Smithsonian Institution Explains That ‘Rationality’ & ‘Hard Work’ Are Racist

Smithsonian Institution Explains That ‘Rationality’ & ‘Hard Work’ Are Racist

Tyler Durden

Tue, 07/21/2020 – 20:25

Submitted by Frederick Hess and RJ Martin, via Real Clear

In the wake of the police killing of George Floyd and subsequent protests over police brutality, interest in “anti-racist” education has exploded among educators and advocates. The case that educators should seek to combat racism seems self-evident. What’s less clear is how the admirable cause of “anti-racism” is fueling, in some corners, the inclination to denounce universal virtues and useful skills as the product of “white culture.”

Witness last week’s contretemps at the Smithsonian’s National Museum of African American History and Culture. The museum, which bills itself as “the only national museum devoted exclusively” to educating the public on these topics, recently debuted the online guide “Talking about Race.” The guide included a chart cataloguing the “aspects and assumptions” of “white culture” that “have been normalized over time and are now considered standard practices in the United States.”

What are these sinister aspects of “white culture,” you ask? Well, according to the Smithsonian, values like “hard work,” “self-reliance,” “be[ing] polite,” and timeliness are all a product of the “white dominant culture.” Indeed, it turns out that conventional grammar, Christianity, the notion that “intent counts” in courts of law, and the scientific method and its emphasis on “objective, rational linear thinking” are all proprietary to “white culture.”

There are several things that might be said about all this. But the place to start may be by observing just how insidious it is to teach black children to reject intellectual and personal traits that promote personal and civic success — in the U.S. or anywhere else. After all, in what land are students well-served when they’re encouraged not to work hard, make decisions, think rationally, or be polite and on time? Among the extraordinarily accomplished people honored by the museum, those such as Frederick Douglass; Harriet Tubman; Jackie Robinson; Martin Luther King, Jr.; Toni Morrison; John Lewis; Oprah Winfrey; Michael Jordan; Condoleezza Rice; and Barack Obama might be surprised to learn that hard work and rational thinking are somehow alien to black culture.

A 2020 National Association of Colleges and Employers poll found that four in five employers expected job applicants to exhibit a strong work ethic, the ability to work in a team, and analytical thinking skills. If one asks parents — of any race — what values they want their kids to learn, more than four out of five will similarly name concepts like “hard work,” “being well-mannered,” and “being responsible.” In fact, black parents are one to three percent more likely than white parents to think traits like “hard work,” “being well-mannered,” and “persistence” are “important to teach children.”

This all makes obvious sense. These are the traits that make for good neighbors and colleagues, and support strong communities. Perhaps we’ve blinkered vision, but we’re still looking for the culture, anywhere, where parents say that they’d like their children to slack off, be rude, and shirk responsibility.

After an online outcry, the Smithsonian removed the chart on Thursday night — but not with any denunciation of the chart’s content, only the bland understatement that the chart turned out to “not contribute to the productive discussion” they had wished for. Of course, the lack of “productive discussion” shouldn’t have surprised, given the shoddy scholarship it reflected. The original chart contained a single footnote linking to a one-page PDF asserting, sans evidence, that traits such as “hard work,” “self-reliance,” and politeness “are common characteristics of most U.S. White people most of the time.”

Not surprisingly given this foundation, the Smithsonian’s chart was rife with dubious claims and questionable assumptions. The idea that Christianity belongs to white culture could come as a surprise to the 72 percent of black Americans who identify as Christian, especially when only 65 percent of white Americans do so. The idea that timeliness and objectivity are the province of white culture would probably come as a surprise to air traffic controllers or cardiovascular surgeons in Cambodia and Cameroon, as it turns out that these traits are crucial to their professional competence and success — whatever the practitioner’s race or culture.  

While it might be tempting to laugh off the Smithsonian’s chart as political correctness run amok, that would be a mistake. The troubling conviction that admirable, useful, universal values like hard work and politeness are somehow the product of “white supremacy” has been gaining increasing currency in education circles. Just this month, the influential KIPP charter network announced it was abolishing its motto “Work Hard. Be Nice.” as part of its push to “dismantle systemic racism.” As educators rush to act upon the admirable impulse captured by “anti-racism,” the lesson is that they need to be extraordinarily deliberate about what that means in practice.

When all is said and done, in 2020, the Smithsonian’s caretakers chose to tell our children that values like hard work and rationality are part of the “white” inheritance—and don’t come naturally to those raised in other cultures. If this demeaning caricature was offered up by drawling good ol’ boys defending Jim Crow in some grainy newsreel footage, we’d spot it for the unapologetic racism that it is. The question of the hour, though, is what we call it when educators offer it up in the name of “anti-racism.”

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Silver Accelerates As Asia Opens, Surges To 7 Year Highs

Silver Accelerates As Asia Opens, Surges To 7 Year Highs

Tyler Durden

Tue, 07/21/2020 – 20:19

After two strong days, silver is not stopping its charge as futures smash above $22 for the first time since October 2013…

Source: Bloomberg

Up over 90% from its March 2020 lows…

Source: Bloomberg

As Peter Schiff notes, silver’s current run follows on the heels of its best quarter since 2010.

