Tag: hit&run

The Times caused a freakout yesterday when it both misleadingly reported that the Trump administration was poised to issue an executive order “redefining Judaism as a nationality,” and failed to provide any context, including the fact that both the Bush II and Obama administrations had used the same reasoning as the Trump executive order, to wit: Jews are covered by Title VI’s prohibition on race and national-origin discrimination to the extent that such discrimination is based not on hostility to Jews as a religion, but to Jews as an ethnic group with perceived common characteristics. Its initial report also failed to note that the liberal antisemitism watchdog group, the ADL, which is no friend of the Trump administration and has been highly–and at times unfairly, as when its officials falsely blamed Trump for inspiring a rash of bomb threat hoaxes in 2017–critical of Trump with regard to antisemitism, supports the executive order.

After causing the freakout, the Times improved but didn’t really correct its piece, and was pilloried on Twitter, including by liberals, for its bad reporting.

Unfortunately, this didn’t dissuade the Times, which tonight posted a hit piece on Ken Marcus, head of the Department of Education’s Office of Civil Rights, for his role in the executive order. (Conflict of interest watch: I know and like Ken.) You will not learn from this piece that the executive order originated in language from a bill sponsored by Democrats, nor that it has direct antecedents in Obama and Bush II administration policy. Instead, the reporter, Erica Green, asserts that Marcus “has asserted a Jewish ‘national origin’ by fiat,” as if it didn’t reflect policy established in the Bush administration and adhered to by the Obama administration.

Either Ms. Green didn’t bother to inquire about the history of the relevant Title VI controversy, which makes her incompetent, or she did, and it makes her dishonest. Either way, it’s further evidence that anyone who wants objective, competent news reporting about the Trump administration can’t look to the Times.

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The Supreme Court on Monday declined to hear a case challenging the way local government across the U.S. deal with home developers.

Cherk v Marin County. is a lawsuit brought by Dart and Esther Cherk against Marin County, California, in which the pair challenged the county government’s $40,000 fee to subdivide a vacant plot of land they owned and had hoped to sell.

The fee was part of a Marin County ordinance that requires people subdividing parcels of land to either devote a portion of that land to affordable housing or else pay an in-lieu affordable housing fee.

The intention of the law was to combat the sky-high housing costs in Marin County, which is located just north of San Francisco. The Cherks countered that subdividing their land did nothing to make housing less affordable, and therefore there was no reasonable relationship between the fee they were being charged and the problem the county was trying to address.

“When government conditions a building or other permit there has to be some relationship between the condition and the demand. They can’t just make unreasonable demands,” says Jeffrey McCoy, an attorney with the Pacific Legal Foundation, which represented the Cherks.

If a new business development were likely to increase traffic, a local government would have the right to require the developer create a traffic mitigation plan before granting them a permit, McCoy says. But the county couldn’t require the developer to plant more trees.

Similarly, without showing that reasonable relationship between subdividing their lot and housing prices, says McCoy, the government was placing an unconstitutional condition on the Cherks’ lot split in violation of the Fifth and 14th Amendments.

This argument has significance well beyond just the Cherks: it could potentially be used to invalidate hundreds of “inclusionary zoning” ordinances passed by local governments across the country.

These policies differ in their specifics but they typically require private developers to rent a portion of new units in their projects to lower-income renters. Local governments have used this policy as a way of creating affordable housing without having to pay for it out of public coffers.

Recent research suggests that inclusionary zoning is not very effective at achieving its goals. One study, published by George Mason University’s Mercatus Center, found that these laws just encourage developers to build more profitable but harder-to-lease luxury buildings, with the higher rents being used to recoup the costs of the below-market units they’re forced to build.

If the Cherks had been able to get their case before the Supreme Court and convince a majority of the justices to rule in their favor, local governments around the U.S. would no longer be able to condition permits on the creation of affordable units. This is broadly the standard the Supreme Court has taken in past land use cases, holding that regulatory requirements put on building permits must bear a rational, proportional relationship to the impacts they seek to mitigate.

Lower courts, however, have been reticent to apply this test to inclusionary zoning ordinances, reasoning that these laws are not intended to mitigate the effects of new development, but are instead meant to further the government’s legitimate interest in making housing affordable.

