Who You Calling "Boy"?

After two reversals by the United States Supreme Court, the 11th Circuit has held yet again that the use of the term "boy" to address a black man did not constitute evidence of racial discrimination:

Finally, the testimony about the two occasions when Hatley used the term “boy” was not enough evidence to create a jury issue as to whether Tyson’s proffered reason for choosing Dade was a pretext for racial discrimination.5 In Ash III we applied the factors set forth by the Supreme Court to the evidence on the record before us at that point, and we concluded that “the [‘boy’] comments were ambiguous stray remarks not uttered in the context of the decisions at issue and are not sufficient circumstantial evidence of bias to provide a reasonable basis for a finding of racial discrimination in the denial of the promotions.” 190 Fed. Appx. at 926. Under the law of the case doctrine only if “new and substantially different evidence emerge[d] at [the second] trial,” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1292 (11th Cir. 2005) (quotation marks omitted), can we revisit that conclusion of law. See id. New and substantially difference evidence about the use of the word “boy” was not presented at the retrial.

The DBR quotes the plaintiff's lawyer, who was chastised by the Court for leading questions:

“The concern is that any time you present that type of evidence, it is the jury who is listening to how those words are being said,” Haynes said. “They’re listening to the tone that was used in saying those words. They’re listening to the inflection. They are able to judge who the speaker was and what effect those words had on the person that it was being said to, and the appellate court is missing all of that. They are reading a cold, written record.”

Stephen Bright, President and Senior Counsel for the Southern Center for Human Rights, is even more pointed:

They parsed away, as only good and dedicated lawyers can do, to isolate "boy" from history, context and the chicken processing plant where the slur was used. The issue, they explained, was not whether the term was offensive to the two black men who were called "boy," but what was in the white plant manager's mind in using the word in addressing them. From the cold record, the appellate judges discerned that the manager's use of "boy" was only "conversational," "ambiguous stray remarks."

Moreover, addressing the black men as "boy" was not done in the "context of decisions at issue." In other words, employers can refer the black men who work for them as "boy" so long as they do not use the word during a promotion or hiring decision. And, remarkably, the panel decided that it did not need to be slapped in the face to conclude that the evidence of comparative qualifications did not establish discrimination. The court actually did not need a standard at all. Ash v. Tyson Foods, 190 Fed. App'x 924, 926, 2006 U.S. App. LEXIS 19750 (11th Cir. 2006). In short, it parsed its way right around the Supreme Court's opinion as if it were nothing more than a small speed bump on the road to getting back to its original result.

In last week's opinion, Carnes and Pryor even had the arrogance to chastise the lawyer for the plaintiff for trying to elicit testimony comparing the use of "boy" to the racial slur "nigger." Carnes and Pryor found it "highly improper" to inject such an "emotionally charged" word into a trial, even as they played down the emotional charge of the word "boy." These two white judges, residing in their judicial palaces as far away from the lives of ordinary people as one can get, purport to know more about what it means when a white overseer calls an African-American man "boy" than 24 Alabamians selected for two federal juries.

Alabama juries are not known for being generous in employment discrimination cases—or any other kind of discrimination cases. But Carnes and Pryor—and many of their colleagues—do not see the federal courts as a place where businesses like Tyson Foods must answer for their discrimination against black people in promoting employees.

Mercifully, Judges Elbert Tuttle, Frank Johnson and John Minor Wisdom and many—although not all—of the other great members of the 11th and former 5th Circuit who did so much to advance civil rights are not alive to see this sad, sad day.

This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit is made up of African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.

This is a bit over the top.  To me it resembles the regrettable attacks on Prop 8 Judge Vaughn Walker for his rumored sexual orientation.

On the other hand, I've never really given any thought to the question of diversity on the 11th Circuit.

What do you all think?

SFL Friday -- Is It Back to School Already?

Well it's Friday the 13th which means only good things can happen, right?

Like NRO legal blogger Ed Whelan letting loose on Chief Judge Vaughn Walker (he ends with this carefully calibrated, mild observation:  "I can’t imagine that any federal district judge has ever committed more egregious and momentous acts of malfeasance in a case.")

Now that's a throwdown.

Come on all you local judges, don't get one-upped by your brethren in ND CA -- there's still time!


Then you have terror babies, internment camps for illegals, and more info than you needed to know about Pee Wee Herman's trial defense.

And this is all just in one day!

Boy how did I get on this tangent?

Let's discuss something near and dear to my heart -- easing tension.

