Patterico's Pontifications

1/24/2022

Constitutional Vanguard: An Analysis of the Supreme Court’s Decisions on Biden’s Vaccine Mandates

Filed under: General — Patterico @ 8:29 am



The long-promised post is up. If you want to understand these decisions better, without wading through all the legalese, this is the way to do it.

I listened to the oral arguments and found the behavior of the lefty justices to fall short of the judicial ideal. Justice Sotomayor’s blatant misstatements of fact when it came to the effect of the pandemic on children seemed to exemplify a sort of tribalism that increasingly seems to characterize the left side of the Court, which is far more predictable than the right side in terms of outcome.

Second, regular readers know that I am a judicial conservative, and generally find myself in agreement with the likes of Scalia and Thomas — or, these days, Thomas, Alito, and Gorsuch.

But if you know me well, you also know that I call them as I see them. I’m not much of a “team player” when it comes to expressing my opinions on politics or the law, because being a member of a team would require me sometimes to shy away from speaking the full truth on an issue, as I see it. I prefer to say what I think even if it upsets members of my “team.” I do this enough that it no longer really feels like I even have a team. (Other than you subscribers, of course!)

And here, speaking the full truth requires me to reveal something that surprised me: when I read the vaccine mandate decisions, I found that as a matter of pure logic, the folks in dissent on the case involving the OSHA mandate seem to have the better of the argument.

I wrote this one for the paid subscribers, an elite group you can easily join by clicking here.

1/23/2022

Sunday Music: Bach Cantata BWV 143

Filed under: General — Patterico @ 1:13 pm



It is the third Sunday after Epiphany. Today’s Bach cantata is “Lobe den Herrn, meine Seele” (Praise the Lord, my soul):

Today’s Gospel reading is Luke 4:14-21:

Jesus Rejected at Nazareth

Jesus returned to Galilee in the power of the Spirit, and news about him spread through the whole countryside. He was teaching in their synagogues, and everyone praised him.

He went to Nazareth, where he had been brought up, and on the Sabbath day he went into the synagogue, as was his custom. He stood up to read, and the scroll of the prophet Isaiah was handed to him. Unrolling it, he found the place where it is written:

“The Spirit of the Lord is on me,
because he has anointed me
to proclaim good news to the poor.
He has sent me to proclaim freedom for the prisoners
and recovery of sight for the blind,
to set the oppressed free,
to proclaim the year of the Lord’s favor.”

Then he rolled up the scroll, gave it back to the attendant and sat down. The eyes of everyone in the synagogue were fastened on him. He began by saying to them, “Today this scripture is fulfilled in your hearing.”

We don’t get to the punchline until next Sunday, when the crowd drives Jesus out of Nazareth.

Speaking of punchlines, this morning our pastor told us that he once heard a good sermon has a good beginning, a good ending, and not much in between. But Jesus had more to say — and as we will see, it did not go over well.

The text of today’s piece is available here. It contains these words:

Think, Lord, at this time on Your office,
that You are a Prince of peace,
and graciously help us all together
now and at this moment;
let us henceforth
speak Your divine word
yet longer in peace.

We have previously listened to a cantata (BWV 69) with the same title, but this is a different piece. Both concentrate on the theme of Jesus as the Prince of Peace.

Happy listening! Soli Deo gloria.

1/21/2022

Weekend Open Thread

Filed under: General — Dana @ 6:25 pm



[guest post by Dana]

Let’s do it!

First news item

In a follow-up to my post about NPR’s Nina Totenberg claiming that Justice Robert’s asked his fellow colleagues to mask up (on behalf of the diabetic Sotomayor), NPR has responded to the controversy, and we now have a case of a noted media outlet telling readers that what you read and heard isn’t really what you read and heard In other words, it’s fake but accurate news… And to make it even more ridiculous, it doesn’t even matter that the main character in this fiction has denied doing what he was accused by Totenberg of doing.

What she claimed in her NPR piece:

Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, *in some form asked the other justices to mask up.

At the writing of that post, I noted that the bolded part was strangely worded and likely to give Totenberg wiggle room if the whole of the statement was proven untrue. Boy, was I right. After Chief Justice Roberts released a statement denying that he had asked anyone to mask up, Totenberg and NPR doubled down:

On Tuesday, NPR reported that Justice Sonia Sotomayor, a longtime diabetic, had indicated to Chief Justice John Roberts that because of the omicron surge, she did not feel safe being in a room with people who are unmasked, and that the chief justice “in some form asked the other justices to mask up.”