Both the Marin County Superior Court and the California Court of Appeals deployed this reasoning in their rulings siding with Marin County, saying that the development fees it had imposed on the Cherks were well within the county’s ability to regulate land use.

Now that the Supreme Court has declined to take up the case, those lower court rulings stand. CityLab noted back in October that the court has passed on several other opportunities to take up cases involving inclusionary zoning.

McCoy says that he hopes the Court returns to these land use issues again. The current regime gives the government far too much power over people’s property, he says.

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Lots of my friends on social media were up in arms over a New York Times report last night that stated that the Trump administration was poised to sign an executive order that would “interpret Judaism as a nationality.” [The latest version of the Times’s article more accurately says “race or nationality,” but that’s still misleading without proper context.] People jumped to a lot of false or exaggerated conclusions based on this misleading account of the order. Here’s what the order actually says:

Title VI of the Civil Rights Act of 1964 (Title VI),42 U.S.C. 2000d et seq., prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member ofa group that shares common religious practices. Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.

It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.”

The only question at issue is whether discrimination against Jews as an ethnic group, as opposed against Jews as a religious group, is covered by Title VI. Jews are already covered as a “race” under other civil rights legislation (see the Shaare Tzedek case). It was the policy of the Bush II administration Department of Education, and has been the policy of the Trump Administration’s Department of Education, to hold that Jews are similarly protected under Title VI from discrimination when the discrimination is motivated by racism rather than by religious bias. To my knowledge, the Obama administration never explicitly repudiated that policy, but also generally declined to use Title VI in this way.

The executive order does not meant that the Trump administration is declaring that Jews are, objectively speaking, a nation or a race. Rather, it’s that Jews are protected as a nationality or race if discrimination against them is motivated by the perception that they are a nationality or race. Consider Hispanics. Hispanics are not a “race,” and indeed can be from any racial group. But no one would raise an eyebrow to discover that Hispanics are protected from discrimination based on race or national origin if subject to discrimination by someone who hates Hispanics as a group.

In short, the executive order is neither novel nor a big deal in its protection of Jews under Title VI.

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A leading architect of Brexit is warning that the selection of Jeremy Corbyn as British prime minister could plunge his country into could lead to a Venezuelan-style descent into authoritarian neo-socialism.

Tomorrow’s U.K. election pits the ruling Conservative Party, led by current prime minister Boris Johnson, against the Labor Party, led by Corbyn, who has called for large tax hikes, new regulations and controls on business, and massive increases on spending.

“I don’t think it’s a figure of speech” to suggest Corbyn’s rise to power could lead to the economic and civic decline of England, says Daniel Hannan is a Conservative politician who represents Britain in the European Union’s parliament. He’s one of the leading architects of Brexit and the author of books such as The New Road To Serfdom and Inventing Freedom: How the English-Speaking Peoples Made the Modern World.

“When I was growing up in Peru,” says the 48-year-old Hannon, who was born in Lima, “Venezuela was a country that people immigrated to, uh, in the 1950s…. The idea that it couldn’t happen here, which is dangerously complacent and recurrent theme in both British and American politics, I just don’t think is borne out.”

In a wide-ranging conversation with Nick Gillespie, Hannan explains why British libertarians voted overwhelmingly in favor of Brexit, the urgency of honoring the results of the 2016 referendum in which 52 percent of voters called for leave, and the global rise of “Bannonism and Bernie-ism,” or right-wing and left-wing populism.

For a video version of this interview, go here.

Audio production by Ian Keyser.

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Despite all the speculation about statutes that Donald Trump might have violated in his dealings with Ukraine, the two articles of impeachment unveiled yesterday are conspicuously lacking in specific criminal allegations. Instead, the articles allege that the president abused his powers by pressuring Ukraine to conduct investigations that would benefit him politically and that he improperly obstructed a congressional investigation of that abuse. To my mind, there is compelling evidence that he did both of those things.

Unfortunately, the record is not as complete as it could have been, as George Washington University law professor Jonathan Turley pointed out during his congressional testimony last week. The gaps in the case against Trump are big enough that his supporters can and will dismiss impeachment as a purely partisan exercise without losing any sleep about the broader issues at stake.

