Sunday, November 19, 2017

Is an allegation of "racism" debatable?

Recently, while considering the use and abuse of the word "racism," I was reminded of an episode that occurred while teaching constitutional law at Brooklyn Law School. For over 20 years I eviscerated the Supreme Court Heart of Atlanta and McClung cases, tying most of my students who agreed with the Court in logical knots and exposing the result-oriented, dishonest, and indefensible majority opinion. Not surprisingly, some of those students felt themselves aggrieved. Paraphrasing today's vernacular, they considered my deconstruction of the majority opinion worse than a mere "micro-aggression"! As I recall, they considered it no what today would be called a "macro-aggression"-- and worse, in a "safe space" no less, the hallowed halls of academe. (In those days, there was no First Amendment roped-off area across the street).

One semester, soon after a two-hour class devoted to the cases, I received an invitation to visit the Dean. After the requisite small-talk, the following colloquy occurred:

Dean: I've had a group of your con law students in here complaining that you're a racist.
I stared at him, dead silent.
At least fifteen seconds passed.
Dean: Well?
Holzer: Well what?
Dean: Well, what about what they said?
More silence.
Dean: Well, don't you have anything to say?
Holzer: No.
Dean: No?
Holzer: No.
Dean: If someone called me a racist, I'd sure want to deny it.
Holzer: No doubt.
More silence, longer this time.
Dean: So you're not going to deny it?
Holzer: Deny it? I'm not even going to acknowledge it.
Dean: What?
More silence.
Dean: Well, I guess that's it.
Holzer: Yes.
I stood up and left.

He never mentioned the subject again.

For those with the stamina to read my excoriation of the Heart of Atlanta and McClung cases, please see

Monday, November 13, 2017

More on Moore (II)

Although as of today it looks more and more that Moore will stay in the race, it looks also like he'll lose the election.

But what if he wins?

As I wrote yesterday, under Powell v. McCormack he must be seated.

However, although the question of seating and subsequent expulsion was not before the court in Powell, Chief Justice Warren's opinion implies that pursuant to the Senate's constitutional power to make its own rules for running that body (think filibuster) he could be expelled. A very thin distinction, seating versus expulsion, indeed.

However, there may be another problem.

Moore's acts, if he actually committed them, occurred before he was elected.

So the constitutional question arises: Can an elected and seated United States Senator (and Member of the House of Representatives) be expelled for conduct occurring before he became a senator?

Some TV talking-heads will point to the disgraceful and disgraced current representative for Florida's 20th congressional district, the Dishonorable Alcee Lamar Hastings, one of only a handful of federal judges impeached, convicted and removed from office. He was a judge on the United States District Court for the Southern District of Florida for a decade, from 1979 to 1989. In 1988 he was impeached by the House, and in 1989 convicted on 8 of the 17 bribery and perjury articles of impeachment.

In 1993, he was elected to Congress.

Note the timing: Criminal acts, followed by election and seating. But no expulsion (which doesn't say much for the then-House of Representatives).

The Moore case is different, which may be what he is counting on.

If he is elected and seated, what will the politics be?

The Democrats would want Moore in the Senate, as the poster-boy for pederasts. Leaving him there to twist in the wind, instead of helping expel him, will not change the Senate balance because on Moore's demise Alabama's governor will appoint another Republican to fill the vacant seat.

In that scenario, the Democrats would oppose Moore's expulsion, suddenly remembering the presumption of innocence and/or arguing that his transgressions, like Hastings's, occurred before he tainted the Senate by his pederast presence.

Where would that leave the Republicans?

Article I, Section 5, of the United States Constitution provides that "Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." (My italics.)

The majority leader would have to cobble together enough votes to expel Moore, not an easy task because of the two-thirds constitutional requirement, the "Hastings precedent," and perhaps the reluctance of some Senators to expel a duly elected colleague who has not transgressed while a member of that august body.

As Margo Channing said in All About Eve, "Fasten your seat belts. It's going to be a bumpy night."

Sunday, November 12, 2017

More on Moore

The Washington Post, is reporting that the President of the United States and a growing chorus of Republican senators led by their leader McConnell are clamoring for besieged Alabama senatorial candidate Roy Moore to step down from his race—but, of course, only “if the allegations are true.”

A growing chorus of Republicans, including President Trump and Senate Majority Leader Mitch McConnell (R-Ky.), have called on Senate candidate Roy Moore to withdraw from a special election in Alabama if allegations prove true that the former judge initiated a sexual encounter with a 14-year-old girl nearly four decades ago.

White House press secretary Sarah Huckabee Sanders, who was accompanying Trump as he traveled from China to Vietnam on Friday, said, “Like most Americans, the president does not believe we can allow a mere allegation, in this case one from many years ago, to destroy a person’s life. However, the president also believes that if these allegations are true, Judge Moore will do the right thing and step aside.”

McConnell, in a formal statement on behalf of all Republican senators, said, “If these allegations are true, he must step aside.” 

This is another example of what I call the “Obamacare pose,” where for years Republicans voted to repeal America’s socialized medicine scam knowing that Obama would smilingly veto their charade.

If the allegations [against candidate Moore] are true,” the growing list of senators say sanctimoniously. (My italics.)

Who do these politicians think they’re fooling? 

They, and probably most of the country by now, know that what’s “true” about this “he said, she said” imbroglio will never be known. They’re once again hedging their bets, not taking a stand, having their cake and eating it too, covering their ba[s]ses, playing it safe, —well, you get the idea. More succinctly: Acting like the cowardly politicians they are.

But not Mr. Morality, the John McCain of the aircraft carrier “accident,” marital duplicity, and Kerry-abetting whitewash of what happened to America’s Vietnam War MIAs.

Sen. John McCain (R-Ariz.) called on Moore to step aside as well — and without couching his statement with “if true” language.

This, of course is what we expect from politicians generally, and from McCain in particular. And while the presumption of innocence is a legal principle, not a political one, it should be a moral tenet—one that tracks the formulation of the Alabama Court of Criminal Appeals in the 1978 case of Thomas v. State:

While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. A defendant should not be convicted on mere suspicion or out of fear that he might have committed the crime. While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence. (Case citations omitted; my italics.)

That’s not too high a standard to expect from United States Senators like John McCain who have politically reversed the foundational legal and moral principle of presumption of innocence—whether or not in the Alabama of forty years ago, today's candidate Roy Moore did what he is now accused of having done.