On Wednesday, Sotomayor and Gorsuch issued a statement saying that she did not ask him to wear a mask. NPR’s report did not say that she did. Then, the chief justice issued a statement saying he “did not request Justice Gorsuch or any other justice to wear a mask on the bench.” The NPR report said the chief justice’s ask to the justices had come “in some form.”

NPR stands by its reporting.

Now NPR’s public editor, employing some weaselly word gymnastics, is trying to defend Totenberg while appearing to simultaneously hold her (and the outlet) accountable for the writer’s “inaccurate verb”. Said public editor summed it up this way:

Totenberg and other Supreme Court watchers know that executive messages are conveyed with subtlety and diplomacy, not by clear edict. Adding that small detail, along with more information about her sourcing and a more accurate verb, would have provided a fuller picture. As she acknowledged the justices’ statements on Wednesday, the veteran reporter further explained her wording choice at the end of her segment on ATC.

In the absence of a clarification, NPR risks losing credibility with audience members who see the plainly worded statement from Roberts and are forced to go back to NPR’s story and reconcile the nuances of the verb “asked” when in fact, it’s not a nuanced word.

The way NPR’s story was originally worded, news consumers must choose between believing the chief justice or believing Totenberg. A clarification improving on the verb choice that describes the inner workings of the court would solve that dilemma.

So why not reveal the sources and have them go on the record with what they said? Wouldn’t that clear things ups?

But here’s another problem with the public editor’s piece: She asserts that there is dissension among the justices, which would appear to fly in the face of the statement released yesterday by Justices Gorsuch and Sotomayor:

No one has challenged the broader focus of Totenberg’s original story, which asserts that the justices in general are not getting along well. The controversy over the anecdotal lead, which was intended to be illustrative, has overwhelmed the uncontested premise of the story.

Shame on Totenberg, and shame on NPR. You may think us dumb, but it’s not us who assumed readers everywhere would buy your inaccurate verb nonsense.

Second news item

Asking evangelicals:

Some people in her own party want Rep. Liz Cheney (R-WY) to lose her membership on committees and even her place within her party’s conference in the United States House of Representatives, all because she won’t “move on” from her beliefs that the attempts to overturn the last election—leading up to last January’s attack on the Capitol—are a clear and present danger to democracy.

Whatever you think of Cheney (as you can imagine, I am a fan), there’s a larger point here—one that applies to many evangelical Christians in a thousand different situations in their churches and communities: At what point will you stop conserving your influence?

Third news item

A progressive case against abortion:

First, the pro-life movement gives increasing weight to science. In 1973, the Supreme Court told us that there has “always been strong support for the view that life does not begin until live birth.” Today, 95 percent of biologists affirm the view that human life begins at fertilization. Modern advances in ultrasound technology and discoveries in prenatal development have laid the Roe Court’s view to rest, rendering the decision obsolete.

Second, the pro-life movement is increasingly calling out the anti-feminist assumptions of the abortion-industrial complex. It is anti-feminist to suggest that women need abortions to succeed in a world that still hasn’t upended patriarchal assumptions in families and the workplace. Moreover, it is inconsistent with the non-violent instincts of feminism to tie the liberation of women to the elimination of any group of human beings. Girls, furthermore, are disproportionately the targets of abortion—especially in places like China, India and parts of Eastern Europe.

Third, the pro-life movement increasingly points out the economic interests of the abortion-rights movement. We respect the personal sincerity of abortion rights proponents. Sadly, however, this social movement is inextricably tied to the interests of Big Abortion, a $3 billion industry.

Fourth news item

Looking at Biden’s and Trump’s polling numbers:

Democratic voters are looking for someone other than Biden to carry their standard in 2024: 41 percent want “someone else,” while only 32 percent want Biden and 27 percent aren’t sure. But for the 68 percent of Democrats who’ve either gone off Biden or are at least starting to look around, there is not much to pick from. Gaffe-prone Kamala Harris is polling as badly as Biden with a FiveThirtyEight approval average of just 36 percent. When the University of Massachusetts at Amherst asked Democratic voters their preferences for 2024, 40 percent remained loyal to Biden — with 80-year-old Bernie Sanders the most popular choice after Biden at 18 percent, and Harris tied with Elizabeth Warren in third at just 10 percent. In a Harvard/Harris poll, Biden retained just 36 percent loyalty and Harris came in second at 16 percent. If Biden were not to run in 2024, Harris led Sanders in that poll 31 percent to 15 percent as Democrats’ first choice — with no one else in double-digits.

