Daily Archives: June 20, 2020

But even in those liberal bastions, the movement is running into resistance.

These are very blue places, yet were still seeing this kind of dynamic with police spending skyrocketing and cuts to community resources and community-led programs, said Kumar Rao, director of justice transformation at the Center for Popular Democracy, a liberal Brooklyn-based advocacy group. This is a political issue on one level, but its actually very much a bipartisan problem.

In the nations capital, Mayor Muriel Bowser had BLACK LIVES MATTER painted on the street leading to the White House after federal officers forcibly cleared out protesters with tear gas and rubber bullets to make way for a presidential photo op outside a historic church. A day later, Black Lives Matter activists painted DEFUND THE POLICE next to the original message.

Bowser, however, has proposed a 3.3 percent increase, to $578 million, in police spending in the city's fiscal year 2021 budget. She told NPR last week that she was not at all reconsidering her position.

We fund the police at the level that we need it funded, she said.

That stance is at odds, however, with the city council, which has been inundated by the public outcry for police reform. Dozens of public witnesses testified at a six-hour virtual Metropolitan Police Department budget oversight hearing Monday in opposition to increased police spending.

More than 500 had people signed up to testify, and members of the public submitted more than 15,000 written, video and phone submissions, the local news site DCist reported, noting that the list of speakers was cut off due to time constraints. In contrast, only 22 people spoke at last years police budget hearing.

The theme was clear in the testimony, which was a call to evaluate the budget of the Metropolitan Police Department, make appropriate cuts and redirect the funding to meet the needs of residents that have suffered from over-policing and other government disinvestment, said Kenyan McDuffie, a member of the D.C. Council and chair pro tempore.

In a phone interview, McDuffie told POLITICO the council has been responsive to the publics suggestions and is likely to cut the police departments budget to reinvest in the communitys priorities, despite Bowsers opposition. He noted that the council unanimously passed a series of police reforms last week but warned that police reform is only one step in dismantling systemic racism and structural inequities.

The budget process is continuing to play out in D.C., with budget markups set for next week. The full council is scheduled to hold its first vote on the budget on July 7, and the final vote is expected July 28.

The District is just one of dozens of cities from the East Coast to the West Coast grappling with the message behind the defund police motto. To critics, its a literal call to bankrupt and abolish police departments. But to many leaders, its a call to reform policing; rethink when, where and how police should be deployed; cut police budgets; and invest more money in communities, instead of in policing communities.

"You ask people what does defunding the police mean you ask three people, youll get three different opinions," Los Angeles Mayor Eric Garcetti told California Playbook in a virtual interview Tuesday. But I think what is crystal clear to all of us is that we are underfunding black communities whether its economic development, whether its education, whether its health and other communities of color.

Garcetti said he supported a reevaluation of police funding but did not embrace calls to fully defund or dismantle police departments.

Rashad Robinson, executive director of the racial justice organization Color of Change, noted that activists across the country are seeing a movement of cities beginning to examine their budgets more closely amid calls to defund police.

Budgets are moral documents, right? They say what our values are, he said. Beyond any rhetoric, beyond words, they tell the story of what we actually hope to achieve by what we put money in, and far too often, when we have problems in our society, we seek to solve them with people with guns.

Hundreds of residents and activists have flooded virtual council meetings in city after city with calls to defund and reform police departments. According to a POLITICO analysis of city budgets, crime statistics and census data, theres no direct correlation between police spending and crime.

The grassroots energy overwhelming city councils comes in the wake of George Floyds killing at the hands of a white Minneapolis police officer on May 25. Floyds death led to global protests against police brutality and racism, and defund the police an idea decades in the making became a rallying cry.

Minneapolis city council has since unanimously passed a resolution to disband its police department and replace it after a year of research and community engagement. But Mayor Jacob Frey and Police Chief Medaria Arradondo want to reform the department rather than dismantle it.

In New York, Mayor Bill de Blasio earlier this month pledged to cut the police departments funding. De Blasio failed to specify how much he would curb spending, but the city council is eying a cut of nearly 20 percent after calling for a 7 percent reduction weeks earlier. The council has a July 1 deadline to pass a budget.

Atlantas city council has a special meeting to adopt its budget Friday, a week after 27-year-old Rayshard Brooks was fatally shot by police outside a Wendys drive-thru. Mondays nearly 12-hour council meeting included the playing of nearly 500 public comments that were submitted.

The council approved two resolutions urging the city and the state Legislature to adopt policies implementing comprehensive police reform and calling for a report of recommendations for the citys approach to public safety, including systematic changes to policies and reinventing the culture of policing, to be submitted by Dec. 1.

Mayor Keisha Lance Bottoms, a contender to become Bidens running mate who signed an order this week to reform the police departments use of force, has said Atlanta is ahead of the curve because its already in the process of reallocating public safety funds.

But the city council is poised to add about $12 million to the police departments budget when it votes Friday, according to Felicia Moore, the councils president. Moore told POLITICO that city officials had pledged last year to increase police spending for four years following a study by the Atlanta Police Foundation that found Atlanta officers were paid well below the median rates.