Safe-haven demand is driving silver prices higher, along with supply concerns. There are also expectations of increasing industrial demand, particularly in the solar energy sector.  Even if the global economy is slow to recover, silver may get a boost from government stimulus as various programs funnel money into “green energy” projects.

“Silver-intensive areas such as 5G and solar technology could well benefit from any fiscal impulse,” BMO analysts said in a research note cited by Bloomberg.

“More than $50 billion of green stimulus has been approved by governments thus far this year, over which roughly three-quarters has been in Europe. But perhaps more impactful has been the recent Biden campaign Clean Energy plan, most notably a zero-carbon power grid by 2035 which would see new wind and solar capacity built to displace thermal generation.”

While silver is much more sensitive to industrial demand than gold, at its core, silver is a monetary metal and it tends to track with gold over time. The white metal should continue to benefit from the inflationary pressure of government money-printing and stimulus programs. A Morgan Stanley note quoted by Bloomberg said, “Silver will continue to be pulled higher by the strong gold price and supportive financial conditions.”

Additionally, global central bank money-printing is starting to drive more investors to question their ‘forever’ faith in fiat, and as Deutsche’s Jim Reid notes, The Fed for one, has a lot more room to run…

Some believe this is already a huge amount, but as the second graph shows, the Fed’s balance sheet as a % of GDP is notably lower than the ECB and BoJ’s. If they were aligned, the Fed balance sheet would now be around $11tn and $25tn, respectively.With

DB’s Matt Luzzetti expecting that US debt to GDP will be above 100% in 2020 and near 140% by 2030 from just shy of 80% at the start of this year, it seems inconceivable to me that the Fed and other central bank balance sheets will do anything other than explode over the next decade and perhaps beyond.

Historically, silver tends to outperform gold in a gold bull market, and we’re seeing that dynamic play out in the midst of gold’s current run up. The yellow metal is fast-approaching its all-time high in dollars.  But silver futures have climbed more than 40% since the end of the first quarter, surpassing the 14% gain for gold futures during that same period.

Silver coin and bar sales have also helped drive investment demand for silver. Retail bullion coin sales jumped by an estimated 60% year-on-year. Strong demand led to shortages of many silver bullion products, resulting in extended delivery time and higher premiums.

Meanwhile, silver mine output was already trending downward and it has been further squeezed by mine shutdowns due to COVID-19. Analysts at the Silver Institute say they expect mine supply to continue its four-year slide this year. Even with most mines back online, the institute projects a 7% decline in mine output in 2020. Global mine production fell by 1.3% in 2019.

The gold-to-silver plunged to 81x tonight, breaking its recent multi-year uptrend…

…but that is still high by historical standards…

That tells us silver remains undervalued compared to gold. In the modern era, the silver-gold ratio has historically been around 50 to 60-1. At some point, the ratio will likely return closer to its historical norm. Given the economic dynamics, it seems far more likely silver will climb to close the gap rather than the price of gold dropping.

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US Joins India In Large Naval Drills On Heels Of Last Month’s Deadly Border Clash With China

US Joins India In Large Naval Drills On Heels Of Last Month’s Deadly Border Clash With China

Tyler Durden

Tue, 07/21/2020 – 20:05

Following last month’s rare border clashes between the Indian and Chinese armies along the Line of Actual Control in Ladakh which led to an unprecedented scores of casualties on both sides (at least 20 Indian troops were confirmed killed), the United States has joined India’s military in conducting large-scale naval exercises in the region

Specifically the US aircraft carrier Nimitz carrier strike group carried out the joint drills in the Indian Ocean in what reports describe as “a sign of growing cooperation between the two naval forces in the region” as well as in support of “a free and open Indo-Pacific”.

Regional US navy drills with allies in years past, file image: Planet Pix/Zuma Press via WSJ.

“While operating together, the US and Indian naval forces conducted high-end exercises designed to maximize training and interoperability, including air defence,” the US navy said in a statement. 

“Naval engagements such as these exercises improve the cooperation of U.S. and Indian maritime forces and contribute to both sides’ ability to counter threats at sea, from piracy to violent extremism,” it added.

It’s as yet unclear how long the ongoing joint drills will last, but it’s a clear message to Beijing after soaring tensions in the region. The USS Ronald Reagan is also in the area of the South China Sea, but is currently conducting separate ‘freedom of navigation’ related missions.

Nimitz carrier, US Navy file image

The US side includes the carrier USS Nimitz, the guided-missile cruiser USS Princeton, and guided-missile destroyers USS Sterett and USS Ralph Johnson, according to military publications. The Indian Navy has the destroyer Rana, the frigates Sahyadri and Shivalik, as well as the anti-submarine corvette Kamorta participating.

