PowerLine -> John Hinderaker – New York Times Targets Kavanaugh’s Wife. “All the News That’s Fit to Print?” + More Mueller madness

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PowerLine -> John Hinderaker – New York Times Targets Kavanaugh’s Wife. “All the News That’s Fit to Print?” + More Mueller madness

Daily Digest

  • New York Times Targets Kavanaugh’s Wife
  • More Mueller madness
  • Jim Jordan announces he’s seeking the Speakership
  • Identity-politics and income redistribution boosted by federal appeals court
  • Wherein Mitch Dishes
New York Times Targets Kavanaugh’s Wife

Posted: 26 Jul 2018 02:11 PM PDT

(John Hinderaker)I wouldn’t have thought my opinion of the New York Times could get any lower, but it just did. NTK Network reports that the Times, as well as the Associated Press, has requested emails sent or received by Ashley Kavanaugh in her capacity as town manager of Chevy Chase, Maryland:

The New York Times and Associated Press both filed requests under the Maryland Public Information Act (PIA) seeking e-mails that Ashley Kavanaugh, the wife of President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, sent as town manager of The Village of Chevy Chase Section 5, according to documents obtained by America Rising Squared (AR2) and shared exclusively with the NTK Network.

The two news organizations took different approaches to obtain the e-mails. According to the documents, the AP made a sweeping request for “all emails sent or received” by Ashley Kavanaugh’s Village of Chevy Chase email address.

By contrast, The New York Times is currently requesting that The Village of Chevy Chase Section 5 hand over “any emails to or from Ms. Kavanaugh that contain any of the keywords or terms listed below.”

Here is the email from Steve Eder of the Times. The paper says: “Steve Eder is an investigative reporter for The Times, where he writes about the federal government under President Trump, as well as his personal businesses.” I have no idea why two items appear to be blacked out:

The Times’s request obviously tracks left-wing concerns and talking points, e.g. regarding the dreaded Federalist Society and Leonard Leo. Not to mention guns, gays and abortion.

They won’t find anything, of course. But this is what I want to know: When Stephen Breyer, Ruth Ginsburg, Sonia Sotomayor and Elena Kagan were appointed to the Court, did the Times, or the Associated Press, try to investigate documents sent or received by their family members?


More Mueller madness

Posted: 26 Jul 2018 11:20 AM PDT

(Scott Johnson)Lest we forget, it bears repeating that Robert Mueller was appointed Special Counsel to take over the counterintelligence investigation into alleged Russian collusion with the Trump campaign. Yet it appears there was no such collusion. It is long past time for Mueller to wrap it up, yet he soldiers on with some other object in mind. What might it be? I offer my clue in the denomination of the probe as the Mueller Switch Project.

The latest evidence for the proposition is today’s New York Times story by Michael Schmidt and Maggie Haberman, “Mueller Examining Trump’s Tweets in Wide-Ranging Obstruction Inquiry.” I hesitate to say that we are reaching the clown car stage of the Mueller extravaganza, but if the Times story is to be taken at face value we might be getting there. Rudy Giuliani responds with uncharacteristic understatement in the comment quoted by the Times: “If you’re going to obstruct justice, you do it quietly and secretly, not in public.”


Jim Jordan announces he’s seeking the Speakership

Posted: 26 Jul 2018 10:54 AM PDT

(Paul Mirengoff)Rep. Jim Jordan said today that he intends to be a candidate for Speaker of the House. “Should the American people entrust us with the majority again in the 116th Congress, I plan to run for Speaker of the House to bring real change to the House of Representatives,” Jordan stated.

Jordan is, indeed, the “change” candidate among the Republicans. Rep, Kevin McCarthy, supported by outgoing Speaker Paul Ryan, is part of the current leadership. So is Rep. Steve Scalise, who is reportedly considering a bid. They are number two and three, respectively, behind Ryan in the current set-up.

Jordan, by contrast, is a leader of the House Freedom Caucus, a force for a more conservative House.

I favor Jordan for Speaker. As I argued here, Jordan is an outsider who has been willing to fight the leadership in defense of conservative policy and principles. He’s also a charismatic figure. As such Jordan could energize the base. He’s a bona fide “drain the swamp” candidate. Fairly or not, McCarthy and Scalise are perceived as having one foot in the swamp.

In addition to political considerations and perceptions, I prefer Jordan for substantive reasons. McCarthy and Scalise are good men, but Jordan would very likely lead the House in a more consistently conservative direction.