I cant speak for what their votes will be, but I would tend to think that reneging on a promise to keep our salaries competitive would be something that they wouldnt want to do, Moore said.

All the moneys not gonna be spent on the day that we adopt a budget, she added. They may go back and revisit the budget and make some adjustments. I just think the issue came up in a time frame that doesnt give the council a full opportunity to make the decision to defund the police department right now.

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'Defund the police faces skepticism even in deeply liberal cities - POLITICO

Megyn Kelly(Mike Segar/Reuters)The lesson seems to be: Liberals will suffer no grave consequences for proving Megyn Kelly was correct about blackface, unless they bring up Megyn Kelly.

The best-known person to suffer serious adverse consequences pertaining to the wearing of blackface makeup is, as far as I can tell, Megyn Kelly. Kelly has not worn blackface recently. No one has claimed that she ever wore blackface at all. Yet she was shown the door at NBC two years ago after casually remarking that when she was a kid 35, maybe even 40, years ago many people thought it was okay to wear blackface. Kelly drew a distinction between wearing blackface in a respectful manner and wearing it to disparage.

That second point blackface can be worn without mockery of black people is perfectly obvious. No one thought Laurence Olivier or Orson Welles was doing a demeaning minstrel act when they wore blackface as Othello. If darkening ones skin is an unspeakable insult, then we should all consider it egregious that the light-skinned Ben Kingsley put on makeup to play the brown-skinned Mohandas Gandhi in Gandhi. No, its not the object per se the makeup that is offensive; it is the items usage as part of a nasty satiric putdown of black people that makes it a racist insult.

As for Kellys first point, that wearing blackface used to be considered acceptable, well. Liberal Hollywood comic Jimmy Kimmel wore blackface in 2003, while lampooning black speech, in a skit in which he played NBA star Karl Malone. Liberal Hollywood actor David Cross wore blackface, in a 2015 sketch on episode three of the show W/ Bob & David. (Netflix pulled the entire episode this week.) Liberal Hollywood actor Ben Stiller wore blackface in Zoolander in 2001. Liberal Hollywood actor Billy Crystal wore blackface at the 2012 Oscars while mimicking the late Sammy Davis Jr.

Liberal Hollywood actor Sarah Silverman wore blackface in a 2007 Comedy Central sketch. Liberal Hollywood comic Jimmy Fallon wore blackface, imitating Chris Rock, in a 2000 Saturday Night Live skit. After liberal Hollywood actor Ted Danson wore blackface while doing a sort of parody of minstrelsy at a 1993 Friars Club roast he had been dating Whoopi Goldberg Howard Stern did a parody of Dansons act in blackface. Most notably, Robert Downey Jr. scored an Academy Award nomination for wearing blackface in Tropic Thunder in 2008. Even Tom Hanks, in 2004, yukked it up in a skit with a guy who wore blackface (and African garb, and an afro) during a school fundraiser. All of these incidents are much more recent than Kellys childhood.

As for political figures, worldwide liberal icon Justin Trudeau wore blackface so many times he cant even remember them all, and the liberal governor Ralph Northam of Virginia may have worn blackface, or perhaps it was a Klan hood, who knows? Journalists never bothered to find out.

Some of these people apologized for being racist, while others insisted anyone who took umbrage was missing the joke. In my defense, Tropic Thunder is about how wrong [blackface] is, so I take exception, Downey recently told Joe Rogan on the latters podcast. Youll note that the list of names doesnt carry a lot of right-leaning personalities, though Stern in 1994 ran for governor of New York as a libertarian and Downey seems to have some conservative tendencies, even if he starred in a campaign video to promote the presidential candidacy of Hillary Clinton. Fallon, formerly considered apolitical, shed that label when, after he was deemed insufficiently antagonistic toward Donald Trump on his TV show, he apologized and made a donation in Trumps name to a group that defends illegal immigrants. Wearing blackface seems to be largely a liberal pastime. Still, Downeys defense is correct: The joke is usually not, Black people are ridiculous, as in the old vaudeville acts.

Thats a validation of Kellys point: Blackface can be worn for purposes other than racist ones. Blackface can even be anti-racist; the point of the David Cross sketch that Netflix will no longer let you see is that a white motorist (played by Cross) who antagonizes a cop is treated calmly but a black motorist (played by Cross in makeup) who behaves perfectly normally may cause a cop to panic and reach for his pepper spray. The sketch depends on makeup because its the same guy in both situations. People wont be able to judge for themselves, though, since the sketch has been yanked, and Cross will now have to deal with being forever linked to blackface in news stories that suggest he did something so egregiously wrong that his work had to be removed by its distributor.

Why, though, are so many liberals so fascinated with wearing blackface that theyre willing to take a gamble on it, all these years later? What would Freud say? This brings us to a bizarre Washington Post story about a 54-year-old party guest (Ill omit her name) who wore blackface to political cartoonist Tom Toless Halloween party in 2018. The woman who wore blackface is not a public figure, so what she wore to a Halloween party two years ago does not rise to the level of news, yet the Post this week devoted several thousand words to this incident, making the person in question a public figure, getting her fired, and, perhaps, ruining her life.

