Queers, ‘Robust’ and Companies

Long ago we all should have adequately digested – and appropriately defecated – certain irrational exuberance of the politically irresponsible:

Trans Americans enjoy robust bias protections

And by now we all know of the death of Supreme Court Justice Antonin Scalia – and the expressed intent of treason-minded christianists in the Senate to rewrite the Constitution to remove the ability of duly-elected (African-American) presidents to fill Supreme Court vacancies during their final year in office.

Which all leads back to those ‘robust’ protections that any given trans person only has until the next judge hearing a discrimination claim says said trans person does not have them.

‘Robust’ protections that were created by judges and administrators, not legislators.

‘Robust’ protections that can be erased by judges and administrators, without legislators ever having to get their hands dirty.


Those ‘robust’ protections.

All of those ‘robust’ protections – real and (mostly) imagined – emanate from the four-justice Supreme Court plurality opinion in 1989’s Price Waterhouse v. Hopkins.  The key line, from Justice William Brennan, is indeed a monumental nugget of logistic simplicity that should be unassailable:

We are not inclined to accept petitioner’s belated and unsubstantiated characterization of Dr. Fiske’s testimony as “gossamer evidence” (Brief for Petitioner 20) based only on “intuitive hunches” (id., at 44) and of her detection of sex stereotyping as “intuitively divined” (id., at 43). Nor are we disposed to adopt the dissent’s dismissive attitude toward Dr. Fiske’s field of study and toward her own professional integrity, see post, at 293-294, n. 5.

Indeed, we are tempted to say that Dr. Fiske’s expert testimony was merely icing on Hopkins’ cake. It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring “a course at charm school.” Nor, turning to Thomas Beyer’s memorable advice to Hopkins, does it require expertise in psychology to know that, if an employee’s flawed “interpersonal skills” can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.

But, again, only four justices out of a possible nine lined up behind that rationale.

And with the death of Antonin Scalia, the only justice left on the court who was there in 1989 is Anthony Kennedy – who has authored some good LGB-positive decisions (Romer v. Evans, Lawrence v. Texas) and whose 1988 confirmation to the court is the historical fact which lays bare the malignant hypocrisy of Mitch McConnell and the Senate La Cosa Republinostra but who also helped to give us Citizens United, Shelby County v. Holder and the George W. Bush administration.

There were concurrences in Price Waterhouse which add somewhat to its vitality, but there was a three-justice dissent.

A dissent authored by Anthony Kennedy.

And how did it begin?

Today the Court manipulates existing and complex rules for employment discrimination cases in a way certain to result in confusion.

Now, to be fair, the dissent was not focused on the specifics of the Brennan logic from which trans protections have had to be chiseled by other courts and by the EEOC because Gay, Inc. decided that the wants of the infinitesimal percentage of LGBs who desire a career in the military were more important than the needs of all LGBT people who at some point in their lives will seek employment in the civilian economy – that the wants of the few outweigh the needs of the many.  But, nevertheless, this is how Kennedy’s dissent (cosigned not only by Scalia but also by Chief Justice Rehnquist – two others who are responsible for inflicting George W. Bush and his wars of choice on America) concluded:

The language of Title VII and our well-considered precedents require this plaintiff to establish that the decision to place her candidacy on hold was made “because of” sex. Here the District Court found that the “comments of the individual partners and the expert evidence of Dr. Fiske do not prove an intentional discriminatory motive or purpose,” 618 F. Supp., at 1118, and that “[b]ecause plaintiff has considerable problems dealing with staff and peers, the Court cannot say that she would have been elected to partnership if the Policy Board’s decision had not been tainted by sexually based evaluations,” id., at 1120. Hopkins thus failed to meet the requisite standard of proof after a full trial. I would remand the case for entry of judgment in favor of Price Waterhouse.

As of Saturday morning, the author of that is one-eighth of the Supreme Court.

Irrespective of anything that may have happened re: Anthony Kennedy’s judicial philosophy since May 1, 1989 (the date Price Waterhouse v. Hopkins was issued), what would you rather have had as your reward for living through the politics of Jan. 20, 2009 – Jan. 20, 2017?

A concrete statute?

Or a ‘robust’ hope that, if the Price Waterhouse trans emanations make it to the Supreme Court before Scalia’s seat is filled, Anthony Kennedy will side with the four reality-based justices and actually bless us with a majority opinion (that, of course, a subsequent Supreme Court majority could erase – but put that aside for the moment)?

With a conjoined ‘robust’ holding-of-breath that even if Kennedy instead sides with the other surviving three conservatives the resulting non-precedential affirmance-by-an-evenly-divided-court would benefit a trans person who may have prevailed at the court below?

With a further conjoined ‘robust’ holding-of-breath that Obama actually will be allowed to fill the seat?

With even more conjoined holding-of-breath that, if Obama is not allowed to fill the seat, the Democrats won’t subsequently manage to blow the presidential election, thereby letting Marco Rubio give the seat to Rafael “Ted” Cruz (or vice versa)?

You want to rely on all of that roBuStness?

I’d sooner rely on the ghost of Ted Kennedy to be my Uber driver when next I’m in the Chappaquiddick area.