Reuters notes of the location: “The drills were carried out near India’s Andaman and Nicobar islands which sits near the Melaka Straits, one of the world’s busiest shipping routes for trade and fuel, an Indian source said.”

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A Nation Falling Apart

A Nation Falling Apart

Tyler Durden

Tue, 07/21/2020 – 19:45

Authored by Philip Giraldi,

First they came for the toilet paper and kitchen towels, then they came for flour and now they are taking your coins. Yes, the American public sitting out the COVID-19 virus is now having to deal with what is referred as a “small change shortage.”caused apparently by hoarding. Coffee shops and other retail outlets that deal in cash have been hit hard by the shortage, finding themselves unable to make change. Apparently, people have decided spontaneously and in large numbers that nickels, dimes and quarters, as they have value as being made of metal, will somehow maintain their worth better than the pieces of paper being printed in Washington.

The government has acted decisively to meet the threat by having the Federal Reserve convene a 22 strong U.S. Coin Task Force to “mitigate the effects of low coin inventories caused by the COVID-19 pandemic.” Ironically, of course, the Fed is the source of America’s long suffering backed-by-nothing currency. As several of the major private banks, including JP Morgan and Bank of America, are represented on the Task Force as well as a swarm of government bureaucrats, one can assume that nothing will happen except possibly a decision to change the design of the coins to eliminate Washington, Jefferson and Lincoln. Sacagawea can stay on the funny looking dollar coin, which no one has actually seen in years as she represents an approved ethnic minority.

There are a lot of indications that the American stratocruiser is about to crash. My wife and I went to a local gun range last week for a refresher course. I knew how to shoot from my time in the Army and CIA but have not actually fired a weapon since 1978 and my wife learned how to use a handgun about fifteen years ago when we made the decision to have one available in the house “just in case.” To be sure, the current situation with deranged radical groups unrestrained by feckless politicians and a complicit media, our decision to re-arm as it were was based on the assumption that we can no longer rely on a demoralized and passive police force to protect either us or our property, particularly if there are any racial overtones to who is doing what to whom. So, we might have to be prepared to defend ourselves.

The first thing we learned was that it was hard to get an appointment with a trainer at a licensed range. It took us weeks to make an appointment and we only got one when there was a cancellation. It seems large numbers of ordinary Americans are looking to defend themselves because they, like us, are shocked when they see politicians ignore looting, beatings and arson even as they kneel before thugs. Meanwhile, the media endorses the process, also throwing in a blanket condemnation of the white race, which suggests that there is nothing good that will come out the other end of what it taking place.

We did our shooting training but the next hurdle was upgrading our weapons. We had a venerable 9mm automatic and an even older 38 caliber revolver. Modern handguns have better safety features and their mechanisms work more smoothly for ageing hands. We were looking for a new 9mm automatic and an AR-15 so-called assault rifle for greater reach if that should become necessary but the man at the sales desk shook his head and said “No, everything is back ordered for six months or more. Everyone is buying new weapons. Give me a deposit and I will call you when something comes available.”

So “everyone” is training to shoot and buying new weapons, and it is even being reported that break-ins to steal guns from sporting goods shops are increasing dramatically. Weapons are a hot commodity, which just might mean that the confidence among people that the state will keep them safe is at the vanishing point. Even the mainstream media has noticed the spike in gun sales, but they predictably use that fact to explain the surge in gun homicides across the country in the past several months. More weapons, per The Washington Post, means more armed racist white people are out on the streets raising hell, but it ignores the fact that the gun deaths have been overwhelmingly black-on-black, as has always been the case.

I would also suggest that at least part of the explanation lies elsewhere, in less policing as cops have figured out that they have no one on their side and are best served by doing as little as possible when the shooting starts. Policemen have, in fact, been on the receiving end of much of the recent violence. Instead of seeking help from a cop, violent crime victims should call 911 and ask the operator to have Mayor Bill de Blasio send out a social worker whenever they get attacked by irate gang bangers. The NYPD cops are apparently too busy in any event as they are guardingthe black lives matter paintwork covering Fifth Avenue in front of the Trump Tower.

Another thing one is now having difficulty in buying is alcohol. People are depressed and are drinking a hell of a lot more than normal, which can, of course, result in impulsive behavior. I live in Virginia and our state store is constantly running out of everything. A cashier told me that they are selling 300% more booze than normal for this time of year. Last week I went into a large and well-known liquor store in Washington D.C. and bought the last few bottles of our favorite scotch The Famous Grouse. They had run out and didn’t know when they would get more. My wife and I are anticipating a Famous Grouse crisis and we have discussed setting up a still in the basement.

Finally, a family member owns a construction company. He recently said that business is unexpectedly booming, in part because people are building panic rooms, safe havens and even 1960s style fallout shelters in and behind their houses. But unlike the threat of nuclear war in the sixties, the current fear is that with the wreckers being given a free hand by the authorities, organized home invasions penetrating prosperous neighborhoods cannot be that far away. Most of the construction work is being done as unobtrusively as possible because the clients don’t want their neighbors to know how scared they are.