The female partygoer is a liberal who often participates in marches for progressive causes. And the intent of her blackface getup was to ridicule . . . Megyn Kelly. She wore a button that read, Hello, Im Megyn Kelly. The joke was obviously that Kelly had been insensitive to the blackface issue, but the woman apologized to the host of the party the next day and said shed made a mistake. Still, years later her employer dropped her when it got wind of the Post expose.

So that makes two people who have lost jobs over blackface: Megyn Kelly, and a random woman who mocked Megyn Kelly. The lesson seems to be: Liberals will generally suffer no grave consequences for proving Megyn Kelly was correct about blackface, unless they bring up Megyn Kelly.

Originally posted here:

What Is It with Liberals and Blackface? - National Review

This transcript may contain errors. Be advised that the audio of this podcast serves as the official record.

Anonymous Speaker: [00:00:00] This episode of Crosscut Talks is supported by Alaska Airlines.

Mark Baumgarten: [00:00:09] Hey. Welcome to Crosscut Talks. I'm Mark Baumgarten, managing editor at Crosscut.

Two times this week, the U.S. Supreme Court defied expectations. First when the high court ruled that gay and transgender workers are protected under article seven of the Civil Rights Act. And then later in the week, when it ruled that the Trump administration would not be able to immediately terminate the Obama-era Deferred Action for Childhood Arrivals program. THe decisions were surprising ... and confusing.

The addition to the high court of Justice Brett Kavanaugh nearly two years ago resulted in a bench that we were told tilted decidedly right. So, how was it that Chief Justice John Roberts, appointed by George W. Bush, sided with the more liberal-minded justices on both of these cases. And why was Neil Gorsuch, a Trump appointee, offering the majority opinion in the landmark case cementing LGBTQ rights. Did we misread these justices or is there something else going on here?

This week, I'm speaking with Dahlia Lithwick, a great journalist and noted Supreme Court tracker, about the first of those rulings, why it happened and what it portends for the rest of this term, which she calls the most consequential in her career. It's important to note here that we spoke prior to Thursday's DACA decision.

We also talk about the Washington State Supreme Court, which in another surprising turn, recently issued a letter voicing its support for the current anti-racism movement.

Then, later, I'll bring Crosscut reporter Lilly Fowler on to talk about a community-led effort to shore up support for Seattle Police Chief Carmen Best.

And I've got a programming note here. Next week I'll be speaking with Nikkita Oliver, the activist and lawyer who has been one of the most prominent voices in Seattle's Black Lives Matter movement. If you have any questions for her, send them to me at talks@crosscut.com.

Now, I'm going to ask you to help us out. All of the journalism created by the Crosscut newsroom, including this podcast, is free. But it does have very real costs. As a nonprofit news source, we count on support from our readers, viewers, and listeners to continue producing the stories and conversations that keep you informed and engaged with your community. If this work is valuable to you and you would like to support our journalism, go to crosscut.com/donate.

Okay. On with the show

I'm here now with Dahlia Lithwick. Dalia writes about courts and law for Slate. She also is the host of the podcast Amicus. Dalia, welcome to Crosscut Talks.

Dahlia Lithwick: [00:02:49] Thank you so much for having me.

Mark Baumgarten: [00:02:52] Okay. So we're speaking on the afternoon of Monday, June 15th. THis morning, the Supreme Court handed down a 6-3 decision that extends the Civil Rights Act's employment protections to gay and transgender people. Title seven, right? This is a big decision for the gay and transgender movement. You called it a landmark decision and it caught many people by surprise. And I'm curious, did it surprise you?

Dahlia Lithwick: [00:03:16] It did. Back when this was argued in October, I think at best, maybe you could have hoped that the court was going to do some kind of split-the-baby or narrow decision, right? If they gave any kind of victory to the LGBTQ plaintiffs in this case, the idea that it was going to be just a route, a six to three huge capacious win for the plaintiffs in this case is frankly, I think, astonishing. We saw at oral argument that Neil Gorsuch was kind of surprisingly open to some of these arguments, but the idea that he would author an opinion that I think will be seen as equally consequential to the marriage equality case, maybe more.

So this will be a signal moment, I think, for gay and transgender rights in America. The idea that Neil Gorsuch, joined by John Roberts unequivocally, found that right in title seven, I think it surprised everyone.

Mark Baumgarten: [00:04:25] You know, there's certainly has been a lot of talk about how this sort of goes against the grain of what we expect from Justice Gorsuch. Is there anything that you see from him that this aligns with? You know?