The judicial and administrative decisions and rules that currently emanate from Price Waterhouse v. Hopkins do exist – but only to whatever degree that they exist.  If you are in the position of needing to use that precedent, by all means do so.  But, (1) don’t be surprised if what you think are ‘robust’ protections instantaneously vanish into a puff of a self-important, obnoxious, untrained-in-the-law, three-time-political-loser, ‘retired’ doctor’s ego when it is least convenient for you; and (2) don’t be surprised if what’s left of those ‘robust’ protections vanish on Jan. 21, 2017 – or whenever the Republican who benefits from this year’s model of inevitable Democratic incompetence fills Scalia’s seat with the christianist who not only wipes out Price Waterhouse v Hopkins but also the Fourteenth Amendment.

Sleep well.

Memo to People Who Want to ‘Take the High Road’ Re: The Death of Antonin Scalia by Preaching Forgiveness Over Hate…

It is one thing if you had a hand – whether purposely or accidentally – in bringing about Scalia’s death.

I didn’t.

And, contrary to the ravings of Alex Jones, I assume no one did.

But any person who Scalia sat in judgment of – as he did whenever he heard a case involving constitutional rights relevant to any class that a person belongs to – has every right to exhibit any and all positive emotions in mere acknowledgment of the fact that Scalia’s ceasing to draw breath also stops his pen from authoring documents that seek to legally brand many of us as less than human, position us as strangers to the law and render us helpless before raw, evil, proto-theocratic power.

Antonin Scalia was a man who, in adjoining breaths, could use his position of power to declare that actual proof of innocence is not a legitimate reason to not keep imprisoned and/or execute people who are guilty of no crime and then use that same position of power to remove all control that women have over their own bodies and claim that such removal is in defense of the sanctity of life.

That may be – indeed it has already been – the sort of acrobatics of intellectualism (dare I say sophistry?) that, in death, wins him praise from legal intellectuals on both sides of the political spectrum. But it is also pure evil, amorality of the most diseased caliber imaginable. Bush v. Gore by itself renders him (and the other four coup-enablers) unworthy of sympathy.

And only the people who died in the real war begun on fake facts – a war that would not have happened but for a presidency that would not have happened but for a 5-4 decision of which he was one of the 5 – have the power to forgive him.

Those of us who have outlived him have both the right and the responsibility to judge Scalia based on the effects that his opinions and votes caused.

If that offends you, then too bad.

And, while you’re at it, get thee to a copy of the Constitution.

Any originalist can tell you that presidential terms last for four years, not three.

Marcobot’s Priorities

Jobs?  Not so much.

But theocracy?

Marco Rubio Forms Anti-LGBT Advisory Board On Repealing Windsor & Obergefell Marriage Rulings

You Want Tradition? Try Republican Hypocrisy

Antonin Scalia dies while Obama has over eleven months remaining in his second term as president.

Somewhat surprising despite Scalia being 79.

Even an originalist like Scalia would have to agree that the constitution confers upon the president the power to appoint Supreme Court justices subject only to the advice and consent of the Senate but without limitation as to the president’s proximity to the end of his time in office.

Barely an hour after the news broke Saturday of the death of Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell (R-Ky.) made it clear that he has no intention of letting President Barack Obama replace the conservative icon.

Obviously, today’s right wing Republicans want Scalia-style originalists on the court – but they also apparently want a McConnellist interpretation of the constitution to control the process to replace Scalia.


If there is but one constant in the universe, it is right wing Republican hypocrisy:

If McConnell plans to spend the next year blocking every potential Supreme Court nominee that Obama puts forward, it would be a major break from tradition — since 1975, the average number of days from the nomination of a Supreme Court justice to a final Senate vote is 67, per a Congressional Research Service report.

It would also represent a break with McConnell’s personal history: In 1988, he voted to confirm a Supreme Court nominee when it was a Republican president’s final year in office.

Sorry, Yertle…

“The American people‎ should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”

But according to principles of Dick Cheneyism – invoked by Darth whenever, after November 2, 2004, there was any suggestion that the people should have a say as to whether The War of Halliburton Profiteering should continue – the people had a voice in the selection of their next Supreme Court Justice.

On November 6, 2012.

This is Your Economy Under Republicanism

Greedy Obnoxious Pustules in action:

To Have Thought Otherwise About the True Meaning of the Dogwhistle You’d Have to Have Had Arkham Asylum Values, But Thanks for the Clarification Nevertheless

From the New Republic:

Ted Cruz confirms that “New York values” is code for “Jewish.”

[N]ow Cruz has clarified what New York means in his mind. Again, talking about Trump at recent New Hampshire event, Cruz said, “For him to make this attack, to use a New York term, it’s the height of chutzpah.” Chutzpah is a Yiddish word, so a “New York term” means one inflected by a dialect associated with Jewish immigrants and their descendants. And that can also only mean that Jewish values—sorry, New York values—are inimical to the good conservatives of the American heartland.

Am I the Only One…

…finding it interesting how MSNBC went wall-to-wall for six months ‘making’ Donald Trump and now it is going wall-to-wall tearing him down (by being MSNBCruz) and ignoring what is possibly the only substantively accurate thing Trump has said since he announced his candidacy, namely that Sen. Rafael “Ted” Cruz (R-Calgary) committed fraud to steal Iowa?