Trust us, we’re the government, Obama administration tells Supreme Court [With Comment by John]

Earlier this month, the Supreme Court heard a case in which the Obama administration made the extraordinary claim that there can be no judicial review as to whether a government agency met a statutory prerequisite for filing a lawsuit. The case is Mach Mining v. EEOC.

The Federalist Society asked me to report on the case via audiotape. My report is here.

The Civil Rights Act requires the EEOC to negotiate an end to an employer’s alleged discrimination before it sues the employer. The process is called conciliation. Congress required concilation because it believed, sensibly, that informally resolving discrimination suits, if possible, is preferable to resolving them through litigation.

But when the EEOC wants to bring a big lawsuit, it will often blow off conciliation. In my experience, it will do so, for example, by presenting a monetary demand with no explanation for its derivation and then, when the employer asks for one, declare that conciliation has failed. Then, it will proceed directly to court.

Why does the EEOC do this? Because the results of conciliation must remain confidential, and the EEOC wants the publicity that will come with the settlement of a lawsuit (or a victory in court).

When the EEOC behaves this way, the employer often will assert as a defense to the lawsuit that the EEOC failed to meet its statutory obligation to conciliate. For four decades, this has been a defense that courts would assess — typically under a standard that is deferential to the EEOC. If a court finds that the EEOC failed to meet its obligation, typically the EEOC will then engage in real conciliation, as Congress intended. If conciliation then fails, the case will proceed on the merits.

But the Obama EEOC challenged this regime, arguing, in effect, that there is no “failure to conciliate” defense. If the EEOC declares that it engaged in conciliation, that’s the end of the matter; there is no judicial review.

In Mach Mining, the Seventh Circuit Court of Appeals agreed with the EEOC, thereby creating a split in the circuits. The Supreme Court granted review.

And no wonder. Although the issue of conciliating employment discrimination claims is hardly an earth-shattering one, the Obama administration’s position regarding the power of government in this context seems seismic.

A statutory requirement that courts cannot review for compliance is no statutory requirement at all. The Seventh Circuit’s ruling in Mach Mining leaves the EEOC free to refuse to do what the statute requires of it — “endeavor to eliminate the employment practice by informal methods of conference, conciliation, and persuasion.”

Compliance is entrusted entirely to the government. This is music to the Obama administration’s ears. But it should be chilling to the rest of us, especially when advocated not in the context of a need for secrecy to protect national security but rather in the connection with a garden variety government obligation.

During oral argument, the Supreme Court Justices may or may not have shivered, but the Court as a whole seemed a bit shocked. Justice Breyer, for example, reminded the government attorney that these days there is judicial review of virtually everything. He added, “of course there should be judicial review” here.

The Court, then, will almost certainly reject the EEOC’s position. The real questions are whether it will articulate a general standard for reviewing the EEOC’s conciliation efforts and, if so, what that standard will be.

The other question is whether any of the Court’s liberal Justices will back the EEOC’s position. The Obama administration has lost its share of Supreme Court cases 9-0. I hope this will be another such defeat. It’s appalling enough that the Seventh Circuit adopted the EEOC’s lawless position.

JOHN adds: This is a very serious matter. The sad reality is that the Democrats have succeeded in appointing a substantial number of far-left activist judges to the federal courts, and a handful of Republican appointees have joined them. The idea that any judge, let alone a circuit court panel, would endorse the Obama administration’s patent lawlessness in this case is almost unbelievable. It should be a wake-up call for Senate Republicans: they cannot allow the appointment of such out of the mainstream judges to continue.

A Foolish Consistency Is the Hobgoblin of Chait’red Minds [With Derision by John]

Jonathan Chait of New York Magazine has a very solid piece which we linked to in our picks section earlier today decrying the runaway political correctness on college campuses.  It contains a robust restatement and endorsement of the fundamental liberal case for democracy and free expression.  Good for him.