Dahlia Lithwick: [00:04:35] Yeah. I think that the knock on Gorsuch from the left was always that he was very wedded to some of these Scalia notions of originalism, textualism -- you look at the language, it means what it says -- uh, and often in a really crabbed cramped fashion. This is very much a textualist reading, uh, very much looking at the plain language of title seven that precludes the government from discrimination because of race, religion, national origin, and sex. And he reads "because of sex" to clearly sweep in gay and transgender workers that brought suit in these cases. Justice Alito, interestingly, writes his scorching descent, and he tries to put himself in the minds of the people who drafted title seven in 1964, right? And it's interesting because Gorsuch is not interested in trying to commune telepathically with the drafters.

He just looks at the plain language and says, "because of sex" clearly contemplates somebody who is fired if they are a man who is married to a man, as opposed to a woman married to a man. That is because of sex. So, in that sense, it's a, just a straight-on plain textual reading that in some sense, we could have seen that been sort of presaged in other things Gorsuch's done.

Mark Baumgarten: [00:06:06] Is this a sign of how cynical that we've become about the idea of partisan courts that we can't read the nuance of, of really how somebody views the law and that this surprise actually has a great amount of meaning behind it? As far as the way that we look at these judges?

Dahlia Lithwick: [00:06:26] There's a lot of ways to slice the salami here. I've been thinking about it. And I think there is one reading of what happened here, which is just a purely pragmatic reading. We are staring down the barrel, I know we're going to talk about it later, but of probably the biggest term in my career covering the court two decades. The court was not going to sign off on 10 five-to-four decisions, conservative versus liberal, appointees of Republicans versus appointees of Democrats. There was no way going into an election year that they were going to run the board for Donald Trump. And I think that if you look at the whole board, this is actually, at least in hindsight, a little bit of a gimme that you can have a few defections from the conservatives on the court. I don't know that it disproves that this is a very, very partisan court or that judging has become an extremely, an unseemly partisan business.

I think it does say that, in some sense, gay rights in America is a done deal. And you are going to be in some, in the parlance of many, on the right or the wrong side of history for these cases. There's not great arguments left. So this is a, in some ways, an easy case to flip on. THere is no doubt that the evangelical base that voted for Donald Trump, so he would give them, ironically, a Gorsuch and a Kavanaugh, is going to be incensed. And we've seen that in the early reactions to the cases, but I don't think this is an issue that feels very, very dangerous for the court to move to the center on.

I think some of the other cases that are coming down the barrel are going to be harder for the court to bargain with. And in some sense, this was the easy choice.

Mark Baumgarten: [00:08:21] Hmm. Okay. So it was, there was some political calculation here, you think?

Dahlia Lithwick: [00:08:26] I would say that if we know anything at all about Chief Justice John Roberts, we know that he is, first and foremost, an institutionalist. He cares deeply about the esteem and the dignity and the public acceptance of the court as a nonpartisan entity. And if we think about the last couple of years, the only times he's punched back at Donald Trump in a polemical manner is when Donald Trump takes aim at the courts. So he sees it as his job to, in the great tradition of John Marshall, and the great tradition he would say of William Rehnquist, that he clerked for his job is to put the court first.

And so if you reverse engineer the term through the lens of, how does John Roberts in an election year, when trust in other institutions is almost gone, how does he lift up public opinion around the court as an apolitical institution? And there's going to be some decisions where he throws a bone to the left, and it's not hard to look at this case as emblematic of, right ... John Roberts wrote a blistering dissent in the marriage equality case. He is not a fan of advancing a gay rights agenda or writing into law that which Congress has not created. So I think this is just a really savvy, savvy operator doing exactly the thing that he does best. And to suggest that if he was just one of nine justices who could just throw a vote, I think he would have voted against an expansive reading of title seven to protect gay rights. I think he did it for very, very calculated, practical, savvy reasons. It's the same reason, by the way, I think he defected last year on that big census case.

Mark Baumgarten: [00:10:21] Hmm. So, you know, there's a narrative that's going on here, where we had late last week, the Trump administration comes out and ends protections for transgender people in health care. Is Donald Trump out of line with, with where his conservative court is at at this point?

Dahlia Lithwick: [00:10:41] I think it's a really good insight that this court is a little bit trying to telegraph how much it plans to carry water for Donald Trump's agenda. The Jeff Sessions justice department, which then became the Bill Barr justice department, was extraordinary in its attempt to use the Supreme Court, almost to weaponize the Supreme Court, to get what it wanted.

And it did that in a whole bunch of ways. Most notably it would leapfrog cases to the Supreme Court rather than letting them percolate through the lower and intermediate courts. It would just turn to the Supreme Court and say, Save us now. And it did that a bunch of times.

We saw the justice department buck a longstanding norm that said, Look, if the Obama administration was for DACA, this justice department is for DACA. If the Obama administration said title seven sweeps in, uh, gay and transgender workers, this justice depart ... but that didn't happen. We saw the justice department go on the attack on a whole bunch of different issues. And then, as I said, skip intermediate courts altogether, run to the Supreme Court and say, give us relief.

And I think that that was a pattern that at least in my world was really shocking because we've not seen the justice department act as though it was just foot soldiers for the president. And what it meant was you got kind of a pileup of cases where everything was on the front steps of the Supreme Court.

