Tuesday, January 12, 2010

Does Harry Reid Really Need to Resign?

Okay, so there is no court action on which to report here. But I feel compelled to weigh in (along with scores of others) on the present flap surrounding Harry Reid's unfortunate comments about then presidential hopeful Barack Obama, memorialized for all time in the upcoming book Game Change. I won't bore the reader with quoting Reid's comments once again--if anyone really needs reminding, Google "Harry Reid" and "Game Change" and his comments will be readily found.

The most interesting thing about Reid's comments isn't that the comments were made, because people of color know that racist comments still lurk at every corner and pop up even in their own backyards. What is interesting is that Reid was actually trying to say something positive and those were the words he chose to use. Reid was trying to discuss the reasons he felt his party had a good chance of winning the presidential election. In fact, what Reid said is probably true. It probably was a lot easier for a lot of (white) Americans to cast their vote for Obama because (all things being equal) he came across as more mainstream than, say, Al Sharpton or Jesse Jackson.

But, of course, "mainstream" is not the adjective that Harry Reid used. Even if Reid was trying to make a valid point, his words betray an old-time way of thinking. His words echo a time in our history when it was common to hear racist remarks in polite company and no one batted an eye. Really, this is the way a lot of "old white men" (for lack of a better stereotyping, pigeon-holing descriptive phrase) still talk today behind closed doors and amongst themselves. Remember the Texaco scandal from the late 1990's? If not, click here. So, is Reid a racist? After all, Reid was actually trying to complement Obama rather than denigrate him.

Let's look at it from a different angle. If a Republican Senator had made the exact same comments about a Republican candidate, (hypothetically, say, RNC Chairman Michael Steele), would they sound any more or less racist? Would the public or the media be more inclined to forgive a Republican for making the same remarks? Would we chalk it up to ignorance or insensitivity, but not racism because the comments were an attempt, albiet a poor one, at a compliment of a fellow Republican who just happened to be an African-American?

Let's change the angle again. What if Reid had commented on a different hypothetical African-American candidate from the Republican party and had speculated, hypothetically, that the hypothetical candidate had little chance of winning because America was not ready for a president with dark skin color and strong dialect? Let's face it; those conversations probably took place somewhere in the Republican party when Al Sharpton and Rev. Jesse Jackson were campaigning for the Democratic nomination. Perhaps, by itself, that concept may not be objectionable because perhaps it was true. But let's not forget the specific words Reid used, and this hypothetical discussion takes on a more racist feel.

Let's make that angle even more acute. What if a Republican had made the above hypothetical comments about a hypothetical Democratic candidate? It is not as though the Republican party has the reputation of championing racial equality. Now those hypothetical comments sound even more racist. Now it sounds more like the comments made at that Texaco corporate boardroom.

I guess my point is this: Racist comments are made by all kinds of people all the time, whether the comments are about African-Americans, Asian-Americans or even Native Americans. But what makes the speaker a racist is a lot more complicated. Racism in the United States hasn't gone anywhere except underground, which only makes it harder to accurately point out the racists. Reid apologized profusely, appeared contrite and President Obama accepted his apology. So, is Harry Reid a racist? Who knows. Should he resign? Probably not.


Monday, January 11, 2010

My Afternoon With Erwin....Chemerinsky, That Is.

During my last minute marathon in December to get all my Continuing Legal Education credits before the year's end, I had the pleasure of landing in a CLE lecture given by Erwin Chemerinsky at the Boyd School of Law. Chemerinsky, is of course a reknowned law school Professor of constitutional law, and is the founding Dean of the University of California at Irvin School of Law. Chemerinsky's unique vocal cadence and his particular brand of humor always makes dry legal subjects sound more interesting. Of course, Chemerinsky's area of law is far from dry; who isn't interested in the nuances of the sexy parts of constitutional law? The CLE did not disappoint as Chemerinsky recapped the most interesting and significant U.S. Supreme Court decisions for 2009. Here are summaries of three of the Supreme Court decisions he discussed that have particular relevance to Nevada.

A Complaint Can No Longer Rely on the Notice Pleading Standard to Avoid Dismissal.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Despite being less than one year old, Ashcroft is on the verge of being the most cited case in history, according to Chemerinsky. The reason it is so important is that the circuit courts are treating Ashcroft as a new standard in pleading requirements. Notice pleading is no longer sufficient to avoid dismissal. The plaintiff must allege facts that make his claim "plausible," not just a recital of the elements, and the reviewing court may draw on common sense and its experience within the context of the allegations to determining plausibility.

Litigants May Not Contribute to the Presiding Judge's Election Campaign.
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). Where a judge receives substantial campaign contributions from a litigant, and does not recuse herself, due process is violated. Being that Nevada elects its judges, this ruling has the potential to put a monkey wrench in the Nevada Judiciary. As was reported in depth by the Los Angeles Times back in 2005, Nevada is still a relatively small business and legal community, and it is not unheard of for litigants to contribute to a judge's campaign, even to the judge before which they are appearing. Caperton may change that practice. Even better, Nevada may finally adopt another system for choosing judges.

Certiorari Granted To Decide If Second Amendment Applies to State Governments.
McDonald v. City of Chicago, 129 S. Ct. ___ (2009). According to Chemerinsky, between the years 1791 - 2008, not one law was ever invalidated as violating the Second Amendment. Last year the Supreme Court invalidated a gun control law in Washington DC as barred by the Second Amendment. Now the Court will decide if the Second Amendment applies to state and local government.