Trump has generally pulled ahead of Biden in the 2024 ballot test. The RealClearPolitics average has Trump leading Biden by nearly 5 points at 46 percent to 41 percent, with Insider Advantage giving Trump a lead of 8 points. Polling from YouGov and Redfield and Wilton has vacillated, but show Trump — on average — with a small lead.

And Trump does not appear to have a problem within his own party. Most Republicans want Trump to run (53 percent, according to YouGov). Trump leads significantly in all putative GOP primary polls with Florida Gov. Ron DeSantis taking second across the board. The Dec. 13 YouGov poll is closest with Trump leading DeSantis 44 percent to 23 percent, but other YouGov polls have Trump in the mid 50s, leading DeSantis by over 35 points. TIPP gives Trump a 60 percent to 11 percent advantage.

But then there is this:

When you dig into the numbers, he has significant problems. For one thing, his approval rating is just as bad as Biden’s. The latest FiveThirtyEight average has Trump at 43 percent approval. In addition, most Americans don’t want to see Trump run again — even more than oppose a Biden candidacy. According to YouGov, 59 percent do not want Trump to run, while 57 percent are against Biden running.

In that same YouGov poll, 30 percent of Republicans want someone other than Trump to seek the GOP nomination — which points to a worrying trend among Republican voters. Simply put, Trump’s support is not as strong as it seems. Trump routinely polls approval in the 80s among Republicans. The most recent January YouGov poll has Trump at 81 percent favorable among Republicans. Morning Consult has Trump at 83 percent favorable. Yet in both polls, Biden’s overall approval numbers are better than Trump’s — although both are negative.

Fifth news item

Accepting arrest warrants as ID:

Sixth news item

Oh:

Among the records that Donald Trump’s lawyers tried to shield from Jan. 6 investigators are a draft executive order that would have directed the defense secretary to seize voting machines and a document titled “Remarks on National Healing.”

The draft executive order shows that the weeks between Election Day and the Capitol attack could have been even more chaotic than they were. It credulously cites conspiracy theories about election fraud in Georgia and Michigan, as well as debunked notions about Dominion voting machines.

The order empowers the defense secretary to “seize, collect, retain and analyze all machines, equipment, electronically stored information, and material records required for retention under” a U.S. law that relates to preservation of election records. It also cites a lawsuit filed in 2017 against Georgia Secretary of State Brad Raffensperger.

Additionally, the draft order would have given the defense secretary 60 days to write an assessment of the 2020 election. That suggests it could have been a gambit to keep Trump in power until at least mid-February of 2021.

Seventh news item

It’s 2022, this fool doesn’t get the benefit of the doubt from me. There’s a reason why he deleted this tweet:

Untitled

Sort of related:

New York Democratic congressman Mondaire Jones said on Thursday that “we are living through the worst assault on the right to vote since Jim Crow. And yesterday, on the Senate floor, white nationalists used the Jim Crow filibuster to block voting-rights legislation.”

Last week, a different New York House Democrat, Jamaal Bowman, called Arizona senator Kyrsten Sinema a “traitor” to “our democracy.”

Nice inclusive party the Dems have there…

Eighth news item

Postively, I’d be waaaaaayy more upset that a parent at my kid’s school felt okay about making this threat rather than my kid having to mask up:

The Luray Police Department charged a woman who made a perceived threat at Thursday night’s Page County School Board meeting.

According to police, Amelia King, 42, was charged with a violation of the Code of Virginia 18.2-60 Oral Threat While on School Property.

The Page County School Board met Thursday night to vote in favor of Governor Glenn Youngkin’s executive order, making masks a choice for students.

During the public comment period, King said, “No mask mandates. My child, my children will not come to school on Monday with a mask on. Alright? That’s not happening. And I will bring every single gun loaded and ready.”

Video below:

MISCELLANEOUS

Simply the best:

Have a great weekend!

–Dana

Yes, DeSantis Did Indeed Falsely Suggest That Vaccines Harm Fertility

Filed under: General — Patterico @ 8:29 am



This is the conclusion of the Washington Post from DeSantis’s remarks yesterday, and I think they’re right:

Florida Gov. Ron DeSantis (R), a foe of vaccine mandates, appeared to suggest Thursday that getting a shot to protect against the coronavirus could cause infertility.

“Think about how ridiculous it is what they’re doing by trying to force the nurses” to get immunized, he said in a speech announcing funding for nursing certification programs. “A lot of these nurses have had covid. A lot of them are younger. Some of them are trying to have families.”