There was no issue that wasn't rushed to the court. And part of the reason I think on Monday we saw the court swat away a whole bunch of second amendment gun rights cases, we saw the court swat away sanctuary city claims, we saw the court refused to get involved in qualified immunity. Case after case after case, we're seeing the court, I think in some ways, say, look, we cannot do absolutely everything Bill Barr has on his Christmas list because there's 5,000 things on his Christmas list. Hmm.

Mark Baumgarten: [00:12:42] Yeah. I mean, I wonder is that, is that, is that the way that the court should work? I mean, or should the court not be taking into account those political considerations?

Dahlia Lithwick: [00:12:52] That is the $40,000 question. I think that's been the age old question is how susceptible the court is meant to be to political winds and to popular opinion and to polling. And certainly that's the reason that judges were given lifetime tenure and they were protected from all of those political headwinds. But I think it's also true that since time immemorial, the courts have taken those political considerations into account. So I think that the court knows -- and this is a gamut by design, this is what the framers wanted, that article three courts have neither the power of the purse or the sword; the only power they have, the only authority they have and the system of checks and balances is public regard. And they have to be mindful of that. And so whether it's explicitly the case that they should take this stuff into account before the 2020 election, it is probably the case that they very much do take this into account before the 2020 election.

And if I could add one coda, I would say the thing I've been saying all year is that almost every big ticket case that is coming down the pike in the next few weeks was actually capable of being argued a year ago. Last spring, the court held almost every one of these issues over because the Brett Kavanaugh confirmation had such a profound effect, roiling public sentiment and trashing the public ratings for the court and really forcing people to have very strong political feelings about the court.

The court is very good in those moments at taking down the temperature. This, I think what you're seeing is a version of the court being just very savvy about taking down the temperature a few notches.

Mark Baumgarten: [00:14:49] So what's at stake in this term. What are the cases that you're keeping an eye on?

Dahlia Lithwick: [00:14:55] This is I think the biggest term of my lifetime, uh, what's coming down the pike in the next weeks. And we don't know exactly when the term is going to end because they stretched it out a little bit after COVID.

But in the next few weeks, we're going to see dACA, which has all those dreamers that you'll remember, President Obama allowed them to stay in the country and to be eligible to work and to go to school. Donald Trump rescinded that by way of a tweet. So whether that rescission was proper is going to be decided, and that will quite literally affect tens and thousands of dreamers who put their faith in the system when DACA was afforded to them as a protection. It will have massive, massive effects on colleges, on businesses who have operated as though those dreamers were here legally and were not subject to deportation.

The other big, big ticket case that everyone's waiting for is June Medical. That is the abortion case out of Louisiana. It's almost a carbon copy of Whole Women's Health, which was a case that was decided only three years ago at the Supreme Court about whether doctors had to have what's called "admitting privileges" in clinics in order to perform abortions within a 30-mile range.

If the court decides -- having decided three years ago that those admitting privileges law in Texas were pretextual, they were just a way to keep clinics close, to keep doctors from being allowed to terminate pregnancies -- if the court decides differently for Louisiana it will only be because Anthony Kennedy left the court, Brett Kavanaugh came on the court.

So it's an incredibly consequential case, not just about the future of Roe V. Wade, but whether the substitution of one justice for another, in a few short years, can fundamentally change the rule of law. So this idea of stare decisis, you know, that precedent means something and it endures, is on the line.

The last and probably the biggest and most political one is those Trump financial records cases. There's two different subpoenas, one coming out of the judiciary committee, one coming out of the New York of Cy Vance's office, both trying to investigate Trump's tax returns among other financial records, right? Both making claims that we thought were pretty open and shut cases after the Paula Jones case, after the Watergate tapes case about being allowed to probe presidential records and presidential actions.

In both cases, Trump, uh, and his justice department have taken the position that he cannot be subject to scrutiny, not by Congress, not by a grand jury in New York. Not ever, not on a plane, not on a train, not on a sox, not in fox. Um, this was the case where famously one of the lawyers argued, even if he shot someone on Fifth Avenue, he couldn't be subject to this kind of scrutiny. So in some sense, this is going to be the test case again, going right into the election, of whether Donald Trump can in fact be completely immune from congressional scrutiny or from scrutiny by a grand jury.

Mark Baumgarten: [00:18:18] And is there a sense on where that case is going to land, what that decision is going to be?

Dahlia Lithwick: [00:18:23] I think I would probably go back to what I said at the beginning, which is I'm trying to look at the whole board and see what gives and what doesn't. Um, if you'd asked me before, uh, the title seven case came down, when I thought maybe, uh, there was going to be a huge blow struck against the workers, the gay and transgender workers of America, I might've felt differently. Now I think this will probably embolden the court, at least in that abortion case and possibly in the DACA case to do something very, very bold in favor of Donald Trump.

And if that's the case, my sense is, looking again at the whole board, that the way to resolve this massive, massive financial records case is to kick it down the road, to say, "Oh, we're going to send it back down to the lower courts, we're going to use some different level of scrutiny, hope the case goes away and resurfaces after the election.