There were sound legal reasons for not accusing Trump of statutorily defined crimes. The most recently floated possibility, bribery, would require showing that Trump solicited “anything of value” (in this case, an investigation of his political rival) “in return for…being influenced in the performance of any official act” (in this case, the release of congressionally approved military aid to Ukraine that Trump had blocked). Even assuming the quid pro quo that circumstantial evidence and testimony by current and former administration officials strongly suggest, it is not clear that the “major investigation into the Bidens” Trump wanted would qualify as “anything of value.” Turley argues that “the release of unspecified findings from an official investigation at some unspecified date are not a ‘thing of value’ under any reasonable definition of the statute.”

There is a similar problem with defining the “favor” that Trump sought from Ukrainian President Volodymyr Zelenskiy as an illegal foreign campaign contribution. The relevant statute makes it a crime to solicit “a contribution or donation of money or other thing of value…in connection with a Federal, State, or local election” from a foreign national. The Federal Election Commission defines “thing of value” broadly: “‘Anything of value’ includes all ‘in-kind contributions,’ defined as ‘the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.'” But as Turley notes, Justice Department prosecutors who reviewed Trump’s July 25 phone call with Zelenskiy “concluded that the call did not involve a request for a ‘thing of value’ under the federal law.”

Furthermore, a felony charge under this statute requires that the contribution be worth at least $25,000, which would make it necessary to attach a dollar value to the speculative benefit that Trump’s re-election campaign would receive from a Ukrainian investigation of the implausible allegation that Biden used his influence as vice president to protect his son. Finally, if dirt on Biden qualifies as a campaign contribution, so would compromising information about any candidate, which raises serious First Amendment issues.

Turley also considers the possibility of framing Trump’s actions as extortion, which they certainly resemble as the term is commonly understood. “Extortion cases involve tangible property, not possible political advantage,” he says in his summary of the case law. “The Biden investigation may have tangible political benefits, but it is not a form of property.”

Turley, an expert on impeachment, emphasizes that “high crimes and misdemeanors” are not limited to statutory violations. “It is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power,” he says. “His [Trump’s] call was anything but ‘perfect’ and his reference to the Bidens was highly inappropriate….The use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.” But Turley faults the House for rushing the process to meet a politically convenient goal of impeaching Trump by the end of this year.

“The House Intelligence Committee declared that it would not subpoena a host of witnesses who have direct knowledge of any quid pro quo,” Turley says. “Instead, it [would] proceed on a record composed of a relatively small number of witnesses with largely second-hand knowledge.” One can quibble with that characterization, since the record includes testimony about direct interactions between Trump and Gordon Sondland, the U.S. ambassador to the European Union, as well as between Sondland and Trump’s personal lawyer, Rudy Giuliani, whom Sondland understood was acting as the president’s agent. But it’s true that the case for a quid pro quo is based mainly on inferences and indirect evidence.

The decision not to subpoena directly relevant witnesses such as Giuliani, former National Security Adviser John Bolton, and acting White House Chief of Staff Mick Mulvaney was based on a desire to avoid time-consuming court battles over whether they could be compelled to testify. But as Turley notes, rulings involving Trump’s financial records and the testimony of former White House Counsel Don McGahn suggest that Congress would have won those battles. Turley argues that litigation over documents sought by Congress and the testimony of Giuliani et al. could have been expedited, as similar litigation was in the Watergate investigation. Once Trump was confronted by court orders requiring his cooperation with the Ukraine investigation, Turley suggests, Congress would have been on firmer ground in accusing him of obstruction.

“One can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president,” Turley says. “This is an exceptionally narrow impeachment resting on the thinnest possible evidentiary record.”

I have little doubt, based on the existing record, that Trump did, in fact, abuse his powers to serve his personal interests. But Turley is right that Congress could and should have done more to rebut Trump’s defenses: that his desire for an investigation of the Bidens was based on a legitimate concern about official corruption in Ukraine and that, in any case, it was not connected to the delivery of military aid. While that first claim strikes me as wildly implausible, there is enough doubt about the quid pro quo to satisfy Republicans, even if they privately agree that Trump’s request was inappropriate.

“The question for the House remains whether it is seeking simply to secure an impeachment or actually trying to build a case for removal,” Turley says. “If it is the latter, this is not the schedule or the process needed to build a viable case. The House should not assume that the Republican control of the Senate makes any serious effort at impeachment impractical or naïve. All four impeachment inquiries have occurred during rabid political periods. However, politicians can on occasion rise to the moment and choose principle over politics.”

