039.

And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” [citations omitted] Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.  (Emphasis added)