So, there we are.

The United States is troubled by a pandemic that the government seems unable to respond to which has produced record unemployment and bankruptcies. Meanwhile, guns and liquor and even coins are in demand while frightened citizens are building home defenses. And much of the government at all levels acts like it is either on the side of or afraid of the destroyers. America certainly has always had flaws but it was once a land of opportunity where people could prosper and enjoy more freedom than nearly anywhere else. Those days are gone so just relax and turn on the evening news. Watch a once proud country with a resilient and hard-working people come apart before your very eyes.

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Does a Judge have to recuse if a conflicted party files an amicus brief? Or should the brief be struck?

As a general matter, federal judges will recuse if they have some sort of relationship with one of the named parties. Indeed, most clerks will screen cases, to avoid assigning a matter to a judge that would create a potential recusal. Occasionally, conflicted cases slip through the cracks–even at the Supreme Court. Sometimes the identity of all parties isn’t obvious, and a conflict only becomes clear after the case is assigned. But what happens when the conflict arises based on an amicus brief? Friends of the court may file briefs long after the panels are assigned. And these filings may give rise to conflicts of interest. What should a court do in such a case?

In 2018, the Federal Rules of Appellate Procedure were amended to address this situation. Rule 29(a)(2) provides:

 Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.

In short, if an amicus brief would create a recusal, the court can strike it.

The Fifth Circuit relied on this rule in Texas v. United States, the challenge to the Affordable Care Act. On April 1, 2019, Children’s Partnership and First Focus filed an amicus brief. They were represented by Stuart Delery of Gibson, Dunn & Crutcher. On April 8, 2019, the docket reflected a one-line, unsigned order:

COURT ORDER striking AMICUS BRIEF filed by First Focus and Children’s Partnership.

No explanation was given. But the conventional wisdom was that the brief was struck to avoid Judge Jim Ho’s recusal. (Ho had worked at Gibson, and his wife is currently a partner there). That strike also led some to speculate that Judge Ho might be on the three-judge panel. Ultimately, he was not on that panel. And he eventually recused from the en banc court, even though the Gibson brief was struck. (My uninformed speculation: Judge Ho recused based on his work on the original ACA challenge as Texas Solicitor General.)

Judge Andrew Brasher, a new member of the Eleventh Circuit chose a different approach. Today he recused from en banc consideration of Florida’s felon disenfranchise case. There was no conflict with any of the parties. Rather, he identified a conflict because the Alabama Attorney General, his former employer, filed an amicus brief. He explained:

Before joining the bench last year as a district judge, I worked as a lawyer at the State of Alabama Attorney General’s Office. Upon being nominated and confirmed to the position of district judge, I conferred with staff at the Committee on Codes of Conduct for the Judicial Conference of the United States about recusal-related issues. They recommended that I adopt a general policy of recusing from cases in which lawyers from the Alabama Attorney General’s Office represent a party for about two years. This policy would avoid any appearance of partiality by allowing a reasonable time period between when I worked with these lawyers as a colleague and when I might rule in one of their cases as a judge.

Other judges may reasonably choose different policies or different time periods. Some judges may not feel the need for a blanket recusal policy at all. But I thought the suggestion was a good idea, it was consistent with the recusal policies of other members of the district court on which I served, and I adopted the policy as a district judge.

I intend to continue following this recusal policy as a member of this court. In this case, lawyers from the Alabama Attorney General’s Office filed an amicus brief. Whether and how a judge’s recusal policies should apply to amicus participation is an unsettled area. But, with some exceptions that do not apply here, my policies apply to amici in the same way they apply to parties. For that reason, I am recusing myself from this matter.

Brasher could have asked the clerk to strike the Alabama amicus brief. But he instead chose to recuse. I appreciate this clarity. Judge Brasher explained, with candor, why he was stepping down. Far too often recusal orders are void of reasoning. I agree with his rationale.

As an ethical matter, I think it better for the judge to step down than to strike the unwitting amicus brief. FRAP 29(a)(2) permits that resolution, but it is eminently unfair to the parties. Put yourselves in the shoes of the attorney who spent time and money writing a brief, only for it to be invalidated. However, this practice sends a clear signal to the market: clients who agree with Judge Ho’s general jurisprudence may be hesitant to hire Gibson Dunn to file an amicus brief for the Fifth Circuit, lest their brief force a recusal. For similar reasons, the Alabama Attorney General, may be hesitant to file amicus briefs in Eleventh Circuit. For the next two years, Judge Brasher will be recused from any case in which the Alabama Attorney General’s office is a party, or serves as an amicus. I suspect we will see multi-state coalitions file in the Eleventh Circuit, with Alabama left off the signature block.

There is a unique situation where FRAP 29(a)(2) makes eminent sense: parties may deliberately try to force a specific judge to recuse by hiring her former firm to file an amicus brief. I think this possibility is rare, because most firms would not knowingly take a client who is trying to force the disqualification of their former colleague.