But there is no evidence that getting vaccinated against the coronavirus makes it harder to conceive, according to a study released Thursday of heterosexual couples trying for pregnancy. DeSantis could not be immediately reached for a comment on his remarks.

Some of my conservative friends think that the Post is engaged in a bit of mind-reading here, and that he was talking about the fact that job loss due to a vaccine mandate is difficult for a family contemplating having kids. My friend Joe Cunningham has a post at RedState where he supports this interpretation with the full DeSantis quote, which he believes exculpates DeSantis. Joe’s post is titled The Washington Post Invents a Vaccine Claim Ron DeSantis Didn’t Make. Here is his central argument (visit his post for the full argument and the links):

Nowhere in this quote does DeSantis suggest that getting the COVID-19 vaccine can affect fertility.

The speech, which was given at an event where DeSantis announced $2.3 million for nursing and vocational programs, focused on the critical medical worker shortage seen not just in Florida but around the country. The Post, as well as MSNBC and other outlets, are cutting off a key sentence from the DeSantis quote. A local outlet in Florida gives you the context you need.

“Think about how ridiculous it is what they’re doing by trying to force the nurses with these vaxes you know a lot of these nurses have had COVID, a lot of them are younger, some of them, they’re trying to have families, there’s a whole bunch of things that they have going on and so they don’t want to be forced to do it,” DeSantis said. “You see the shortages in there anyways, and now that is adding to it.”

In one sentence, it’s clear that DeSantis is talking about how vaccine mandates will only make a shortage of nurses worse. Young nurses who are wanting to get married and start families are getting let go because they aren’t getting vaccinated. It’s a controversial policy because on one hand, potentially spreading the virus from staff to patients is a medical and legal nightmare, but on the other hand, you’re looking at a shortage of nurses because of the virus and other circumstances already and letting more go only hurts the quality of care you can give.

DeSantis is looking at the mathematical equation here and deciding that it’s silly to look at a health care worker shortage and think “We need more barriers to work,” which is not an unreasonable conclusion to draw.

Interesting defense, but I think ultimately it does not hold water. Go back to the original DeSantis quote that the Washington Post cited as its evidence, and ask yourself: does he appear to be listing reasons it’s bad for nurses to lose their jobs — or he is listing reasons that people might not want to get vaccinated?

Think about how ridiculous it is what they’re doing by trying to force the nurses with these vaxes. You know, a lot of these nurses have had COVID, a lot of them are younger, some of them, they’re trying to have families, there’s a whole bunch of things that they have going on and so they don’t want to be forced to do it

DeSantis lists three factors he thinks are significant: 1) many of the nurses have had COVID already; 2) many of them are younger; and 3) some of them are trying to have families. The last phrase — “so they don’t want to be forced to do it” — to me is the key context showing why DeSantis is listing reasons people might want to forego vaccines. But even leaving that contextual phrase out of the mix, look at each of the factors.

The mention of their having had COVID is more consistent with him giving a list of reasons they do not want to be vaccinated than it is with him giving a list of reasons that being laid off will be tough on them. Why would having had COVID make it tougher for them to leave their job than someone who has not had COVID? He is citing COVID because he thinks natural immunity is a reason not to get the vaccine.

So is his mention of their being young. It’s easier to get another job as a young person than as an older person. Youth is not factor that aggravates the loss of a job. He cites youth not because he is listing reasons it sucks to lose your job; he is listing reasons people might legitimately (in his view) not want or need a vaccine. “So they don’t want to be forced to do it.” And one of those is that they want to have a family.

It is a suggestion that vaccination harms fertility. And this conclusion is only bolstered by his persistent refusal to say whether he is boosted.

This is a “gutless” (thank you, Donald Trump) pander to anti-vaxxers because of DeSantis’s presidential aspirations. That, too, is consistent with his citing a well-known conspiracy theory about vaccines and fertility.

Nice try at a defense, fellas, but I don’t buy it.

So far DeSantis has refused to comment on this. He may end up denying pushing the conspiracy theory — but if he does, I will see it as a walkback. Inevitably, if a clarifying comment is issued, is will be couched in a complaint about the awful liberal media. It will not be a convincing clarification. He will not explain why he cited COVID or youth as relevant factors. That will be the tell.

1/20/2022

Constitutional Vanguard: An After-Action Report on the Newsletter About Justice Gorsuch’s Mistake in the Vaccine/Testing Mandate Case

Filed under: General — Patterico @ 6:46 pm



Today’s newsletter is free to all and follows up on Tuesday’s newsletter about Justice Gorsuch’s error in the vaccine/testing mandate case. As I did in a recent post, I did a roundup of some coverage of the error, with some analysis of where that coverage was either faulty, as well as where the coverage shed more light.