Except that Chait doesn’t seem to live by his own principles.  Because last week he wrote a column in which he argued that climate skepticism ought to disqualify someone from holding public office:

The Republican Party confidently and forthrightly rejects the firm conclusions of science on a major public-policy question. Isn’t that a completely disqualifying position? If a candidate for a managerial job at your office insists that two plus three equals seven, it wouldn’t matter how well-qualified this candidate may be at any other aspect of the job. Even if you agreed with everything else the Republicans stood for, how could a party so obviously unhinged be entrusted with power?

Never mind Chait’s completely tendentious rendering of the climate debate in those three sentences: I guess there are limits to Chait’s embrace of free expression.  Or perhaps this is best marked off as another example of the axiom of Charles Peguy: “It will never be known what acts of cowardice have been committed for fear of not looking sufficiently progressive.”

JOHN adds: In my opinion, Chait is a person of extremely limited intelligence. Put aside for the moment the fact that he knows nothing about climate science, or science in general. He thinks Republicans are “unhinged,” and should be disqualified from public office. But how about Democrats? Are they lining up behind proposals to de-carbonize our economy, and impoverish the American people? Of course not. When they controlled both the House and the Senate, they couldn’t even pass cap and trade, which John McCain favored. So are Democrats “unhinged”? Or just cowardly? Chait is, I think, a foolish person to whom no attention should be paid.

Sharyl Attkisson to testify on Lynch confirmation, but why?

Loretta Lynch, President Obama’s nominee for Attorney General, will testify tomorrow before the Senate Judiciary Committee. It should be an interesting day.

Coming up with lists of questions to ask Lynch has become a cottage industry. I offered my entry in November:

I hope that during Senate confirmation hearings, Lynch will be asked specifically about each issue as to which the Holder DOJ has applied or considered applying disparate impact theory.

More generally, Senators should ask for Lynch’s views on the full range of Holder’s abusive behavior: from his refusal to defend the constitutionality of the Defense of Marriage Act, to his refusal to enforce the contempt citation issued by the House against Lois Lerner, to his overly broad assertion of a privilege claim and refusal to turn over documents related to Operation Fast and Furious. . . .

Eric Holder has done great damage to the rule of law. The Senate should not confirm Lynch unless she can show that there is meaningful difference between her and the man whom she would replace.

Asking Lynch for opinions about Holder’s policy is one thing; parading in witnesses to vent against Holder is another. Unfortunately, it looks like the Committee intends, in addition to the former, to do the latter.

Its witness list includes Sharyl Attkisson and Catherine Engelbrecht. Both have grievances against the Obama administration. Attkisson says the Justice Department hacked her electronic devices when she was investigating “Fast and Furious.” Engelbrecht says the administration unfairly targeted her group, True the Vote. Both have filed lawsuits. Engelbrecht’s has been dismissed.

Both sets of grievances should be taken seriously, but I don’t understand how they materially bear on Lynch’s confirmation. The problems with the Holder Justice Department extend far beyond the particular concerns of Attkisson and Engelbrecht. Republican members presumably take it as a given that if they can expect a repeat performance under Lynch, then she is not a suitable replacement.

The key, then, is not to attack Holder but to test the extent to which Lynch professes allegiance to his policies. Whatever her private views, Lynch will not endorse, as a general matter, hacking journalists’ computers or having the IRS target conservative advocacy groups.

However, when it comes to substantive issues like disparate impact, protecting against voting fraud, the proper scope of executive privilege, “lawfare”/the war on terrorism, and so forth, Lynch can’t so easily skate. The Obama administration and its constituencies are publicly invested in the approach Holder took to these issues.

Accordingly, these issues should be the Committee’s focus. The time granted to Attkisson and Engelbrecht would be better devoted to witnesses discussing the substantive areas where Lynch’s expressed views are likely to diverge from those of Committee Republicans.

Tomorrow’s events may prove me wrong, but I fear the Committee has opted for flash over substance. I hope this is not a sign that Senate Republicans, resigned to Lynch being confirmed, are trying to appease the base by using conservative favorites to attack Holder.

Is Russia Financing the Anti-Fracking Campaign?

