No, Justice Barrett should not recuse herself
by Jeff Jacoby,The Boston Globe
ON MONDAY, the Supreme Court is scheduled to hear oral arguments in 303 Creative v. Elenis. The case was brought by Lorie Smith, a graphic artist in Colorado who wishes to expand into the field of custom-made wedding websites. For religious reasons, Smith opposes same-sex marriage and is unwilling to design websites promoting gay or lesbian weddings. Under Colorado law, however, discrimination on the basis of sexual orientation is illegal, and Smith may not refuse her services to same-sex couples.
The question before the Supreme Court is this: Under the First Amendment, can Colorado compel an artist like Smith, as a condition of doing business, to express views that violate her religious convictions? To put it differently: When freedom of speech and religion conflict with antidiscrimination law, which takes precedence?
All nine high court justices are expected to be on hand for Monday's session. But in recent weeks there have been calls for Justice Amy Coney Barrett to recuse herself, on the grounds that her close involvement with People of Praise, a devout Christian group that firmly opposes same-sex marriage, calls into doubt her ability to consider the case fairly and impartially.
The recusal push comes from former People of Praise members, some of whom broke with the group because they were ostracized or excluded after coming out as gay. "I don't believe that someone in [Barrett's] position, who is a member of this group, could put those biases aside," one such disaffected ex-member told The Guardian, "especially in a decision like the one coming up." The former members also note that Barrett served on the board of Trinity Schools, a consortium of Christian academies that reportedly denied admission to the children of same-sex parents.
Does this add up to an obligation on Barrett's part to withdraw from the Colorado case? Not by a long shot.
Plainly, Barrett's personal religious convictions have no bearing on her qualification to take part in the court's deliberation. The Constitution flatly forbids any religious litmus test for any public position in the United States. Barrett's deeply rooted Catholicism is no more a reason for her to recuse from a case involving religion than the deeply rooted Protestantism of Justice Ketanji Brown Jackson or the Conservative Judaism of Justice Elena Kagan.
Nor is Barrett obliged to step back because of her ties to People of Praise, a group not involved in litigation before the court. "Supreme Court justices have views and are connected with a lot of organizations," Jonathan Entin, a professor of constitutional law at Case Western Reserve University, told the Washington Examiner, "and that's not enough" to trigger a recusal. Most justices bring to the court a myriad of social, professional, and political connections. The bar for withdrawing from a case is much higher.
Thus, Kagan did not recuse herself from key court cases in 2012 and 2021 that upheld the Affordable Care Act, even though she had been President Obama's solicitor general and had played a role in formulating the Justice Department's strategy to defend the law in federal court. Similarly, former Justice Stephen Breyer declined to recuse himself when the Supreme Court ruled in 2005 on the constitutionality of the federal sentencing guidelines — even though he had been a key architect of those guidelines when he served as chief counsel to the Senate Judiciary Committee.
On the other hand, when the court heard arguments last month on the use of racial preferences at Harvard, Jackson — a former member of Harvard's board of overseers — did recuse herself, keeping a promise she made during her confirmation hearings. But she was not required to do so, and in any case she participated fully in the companion case involving affirmative action at the University of North Carolina.
Federal judges are required to disqualify themselves, according to the first sentence of the relevant law, whenever their "impartiality might reasonably be questioned." The law itemizes the specific circumstances that can trigger such a determination. Among them: having acted as a lawyer for one of the litigants, having a financial stake in the outcome of the case, or having a personal prejudice concerning a party in a proceeding. Barrett's religious views on same-sex marriage may be unfashionable, but they don't come close to activating those triggers.
By longstanding tradition, justices decide for themselves whether to recuse from a given case. Chief Justice John Roberts emphasized in 2011 that "the Supreme Court does not sit in judgment of one of its own members' decision whether to recuse in the course of deciding a case." That is not just a matter of professional courtesy. As Roberts pointed out, if the other justices did review a colleague's decision to recuse or not to recuse, "it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its members may participate."
As a general rule, whenever there are calls for a justice to step back from a case, they come from people who want the court to rule in a certain way and expect the justice to vote the other way. In 2016, the late Justice Ruth Bader Ginsburg publicly denounced Donald Trump as "a faker" and said she couldn't imagine the upheaval that would be caused by his election. Not surprisingly, Trump and others contended that she had disqualified herself from taking part in cases involving him or his administration. Critics on the other side of the spectrum have likewise demanded that Justice Clarence Thomas recuse himself from any cases involving the Jan. 6 riot, since his wife, an ardent Trump supporter, agitated for the Electoral College results to be rejected by Congress.