Jordan has come under attack for allegedly ignoring the sexual abuse of athletes by a team doctor when he was an assistant Ohio State wrestling coach. The allegations strike me as politically motivated and probably not meritorious. However, we’ll be hearing even more about them now that Jordan has announced his intention to become Speaker.


Identity-politics and income redistribution boosted by federal appeals court

Posted: 26 Jul 2018 10:30 AM PDT

(Paul Mirengoff)In a stunning display of judicial activism, one with far-reaching implications, a federal appeals court has ruled that the Alabama law Minimum Wage and Right-to-Work Act, which mandates a uniform minimum wage of $7.25 per hour throughout Alabama, may be unconstitutional. Finding that the Act, which toppled a Birmingham ordinance setting the minimum wage at $10.10 per hour, has a disparate impact on black workers, the court allowed a claim that the Act violates the Fourteen Amendment to proceed. The case is Lewis v. Governor of Alabama.

I don’t doubt that the Alabama law has a disparate impact on black workers in Birmingham. The record showed that the Minimum Wage Act denied 37 percent of Birmingham’s black wage earners a big pay hike, compared to only 27 percent of white wage earners.

But all kinds of laws, especially laws that entail standards, have a disparate impact on blacks. Most criminal laws do, because blacks violate them at higher rates than whites. So do laws banning preferential admission based on race.

Fortunately, the Supreme Court has ruled out Fourteenth Amendment claims based solely on disparate impact. It is only intentional discrimination by the state that the Constitution bans.

In the Birmingham minimum wage case, the Eleventh Circuit panel — consisting of two left-wing court of appeals judges and a George H.W. Bush appointed district court judge who approved one of the Carter Page FISA warrants — paid lip service to the requirement that more than disparate impact is required to establish a Fourteenth Amendment violation. But to find “more,” it descended into blatant speculation, second-guessing of the state legislature, racial stereotyping, and circular reasoning.

Before examining the “more” cited by the court, let’s consider two fallacies the court indulged in at the outset.

First, minimum wage laws are economic regulation. Sound economic reasons support not setting the minimum too high. In the absence of countervailing steps by affected businesses, a high minimum wage increases labor costs. Accordingly, it often leads to countervailing steps such as hiring fewer workers or eliminating part-time employees. A high minimum wage may force some firms out of business.

In some cities, probably including Birmingham, these “hidden” effects will fall more heavily on blacks than on whites. Thus, just as the black plaintiffs in Lewis challenged the state minimum wage law on racial grounds, other black plaintiffs — e.g., fired part-time workers — might be able to mount such a challenge to the Birmingham ordinance

What did the court say about the economic effects of raising or lowering the minimum wage? Nothing. It refused to consider them. “This is not the place to debate the Minimum Wage Act’s long-term macroeconomic merits,” Judge Charles Wilson sniffed.

Why not? To prevail in this suit, plaintiffs will have to show that it was race, not economic considerations, that motivated the Alabama legislature to pass the Minimum Wage Act. Thus, it is wrong, in assessing whether plaintiffs have a case worthy of being tried, to rule out all consideration of the economic rationale for passing an economic regulation.

Second, though the court went looking for “more” than just disparate impact, it relied heavily on that impact in inferring discrimination. Note, however, that while the adverse effect of the Alabama law falls disproportionately on blacks, it also harms a great many whites. No one’s wage (white or black) is raised by the Minimum Wage Act, but 27 percent of white wage earners in Birmingham would lose a hefty chunk of their earnings as a result of it.

Thus, the disparate impact of the Act on blacks is, at best, very weak evidence that its enactment was racially motivate. Is it at all realistic to suppose that a modern Alabama legislature might be so racist as to slash the wages of many thousands of white workers just so it can slash the earnings of many thousands of black workers? Only strong evidence — either direct or powerfully circumstantial — that the legislature was racially motivated when it passed this economic legislation should suffice to make this case fit for trial.

With that in mind, let’s look at the evidence of supposed racial motivation relied on by the court. It is astonishingly weak.

First, the court cited the circumstances of the laws passage:

The Act was introduced by a white representative from Alabama’s least diverse area, with the help of fifty-two other white sponsors, and was objected to by all black members of the House and Senate. And it was accelerated through the legislative process in sixteen days with little or no opportunity for public comment or debate.