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Dispatch From Portland: A Distinct Lack of Crowbars and Cops

Portland Protest

Portland looks pretty normal the morning I roll into town, birds singing, fresh air. I head downtown to the Federal Building, locus of the narrative we’ve been seeing all over the world: federal forces tear-gassing demonstrators and pummeling the legs of a Navy vet apparently made of brick.

Driving toward the Mark O. Hatfield United States Courthouse yesterday, the city appears relatively intact. Most stores are boarded up, but that’s mostly due to COVID-19, which is on the rise in Oregon. The courthouse, however, looks anything but normal. The building is unrecognizable, its face completely gone—it looks like a building under construction, albeit with no doors, no windows. At noon, workmen are disassembling the temporary fencing that’s been pulled down each night since the feds arrived. Asked whether they’re going to paint over the graffiti, a foreman looks incredulous.

“No,” he says. “They’re only going to be back tonight.”

By “they,” he does not mean the protestors, who’ve been at it 53 nights: the thousands of locals who march while chanting “BLACK LIVES MATTER” and “SAY HER NAME” and “HANDS UP, DON’T SHOOT” and “FUCK THE POLICE.” They are here again by 8 p.m., including a new contingent of women wearing yellow, women who have responded to social-media calls to create a Wall of Moms. There is some question as to whether this call started organically as a mom-group thing or, as a way to create an unimpeachably sympathetic faction, was covertly orchestrated by antifa. And while the question might seem an interesting or provocative one, it’s apparently not to the two moms I ask, they’re caught up in the moment, one goes off to speak with a news crew.

“I think she heard about it on Reddit?” responds one husband, before joining in 30 minutes of call-and-response, “FUCK TED WHEELER” and “FEDS GO HOME” and “ALL COPS ARE BASTARDS,” the last round punctuated by the booms of a drum corps and several thousand people who stream past the federal building, ready for more chanting, more gathering, ready to show the world that they are peaceful protestors.

Meanwhile, one block away on a dark corner, a half-dozen young men on motorcycles and bicycles assemble. These are civilians, self-appointed to block off the street. An overhead camera has been spray-painted so as not to capture, maybe, the groups of two and three walking past. They are dressed in black; their faces are covered; they carry or wear bike helmets; their militia-like garb is meant to impart, one imagines, an air of menace. They do not look menacing. They look young, ungainly, and unsure how to proceed. One problem: The fencing has not been re-erected, so there’s nothing for them to pull down. Instead they dance and skateboard and yell at each other. A burnt-out-looking white dude shouts, “I’ve spoken to a dozen black men! You don’t speak for them! What you are doing is not about Black Lives Matter!” A young Asian woman in full-black garb charges him and shouts, “YOU DON’T SPEAK FOR BLACK PEOPLE! SHUT THE FUCK UP!” The crowd cheers.

This is the “they” the foreman spoke of, the 200 or so that gather every night. They’ve been cooped up for months and now they’re ready to burn, to get some mayhem going, though they don’t see it that way.

“We’re just here to protect people and get their voices heard,” a 22-year-old guy tells me, as he and his crew each grab a plywood shield from a pile someone has dumped on the ground. His friend was here two nights ago and got hit in the legs with pepper bullets.

“This is some fascist shit,” he says. “This is not OK.” 

It’s now 11:30 and the larger group of protestors is making one last sweep through, shouting “FUCK TED WHEELER” over and over as the 200 install a #WallofMoms between themselves and the building. This seems to quell things a bit, neither the group outside or any feds inside seeming to have an appetite for mowing down a bunch of middle-aged women. But then the moms are let go and a new volley is launched at the building, people banging on it with their skateboards and scrabbling at it with their hands.

“Did not one of them think to bring any tools, maybe a hammer or a crowbar?” asks my friend. While one imagines what kind of trouble this might bring from the cops, there’s no reason to worry about the Portland police, not one of whom I’ve seen in three-plus hours. There is zero police presence, the mayor having years ago instructed the police that protesters are not to be arrested, the definition of protestor apparently being fungible. And so the battering, the rave-like mania, carries on.

“What will we do if we do get inside?” a young woman asks her friend. I tell her that I don’t think people have thought that far ahead; that it’s about the show out here, not about carrying forth any particular plan.

“I think you’re right,” she says, looking a little relieved. She’s wearing a jumper and weighs maybe 90 pounds soaking wet; she won’t be ready for any physical confrontation.

But it’s coming for her anyway. Several young men have torn a hole in the plywood, one is banging on it with a fire extinguisher, and the shield-boys are banging on it with their shields. Instantly the air is filled with military-grade CS gas, there are loud flash-bangs, and the crowd is falling back, running, getting out of the way of the first volleys.

“Do you need your eyes rinsed out?” three people ask as we make our way to the car, coughing. It’s 1:45 a.m., and it does not look as though there is going to be the sort of violent direct clashes that happened the previous two nights. Maybe the feds have gleaned that the optics of this aren’t great.