The production of natural gas by fracking has been an enormous boon to America’s economy and to its hard-pressed consumers. Yet there are some who oppose fracking, and these opponents are lavishly funded. By whom? Investigations by the Washington Free Beacon and the Environmental Policy Alliance indicate that the answer may well be: the Russian government and Rosneft, the world’s largest oil company.

The Russians’ motive to suppress American natural gas production is obvious, but what is the evidence? It starts with the California-based Sea Change Foundation, one of the principal sources of money for American environmental groups. In 2010 and 2011, Sea Change gave the Sierra Club $15 million, the Natural Resources Defense Council $13.5 million, and the League of Conservation Voters $18.1 million. The Sierra Club launched its “Beyond Natural Gas” campaign in 2012. The Free Beacon notes that “[t]he effort has become one of the largest and best-funded environmentalist campaigns combating fracking and the extraction of natural gas in general.”

But where does Sea Change get its money? Its disclosures list only two sources of funds. One is the Nathaniel Simons family. Simons runs a fund that invests in crony projects–government-sponsored “green” energy. The “green” Mr. Simons commutes to work across San Francisco Bay in a 54-foot motor yacht. Naturally, the Simons family are major donors to Barack Obama and the Democratic Party.

Beyond Simons, Sea Change has only one source of funds: Klein Ltd. You’ve never heard of Klein Ltd? No wonder: the company exists only as a paper entity in the office of a Bermuda law firm called Wakefield Quin. Klein Ltd. doesn’t conduct business; it launders money. Whose money? You can follow the links to the Free Beacon article and the Environmental Policy Alliance report for the details. The connections between Klein/Wakefield Quin and the Russian oil industry are way too deep to be coincidental:

Wakefield Quin’s Hoskins and Smith, as well as a number of other employees of Wakefield Quin, have worked in some capacity for companies or investment funds owned by or tied to Russian state-owned corporations and high-level officials in the country.

Hoskins, Forrest, and another Wakefield employee named Penny Cornell were all listed as executives of Spectrum Partners Ltd., a fund with offices in Moscow, Cypress, and Bermuda, Cornell at the address of Wakefield Quin’s offices.

According to a performance report for one of Spectrum Partners’ funds, its portfolio consisted of “Russian and CIS [former Soviet state] securities and securities outside of Russia or CIS but having significant economic or business involvement with Russia and/or CIS.”

As of 2008, more than half of the fund’s holdings were in the oil and gas sectors.

Numerous executives at Wakefield Quin have ties to Russian oil and gas companies, including Rosneft, which is majority-owned by the Russian government and in 2013 became the largest oil company in the world.

Hoskins is the vice president of a London-based company called Marcuard Services Limited, and a member of the firm’s board, according to its website.

The company’s president, and the chairman of its parent company, Bermuda-based Marcuard Holding Limited, is Hans-Joerg Rudloff. Rudloff is also a former vice-chairman of the Rosneft’s board.

Hoskins is also a director at a Bermuda-based subsidiary of Russian investment bank Troika Dialog. That firm organized an initial public offering for Timan Oil & Gas, which is run by Russian oligarch Alexander Lebedev.

A representative of the Environmental Policy Alliance writes:

The American public deserves to know whether environmentalists are attacking US energy companies at the behest of a Russian government that would like nothing more than to see their international competition weakened.

In the face of mounting evidence, environmental groups are going to have to start answering hard questions about their international funding sources.

Well, maybe. But it’s going to take a lot more pressure than we have seen so far. Democrats have obsessively tried to change the law relating to 501(c)(4) non-profits so they can identify and attempt to intimidate American donors to conservative causes. Will they bring the same enthusiasm to bear on suspected foreign entities who are out to undermine America’s energy economy, in concert with major Democratic Party donors? Don’t hold your breath.

This whole concept is not entirely new, of course. The anti-fracking movie “Promised Land” was funded by the United Arab Emirates, and Steve Hayward noted here that Russia has financed anti-fracking protests in Eastern Europe. Steve wrote, presciently:

The really interesting story to chase down is to see whether Russia (or any other foreign interest) is somehow supplying funds for American environmental opposition to fracking and the Keystone pipeline.