As the record stands, it is not likely to persuade anyone who was otherwise inclined to support Trump, meaning we will get a party-line impeachment in the House, followed by a party-line acquittal in the Senate. What should have been a debate about the limits of tolerable presidential behavior has instead become another bitter partisan squabble signifying nothing but reflexive allegiance to arbitrarily defined tribes. While impeachment is inherently a political process, it cannot properly function as a check on presidential power when the public believes it is driven by nothing but politics.

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Here’s what the ACLU of Washington has said about the controversy (which I wrote about yesterday), as quoted by KIRO7 (Deedee Sun):

“If the public library canceled it based solely on the views espoused by WOLF, then yes, I think it would be problematic and in violation of the first amendment,” said Lisa Nowlin, a staff attorney for the ACLU. Nowlin has worked on both first amendment cases and cases involving transgender rights.

“If the KKK wanted to hold a private event and rent a room there, they still could?” asked KIRO7’s Deedee Sun.

“Yes, they could. There are caveats there based on the scenario. But they couldn’t be denied based solely on their views and the fact that we disagree with their views, and the fact that their views are harmful,” Nowlin said….

The Gender Justice League had written,

A hate group using the library as a venue to “critique” the existence of a minority group creates a hostile environment and is unacceptable.

Here’s the Women’s Liberation Front (WoLF) summary of their panel:

Fighting the New Misogyny

A Feminist Critique of Gender Identity

Over the last several years, transgender activism has made sweeping gains. From local school boards to the Democratic Party to legislatures around the world, proponents of this ideology have succeeded in positioning “gender identity” as the social justice issue of our day.

But are the claims made by these activists actually true, or even coherent? What does it mean to say that people can be “born in the wrong body”? Does the concept of “gender identity” break down stereotypes about the nature of men and women, or does it reinforce them? And what about the rights of women and girls?

Women’s Liberation Front is proud to announce an event that will tackle these issues head on.

On February 1, 2020, Meghan Murphy, Saba Malik, and Kara Dansky will give a critical analysis of gender identity and make powerful arguments for sex-based women’s rights. The event will take place at the beautiful Seattle Central Library in downtown Seattle, Washington.

Writer Meghan Murphy will speak on the philosophical and political problems in the claims made by proponents of gender identity. Feminist and environmentalist Saba Malik will address the way gender identity advocates compare transphobia with racism and why this is both inaccurate and offensive. Lawyer Kara Dansky will explain the significance of female erasure in the law and how feminists are fighting back. A Q and A session moderated by writer and activist Lierre Keith will follow.

Seems to me like an important and far from “unacceptable” part of the debate on gender identity matters, whether or not one ends up agreeing with this position (though I can’t speak, of course, to exactly what will be said on the panel).

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According to a Justice Department press release,

A man who enlisted his cousin to break into a Cedar Rapids man’s home and order him at gunpoint to transfer an Internet domain was sentenced today to 14 years in federal prison.

Rossi Lorathio Adams II, age 27, from Cedar Rapids, Iowa, also known as “Polo,” received the prison term after an April 18, 2019, jury verdict finding him guilty of one count of conspiracy to interfere with commerce by force, threats, and violence.

The evidence at trial showed that Adams founded the social media company “State Snaps” while a student at Iowa State University in 2015.  State Snaps operates on a variety of social media platforms, including Snapchat, Instagram, and Twitter.  At one time, Adams had over a million followers on his social media sites, which mostly contained images and videos of young adults engaged in crude behavior, drunkenness, and nudity.  In 2015, a Des Moines area television station aired a news segment in which Adams, who in the interview would only identify himself as “Polo,” was continuing to operate his social media sites despite the objections of Iowa State University administrators and the policies of the social media platforms.

Adams’ followers often used the slogan, “Do It For State!”  Adams tried to purchase the Internet domain “doitforstate.com” from a Cedar Rapids resident who had registered the domain with GoDaddy.com.  Between 2015 and 2017, Adams repeatedly tried to obtain “doitforstate.com”, but the owner of the domain would not sell it.  Adams also threatened one of the domain owner’s friends with “gun emojis” after the friend used the domain to promote concerts.