This is no rational basis for inferring racial motivation. Rather, it is a pernicious judicial intrusion into the legislative process. Indeed, accusing legislators of racial basis based on their race and/or the race of their constituents isn’t just the judicial equivalent of an ad hominem argument, it is racist.

The author of the court’s opinion, Judge Wilson, is African-American. By his reasoning, we should suspect that his opinion is influenced by his race. I don’t infer this — leftist identity-politics is probably the main culprit. But citing the race of the Act’s sponsors and opponents invites inferring racism anytime a public official, black or white, acts on a matter implicating race.

Citing the unified opposition of black legislators to the Minimum Wage Act is wrong for additional reasons. Black legislators can be expected to oppose any bill that has a disproportionate short-term impact on their constituents (most of whom, typically, are black). Thus, citing unified black opposition adds nothing to the evidence that the Act disproportionately affects blacks; it just underscores that fact. As we have seen, such evidence is legally insufficient to establish a Fourteenth Amendment violation.

In addition, the Lewis court has started down the road to giving African-American legislative caucuses a veto over legislation that implicates race. By standing united against such legislation, black legislators can now provide evidence for courts to use in striking down such legislation as unconstitutional. That’s profoundly anti-democratic.

So is the court’s willingness to infer wrongful motivation from the fact that the Act passed in 16 days. There’s no reason why sound economic legislation should take any longer to enact. In any event, it shouldn’t be the court’s job to judge how much time is necessary properly to consider a particular bill.

The court’s next reason for suspecting racial motivation is Alabama’s “deep and troubled history of racial discrimination” that has “consistently impeded the efforts of its black citizens to achieve social and economic equality.” The court cites “the historical origins of [Alabama’s] 1901 Constitution, plus a bunch of cases that are then three decades old.

The court fails to cite any modern instance of discriminatory legislation passed in Alabama. Its reliance on old history to support an inference of discrimination regarding contemporary economic legislation — similar to that adopted by 22 other states — is a sure indicator of the court’s desperation to keep this case alive for ideological reasons.

The court also gives its stamp of approval for the use of old history as a card to be played whenever blacks are unhappy with a piece of legislation. It’s reminiscent of the reliance on racist voting laws and practices from more than 50 years ago to strike down voting rules enacted in an entirely different environment. Recognizing that our country, including the Deep South, has changed, the Supreme Court has finally rejected this approach.

Judge Wilson concludes by informing us that “Today, racism is no longer pledged from the portico of the
capitol; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering
government power toward no less invidious ends.” Again, this rationale can be used to allege racism, and explain the absence of supporting evidence, any time blacks are unhappy with a legislative (or other) outcome.

Judge Wilson’s argument does support looking at circumstantial evidence when considering whether intentional discrimination has occurred. But the analysis can’t be one-sided, excluding such facts as the obvious economic justification for an act and the fact that it harms a great many whites.

Nor should the analysis rely on a presumption, based on old history or current racial identity, that legislators are racially biased. Racial bias is what must be demonstrated. It cannot be assumed, not even at the summary judgment stage.

Finally, courts should minimize their intrusion into the work of legislators elected by the people. For example, they have no business opining on how long it should take to pass a bill.

Lewis v. Governor of Alabama sets the stage for widespread attacks on neutral, sensible legislation that conflicts with the imperatives of identity-politics and/or income redistribution, among other left-wing hobby horses. I hope the case will be reviewed by the full Eleventh Circuit. Even if the panel’s ruling is sustained, en banc review should generate dissent[s] and make this case a strong candidate for the Supreme Court to consider.


Wherein Mitch Dishes

Posted: 26 Jul 2018 10:20 AM PDT

(Steven Hayward)Senate majority leader Mitch McConnell is no one’s idea of an electric speaker,

US Senate logo at HoaxAndChange.com

US Senate logo at HoaxAndChange.com

but it is worth taking in his brief remarks this morning calling out Democrats for their hysteria over Judge Brett Kavanaugh’s nomination to the Supreme Court. I imagine most readers have heard New Jersey Senator Cory Booker calling Kavanaugh “evil” and other embarrassing things, but McConnell gets at the other crazy things Democrats on the Judiciary Committee have said.

The fun part of this short speech is that McConnell, who’d be the straight man’s straight man if he was in a comedy club, can barely keep from bursting out laughing. You can see him struggling to stifle himself. Instead he just flashes that sly grin which gives away that he knows he has caught Democrats in full, pants-around-the-ankles clown mode. The confirmation hearings are going to be a hoot.


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