I also took on some arguments that had been sent to me by a law professor who shall go unnamed.

Teaser:

After all, if OSHA issues regulations that make it less likely for a worker to lose his fingers at work, those regulations will “affect” the worker at home as well . . . by giving him, inside his home, the use of fingers that he might not otherwise continue to possess but for the OSHA workplace regulation. Ah, but if the agency itself had already disclaimed any authority to issue regulations that will “affect workers’ lives outside the workplace” . . . .then that could be seen as a major concession. And Justice Gorsuch portrayed it as such — but it is a concession that OSHA had not actually made in its 2020 brief.

Coming soon: an analysis of the vaccine/testing mandate cases themselves. That one will be for paid subscribers. You may subscribe for free (or sign up to be a paid subscriber) here.

President Biden Channels His Inner Trump

Filed under: General — JVW @ 6:45 pm



[guest post by JVW]

Well, I think a lot of us saw this coming. One of the things that I thought was most interesting about the 2020 election is that Democrats and their media allies absolutely hated Donald J. Trump, President of the United States, and insisted (correctly) that his personality was toxic and (questionably) that his agenda was the road to ruin. Yet the grand Democrat axis then coalesced around the candidate who is the most similar to the guy whom they purported to hate.

Worried that the President is too old and too white to lead a nation in which youth and diversity are fetishized? Yep.

Worried that the President is a lazy ignoramus blowhard with a penchant for making up things that sound assuring but simply aren’t true? Roger that.

Worried that the President is too flippant and off-the-cuff when discussing important international affairs and thus might frighten our allies and embolden our enemies? You betcha.

Worried that the President is lecherous and of low character, treating women with far too much familiarity? Uh-huh.

Worried that the President is a petulant bully who is too thin-skinned to take criticism and expects to receive a level of respect that he hasn’t done anything to deserve? Check.

Worried that the President treats the White House media — the “gatekeepers of our democracy” — with snide contempt and disdain? Surely.

Worried that the President has used his position to further the business interests of himself and his sleazy family? Can’t really argue and it’s nothing new.

Worried that the President is at heart an authoritarian who if given the chance would be glad to bypass democratic norms and rule by fiat? Right there with you.

Worried that the President plays to the most ignorant parts of his base by making grandiose promises which he almost certainly has no ability (or even willingness) to keep? Ten-four, good buddy.

Yesterday President Biden doubled down and demonstrated yet again that we traded the rightish version of Donald Trump for his leftish doppelgänger. At his press conference earlier today, when asked if his inability to pass the Democrats’ hyper-partisan election bill might render this November’s election illegitimate, the current occupant of 1600 Pennsylvania Avenue borrowed a page from the playbook of his predecessor:

Following the president’s big speech in Georgia, I asked if the press was ready to put this question to Joe Biden about his hyperbolic claims in support of the Democrats’ voting and elections bills: Does Biden truly believe that, if these bills do not pass, America will not have democratic elections in 2022? Will he reject their outcomes as illegitimate?

Well, today he was asked that question, and his answer was, basically, that it depends if Democrats win:

It all depends on whether or not we’re able to make the case to the American people that some of this is being set up to try to alter the outcome of the election. . . . I think it would easily be illegitimate. The prospect of it being illegitimate is in direct proportion to us not being able to get these reformed passed.

This does not seem accidental. It comes on the heels of Chuck Schumer’s saying about passing Electoral Count Act reforms, “That makes no sense. If you’re going to rig the game and say, ‘Oh, we’ll count the rigged game accurately,’ what good is that?” When the Senate majority leader says our elections are a “rigged game” and the president says “it depends” when asked if he’ll accept the outcome of the upcoming elections, that is a dire sign for the party in power’s respect for democracy.

Of course it was just fourteen short months ago that everybody who was Virtuous & True was huffing and puffing about how irresponsible it is for an elected official — let alone the friggin’ President of the United States — to suggest that an election loss which comes in a contest held under rules that you don’t like is therefore corrupt and illegitimate.

Yet the guy who was elected not because he was particularly bright or wise or perspicacious or competent but because he was allegedly far less of a total train wreck than Donald J. Trump turns out to be a great deal like President 45 indeed. The Biden Administration thus far has been one failure after another — no, I don’t count simply passing legislation as being indicative of success, especially when that legislation has failed to accomplish its objectives — and his approval rating is today at the levels of his predecessor at the same point in the Trump Presidency, perhaps even lower.

