Category: United States Supreme Court

Biden’s Baggage

On June 30, 2019

In Black Lives Matter, Criminal Justice, Gender Equality, Politics and Elections, Race Discrimination, United States Supreme Court

I started writing Biden’s Baggage weeks ago. At the time, there seemed to be just a trickle of information about his record on issues that are pivotal in this election. Issues of endless wars, mass incarceration and criminal justice reform, race and gender equality are all in play in the 2020 Presidential election. Suddenly, what was a trickle of bad news for Biden became an avalanche.

At the first televised Democratic debate, Biden did little to stem the tide of bad press. He seemed to fumble his answers on his 2002 Iraq war vote. He could not defend his opposition to integration and cozy relationships with segregationists. Three issues not even addressed in the debate are Biden’s leadership in creating mass incarceration, his inconsistent support for a woman’s right to choose and his dastardly treatment of Professor Anita Hill.

Why Are We Here?

This is Joe Biden’s third run for President. He first ran in 1988 and dropped out in disgrace after being accused of multiples instances of plagarism. Biden ran again in 2008 and dropped out after the Iowa Caucus. He won less than 1% of the delegates there. According to the Washington Post, it was a year in which voters said they were seeking change and Biden “struck Iowans as a little too familiar, fixtures of a Washington establishment that had grown stale from years of gridlock and partisan infighting.”

Joe Biden’s current cache stems solely from his role as Vice President to Barack Hussein Obama. But let’s be clear: Obama’s candidacy was so extraordinary and inspiring, we could care less who he picked as his Vice President. President Obama had a blank check. He could have written in Bozo the Clown and we would have said okay. Certainly Biden did not disappoint as the Vice President. But make no mistake about it: Barack and Michelle Obama excelled as the first couple and they didn’t need Joe Biden to do it.

Too Much to Overcome?

To be fair, Joe Biden is known as an ardent advocate for middle class America and the rights of workers. Since 2015, he has supported the ideas of free college and $15 hour/minimum wage. He introduced the first-ever climate bill in 1986 and understands that climate change is an existential threat to our future.

Still, while Joe Biden wants to talk about his achievements as Vice President, he has all this baggage. Indeed, the rest of us are looking at his record in the U.S. Senate. Biden voted for the Iraq war in 2002. Some consider that vote his “blackest mark” in his foreign policy past, and an “Achilles’ heel” of his candidacy. Based on blatant lies about “weapons of mass destruction,” the war cost us more than a trillion dollars and plunged Iraq into a devastating civil war. Biden apparently knew it was a lie but went with it anyway.

The Author of Mass Incarceration

Joe Biden has a long record of leadership creating the mass incarceration that continues to decimate Black and Brown communities. Over a 10-year period, Biden wrote multiple “measures to increase incarceration and prisons. He advocated for tougher prison sentences for drug offenses, particularly crack cocaine, despite its inherent racist impact.

In 1984, Biden worked with racist segregationist hero Sen. Strom Thurmond to expand federal drug trafficking penalties and civil asset forfeiture. Biden wrote and sponsored the 1986 crime bill that created sentencing disparity between crack cocaine and powder cocaine. In 1989, he delivered a drug policy address that called for more police, more prosecutors and longer sentences. Biden helped write the 1994 federal crime bill that increased sentences and funding for state prisons. He sometimes refers to it as “the Biden Crime Law.“

The Enabler of Clarence Thomas

Biden claims that he “did everything in my power to defeat Clarence Thomas.” The actual history is very different. It has long been known that Biden cut a deal with Republican Sen. John Danforth, Thomas’ main sponsor, to end the 1991 confirmation hearings quickly. Biden told a group of women legislators that he had promised Danforth “in the men’s gym that this would be a very quick hearing.”

Former Rep. Pat Schroeder (D-Colo.) and six other female Democrats asked Biden to conduct a complete investigation and delay Thomas’ confirmation. Instead, Biden kept his word to Danforth. Biden refused to allow three other women who would have corroborated Anita Hill‘s testimony to testify. Schroeder says “[T]o have railroaded that through and not listen to the other three women and let his colleagues absolutely tear [Anita Hill] apart was absolutely horrible.” Anita Hill believes that the #METOO movement might have begun in 1991 if Joe Biden had done his job. Anita has “made it clear that Biden is not her candidate for President.”

Pro-Choice or Not?