In addition to bumper-stickering your political rival's car, I understand there are less well-known, nontraditional methods that are apparently just as effective.

Maybe the Miami Lakes city council can give it a try?

And of course all you parents out there are gearing up for back-to-school especially with this weekend's tax holiday -- rest assured, I am too (see above).

Have a great weekend!

Shorter Glenn Garvin: Civil Rights Laws Were A "Tactical Mistake."

I'm going to do my level best to fairly summarize Glenn Garvin's column today on Judge Walker's landmark decision on Proposition 8:

1.  Eric Deggins is black and recently got a racist voicemail.


2.  This proves some whites still hate blacks despite the civil rights laws and all the judicial rulings on black/white relations.


3.  The Prop 8 lawsuit was not about allowing gays to marry because they have lots of other rights except specifically the right to marry.  

4.  Rather, the suit seeks to force non-gays to "socially accept and emotionally affirm" gays.


4.  This won't work because some whites still hate blacks.


5.  Thus, the "blunt force of government edicts" is a tactical mistake with respect to gays, just like it was with respect to blacks.


6.  Barry Goldwater was right.

There's so much wrong here I'm not sure where to begin.

Let's start with the civil rights laws.

Last I checked, they were not about white people "emotionally affirming" black people -- they were about fully enabling black people to vote, buy homes in white neighborhoods, marry white people, go to intergrated schools, drink from a white water fountain, sit anywhere they want on a bus, be able to eat at the Burdines lunch counter -- you know, that kind of thing.

That some whites still hate blacks does nothing to diminish the value or significance of the substantive rights established by judicial rulings and other "governmental edicts" regarding black people.

Moving on to the Prop 8 lawsuit, Glenn is woefully confused.

Judge Walker was not asked and did not make any rulings regarding the "emotional affirmation or social acceptance" of gay marriage.  He did not seek to abolish "irrational prejudice by government decree."  That's not what courts do.

He did make "findings of fact" and ruled, based on real, honest-to-goodness evidence presented at trial, that there is no "rational basis" to deprive Americans from the right to marry based on their sexual preference -- and that to do so violates the 14th Amendment.  (See Ted Olsen explain that to an incredulous Chris Wallace above).

Indeed, Judge Walker expressly refused to make any rulings regarding morality or the "emotional acceptance" of one view of marriage as opposed to another.  What he did evaluate is whether there are any tangible benefits to the State recognizing only heterosexual marriage, and found -- based on credible social science testimony -- that none exists.  That's why it is unconstitutional to deprive gay couples from the institution of marriage, because there are no legitimate empirical or utilitarian justifications to support the deprivation.

The fact that some whites still hate blacks doesn't mean Loving v. Virginia was wrongly decided.  In fact, more people support gay marriage now than supported interracial marriage in 1967 (only four percent(!) of the American public supported that right in 1958).

Get on the right side of history, Glenn -- or just go back to reviewing "Cougar Town."

Love Me Like A Man!

I just spent the last four hours reading confirmed bachelor Felix Unger's -- I mean Chief Judge Vaughn Walker's -- 136-page ruling regarding Proposition 8, and all I can say is I had no idea gay sex could be that boring!

I did find this part of the ruling interesting:

Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.

Happy?  Satisfying?  Deep emotional bonds and strong commitments?

You can tell this judge has never been married.

Here, read the whole darn thing yourself.

First Openly Gay Federal Judicial Nominee

I didn't even realize this was a milestone that had not yet been reached, but apparently it is:

Sen. Chuck Schumer (D-N.Y.) is recommending to President Obama that he nominate for the first time ever an openly gay male to serve on the federal bench, according to the senator’s office.

The senator has designated Daniel Alter to serve as judge for the U.S. District Court for the Southern District of New York. His appointment is subject to Senate confirmation.

For judicial nominations, presidents traditionally abide by the recommendations made by the senior senator from the state where there’s a vacancy, which in the case of New York is Schumer.

In a statement, Schumer said he recommended Alter because he’s “a brilliant attorney who possesses the knowledge, balanced views and temperament required of a federal judge.”

“His outstanding leadership skills, his commitment to justice, and his extensive experience make him an exceptional choice for a position on the federal bench,” Schumer said. “I’m proud to nominate Daniel Alter. Period. But I am equally proud to nominate him because he is a history-maker who will be the first openly gay male judge in American history.”

I'm not sure where ND CA Chief Judge Walker fits in on all this.