Joe Biden has responded to his obvious organizational sputtering with his usual mixture of blarney, ignorance, obliviousness, wish-casting, bad faith arguments, bullying, and divisiveness. Despite his press team doing their usual bit to walk back or otherwise blatantly lie about the dumbest things the boss recently said, and with most establishment Democrats practically begging him to change directions and tack back to the center, President Biden gives every indication that he is too dense and foolhardy to execute a policy pivot and will continue to court the approbation of the insurgents, at least until Ron Klain has a change of heart. It promises to be a long and ugly year ahead in the nation’s capital.

– JVW

Allahpundit Makes the “David French Error” in Interpreting Florida’s Ban on Teachings Designed to Make People Feel Guilt Due to Their Race

Filed under: General — Patterico @ 8:29 am



Here we go again: a favorite writer of mine is misinterpreting laws against the new wokeism. Last time it was David French. This time it is Allahpundit, whose post is titled Does a new Florida bill prohibit schools and businesses from causing whites “discomfort” or “guilt”? and begins by answering the question in this way:

That’s how the Associated Press’s deliberately inflammatory headline frames the stakes here. Are they right?

Short answer: Not really, but sort of?

Longer answer: The bill is facially neutral as to race. It doesn’t bar schools and businesses from causing “discomfort” or “guilt” to whites specifically during instruction or training. It bars them from causing discomfort or guilt on the basis of race with respect to any race. If you uncork a white supremacist rant while addressing your staff or your classroom, you’d face consequences under this law.

That’s my bold emphasis, there to indicate that the part in bold is wrong. The Associated Press is wrong, all right, but not because the bill applies to all races and not just whites. It’s wrong because the bill itself does not bar schools and businesses from “causing discomfort or guilt on the basis of race with respect to any race” (to quote Allahpundit’s mistaken characterization). Rather, it bars schools and businesses from teaching people that they should feel discomfort or guilt because of their race.

That’s a different concept.

Don’t take my word for it. Allahpundit quotes the relevant provisions. See for yourself:

Screen Shot 2022-01-20 at 8.22.15 AM
Screen Shot 2022-01-20 at 8.22.26 AM

The ban here is not on instruction that causes whites (or any race) to feel guilt or discomfort. The ban is on instruction that tells whites (or any race, color, sex, etc.) that they should feel guilt or discomfort on account of their race. Specifically, the law bans instruction that any individual “should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, color, sex, or national origin.” I emphasize the word “should” because that is the key word.

There is a meaningful distinction between banning instruction that might cause people anguish due to the color of their skin, and teaching them that they should feel anguish due to the color of their skin. The former teaching is a potential consequence of any teaching about our country’s history of racism. The latter teaching is un-American.

The error permeates Allahpundit’s post. He says (my bold emphasis):

Where does all of that leave us? If a teacher tells his students that “white people oppressed black people for hundreds of years in the United States,” is that actionable under this statute? It might cause white students “discomfort” or “guilt” to hear whites indicted as a race that way. But how else should it be put? Saying that certain whites oppressed certain blacks wouldn’t capture the extent to which African-Americans were subjugated systematically and institutionally before the civil rights era. You can see why Dems worry that some parents acting in bad faith might try to steer schools away from teaching ugly chapters of American history altogether for fear of inadvertently landing in legal jeopardy under the bill.

The answer is no: it would not be actionable. Teaching about race that “might” cause white students to feel discomfort or guilt is not the same as teaching white students that they “should” feel discomfort or guilt due to their skin color. Teachers can manage to explain to their students that white people oppressed blacks throughout most of this nation’s history, without the need to add the observation that as a result of this history, the white kids in the class should feel bad for being white.

Allahpundit errs again when discussing the workplace restrictions:

At what point does the First Amendment protect a boss’s right to cause “discomfort” to his employee by stating a political opinion, particularly if he has facts to back it up? I’m guessing we’re eventually going to find out.

But the issue here is not an employer’s right to cause discomfort, but his right to tell his employee that the employee should feel discomfort because of the employee’s race. To me, the latter (which is what the law actually bans) is a form of race discrimination itself — but to the extent that this is unclear under current law, this bill makes it crystal clear. Such statements have no place in the workplace.