It appears that the answer to that question is beginning to emerge.

Manners, Courtesy, and Other Tools of Oppression

In my classrooms, I uniformly use the practice of the University of Chicago’s old graduate programs, in which I address students as “Mr. Jones” or “Ms. Smith.” It introduces a modicum of formality and respect, which counterbalances the more casual, conversational, and indeed often stream-of-consciousness style of my classes. (I hate straight-up lecturing; likewise I dislike the presumptuous faux-familiarity implied by the easy use of first names.) My sense is that students like it, especially when they are surprised to find out I have memorized their last names and call on them by name when they raise their hand: “Yes, Mr. Smith up in the back row?”

Well guess what? At the SUNY schools, Mr. and Ms. are officially out:

“Mr.,” “Mrs.” and “Ms.” are being shown the door at the Graduate Center of the City University of New York.

In a new policy that has sparked debate among academics, school staffers have been advised to refrain from using gendered salutations in correspondence with students—and instead use a student’s full name, according to an internal memo sent out earlier this month.

You can guess where this is coming from:

Some people said the policy showed sensitivity to students who identify as transgender.

Gendered salutations represent “an outdated and unnecessary formality [that] serves no purpose other than to label and risk misrepresentation,” said Allison Steinberg, a spokeswoman for the Empire State Pride Agenda, an advocacy group for gay and transgender people. “We’re hopeful this gesture will inspire others…to follow in CUNY’s innovative footsteps.”

Why isn’t there (yet) an in-between third salutation for trans-persons? How about “Mst”? I’m rather amazed at the shortfall of imagination here. In any case, you’ll have to pry “Mr. and Ms.” out of my cold dead hands. . .

Mirror, Mirror: Who’s the Warmest. . .

The old paean to witchcraft is looking more and more applicable to the climatistas these days, as seen in the orgasmic response to the “news” that 2014 was the hottest year ever by a margin of two one-hundreths of a degree.  (Honey, can you turn up the A/C?  It’s feeling two one-hundreths of a degree warmer!)

Yesterday Britain’s Met Office, one of the principal nodes of the Climate Establishment, offered its own conclusion that 2014 was “one of the warmest years on record globally,” but offered this rather sensible caveat that you can be sure most climatistas will ignore (because talking point):

Nominally this ranks 2014 as the joint warmest year in the record, tied with 2010, but the uncertainty ranges mean it’s not possible to definitively say which of several recent years was the warmest.

Colin Morice, a climate monitoring scientist at the Met Office, said: “Uncertainties in the estimates of global temperature are larger than the differences between the warmest years. This limits what we can say about rankings of individual years.  (Emphasis added.)

Meanwhile, our friends at Hillsdale College have posted the video of my public lecture from last November on the topic “A Funny Thing Happened on the Way to Global Warming.”  It’s just over an hour long, but all the best jokes are up front:

Vexing the Vaxers

Is there a vaccine for liberalism? I guess not. Maybe Big Pharma ought to get to work on one—or at least announce a research program for a cure for liberalism. Think of the comedy gold you’d get from the Left.

Not so funny is the growing anti-vax movement, which is mostly on the Left but finds a few adherents on the conspiratorial Right as well. (Maybe Big Pharma could disseminate the anti-liberalism vaccine from Chemtrails!) The recent news of a spreading measles outbreak originating in unvaccinated carriers of the virus at Disneyland lends new salience to this issue.

Of course there are risks from vaccinations, as there are with most medications these days. But the people who disdain vaccinations are putting everyone else at risks that are almost certainly much larger. Penn & Teller do a nice job of explaining the comparative risk assessment of vaccines in this short treatment (language warning):

Meanwhile, whatever became of Jacobson v. Massachusetts, the 1905 case that blessed mandatory vaccinations? I don’t care for state power of this dimension either, but the alternative would be requiring people to show their vaccination certificates for admission to Disneyland and other public places. I wonder how the Left would like that.

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