Mark Baumgarten: [00:19:22] I've been keeping a scorecard here and I'll, I'll let you know how you did. So let's talk a little bit more about what about what happened today? Um, you know, the, the court also declined to reconsider, uh, the issue of qualified immunity for police today, an issue that's of major concern to those seeking, um, police reforms right now. Can you tell us briefly what qualified immunity is?

Dahlia Lithwick: [00:19:47] Yeah. This is a really longstanding line of Supreme Court doctrine. And essentially what happens is the police officers and other government workers, you know, people who work in, in prisons, government officials, generally, they are not personally liable unless they violate something that is, quote, a clearly established, right.

And the way the cases have worked out clearly established that that standard is so high, that it is almost impossible to find them liable. Pretty much, you can only be held liable, subject to this qualified immunity standard, if a different court in their own jurisdiction has considered the exact same facts and declared that to be illegal, at which point they should have known that they couldn't do it.

But again, as a practical matter, what it means is nobody ever gets tagged. Nobody ever gets tagged for misconduct. There is so much going on right now and asking the court to take on yet another hot button issue, one that is really the volcano right now in this country, and the court just said, no. Hmm.

Mark Baumgarten: [00:21:06] It makes me wonder about this moment that we're in right now suddenly, uh, re-examining uh, criminal justice in a, in a really kind of radical way that, you know, even a month ago it was not being talked about. And, and it, it makes me wonder about what the court's role is in this moment and by courts, I mean, all of the courts and in particular, the Washington State Supreme court. They drafted a letter, an open letter, earlier this month. And, uh, can I, I'm going to read a part from it:

"Recent events have brought to the forefront of our collective consciousness a painful fact that is, for too many of our citizens, common knowledge. The injustices faced by Black Americans are not relics of the past. We continue to see racialized policing and the over-representation of Black Americans in every stage of our criminal and juvenile justice systems. Our institutions remain effected by the vestiges of slavery, Jim Crow, laws that were never dismantled and racist court decisions that were never disavowed."

So you spoke about this letter in the latest episode of Amicus and I'm, I'm just curious, what is remarkable about this letter to you?

Dahlia Lithwick: [00:22:26] Well, for one thing, it was signed, I believe, by every member of the Washington State Supreme court. Breathtaking, breathtaking that that kind of language and that kind of taking responsibility was signed by everyone. I think that the Massachusetts Supreme Judicial Court did a version of that last week. And I think maybe some other state supreme courts have followed suit.

But I hold it up for contrast against the U.S. Supreme Court, which up until very recently was making claims like, we can dismantle the Voting Rights Act, right? This is the Shelby County case authored by Chief Justice John Roberts. Because we're over race ... race is, it was super bad. But now we're all good. And why subject those poor southern states to the indignity of pre-clearance, you know, when they put voting rules into effect. And I think that that locution, and, you know, it's the thing that John Roberts will be remembered for.

In a, a school busing case, uh, out of Seattle, he wrote famously, you know, the only way to get past race in America is to get past race. So we have to do away with all of these remedial efforts in affirmative action in schools, uh, in voting rights and that way America will go back to being awesome again.

And I think the, the, the blinkered thinking there that, you know, all of the things, all of those vestiges of Jim Crow, uh, all the vestiges of red lining and zoning and systemic, uh, racial, uh, police violence, and over-incarceration, that none of that has a race valence, that's nuts, it's nuts. And, uh, we're seeing now, it seems to me, the reason people are on the streets is even people who have not been subject to those things, to red lining and systemic police violence and over-incarceration, are looking around and seeing these are all vestiges of a centuries-long problem that we never cured. At best we papered over.

And that while John Roberts wants to say, you know, I, I wiped my hands, thank goodness that ugly chapter is over, america is now colorblind, we know that's false. And so if you look at the last few years of doctrine, at least on this question of race coming out of the Supreme Court, that really crabbed vision that everything is okay. And if we just stop worrying about race, race, wouldn't be a problem. I think in a lot of ways, even good liberals were guilty of some of that thinking, right. We were in post-racial America, and Obama was emblematic of how we're all over the problem. And I think the last couple of years have really put that to the lie and the last couple of weeks have really, I think, seared into most of our consciousness, like it or not, that systemic violent brutalizing racism is still a part of us.

For a state Supreme Court to acknowledge that, not just to tinker around the margins, but to say, Holy cow, you know, we in the judiciary have been a but-for contributor to that systemic violence and degradation and lack of dignity, it's such a huge pivot, even from where the courts were, I think, six months ago. I just don't think I've seen that kind of institutional taking responsibility and pledging to do better, not coming out of the courts.

Mark Baumgarten: [00:26:11] Who is the audience for this letter?

Dahlia Lithwick: [00:26:14] Everyone. I think that they were first and foremost, talking to Black and brown people in the state and reckoning with their own complicity in systemic injustice. I think they were talking to lawyers around the state and saying maybe you should reckon with your own complicity. I think they were trying to model something for law students and college students and activists. This is what it looks like to step up and say we were wrong. And I think they were maybe even trying to model something for other judicial bodies around the country.