Meanwhile, closer to home, opposition is building re: the recent incident involving two Miami Beach police officers and a beat-up gay guy.

More on South Beach and its evolving relationship to The Gays here.

Proposition 8 Trial Reenactments

Although the Supreme Court put the kibosh on efforts to broadcast in a limited fashion the ongoing Proposition 8 trial in California, that has not stopped efforts to release video from the trial.

In an unprecedented move, two producers have been staging elaborate reenactments with real actors playing the judge, lawyers and witnesses, and posting it all on YouTube:

Frustrated by a Supreme Court decision barring broadcast of the trial, two Los Angeles film types are translating the courtroom testimony into elaborate YouTube re-enactments, complete with professional actors, realistic sets and a budget that might buy you lunch.

“We told the actors: ‘Don’t embellish this. These are real people. This is real testimony. We have to be true to that,’ ” said John Ainsworth, an actor who, along with a filmmaker, John Ireland, is producing the videos and an extensive media campaign of their own.

Once completed, 60 hours of video will reconstruct 12 days of testimony taken verbatim from court transcripts. Each day’s testimony will be uploaded in hourlong chapters to YouTube and marriagetrial.com, a Web site Mr. Ireland and Mr. Ainsworth created for the project. They said Tuesday that they hoped to have all the video online within two weeks.

Though many in the cast have real acting chops — one plays the president on the Fox show “24” and another, Tess Harper, was nominated for an Academy Award — all are volunteering their time. Shooting takes place in 16-hour stretches on weekends in a mock courtroom at the University of Southern California’s law school.

I played a few clips and found them grindingly realistic.

By that I mean, they are at times exceedingly boring, filled with asides, mistakes, halting speech, objections and admonishments from the judge on how to properly object, mundane matters like whether a document was already admitted or not, whether a video playback is working properly -- in other words all the stuff that actually occurs in a real trial.

Fascinating stuff.

SCOTUS Bans Broadcast of Proposition 8 Trial

More or less agreeing with Ed Whelan, a divided Supreme Court upheld its temporary ban on any broadcast of the Proposition 8 trial before ND CA Judge Vaughn Walker.

You can read the opinion here and Scotusblog's roundup here.

The per curiam opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito.

A very sharp dissent by Justice Breyer was joined by Justices Sotomayor, Stevens and Ginsburg.

It strikes me as a highly unusual and ideologically-driven opinion, not unlike Bush v. Gore.

Indeed, I would say this does not bode well at all for same-sex advocates if and when this case hits the Supremes on the merits.

Ted Olsen will have his hands full.

Now Here's How You Criticize A Federal Judge.

Noted conservative lawyer and NRO legal contributor Ed Whelan tears into the Chief Judge of the Northern District of California, Vaughn Walker (a Bush I appointee), who is about to begin trial on the same-sex marriage case brought by Ted Olsen and David Boies.

Let's see --

1. He calls it a "show trial."

2. He says Judge Walker just wants publicity and is seeking to convert the proceedings into a

"high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s sponsors. Specifically, Walker is rushing to override longstanding prohibitions on televised coverage of federal trials so that he can authorize televised coverage of the Proposition 8 trial. Televised coverage would generate much greater publicity for ringmaster Walker’s circus."

3. He says Judge Walker "wants to stack the deck against Proposition 8" and "has resorted to procedural shenanigans and outright illegality."

4. He says Judge Walker's acts are "in plain violation" of the rules prohibiting broadcasting federal trials and the "obvious purpose" of Judge Walker's actions is to subvert those rules (even though Whelan concedes that Judge Walker may be in "technical compliance" with the relevant federal statute).

5. He calls Judge Walker's actions "kangaroo-court procedures."

6. Whelan says "[o]nly an idiot or a hardened ideological advocate for same-sex marriage — and Walker is no idiot — would imagine that the Proposition 8 case is a good candidate for the program."

7. Whelan concludes that "[i]f Judge Walker persists in failing to recognize that elementary fact, the national civics lesson that he will be providing is yet another reminder that too many of our federal judges willfully abuse their authority in order to advance their own political agendas."

8. For good measure, Whelan did a follow up post, lamenting that "[t]here’s no end to Judge Vaughn Walker’s shameless procedural shenanigans" and that "the only 'immediate need' is for Walker to disqualify himself for his patent lack of impartiality — or for some higher court to step in."

You know, just to be safe, I'm gonna take another long look at Judge Zloch's order.