If the lone motorcyclists and bicyclists stationed at intersections downtown, trying to block our way, have an agenda, I don’t know what it is. What I do know is, despite their telling us we can’t drive around them, we do, where we see, for the first time, a Portland police vehicle, driving into the night and away.

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Rand Paul: It’s Time To Demilitarize the Police

zumaamericastwentyeight065037

In a free society, citizens should be able to easily distinguish between civilian law enforcement tasked with keeping the peace in our communities and the armed forces tasked with protecting our country from foreign adversaries.

Unfortunately, thanks to the federal government flooding our neighborhoods with billions of dollars of military equipment and property over the years, the line between peace officer and soldier of war has become increasingly blurry.

Police officers have an incredibly difficult and often thankless job where they lay their lives on the line every day. Without the rule of law, a civilized society cannot exist, and our officers deserve our gratitude. The horrific actions of a few bad actors should not erase all the good done by the vast majority of these brave and hardworking men and women.

But as the federal government has enabled our local police to become more and more militarized, it has placed them in greater danger by eroding the community trust crucial to doing their jobs well.

While I respect the determination to preserve law and order, sending in federal forces to quell civil unrest in Portland further distorts the boundaries, results in more aggression (including pepper-spraying and repeatedly striking a Navy veteran whose injured hand will need surgery), and has led to reports we should never hear in a free country: federal officials, dressed in camouflage, snatching protesters away in unmarked vehicles.  

Sending the feds into Chicago won’t make the situation there any better, either.

Nothing you’ll read here excuses the actions of those who have destroyed lives and property in a mockery of peaceful protest—actions I have condemned. But many of us have been inspired by seeing protesters confronting these rioters, making the difference between righteous cause and opportunistic destruction even more stark.

Restoring lost trust is essential to reducing the tension and returning to peace. This means stopping the federal militarization of our local law enforcement and keeping federal agents and troops on the national posts where they best serve our country. 

According to the Defense Logistics Agency (DLA), which operates within the Department of Defense, “More than $7.4 billion worth of property” has been transferred to law enforcement through the Law Enforcement Support Office (LESO) program. DLA also reveals that “as of June 2020, there are around 8,200 federal, state and local law enforcement agencies from 49 states and four U.S. territories participating in the program.”

Back in 2014, NPR reported the federal government had sent out 79,288 assault rifles, 205 grenade launchers, and 11,959 bayonets from 2006–2014. 

Yahoo recently reported that “the California Highway Patrol received what appeared to be a drone worth $22 million in 2016. The Howell Township Police Department in New Jersey received an MRAP [mine-resistant, ambush-protected vehicle] worth $865,000 in 2016. An MRAP provided to the Payne County Sheriff Office in Stillwater, Oklahoma, cost $1.3 million.”

As the Senate debates the latest National Defense Authorization Act, I joined a bipartisan group of senators to introduce an amendment based on my Stop Militarizing Law Enforcement Act, which I originally introduced with Sen. Brian Schatz (D–Hawaii) in 2015 and have reintroduced in each session of Congress since.

Our amendment would have limited the transfer of certain offensive military equipment including bayonets, grenade launchers, and weaponized drones—all without prohibiting the continued distribution of defensive equipment, such as body armor.

It would also have ensured that communities are notified of requests and transfers by posted notices throughout the area and on a public website, and it would have required that a jurisdiction’s governing body approves of the transfers.

Though the Senate voted against these common-sense changes, my standalone legislation goes even further to reform the system, and I will keep working to advance it through Congress. 

Our bipartisan approach takes seriously the idea that cops on the beat can only do their jobs well when they are well-known by their neighbors and trusted by their communities.

The Stop Militarizing Law Enforcement Act will help build that relationship, making our citizens, police, and neighborhoods safer. 

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Does a Judge have to recuse if a conflicted party files an amicus brief? Or should the brief be struck?

As a general matter, federal judges will recuse if they have some sort of relationship with one of the named parties. Indeed, most clerks will screen cases, to avoid assigning a matter to a judge that would create a potential recusal. Occasionally, conflicted cases slip through the cracks–even at the Supreme Court. Sometimes the identity of all parties isn’t obvious, and a conflict only becomes clear after the case is assigned. But what happens when the conflict arises based on an amicus brief? Friends of the court may file briefs long after the panels are assigned. And these filings may give rise to conflicts of interest. What should a court do in such a case?

In 2018, the Federal Rules of Appellate Procedure were amended to address this situation. Rule 29(a)(2) provides:

 Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.

In short, if an amicus brief would create a recusal, the court can strike it.

The Fifth Circuit relied on this rule in Texas v. United States, the challenge to the Affordable Care Act. On April 1, 2019, Children’s Partnership and First Focus filed an amicus brief. They were represented by Stuart Delery of Gibson, Dunn & Crutcher. On April 8, 2019, the docket reflected a one-line, unsigned order:

COURT ORDER striking AMICUS BRIEF filed by First Focus and Children’s Partnership.