I think that it was an attempt to say, This does us almost no harm. It doesn't diminish us. It doesn't belittle or degrade us. What it does is it opens a channel to being really, truly honest and it's time, it's long past time.

So I guess maybe I would say, Who weren't they talking to? I think they were trying very, very hard to show the rest of us what it looks like to say, We as a judiciary have been a part of the problem.

Mark Baumgarten: [00:27:27] And so this in a way is also an attempt to shore up the legitimacy of the court. Uh, these do appear to be very honest feelings. They are, they, they are very, very, um, examined feelings, uh, and truths. And this is a cynical way to look at it, but there is this management of like that, that in order for the courts to have power, they need to have buy-in from the people.

Dahlia Lithwick: [00:27:52] I love that you're saying that. I hadn't connected it, but I think what you've just flagged there is, it's hard to do that in an opinion, right? It's very easy to do it in an, an extra judicial letter, to say, we're not going to within the four corners of a written opinion, do mea culpa for, uh, what's come before. But what we are going to say is it is completely patently obvious that we were wrong.

Mark Baumgarten: [00:28:21] Hmm. Well, and I think, and this is brings, brings me to my last question for you. And it's, you touched on it, uh, in, uh, in the last episode of your podcast. You know, we often think about, um, about the laws being this sort of like emotionless sort of space, especially those of us who are out on the outside of it, is that is this place of, you know, logic and argument, but not really of, um, considerations of the humanity of the people who sort of are the gears.

And, and I just wonder if this feels like a moment where, um, where there is some humanity that's being kind of shown here by the people who are the justice system, are the courts. And if this expression is a sign of a sea change within the field of law in general,

Dahlia Lithwick: [00:29:13] I hadn't thought about it as systematically as I should have. And then in that podcast, I was talking, uh, as you'll remember to Angela Onwuachi-Willig, she's the first African-American woman Dean of Boston University Law School. And she had, by the way, for her part, written this extraordinary letter to her students, talking about George Floyd and their pain and right.

One of the things that she said that was really striking to me was we have this, as you just said, very mechanistic, very formalistic, very dry, icy, almost brittle notion of the law and the rule of law and statutory interpretation as these mechanical justice machines. And the more you inject emotion, passion, personal experience, the more that distorts the outcomes, right? Then you get biased outcomes. And what she said, and I think is really true, is that as soon as an African-American woman dean says to her students of color, I see you, I feel your pain, she's accused of being biased and of being emotional and of being sentimental and lacking in rigor. And yet, for 200 years white male deans of law schools have set the terms of the game.

So we have a default where we say all of those mechanistic, formalistic, rigid rules, those are unbiased and fair. And anything else that inflects on that with personal experience is bias. And the best example of this right is Sonia Sotomayor, who famously gave a speech at Berkeley when she was still, uh, on the appeals court, on the federal appeals court, where she talked about a wise Latina woman might come to a different outcome, uh, from a wise, uh, white man.

And you'll remember, she got pilloried for that at her confirmation hearings for the implication that she was biased, right, that she had a thumb on the scale for minorities. And by the way, she renounced it, she was like, Oh, I was wrong. I shouldn't have said that. But the truth is what we now know, is that life experience and where you come from and what you've seen and where you've been and what you know, and what you don't know, because you haven't seen it, all of that affects judging.

And so for judges to pretend that they're just oracles who speak to the framers about some mystical, rigid truth, just carves too many people in too many experiences out of the story. And I think what Sonia Sotomayor was saying, what the dean of BU was saying, what I think by the way, every justice used to say about Thurgood Marshall, is that when you sat in a room with Thurgood Marshall during conference, and he would tell you about Jim Crow, and he would tell you about having to go up the back stairs or the side stairs in a courthouse, or getting punched in the face for being an African-American lawyer, it changes everything for everybody who hears it. And Justice Scalia used to say, Justice Sandra Day O'Connor used to say, Anthony Kennedy would say, we learned so much about what we didn't know from listening to Thurgood Marshall.

And I think. I think what I, what I want to say is not that this makes you biased. It just makes you wiser. It makes you see your blind spots. And the idea that the judicial system, that individual judges are just brains in vats or robots who shouldn't know what they don't know, that's just nuts. And so, I don't even think this is a question of, should they be sympathetic or should they be emotional or should they have extra solicitude for certain communities?

I just think, understand that you've been fed a lie and perpetuated a lie all those times that you've said, this is just a machine. It's not a machine; it's built of human, human experience and human ideas. And for most of history, those were white wealthy male humans, but doesn't make it a machine.

Mark Baumgarten: [00:33:41] Yeah. Dalia. I really appreciate your perspective. Thank you so much for being on Crosscut Talks.

Dahlia Lithwick: [00:33:47] Thank you so much for having me next time. We'll do it face to face in real life.

Mark Baumgarten: [00:33:51] Oh my God. That would be fantastic.