In June 2017, Adams enlisted his cousin, Sherman Hopkins, Jr., to break into the domain owner’s home and force him at gunpoint to transfer doitforstate.com to Adams.  Hopkins was a convicted felon who lived in a homeless shelter at the time.

On June 21, 2017, Adams drove Hopkins to the domain owner’s house and provided Hopkins with a demand note, which contained instructions for transferring the domain to Adams’ GoDaddy account.  When Hopkins entered the victim’s home in Cedar Rapids, he was carrying a cellular telephone, a stolen gun, a taser, and he was wearing a hat, pantyhose on his head, and dark sunglasses on his face.

The victim was upstairs and heard Hopkins enter the home.  From the top of a staircase, the victim saw Hopkins with the gun on the first floor.  Hopkins shouted at the victim, who then ran into an upstairs bedroom and shut the door, leaning up against the door to stop Hopkins from entering.

Hopkins went upstairs, kicked the door open, grabbed the victim by the arm and demanded to know where he kept his computer.  When the victim told Hopkins that he kept his computer in his home office, Hopkins forcibly moved the victim to the office.  Hopkins ordered the victim to turn on his computer and connect to the Internet.  Hopkins pulled out Adams’ demand note, which contained a series of directions on how to change an Internet domain name from the domain owner’s GoDaddy account to one of Adams’ GoDaddy accounts.

Hopkins put the firearm against the victim’s head and ordered him to follow the directions on the demand note.  Hopkins then pistol whipped the victim several times in the head.  Fearing for his life, the victim quickly turned to move the gun away from his head.  The victim then managed to gain control of the gun, but during the struggle, he was shot in the leg.  The victim shot Hopkins multiple times in the chest.  He then contacted law enforcement….

Continue reading ““Social Media Influencer Sentenced to 14 Years … After Plotting to Hijack Internet Domain”

The secular canonization of Greta Thunberg is complete: Time magazine has named her the 2019 Person of the Year, passing over candidates like the Hong Kong protesters or the Trump administration whistleblowers.

The designation is fairly arbitrary—how does one exactly quantify influence?—and shouldn’t be taken too seriously (at least not after 2006). And though the tone of Time‘s article on Thunberg is very much hagiographical, the designation is not necessarily an endorsement of the winner: Adolf Hitler was Person of the Year in 1939. All this is to say that it really doesn’t matter who wins Person of the Year, so nobody should be too upset that this year it’s a 16-year-old climate-change activist.

And yet, the award does bolster the idea that Thunberg is someone whose righteous anger should be automatically translated into public policy. As Nick Gillespie observed in a piece about her activism, Thunberg is an avatar of “catastrophic thinking,” and wrongly pushes a message of doom and gloom:

Greta Thunberg’s histrionics are likely heartfelt but neither they nor the deplorable responses they conjure are a guide forward to good environmental policy in a world that is getting richer every day. For the first time in human history, half the earth’s population is middle class or wealthier and the rate of deaths from natural disasters is well below what it was even a few decades ago. Protecting all that is just as important as protecting the environment and, more importantly, those two goals are hardly mutually exclusive.

After decades of treating children as little more than pets, the media now gives too much weight to the opinions of teen activists, particularly when they protest about issues like climate change, gun violence in schools, income inequality, etc. As Ilya Somin has written, young people—even ones who can credibly claim to have been especially harmed by some crisis—do not generally have special insights or strong knowledge of public policy. According to Somin:

The young, as a general rule, know less about government and public policy than other age groups. For that reason, they are also less likely to have valuable insights on how to address difficult issues. …

It would be a mistake to dismiss policy proposals out of hand, merely because of the age of their adherents. But it is also a mistake to ascribe any special political wisdom to the young. The fact that large numbers of young people support a political cause adds little, if anything, to its merits.

Thunberg is Time‘s Person of the Year, but that doesn’t make her claims about the future of the planet any less wrong: We are not “in the beginning of a mass extinction,” and the world is not going to end in the next 10-12 years barring the adoption of her radical ideas.

For more about teen activism, check out my book, Panic Attack: Young Radicals in the Age of Trump.

