Over at National Review, Nicole Gelinas is critical of James Damore’s memo to Google. It is disturbing that a conservative magazine like National Review should decide to publish a piece making the points that this one does. If Damore can’t get a fair hearing for his views at National Review, then things are pretty bad. Gelinas takes the view that Google was wrong to fire Damore, because Google says it encourages internal dissent. But Gelinas then criticizes Damore’s memo. I agree that Google is being hypocritical here. But Gelinas’s critique of the memo is unfair and weak. Gelinas appears to have two…
Archives for August 2017
A recent prediction in this space turned out to be premature. In my post about the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College—which held that the word “sex” in Title VII of the Civil Rights Act of 1964  includes “sexual orientation”—I forecast that the U.S. Supreme Court would grant cert and reverse the Seventh Circuit. For unknown reasons, the defendant-employer in Hively decided not to seek appellate review of the controversial ruling, foiling my prophesy. Instead, Ivy Tech Community College in Indiana will defend Hively’s employment-discrimination lawsuit on the merits.
The Department of Justice under Attorney General Sessions has been criticized for changing its positions in litigation from those taken by the Obama administration on such questions as whether Title VII prevents discrimination on the basis of sexual orientation. Some of the criticism has been on the merits of the new position, but others have complained about the wisdom or propriety of changing a position that the government has already advanced in court.
This latter kind of complaint is wholly without merit. The Department of Justice is not like a private litigant and should change positions to reflect the jurisprudential stance of the President and his new administration. Unlike a private client, the President has taken an oath to “preserve, protect and defend the Constitution of the United States,” and must “take Care that the Laws be faithfully executed.” Thus, as I have noted long ago, the Attorney General and his subordinates have obligations that no private lawyer has: not simply to prevail in litigation, but to advance the President’s interpretation of the Constitution and the laws made under it.
To the objection that President Trump, a non-lawyer, has no jurisprudence, the Attorney General and his subordinates should ask themselves what the President would do if he knew as much about jurisprudence as they do. With President Trump, they are substantially aided by President’s own actions. His list of potential Supreme Court justices were to a person committed originalists and textualists.
John Fonte’s groundbreaking analysis of the new version of humanitarianism details its privileging of racial and gender categories and divisions in its vision of Humanity. He refers to it as “Transnational Progressivism.” It is very much an American phenomenon (although with European collaborators, as we might suspect).
Fonte’s 2002 article, “Liberal Democracy versus Transnational Progressivism: The Future of the Ideological Civil War Within the West,” begins with his own eye-opening phenomenon: the 2001 “United Nations World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance” held in Durbin, South Africa, shortly before 9-11.
In an earlier post, I discussed some of the arguments for whether a special counsel with broad jurisdiction should have been appointed to investigate the connections between Russia and the Trump Campaign. I considered both technical matters and more political/functional arguments for the appointment. But whatever one thinks of the Trump special counsel, one must also consider the Obama special counsels – or the lack thereof. During the 8 years of the Obama Administration, no special counsels were appointed. While the former President claims that he had no scandals, that does not pass the laugh test. I can certainly think of…
Early this year, the composer Philip Glass turned 80. Several celebratory concerts have taken place, and in the fall, there will be a debut of a new Glass work. Piano Concerto No. 3 will be performed at the Jordan Hall of the New England Conservatory of Music in Boston. The New York Philharmonic is scheduled to open its 176th season with the New York premiere of his Double Concerto for Two Pianos and Orchestra.
Glass’s popular works have made him the most famous living classical composer. Known by rock fans and regular folks as much as by lovers of orchestral music, he has written many movie soundtracks, including the soundtracks to The Thin Blue Line (1988), A Brief History of Time (1991), and The Hours (2002). Glass is famous for minimalism—a term he doesn’t like, preferring the phrase “repetitive chord structures.” His music is beautiful and mesmerizing.
Starting in the 1960s, jurists and scholars such as ex-New Deal liberal Raoul Berger, Supreme Court nominee Robert Bork, and Attorney General Edwin Meese charged the liberal activist justices of the Warren Court and the Burger Court with usurping legislative authority in violation of the intent and design of the Constitution. Sticking to Progressive “living constitutionalism,” liberal strategists pinned the “originalist” label on critics of judicial activism.
Even as it faced vigorous criticism, originalism was rightly recognized as a legal-theoretical problem worthy of philosophic and historical investigation. It was hard to deny, as constitutional scholar Richard Kay observed, that the issue of adherence to original intent was “vital in a political system where power is delegated and limited by a constitution.” In the view of historian Johnathan O’Neill, the doctrine’s initial expositors such as Berger “made originalism impossible to ignore.”
Google and our elite universities appear to inhabit the same ideological bubble and intone the same diversity mantras. And that is not surprising, because almost everyone at Google is a product of the modern university and those at its HR department the likely product of its more PC inflected half—the humanities or soft social sciences. And Google must live within the world of mainstream media and government regulation, and these two sectors are also dominated by elite university graduates of the last quarter century.
But nevertheless the institutions and their employees operate under different constraints. Google is the elite university without tenure and the elite university is Google without market discipline. You might think that tenure is the more important obstacle to enforcing an orthodoxy like modern diversity policy. After all, a professor at an elite university would not be fired for making the largely accurate factual claims about the average differences in temperament between women and men that the Googler did in the memo that got him sacked.
We can’t help it, we’re human, we necessarily have worldviews. Everybody does. The Resistance does too, rough hewn, in the aggregate, and tacit as it may be. Now it is time to take a look squarely at the Resistance’s main object of concern: Humanity itself. The Resistance declares itself “inclusive” and it hates “exclusion.” Its vision and its concern encompass all of humanity. But not all “humanisms” are created equal. But what is sauce for the goose is sauce for the gander. Who is to say that Resistance humanism is unquestionable?