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Mark Baumgarten: [00:34:59] Welcome back to Crosscut Talks. I'm speaking now with Lily Fowler, a staff reporter at Crosscut, and this week Lilly filed a report on a community effort to shore up support for Seattle Police Chief Carmen Best, who has been facing some criticism following her department's response to anti-racism protests.

So Lilly, first, can you tell me about this event that happened on Sunday that you, uh, that you wrote about?

Lilly Fowler: [00:35:22] Sure. It was a gathering of clergy community leaders, a lot of folks who have been part of police accountability groups, trying to hold police accountable. There was 25 clergy community leaders at this church in the Central District and they were there to talk about police accountability and the recent movement. But first and foremost, they were there to defend, um, Carmen Best in her job.

Mark Baumgarten: [00:35:50] Why do people believe that Carmen Best's job is at risk?

Lilly Fowler: [00:35:53] It wasn't clear why they thought her job was at risk. One pastor, a bishop there, said that they were, quote, unquote, subliminal messages about calling for resignation. And I think what he was referring to was there was a press conference the other day between Durkan and Best and some people started to speculate that Durkan might be calling for her resignation at that press conference. And then, as it turned out, nothing happened. But what also surfaced was, it was very clear that Durkan and Best were not on the same page as far as police abandoning the East precinct in Capitol Hill. And so, you know, people have wondered, you know, is that going to escalate? And are we going to see Best lose her job in the next few weeks?

Mark Baumgarten: [00:36:44] Hmm. So who were these people that, uh, that are vocally supporting her? And what are they saying about her?

Lilly Fowler: [00:36:51] So the, the gathering that I wrote about it was a last minute, uh, press conference. They said it was pulled together within 24 hours. And a lot of the people there have been leaders in the community for years with regard to police accountability. One of the first speakers was the mother of Omari, which some, um, younger folks might be familiar with because he's been streaming the protests from Capitol Hill on a regular basis and has been at the forefront.

But his mother is head of Mothers for Police Accountability. And she was there and spoke some pretty powerful words. So they were there basically to defend Best and to say, you know, if any, if there's any fall to go around here, we want that fall to land squarely on Mayor Jenny Durkan and not Best. We're going to defend our first African-American police chief in Seattle, as she's made some mistakes. But this is unprecedented times, she's admitted to those mistakes and we stand behind her 100%.

Mark Baumgarten: [00:37:59] Is this a, uh, is this a generational divide? I mean, you said that, you know, you have Omari who I, I don't know exactly what Omari's politics are on this, but then you have his mother being very vocal about, um, about supporting Best. I mean, is there a, is there a sense that there is sort of an old guard of, uh, community, community leaders in the Black community? And then there is this younger generation that may be, there's a, a difference of opinion here.

Lilly Fowler: [00:38:25] Yeah, definitely. I expected there to be some kind of gulf, but I did not expect it to be that wide. They spoke for over an hour at this church. And there was not one word about defunding the police.

Now, I followed up with some of them after the meeting. And so when I talked to some folks one-on-one, then they said, well, you know, one pastor said he was, he could see defunding the police. And he would be supportive of that. Others said that we'd have to look more closely at the budget. Some said they were outright against it. So there's a variety of opinions. But the, the emphasis was definitely different than what you hear from protesters out on the street.

Black clergy have often been at the forefront of civil rights movements. And when I reported on all of the protests in Ferguson, Missouri, after the death of Michael Brown, There was a lot of talk about how Black clergy then had sort of taken a step back and, and, and young leaders were at the forefront and that's happening here today. But the gulf is even wider, I would say, because whereas then the talk was still about police reform, now a lot of the protesters are just calling for outright defunding the police. And I think it's going to take some time before maybe some of the old guard and the, and the younger protestors land on the same page.

Mark Baumgarten: [00:39:56] Hmm. You know, one of the interesting things, I think one of the most striking quotes from your story was actually about, uh, one of these leaders perspective towards the Capitol Hill Occupied Protest or the, uh, Capitol Hill Autonomous Zone, whichever way you're calling it. What was the view of that protest? Can you, can you tell us, um, what, what they said?

Lilly Fowler: [00:40:18] Yes, it was clear to her. She just thought it was a distraction that, you know, it was these kids playing around, mostly white kids in Capitol Hill, camping out, doing their thing and, and in a way co-oped in the movement, that it was a distraction from the main message about police brutality. And she didn't sound particularly angry about it. She just signed it like this always happens and you know, it was very dismissive of it.

Mark Baumgarten: [00:40:47] Hmm. So, what does this all mean for the anti-racism movement and for Carmen best?

Lilly Fowler: [00:40:55] Well, I think that the clergy got their message out, I think Best is more secure in her position. But I think it also raises some pretty serious questions about where exactly, how this is going to move forward. There are city council members who have said they agree with the call to, to defund police, but is it going to get messy if more and more people jump in and say, well, I don't know. I don't know if we agree with that.

And if that's the case and where do we, how do we compromise on that and how do we move forward? So it'll be interesting to see what happens in the, in the next few months.

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