In this time, a woman’s right to choose what to do with her body is being taken away. Joe Biden is seen by many as “the unreliable pro-choice advocate.” Here’s why:

1970s-80: Biden voted for the Hyde Amendment which bars federal funding of abortions

1977: Biden supported the toughest anti-abortion measure ever – an amendment to deny abortions in cases of incest and rape

1981: He proposed the Biden Amendment to the Foreign Assistance Act which continues to bar U.S. aid from being used for biomedical research related to abortions

1982: He voted in favor of a constitutional amendment to allow states to overturn Roe v. Wade

1983: Biden voted five times to bar the Federal Employees Health Benefits program from funding abortions for federal employees

1988: He voted against adding a rape and incest exception to the Hyde Amendment

As late as 2003, Joe Biden’s score on support for abortion rights by the National Abortion and Reproductive Rights Action League (NARAL) Pro-Choice America was only 36%. It improved to 100% in more recent years, starting in 2006. The question is whether we can count on him to fight the battle for a woman’s right to choose or will he revert back to “states’ rights?”

A Supporter of “States Rights”

In fact, on Thursday, June 27, 2019, Joe Biden reverted to “states’ rights.” When challenged by Sen. Kamala Harris about his opposition to busing to integrate schools, Joe went back to his roots: “states’ rights.” The unmasking of Biden’s baggage on the issue of race is now complete.

Biden led the fight against school busing for at least a decade. He sponsored numerous measures to stop busing, working with notorious racist segregationists. In 1975, after Sen. Jesse Helms‘ amendment failed, Biden crafted his own bill to bar federal funds to help school districts integrate.

**Sen. Edward Brooke (R. Mass.) (Credit: Getty Images)**

Sen. Edward Brooke, the first Black man elected to the U.S. Senate after Reconstruction, called Biden’s bill “the greatest symbolic defeat for civil rights since 1964.”

Joe Biden’s baggage is real and should weigh heavily in any consideration of his candidacy for President. We owe those who fought on the right side of history to make the country a better place at least that much. #BlackWomenLead

#METOO WorldWide Movement

By pypriceesq

On May 17, 2019

In Gender Equality, Humanity, Race Discrimination, United States Supreme Court

#METOO – “Ain’t I A Woman”

The Worldwide #METOO Movement came to Berkeley this week. Fifty speakers came from around the world to talk about global resistance to sexual harassment and violence. I am honored to participate in the conversation and the ongoing struggle against oppression based on gender.

“The most important insight that I can contribute about resistance to sexual harassment and violence is that it is deeply rooted in the intersectional oppression and resistance of Black women.” And so I started to engage with this amazing group of activists, lawyers, professors and students. We are all committed to moving #METOO beyond the popular hashtag into real challenge and change. We must honor and appreciate the roots of this movement as we move “forward and beyond.”

The title “Ain’t I A Woman” goes back to Sojourner Truth’s famous speech on May 29, 1851 in Akron, Ohio. She spoke from her heart and the pain of slavery to challenge white women to “see” her. In 1981, Professor Bell Hooks in her famous book, “Ain’t I A Woman” challenged contemporary white feminists to “recognize” Black women in “their” movement. Ten years later, in 1991, Anita Hill‘s riveting testimony before an all white male Judiciary Committee (headed by Uncle Joe Biden) gave voice to the outrage of women everywhere. After that hearing, the battle cry was “I believe Anita Hill.”

#BlackWomenBuiltThat

The oppression and resistance of Black women created the
law of sexual harassment. In the fall of 1977, I joined the sexual harassment lawsuit called Alexander v. Yale. My political science professor sexually propositioned me. Yale’s band leader raped Ronni Alexander. Ronni’s case was dismissed. Mine was not. As a 21-year-old Black woman, I became the lead plaintiff in the first sexual harassment lawsuit ever litigated in this country in education. We gave sexual harassment a name and made Title IX apply to it.

I was not alone. In 1976, Diane R. Williams, a 23-year-old Black woman attorney won her sexual harassment case against the Dept. of Justice. Diane persisted after the case was overturned on appeal. She started fighting her case in 1972 and kept fighting until she finally won in 1980. Her case was among the first in employment to say that “quid pro quid” sexual harassment is sex discrimination.

Paulette L. Barnes, a Black woman, filed and lost her case against the federal government in 1974. Paulette persisted. On July 27, 1977, a federal appeals court in Washington, D.C. ruled that it was illegal to fire a woman who refused a supervisor’s advances. On the West Coast, Margaret Miller, a Black woman, sued Bank of America for sexual harassment. Margaret lost her case in the district court in 1976. But she persisted. She finally won her case in June 1979.

“Anita Hill’s Grandmother”

Sandra Bundy in 2018 (Credit: Lexey Swall)

Sandra Bundy‘s case was the first federal appeals court case to clearly say that sexual harassment in the workplace is illegal. Sandra sued the federal government in 1977. She lost at trial in 1979 and fought until she won in 1981. Because of Sandra Bundy, women everywhere can say that sexual harassment creates a hostile work environment. As a result, in 1986, Mechelle Vinson, a Black woman, won her hostile work environment case in the United States Supreme Court. She fought her case for almost 10 years, from 1978 to 1987.

From #METOO to #SayHerName

Fast forward 30 years to October 2017. That month, actress Ashley Judd went public with her story of sexual harassment by powerful Hollywood icon, Harvey Weinstein. Soon after that, Actress Alyssa Milano tweets “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” #METOO goes viral worldwide.