The high court must decide whether, under the First Amendment, the state can compel an artist like Smith, as a condition of doing business, to express views that violate her religious convictions.
But the Supreme Court encourages its members to be highly wary of avoiding cases when it isn't absolutely required that they do so.
In a joint "Statement of Recusal Policy" issued in 1993, the justices explained why. "Even one unnecessary recusal impairs the functioning of the court," they wrote. The nation's highest tribunal is not like the lower federal courts, where backup judges are available. "In this court, where the absence of one justice cannot be made up by another, needless recusal deprives litigants of the nine justices to which they are entitled."
For nearly 100 years, the Canons of Judicial Ethics have enjoined every judge to "not be swayed by partisan demands, public clamor, or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism." There is no indication that Barrett will be influenced by the clamor from those who dislike her religious views. Like Ginsburg, Kagan, Thomas, Breyer, and all their predecessors, she swore to "faithfully and impartially" judge the cases that come before the court. When oral arguments begin Monday morning in 303 Creative v. Elenis, expect to see Barrett in her seat, doing just that.
(Jeff Jacoby is a columnist for The Boston Globe).
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According to wokeness creeping into the medical profession you may ultimately lament the decline in doctors who are less qualified because the new emphasis has shifted from competence to other critical qualifications such as race, color, perhaps even a set of aligned teeth. Oh well, what's a little bad bite when your new doctor could be a vampire?
Amy Wax, a tenured law professor at Penn Law, made the same comments/observations and was roundly criticized and intimidated for pointing out factual consequences of favoring the less qualified due to affirmative action ploys.
When a society decides the most qualified no longer deserve recognition that society has chosen to decline and assuredly it will as America has. We have a growing "poopulation" of homeless people taking drugs, sleeping and defecating in the streets, robbing stores, engaging in criminal behaviour, for which they are not prosecuted etc.
To solve this problem we are defunding police forces and replacing them with social workers. Crime is up but the "perps" are happier because they can walk in a store and leave with items they always dreamed about but could not afford.
A'int America a great place. No wonder it attracts so many illegals.
In Europe. if you did this and were not a Muslim they would still slap our ass in jail and throw away the key.
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DEI in the ER
By John Mac Ghlionn
Posted By Ruth King
Contrary to popular belief, the United States is no longer home to the best education system in the world. According to the World Top 20 Project, an international organization that gathers educational data from more than 200 countries, the U.S. lags well behind countries like Finland, Denmark, and South Korea. From elementary schools to colleges and universities, the U.S. education system is in crisis. Academic standards have drastically slipped, with a woke madness gripping classrooms across the country. And no school is immune—not even the most prestigious medical schools in America.
In September, Stanley Goldfarb, a UPenn medical school professor, warned Americans that “anti-racism” policies have lowered admission and teaching standards, corrupting the world of medicine. Instead of focusing on recruiting the “best and brightest,” Goldfarb argued that an increasing number of medical schools are more interested in picking students based on their skin color. The blame for these recent shifts should be laid at the feet of Diversity, Equity, and Inclusion (DEI) initiatives.
For the uninitiated, DEI focuses on building diverse workplaces and classrooms, on creating environments that are equitable and inclusive. To many, this sounds like progress. But on closer inspection, DEI is dangerous and unmeritocratic. Accidents of birth like race, sex, and ethnicity are the only things that matter in a world where DEI reigns supreme. As Goldfarb shows, these initiatives punish white and Asian applicants. Contrary to the ideology that underlies DEI, individual academic achievement and the ability to finance are the only things that should matter when applying for medical school.
Of course, medical schools aren’t alone in their desire to eliminate certain groups from the academic equation. It’s one thing when a high-achieving individual is forbidden from entering a MBA program, but it’s quite another when he or she is prevented from entering a medical school. Medicine deals in matters of life and death, and a healthy country requires medical professionals of the highest standards. In other words, the “best” and the “brightest.”
The push to make medical schools go woke is also creating a dangerous environment for professors. It has become common for students at top medical schools to berate tenured professors, forbidding them from using inoffensive, entirely logical terms like “pregnant woman” and “breastfeeding.” For those who laugh at such developments, just do a quick thought experiment: the people policing language today could be your doctor tomorrow. Not so funny now, is it?