No explanation was given. But the conventional wisdom was that the brief was struck to avoid Judge Jim Ho’s recusal. (Ho had worked at Gibson, and his wife is currently a partner there). That strike also led some to speculate that Judge Ho might be on the three-judge panel. Ultimately, he was not on that panel. And he eventually recused from the en banc court, even though the Gibson brief was struck. (My uninformed speculation: Judge Ho recused based on his work on the original ACA challenge as Texas Solicitor General.)

Judge Andrew Brasher, a new member of the Eleventh Circuit chose a different approach. Today he recused from en banc consideration of Florida’s felon disenfranchise case. There was no conflict with any of the parties. Rather, he identified a conflict because the Alabama Attorney General, his former employer, filed an amicus brief. He explained:

Before joining the bench last year as a district judge, I worked as a lawyer at the State of Alabama Attorney General’s Office. Upon being nominated and confirmed to the position of district judge, I conferred with staff at the Committee on Codes of Conduct for the Judicial Conference of the United States about recusal-related issues. They recommended that I adopt a general policy of recusing from cases in which lawyers from the Alabama Attorney General’s Office represent a party for about two years. This policy would avoid any appearance of partiality by allowing a reasonable time period between when I worked with these lawyers as a colleague and when I might rule in one of their cases as a judge.

Other judges may reasonably choose different policies or different time periods. Some judges may not feel the need for a blanket recusal policy at all. But I thought the suggestion was a good idea, it was consistent with the recusal policies of other members of the district court on which I served, and I adopted the policy as a district judge.

I intend to continue following this recusal policy as a member of this court. In this case, lawyers from the Alabama Attorney General’s Office filed an amicus brief. Whether and how a judge’s recusal policies should apply to amicus participation is an unsettled area. But, with some exceptions that do not apply here, my policies apply to amici in the same way they apply to parties. For that reason, I am recusing myself from this matter.

Brasher could have asked the clerk to strike the Alabama amicus brief. But he instead chose to recuse. I appreciate this clarity. Judge Brasher explained, with candor, why he was stepping down. Far too often recusal orders are void of reasoning. I agree with his rationale.

As an ethical matter, I think it better for the judge to step down than to strike the unwitting amicus brief. FRAP 29(a)(2) permits that resolution, but it is eminently unfair to the parties. Put yourselves in the shoes of the attorney who spent time and money writing a brief, only for it to be invalidated. However, this practice sends a clear signal to the market: clients who agree with Judge Ho’s general jurisprudence may be hesitant to hire Gibson Dunn to file an amicus brief for the Fifth Circuit, lest their brief force a recusal. For similar reasons, the Alabama Attorney General, may be hesitant to file amicus briefs in Eleventh Circuit. For the next two years, Judge Brasher will be recused from any case in which the Alabama Attorney General’s office is a party, or serves as an amicus. I suspect we will see multi-state coalitions file in the Eleventh Circuit, with Alabama left off the signature block.

There is a unique situation where FRAP 29(a)(2) makes eminent sense: parties may deliberately try to force a specific judge to recuse by hiring her former firm to file an amicus brief. I think this possibility is rare, because most firms would not knowingly take a client who is trying to force the disqualification of their former colleague.

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Dispatch From Portland: A Distinct Lack of Crowbars and Cops

Portland Protest

Portland looks pretty normal the morning I roll into town, birds singing, fresh air. I head downtown to the Federal Building, locus of the narrative we’ve been seeing all over the world: federal forces tear-gassing demonstrators and pummeling the legs of a Navy vet apparently made of brick.

Driving toward the Mark O. Hatfield United States Courthouse yesterday, the city appears relatively intact. Most stores are boarded up, but that’s mostly due to COVID-19, which is on the rise in Oregon. The courthouse, however, looks anything but normal. The building is unrecognizable, its face completely gone—it looks like a building under construction, albeit with no doors, no windows. At noon, workmen are disassembling the temporary fencing that’s been pulled down each night since the feds arrived. Asked whether they’re going to paint over the graffiti, a foreman looks incredulous.

“No,” he says. “They’re only going to be back tonight.”

By “they,” he does not mean the protestors, who’ve been at it 53 nights: the thousands of locals who march while chanting “BLACK LIVES MATTER” and “SAY HER NAME” and “HANDS UP, DON’T SHOOT” and “FUCK THE POLICE.” They are here again by 8 p.m., including a new contingent of women wearing yellow, women who have responded to social-media calls to create a Wall of Moms. There is some question as to whether this call started organically as a mom-group thing or, as a way to create an unimpeachably sympathetic faction, was covertly orchestrated by antifa. And while the question might seem an interesting or provocative one, it’s apparently not to the two moms I ask, they’re caught up in the moment, one goes off to speak with a news crew.

“I think she heard about it on Reddit?” responds one husband, before joining in 30 minutes of call-and-response, “FUCK TED WHEELER” and “FEDS GO HOME” and “ALL COPS ARE BASTARDS,” the last round punctuated by the booms of a drum corps and several thousand people who stream past the federal building, ready for more chanting, more gathering, ready to show the world that they are peaceful protestors.