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While most of the political oxygen in Washington is consumed by impeachment, the Senate continues to consider and confirm President Trump’s judicial nominees. Last week, for instance, the Senate confirmed eight district court nominees—all but one with broad, bipartisan majorities—and this week the Senate is expected to confirm two nominees to the U.S. Court of Appeals for the Ninth Circuit (likely on a party line vote).

Continuing to confirm judges while a President is under investigation for a possible impeachment appears to be consistent with historical norms. As I explored in this post last year, the Senate has continued to consider and confirm nominees while President’s were subject to impeachment investigations. Indeed, the Senate even confirmed a judge the same day President Nixon announced he would resign.

So what about the caliber and qualifications of Trump’s judicial nominees? Contrary to common characterizations in the press and punditocracy, President Trump’s nominees have, on the whole, been quite impressive and highly qualified. While there are some notable exceptions, the qualifications of Trump’s judicial nominees compare favorably with those of his predecessors.

Through the first two years of his Presidency, a higher percentage of judges nominated by President Trump received “Well Qualified” ratings from the American Bar Association than any recent President save for George W. Bush, according to the Congressional Research Service (see Table 11 on page 26). As of last week, President Trump’s 2019 nominees have continued this trend (based on the ABA ratings through December 4 presented here). President Obama nominated a large number of highly qualified jurists, but according to the ABA, a higher percentage of Trump’s appointees were “Well Qualified.”

President Trump has nominated an unusual number of former academics and appellate litigators to the bench, but this has not come at the expense of their qualifications. As Adam Feldman notes on EmpiricalSCOTUS, “Trump has a higher rate of “well-qualified” confirmed first time judges than any other president on the list aside from George W. Bush.”

Overall, a majority of President Trump’s judicial nominees have received “Well Qualified” ratings from the ABA—80 percent of Circuit Court nominees and 62 percent of District Court nominees according to CRS. If anything, this understates the relative qualifications of Trump’s judicial picks, as there are reasons to doubt the ABA’s assessment of conservative nominees. Indeed, multiple peer-reviewed studies have found that the ABA evaluates Republican nominees more critically than Democratic nominees with equivalent experience. (Other research suggests there is little relationship between ABA ratings and judicial performance, as measured by reversal rates.)

Writing in Vox, Ian Millhiser (no fan of President Trump) acknowledges the impressive caliber of Trump’s nominees (even as he decries their judicial philosophy). According to Millhiser, Trump has “filled the bench with some of the smartest, and some of the most ideologically reliable, men and women to be found in the conservative movement.” As he explains:

It’s tempting to assume that Trump’s judicial appointees share the goonish incompetence of the man who placed them on the bench, but this assumption could not be more wrong. His picks include leading academics, Supreme Court litigators, and already prominent judges who now enjoy even more power within the judiciary.

Indeed, “based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”

While most of Trump’s nominees are indisputably qualified for the federal bench, there are some notable exceptions. Nine of those nominated by President Trump have been rated “Not Qualified” by the ABA and (if I have my numbers right), six of them have been confirmed (and a seventh, Lawrence Van Dyke, is likely to be confirmed this week).

By comparison, none of President Obama’s judicial nominees received “Not Qualified” ratings from the ABA. Some of this may be explained by ideological bias. In Van Dyke’s case, for instance, there’s ample evidence the ABA “botched” its evaluation, and failed to follow its own procedures, perhaps due to distaste for the nominee’s embrace of social conservative causes.

Another factor is that under President Obama, the White House submitted names to the ABA prior to announcing nominations, creating the opportunity to withhold a nomination when the ABA disapproved—an opportunity that was taken in multiple instances. Under Obama, most such shelved nominations involved potential nominees pushed by home-state Senators or political insiders. Much the same can be said of those Trump nominees who received poor ABA ratings and were not eventually confirmed.

Whatever one makes of the handful of NQ ratings from the ABA, the overall record remains the same. As of yesterday, the President had nominated and the Senate had confirmed over 170 judges to Article III courts, including 49 to the U.S. Circuit Courts of Appeals and 120 to U.S. District Courts. Whatever his other faults (and there are legion), the President has appointed a large number of highly qualified individuals to the federal bench.

 

 

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Several Republican lawmakers have introduced a compromise bill that would provide gay and transgender people federal discrimination protections while still preserving some ability for religious organizations and nonprofits to seek exemptions.