Fortunately, some doctors are working to halt and reverse the rise of wokeness in the field of medicine. Goldfarb is the chairman of Do No Harm, a national association of medical professionals dedicated to protecting the healthcare system from nefarious ideologies. According to its website, the organization is “united by a moral mission” to combat “radical, divisive, and discriminatory” agendas. The members have quite a task on their hands—as its website notes, 72 percent of top-ranked medical schools have injected woke ideology into their programs, which undoubtedly poses a grave threat to the country.
I reached out to the people at Do No Harm for comment on the matter. Peter R. Robbio, Goldfarb’s colleague, told me that the organization is focused on fixing the Association of American Medical Colleges (AAMC), a nonprofit that oversees the country’s academic medicine community. Robbio said that AAMC must be stopped from “injecting identity politics in the hiring process for medical school professors, requiring agreement with identity politics as a prerequisite for tenure, and making it part of the admission requirements for future doctors.” The AAMC, he continued, is only interested in “recruiting and creating activists,” not “great medical professionals.” He’s right. Take a look at AAMC’s first-ever report on “Diversity, Equity, and Inclusion in Medical Schools,” which makes for a rather alarming read. The report, which has received very little coverage, clearly demonstrates “just how deep woke ideology has infected medical schools,” according to Robbio.
Some highlights from AAMC’s report include:
Faculty Litmus Tests: 43 percent of medical schools “have promotion and tenure policies that specifically reward faculty scholarship and service on DEI topics.”
Political Advocacy: 75 percent “advocate for policies and/or legislation at a local, state, or federal level related to its diversity, inclusion, and equity mission.”
Affirmative Action: 100 percent “have admissions policies and practices for encouraging a diverse class of students (e.g., holistic admissions policy).”
Diversity over Merit in Faculty Hires: 67 percent “require departments/units to assemble a diverse pool of candidates for faculty positions.”
Wasting Money: 85 percent have “taken action to modify communications, branding, icons, or displays” to better reflect DEI goals, etc.
Politicized Leadership: 99 percent of “institutional leaders [are] active within local, regional, and national forums to promote equity, diversity, and inclusion.”
Doubling Down: 85 percent of “senior leaders used demographic data to promote change within the institution/ school.”
As more medical schools hop on the diversity train, more Americans are in danger of putting their lives in the hands of ill-trained doctors. The country’s healthcare sector is already a hot mess. Reckless, unscientific, unmeritocratic initiatives are making things considerably worse.
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Could Musk be our generation's Paul Revere?
+++Censorship by surrogate: Why Musk’s document dump could be a game changer
By Jonathan Turley
“Handled.” That one word, responding to a 2020 demand to censor a list of Twitter users, speaks volumes about the thousands of documents released by Twitter’s new owner, Elon Musk, on Friday night. As many of us have long suspected, there were back channels between Twitter and the Biden 2020 presidential campaign and the Democratic National Committee (DNC) to ban critics or remove negative stories. Those seeking to discuss the scandal were simply “handled,” and nothing else had to be said.
Twitter’s ex-safety chief, Yoel Roth, later said the decision was a “mistake” but the story “set off every single one of my finely tuned APT28 hack and leak campaign alarm bells.” The reference to the APT28 Russian disinformation operation dovetailed with false claims of former U.S. intelligence officers that the laptop was “classic disinformation.”
The Russian disinformation claim was never particularly credible. The Biden campaign never denied the laptop was Hunter Biden’s; it left that to its media allies. Moreover, recipients of key emails could confirm those communications, and U.S. intelligence quickly rejected the Russian disinformation claim.
The point is, there was no direct evidence of a hack or a Russian conspiracy. Even Roth subsequently admitted he and others did not believe a clear basis existed to block the story, but they did so anyway.
Musk’s dumped Twitter documents not only confirm the worst expectations of some of us but feature many of the usual suspects for Twitter critics. The documents do not show a clear role or knowledge by former Twitter CEO Jack Dorsey. Instead, the censor in chief appears to be Vijaya Gadde, Twitter’s former chief legal officer who has been criticized as a leading anti-free speech figure in social media.
There also is James Baker, the controversial former FBI general counsel involved in the bureau’s Russia collusion investigation. He left the FBI and became Twitter’s deputy general counsel.