Regular readers will recall that this is the same error David French, Kmele Foster, Thomas Chatterton Williams, and some partisan lefty made in their New York Times piece on so-called “anti-CRT laws.” As I explained at the time:

If French, Foster, Williams, and Stanley were accurately characterizing the laws, I would be in agreement with them here. Our kids simply must be taught the history of slavery and Jim Crow, just like German kids need to be taught about the Holocaust. No sane person disagrees. And an accurate account of that history of governmental oppression of one race no doubt “could” and likely “would” cause many kids to feel anguish. Banning laws that “could” or “would” cause kids such anguish cannot possibly stand.

Here’s the thing, though: that’s not what the laws say. Instead, they make a very important distinction by banning teachers from teaching kids that individuals “should” (not could, not would, but should) feel anguish on account of their race or sex. In other words, the laws target the project of some anti-racists to make white people feel guilty simply because of the color of their skin.

I continue to admire David French, and I consider Allahpundit to be the best writer on the Web. But they are both misinterpreting, in a similar fashion, laws designed to fight the scourge of racism that currently operates under the misleading banner of “anti-racism.” No reasonable person wants to ban teaching about the history of racism, even though such teaching might have the incidental effect of causing some whites to feel guilt as a result of their ancestors’ actions. That is quite different from teaching people that they should feel guilt for their “white privilege” — a concept that is at the heart of a best-selling book, and which is far more prevalent than critics give it credit for.

1/19/2022

Yeah, About that NPR Report That Justice Roberts Asked The Justices To Mask Up…(UPDATE ADDED)

Filed under: General — Dana @ 1:38 pm



[guest post by Dana]

Yesterday, a report at NPR claimed that, on behalf of Justice Sotomayor who is a diabetic, Chief Justice Roberts in some form asked the other justices to mask up while on the bench:

It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What’s more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers.

Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.

Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, *in some form asked the other justices to mask up.

They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.

[Ed. I read *this yesterday and it struck me as being awkwardly worded and wondered why an experienced journalist would do this. My guess then was that it might somehow allow her wiggle room if the story ended up not being entirely accurate.]

NPR’s veteran legal affairs correspondent Nina Totenberg authored the story:

You can find loads of comments throughout the internet excoriating Gorsuch for refusing to heed Chief Roberts’ request. Today, Gorsuch and Sotomayor released a joint statement on the kerfuffle. Note that in the NPR report, Totenberg did not claim that Sotomayor asked Gorsuch to mask up, despite them responding as if she had. This from C-Span’s Nicole Ninh:

But Totenberg did claim that Chief Justice Roberts asked the justices to mask up while on the bench. And via Nicole Ninh, we now know that what Totenberg claimed did not happen:

Anyway, in reading the full NPR report, the alleged mask kerfuffle appears to have been a convenient launchpad for Totenberg to lament and lambast the conservative majority of the court.

Additionally, the more I read, it’s clear that Totenberg wasn’t remotely interested in knowing the actual truth of the matter, and instead preferred to run with her false claim:

As of the writing of this post, no retraction has been made by NPR and/or Totenberg. Instead, NPR says that it stands behind Nina Totenberg’s reporting.

UPDATE: NPR stands by its reporting:

On Tuesday, NPR reported that Justice Sonia Sotomayor, a longtime diabetic, had indicated to Chief Justice John Roberts that because of the omicron surge, she did not feel safe being in a room with people who are unmasked, and that the chief justice “in some form asked the other justices to mask up.”

On Wednesday, Sotomayor and Gorsuch issued a statement saying that she did not ask him to wear a mask. NPR’s report did not say that she did. Then, the chief justice issued a statement saying he “did not request Justice Gorsuch or any other justice to wear a mask on the bench.” The NPR report said the chief justice’s ask to the justices had come “in some form.”

NPR stands by its reporting.

Yep. Wiggle room. Totally unsurprising.

–Dana

President Biden’s Job Approval Rating Lowest to Date

Filed under: General — Dana @ 7:53 am



[guest post by Dana]

The president’s polling data from Gallup:

During his first year in office, an average of 48.9% of Americans approved of the job President Joe Biden was doing. Biden’s job approval ratings started relatively strong at 57%, but by September had plunged to 43%. A new Gallup poll finds 40% of U.S. adults approving of the job he is doing, his lowest to date.

Among post-World War II presidents elected to their first term, only Donald Trump had a lower first-year average rating, at 38.4%. Bill Clinton’s first-year average was similar to Biden’s, but all other first-year presidents averaged 57% or better.