Of course, it doesn’t appear that either side of the LGBT/religious conservative divide is willing to accept such a compromise. But the effort itself is worth noting as a sign of the significant cultural shift on LGBT issues.

Rep. Chris Stewart (R–Utah) has introduced the “Fairness for All Act” which attempts to thread the needle between protection and religious freedom. Stewart’s bill would add “sexual orientation” and “gender identity” to federal discrimination laws. This would make it against the law nationwide to fire an employee or refuse to rent an apartment to somebody because they are gay or transgender.

While this sounds almost exactly like the Equality Act proposed by Democrats and LGBT leaders and passed by the House this May, Stewart’s bill provides more specific exemptions for religious institutions and religious nonprofits, as well as small businesses. A large chain bakery or grocery store would be expected to make those gay wedding cakes (and they all do already because they like making money), while small businesses like Masterpiece Cakeshop in Colorado or Arlene’s Flowers in Washington state would still be able to decline to provide services for same-sex weddings because of their religious objections to recognizing gay marriage.

The Fairness for All Act prepares the possibility of an expansion of the federal definition of a “public accommodation” by defining some exceptions. Currently, federal civil rights act laws define “public accommodation” more narrowly than most state laws—places like gas stations, movie theaters, restaurants, and hotels are covered, while many other professional services are not. Stewart’s act would make it clear that facilities operated by a church or religious organization are exempted from any expansions in the definition of what counts as a public accommodation.

The bill tries to thread a difficult needle in how trans people should be treated for the use of facilities like restrooms and changing rooms. Public schools will be expected to accommodate trans students using the facility that matches their chosen gender, but schools will also need to find a way to “reasonably accommodate” anybody seeking greater privacy. The most relevant concern here is that of a cisgender woman who is uncomfortable sharing bathroom or changing space with a trans woman who still has male sexual organs. But not all women would care. So those who do care would be accommodated with something like a private stall, rather than requiring the trans woman to do so.

All in all, the purpose of the Fairness for All Act is to add sexual orientation and gender identity to federal discrimination laws in such a way that won’t result in the Department of Justice targeting churches and religious institutions for punishment. It’s a much milder change than the Equality Act, which would significantly expand public accommodation classifications and more tightly prohibit any religious-based exemptions.

Stewart’s efforts have gotten him support from the Seventh-day Adventist Church and the Church of Jesus Christ of Latter-day Saints and Utah’s Governor Gary Herbert, a Republican. The proposal is based on a compromise bill passed in Utah in 2015 that similarly added sexual orientation and gender identity to discrimination protections but also exempted religious organizations.

Clearly, we’re not in a political environment where compromise is on the table, and coverage of the act shows it. Over at Vox, Katelyn Burns does a fair job of explaining what the bill does, but a significant amount of her piece is full of quotes from religious conservatives, LGBT activists, and for some reason, an atheist organization, all blasting the bill.

Googling “Fairness for All Act” leads—in its very first match—with a paid link from the religious conservative Alliance Defending Freedom written in 2017 (after the Utah compromise passed and Republican lawmakers began considering a federal version) warning that these types of “proposals surrender essential, constitutionally guaranteed individual and institutional freedoms and empower the government to discriminate against its citizens in exchange for narrow carve-outs for religious freedom and perhaps other protections of uncertain scope.”

And then the next two links are to the American Civil Liberties Union (ACLU) and the Human Rights Campaign (HRC), both blasting the Fairness for All Act from the other direction. The ACLU says, “The new legislation signals that LGBTQ people are less worthy of protection. It does this by providing religious organizations and service providers with the ability to discriminate based on sexual orientation and gender identity where they are explicitly prohibited under current federal law from discriminating based on other protected characteristics.”

The whole point of a compromise bill is that neither side gets everything that they want, but we’re not in a cultural spot where the people with the loudest voices are interested in compromise. Each of the Democratic candidates for president have thrown their support behind the Equality Act, and in their various appeals for the LGBT vote, have made it clear they’d rather punish religious objectors than try to figure out a way to work with them.

The Fairness for All Act stands as conscientious objector to the culture wars. But right now, few people are looking for a truce.

Read a draft version of the bill here.

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