Some Twitter executives expressed unease with censoring the story, including former global communications VP Brandon Borrman, who asked, “Can we truthfully claim that this is part of the policy?” Baker jumped in to support censorship and said, “It’s reasonable for us to assume that they may have been [hacked] and that caution is warranted.” Baker thus comes across as someone who sees a Russian in every Rorschach inkblot. There was no evidence the Post’s Hunter Biden material was hacked — none. Yet Baker found a basis for a “reasonable” assumption that Russians or hackers were behind it.
Many people recognized the decision for what it was. A former Twitter employee reportedly told journalist Matt Taibbi, “Hacking was the excuse, but within a few hours, pretty much everyone realized that wasn’t going to hold.”
Obviously, bias in the media is nothing new to Washington; newspapers and networks have long run interference for favored politicians or parties. However, this was not a case of a media company spiking its own story to protect a pal. It was a social media company that supplies a platform for people to communicate with each other on political, social and personal views. Social media is now more popular as a form of communications than the telephone.
Censoring communications on Twitter is more akin to the telephone company agreeing to cut the connection of any caller using disfavored terms. And at the apparent request of the 2020 Biden campaign and the DNC, Twitter seems to have routinely stopped others from discussing or hearing opposing views.
The internal company documents released by Musk reinforce what we have seen previously in other instances of Twitter censorship. A recent federal filing revealed a 2021 email between Twitter executives and Carol Crawford, the Centers for Disease Control and Prevention’s digital media chief. Crawford’s back-channel communication sought to censor other “unapproved opinions” on social media; Twitter replied that “with our CEO testifying before Congress this week [it] is tricky.”
At the time, Twitter’s Dorsey and other tech CEOs were about to appear at a House hearing to discuss “misinformation” on social media and their “content modification” policies. I had just testified on private censorship in circumventing the First Amendment as a type of censorship by surrogate. Dorsey and the other CEOs were asked about my warning of a “‘little brother’ problem, a problem which private entities do for the government that which it cannot legally do for itself.” In response, Dorsey insisted that “we don’t have a censoring department.”
The implications of these documents becomes more serious once the Biden campaign became the Biden administration. These documents show a back channel existed with President Biden’s campaign officials, but those same back channels appear to have continued to be used by Biden administration officials. If so, that would be when Twitter may have gone from a campaign ally to a surrogate for state censorship. As I have previously written, the administration cannot censor critics and cannot use agents for that purpose under the First Amendment.
That is precisely what Musk is now alleging. As the documents were being released, he tweeted, “Twitter acting by itself to suppress free speech is not a 1st amendment violation, but acting under orders from the government to suppress free speech, with no judicial review, is.”
The incoming Republican House majority has pledged to investigate — and Musk has made that process far easier by making good on his pledge of full transparency.
That may be why political figures such as Hillary Clinton have enlisted foreign governments to compel the censoring of fellow citizens: If Twitter can’t be counted on to censor, perhaps the European Union will be the ideal surrogate to rid social media of these meddlesome posters.
The release of these documents has produced a level of exposure rarely seen in Washington, where such matters usually are simply “handled.” The political and media establishments generally are unstoppable forces — but they may have met their first immovable object in Musk.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
Meanwhile, I recently watched an ad stating diversity was positive for our nation implying a variety of ideas provided us breadth. Obviously, America is a melting pot and diversity "can" be a positive force but to suggest this as a fact is pure propaganda. I submit, allowing large numbers of radical Palestinians, Muslims and Islamists has not always been a positive development and, in fact, has led to turmoil and discord and, most particularly, has seeded the current rise in antisemitism.
There are far too many mass media instances when subtle interviews are allowed to go unchallenged . Time and again a reporter fails to ask follow up questions thereby allowing unchallenged responses to suggest they are benign when, in fact, they are not only false but also radical and dangerous.
Because education no longer focuses on critical thinking fewer and fewer citizens are capable of questioning what they hear. No wonder we elect far too many disappointments resulting in less respect for those who govern us.
I also recently attended a random presentation by a state senator and representative. They were excellent. They were informed, balanced in their judgement, capable of responding in an intelligent manner and I left proud I had voted for them.
This is what Musk's Twitter revelations are all about. Social media technology has reached the level where single sourced information has reached a very dangerous level and withholding Hunter Biden's computer revelations may well have swayed the 2022 election. Add to this ballot harvesting etc. and democratic elections cannot prevail.
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