Biden’s first year in office has come to an end as the anniversary of his inauguration approaches, and he begins his second year on January 20 in a much weaker political position than he began. Unlike Trump, Biden enjoyed an extended honeymoon as president largely because independents evaluated his early performance positively. Once the COVID-19 situation began to take a turn for the worse, independents began to lose faith in Biden, and the Afghanistan situation further eroded their support for him.

However, the last two Gallup polls show the president’s support among his fellow Democrats is also slipping, to around 80% from 90% or higher prior to December.

Now, it appears some Democrats have also turned on Biden, although he maintains solid support among his own party. Those Democrats who no longer approve of Biden may be frustrated by the lack of progress on Biden’s climate change and social spending plan and on voting rights legislation, if not also the state of the nation marked by rising inflation and the ongoing COVID-19 pandemic.

Given Biden’s chaotic response to the pandemic and subsequent toll on his job approval rating, the White House is ramping up in the fight against Covid-19 by providing Americans with free testing kits and N95 masks – one year into his presidency. The website to order government-provided at-home Covid-19 testing kits went live yesterday. You can order your free test kits here. I put in an order, and the process couldn’t have been any easier.

Also, Biden will be making 400 million N95 masks available to Americans beginning next week:

President Joe Biden will make 400 million highly protective N95 masks available to Americans for free at pharmacies and community health centers around the U.S., a White House official said.

The masks will start to become available late next week, and the program will be fully up and running by early February, according to the official. The White House said the free masks are the largest deployment of personal protective equipment in U.S. history.

As Omicron continues to spread, Congressional Democrats have been pushing the president to provide Americans with N95 masks:

Democrats in Congress have pushed the Biden administration to provide N95 masks to Americans for free as the highly contagious Covid omicron variant has swept the country, causing unprecedented levels of infection. Sen. Bernie Sanders, I-Vt., reintroduced legislation last week to deliver three N95 masks to every person in the U.S. The legislation has 50 co-sponsors in the House and Senate.

“Congress must demand the mass production and distribution of N95 masks, one of the most effective ways to stop the spread of the Covid virus,” Sanders said in a statement.

So, how does Biden rescue his slipping presidency at the one-year point? Here are a few suggestions:

The president needs to focus on American needs, not liberal wishes.

No, the two are not synonymous. Universal pre-K might be popular. But Americans have spent the past two years suffering from the government’s inability to meet basic needs. Public health. Price stability. Safe streets. Secure borders. Functioning supply chains. Public schools that open their doors to children.

Not all of this is the responsibility of the executive branch. But why has Biden outsourced the border issue to his overmatched vice president? Why is he nominating a progressive ideologue to the Fed at a time of spiraling inflation? How is it that he could unveil a package of crime-fighting measures last June and then basically drop the subject?

The president needs to communicate that he’s a step ahead of these problems. So far he’s been a perpetual step behind.

The president should remember that he won as a moderate and a unifier.

Biden’s performance thus far is sometimes compared with Jimmy Carter’s. Maybe the better source of comparison is Bill Clinton, who ran as a centrist, tilted left in his first year, saw his signature legislation blow up in Congress, suffered military humiliation in Somalia — and then figured out how to recapture the center and save his presidency.

Liberals have urged a floor vote for Build Back Better, as if a political kamikaze mission is going to win them a place in some future progressive pantheon. Biden would do better to move on from defeat and draft legislation with bipartisan appeal. Regulation for Big Tech is one good area. A bill that trades greater border security for citizenship for Dreamers is another. It could also help blunt G.O.P. inroads with Hispanic voters.

And what was the final suggestion to Biden? Announce that he will not run for re-election.

–Dana

More on Justice Gorsuch’s Error in His Concurrence in the Vaccine/Testing Mandate Case

Filed under: General — Patterico @ 7:52 am



My Substack post on Justice Gorsuch’s error in his concurrence in the OSHA vaccine/testing mandate case was picked up by Howard Bashman at How Appealing, by Dan Abrams’s Law & Crime site, and by Josh Blackman at Reason. Bashman’s work often gets attention in the legal community and is the best shot for getting a correction. The Law & Crime blog unfortunately garbled the analysis but raised the issue more widely. Blackman identified the source of the error, which was helpful, but for reasons I will explain in an upcoming post for paid subscribers, in my view overly minimizes the impact of the error.

People mostly accepted the analysis that it was an error. I got some half-hearted efforts to justify the quote from one law professor, who conceded in the end that his objections did not amount to much. I think I will discuss some of this in another free Substack I hope to get out tonight or tomorrow morning. The good stuff comes later this week with the analysis of the cases. For that, you’ll have to pony up! Subscribe here.

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