Meanwhile, one block away on a dark corner, a half-dozen young men on motorcycles and bicycles assemble. These are civilians, self-appointed to block off the street. An overhead camera has been spray-painted so as not to capture, maybe, the groups of two and three walking past. They are dressed in black; their faces are covered; they carry or wear bike helmets; their militia-like garb is meant to impart, one imagines, an air of menace. They do not look menacing. They look young, ungainly, and unsure how to proceed. One problem: The fencing has not been re-erected, so there’s nothing for them to pull down. Instead they dance and skateboard and yell at each other. A burnt-out-looking white dude shouts, “I’ve spoken to a dozen black men! You don’t speak for them! What you are doing is not about Black Lives Matter!” A young Asian woman in full-black garb charges him and shouts, “YOU DON’T SPEAK FOR BLACK PEOPLE! SHUT THE FUCK UP!” The crowd cheers.

This is the “they” the foreman spoke of, the 200 or so that gather every night. They’ve been cooped up for months and now they’re ready to burn, to get some mayhem going, though they don’t see it that way.

“We’re just here to protect people and get their voices heard,” a 22-year-old guy tells me, as he and his crew each grab a plywood shield from a pile someone has dumped on the ground. His friend was here two nights ago and got hit in the legs with pepper bullets.

“This is some fascist shit,” he says. “This is not OK.” 

It’s now 11:30 and the larger group of protestors is making one last sweep through, shouting “FUCK TED WHEELER” over and over as the 200 install a #WallofMoms between themselves and the building. This seems to quell things a bit, neither the group outside or any feds inside seeming to have an appetite for mowing down a bunch of middle-aged women. But then the moms are let go and a new volley is launched at the building, people banging on it with their skateboards and scrabbling at it with their hands.

“Did not one of them think to bring any tools, maybe a hammer or a crowbar?” asks my friend. While one imagines what kind of trouble this might bring from the cops, there’s no reason to worry about the Portland police, not one of whom I’ve seen in three-plus hours. There is zero police presence, the mayor having years ago instructed the police that protesters are not to be arrested, the definition of protestor apparently being fungible. And so the battering, the rave-like mania, carries on.

“What will we do if we do get inside?” a young woman asks her friend. I tell her that I don’t think people have thought that far ahead; that it’s about the show out here, not about carrying forth any particular plan.

“I think you’re right,” she says, looking a little relieved. She’s wearing a jumper and weighs maybe 90 pounds soaking wet; she won’t be ready for any physical confrontation.

But it’s coming for her anyway. Several young men have torn a hole in the plywood, one is banging on it with a fire extinguisher, and the shield-boys are banging on it with their shields. Instantly the air is filled with military-grade CS gas, there are loud flash-bangs, and the crowd is falling back, running, getting out of the way of the first volleys.

“Do you need your eyes rinsed out?” three people ask as we make our way to the car, coughing. It’s 1:45 a.m., and it does not look as though there is going to be the sort of violent direct clashes that happened the previous two nights. Maybe the feds have gleaned that the optics of this aren’t great.

If the lone motorcyclists and bicyclists stationed at intersections downtown, trying to block our way, have an agenda, I don’t know what it is. What I do know is, despite their telling us we can’t drive around them, we do, where we see, for the first time, a Portland police vehicle, driving into the night and away.

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More People Contract COVID-19 From Family Members Than Outside Contacts: CDC

More People Contract COVID-19 From Family Members Than Outside Contacts: CDC

Tyler Durden

Tue, 07/21/2020 – 19:25

A study published by the US Centers for Disease Control found that people are more likely to contract COVID-19 from members of their own households than from those outside the house.

The study, published July 16, looked in detail at 5,706 South Korean “index patients” who tested positive for the virus, and took into account over 59,000 people who came into contact with them, according to Reuters.

The findings showed just two out of 100 infected people had caught the virus from non-household contacts, while one in 10 had contracted the disease from their own families.

By age group, the infection rate within the household was higher when the first confirmed cases were teenagers or people in their 60s and 70s.Reuters

“This is probably because these age groups are more likely to be in close contact with family members as the group is in more need of protection or support,” said South Korea CDC (KCDC) Director Jeong Eun-kyeong, an author of the study.

Notably, South Korea has been militant about contact tracing – using apps to track and publish the routes of confirmed patients, as well as demographics such as patients’ age, gender, neighborhood, businesses and apartment complexes they’ve visited and other metrics.

According to the study, children under the age of 10 were least likely to be the “index patient” – though children with the virus were also more likely to be asymptomatic than adults, making it harder to identify index cases within the group.

“The difference in age group has no huge significance when it comes to contracting COVID-19. Children could be less likely to transmit the virus, but our data is not enough to confirm this hypothesis,” said Dr. Choe Young-june, a co-author of the study and assistant professor at Hallyum University College of Medicine.

South Korea has had 13,816 cases of coronavirus and 296 deaths.

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