The View from Right Field

Two Bad Supreme Court Decisions – From a Process Point of View

It’s been a bad week for people who see the job of the Supreme Court as applying the law, as opposed to coming up with ways to do what Congress should do but hasn’t.

First, it was the LGBT workers decision on Monday in Bostock v. Clayton County.  I think that people shouldn’t be fired from jobs for being gay, lesbian, etc.¹  And I think Congress should pass a law to that effect (as should states).  But Congress hasn’t.  I do not believe that Title VII of the 1964 Civil Rights Act, when it prohibits discrimination in employment because of an individual’s sex, covers discrimination because of sexual preference, gender identity, etc.  “Sex” did not include those things in 1964, and it shouldn’t be interpreted as including them today.  There is a proper way to do it: Pass a law.

When Principles Are a Club, Instead of Principles

In contemplating the mess that is Virginia politics, it is perhaps most instructive to see how the calls for Governor Ralph Northam to resign have subsided as it became possible that the result of his resignation wouldn’t be just another Democrat as governor but a Republican.¹  In the meantime, at least from this distance, Virginia Republicans appear to be keeping fairly quiet because (i) they are checking their own yearbooks, (ii) they realize that, when the other side is shooting themselves in the foot, the best thing is to get out of the way, or (iii) they remember what the Senate Democrats did to Brett Kavanaugh and they aren’t going to do the same (probably the least likely alternative).

In any case, maybe a few people are beginning to realize that we should pick our principles based on what is right and fair as opposed to either what we can beat the other side on the head with or what we have to do to protect our own people.  In this regard, consider the following from Megan McArdle on what can happen when you care more about protecting your own side:

Brett Kavanaugh: Thoughts on a Story That May Never End

While Brett Kavanaugh has been confirmed as a justice on the Supreme Court, one assumes the controversy over his nomination will go on for a long time (forever-?), so it is probably not too late for me to make a few comments.

First, there is the question of whether we must automatically “Believe Women,” as a full-page ad said in The Wall Street Journal (and probably lots of other papers).¹  With respect to this question, Megan McArdle’s column in The Washington Post on Susan Collins’s vote on now-Justice Kavanaugh’s confirmation, talked about some things I hadn’t thought of before:

“Women know, in a visceral way that men never can, what it is like to live your life in consciousness of a single, inescapable fact: that virtually every man you meet is capable of physically overpowering you and taking what you won’t give them freely. We also know that if some man attacks us, it is likely to be in a private place, with no witnesses, and that the physical evidence will often be little different from the aftermath of consensual sex.

On Valentine’s Day, Do Owe We Mike Pence an Apology?

Wow, how things change.  A little less than a year ago, Mike Pence was criticized, and mocked by some, for having a personal policy, while in Congress, of not dining with women alone (or going to events where alcohol was served unless his wife went, too).  People, most of whom already didn’t like Vice President Pence, were aghast.  It’s discrimination, they said.  It’s unfair to women; it’s another example of the glass ceiling.

And we now read about Google and Facebook having company policies that employees can only ask out co-workers once.  If they are turned down, they can’t ask again.¹  Doug Smith, a lawyer at Jackson Lewis in Pittsburgh, recommends that companies have strict rules against managers dating anyone further down in the company.  And he says companies are doing it.

Sexual Harassment in the DOJ and FBI Under Which President?

The Washington Post published a lengthy article yesterday on sexual harassment in the Department of Justice and the FBI.  According to the Post:

“The Justice Department has ‘systemic’ problems in how it handles sexual harassment complaints, with those found to have acted improperly often not receiving appropriate punishment, and the issue requires ‘high level action,’ according to the department’s inspector general.

Clarence Thomas and Anita Hill – Yet Again

Jay Kaganoff argues, as stated in the headline of his op-ed in the December 8, 2017 Chicago Tribune, “Fellow conservatives, it’s time to call on Clarence Thomas to resign.”  Like Mr. Kaganoff, I do not know for certain what Justice Thomas said to Anita Hill or what she heard him say to her.

Mr. Kaganoff, however, “knows” that truth is on the side of now-Professor Hill.  Mr. Kaganoff argues, in effect, that Professor Hill had no reason to lie.  Unfortunately, we have had too many cases where people lied about sexual harassment even though they seemed to have no reason to do so.

Sexual Harassment: Rewrite the Rules But Focus on Those Who Deserve Condemnation the Most

Megan McArdle writes an excellent column on the allegations of sexual harassment that are coming out.  She asks:

“As the accusations of sexual harassment snowball, how ready are we for the consequences of rewriting the sexual rulebook so drastically, all at once?”

And she responds to her own question:

“The question when confronted with reports of decades-old misdeeds is not ‘Would this guy be a creep if he did this today?’  Better to ask: ‘Was he better or worse than his environment?’  And also: ‘Is there reason to believe he might have changed since then?’”

Stopping Sexual Harassment – Without Overreacting

In Saturday’s Wall Street Journal, Peggy Noonan wrote of the good that is coming from what appears to be society’s understanding, at last, of the harm and wrongness of sexual harassment.  But she also warned, “[t]he challenge is to pursue justice while keeping a sense of humanity.” 

She told of her yearly visit to the doctor.  As they talked of how to stay healthy in New York, including keeping back from the curb as trucks cut corners too tight, Ms. Noonan told her doctor: “I take the arms of cellphone zombies and guide them a step back to keep them safe.  I’d done it recently with a young woman.”

Ms. Noonan continued: “[The doctor] got a poignant look.  ‘I can’t do that now,’ he said.  If he put his hand on a strange woman’s arm, it might be misunderstood.”  I understand.

Ogden Nash: Sexual Predator

The politically correct and terminally sensitive have put out a revision of “Baby, It’s Cold Outside.” According to the concerned, the 1944 song “sounds hopelessly dated … in an age of informed consent and egalitarian relationships.”  One of the writers of the updated version of the song explained, “It was important to us to open a conversation about consent and make sure people's stories get told and the rhetoric gets changed.”

Apparently, when the current generation hears “say, what’s in this drink”, they think date rape drugs.  And the constant pleading in the song removes the necessary element of mutual constant from the sexual relationship.¹