Tarana Burke, 2018. Credit: Chip Somodevilla/Getty Images

Tarana Burke, a Black woman activist, created the phrase “MeToo” and an organization in 2006 to empower survivors of sexual violence. The worldwide #METOO movement to fight sexual harassment and sexual violence springs again from our oppression and our resistance.

It was my privilege this week to share our history with women and men from around the world. At last year’s conference, Professor Kimberle Crenshaw shared this herstory. Professor Crenshaw’s work on the urgency of intersectionality clearly points the way forward for our #METOO global movement. Black women must not be invisible in this movement. We are the veins in the “kaleidoscope of butterflies” that Professor Catherine MacKinnon so beautifully describes that gives our movement wings. Our power lies in our collective effort.

Pamela Price & Joelle Dzukou Epse Nwabueze
UC Berkeley Law School, 2019

Losing the Federal Government

By pypriceesq

On April 6, 2017

In Humanity, Politics and Elections, United States Supreme Court

I feel like we’re tettering on the edge of a cliff. The next deep breath, we fall into the abyss.

What Just Happened?

Today, April 6, 2017, is truly one of the last days of American democracy. Why? Because today, the Republican Senators voted to change the rules of the U.S. Senate. They made the change to ensure that Democratic Senators will no longer have a voice in voting on federal judges at any level. It also means that, tomorrow, the right wing of the American judiciary will take over the U.S. Supreme Court for possibly at least the next 50 years. So, the transformation of America is complete. Elections do matter. The bloodless coup which became apparent in November 2016 is complete.

Who Is Neil Gorsuch?

This dramatic rule change was necessary to get Judge Neil Gorsuch of Colorado appointed to the U.S. Supreme Court. Judge Gorsuch is the son of Anne Gorsuch. Anne was a Ronald Reagan appointee who at one point was the head of the Environmental Protection Agency (EPA). She cut the EPA’s budget by 22% and reduced the number of cases filed against polluters. Ann also relaxed Clean Air Act regulations and facilitated the spraying of restricted-use pesticides. She hired EPA staff from the industries they were supposed to be regulating. According to her Wikipedia page, Anne is the first agency director in U.S. history to be cited for contempt of Congress after she refused to comply with a subpoena.

Judge Gorsuch’s background as a litigator is one of privilege. He graduated from Harvard Law School in 1991. He clerked in the D.C. Circuit federal court and the U.S. Supreme Court after law school. He then joined an elite D.C. law firm and stayed there for 10 years, representing corporate clients and billionaires. In 2015, his former firm paid new associates “a starting bonus “of $175,000 or a $330,000 signing bonus to those who clerked for Supreme Court Justices. Gorsuch left the firm in 2006 when George Bush appointed him to the 10th Circuit Court of Appeals.

What is His Record?

Judge Gorsuch is the heir to Antonin Scalia. Like Scalia, Judge Gorsuch says he will “look backward.” He believes the Constitution should be interpreted the way it was interpreted when it was written. No matter that in the original Constitution, Black folks are only 3/5 of a person and women do not have the right to vote. In Gorsuch’s view, the infamous Dred Scott decision would be “good law” because it is based on what the judges then understood the law to be. He would also support the decision in Plessy v. Ferguson which ruled that Jim Crow laws were constitutional. The Court’s understanding of the law at that time legalized discrimination that endured for nearly sixty years.

His record on women’s rights and civil rights as a federal judge is troubling. In February 2017, the Leadership Conference on Civil and Human Rights and 107 civil rights organizations signed a letter opposing his nomination. What is really scary, however, is that the National Rifle Association (the NRA) just dropped a million dollars to support his nomination. Gorsuch’s apparent views on guns led Americans for Responsible Solutions, the gun violence prevention organization founded by former Congresswoman Gabrielle Giffords and Navy combat veteran and NASA astronaut Captain Mark Kelly, and its sister organization, the Law Center to Prevent Gun Violence, to oppose his nomination. Under Gorsuch, America’s status as the most violent country in the world will be preserved.

“Defective from The Start”

Gorsuch says using the courtroom to “debate social policy is bad for the country and bad for the judiciary.” If Gorsuch opposes using courts to debate social policy, he likely will oppose efforts to change any policies in the Courts. His views are exactly opposite from the greatest lawyer and judge America has ever known, Justice Thurgood Marshall. In 1987, Justice Marshall pointed out that “we the people no longer enslave, but the credit does not belong to the framers. It belongs to those who refuse to acquiesce to outdated notions of liberty, justice, and equality and who strived to better them.” He said “the government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.”

Donald Trump promised to appoint a “Scalia-like” justice to the Supreme Court. He is keeping his promise. Justice Scalia was a rabid opponent of affirmative action and voting rights. He wrote the Walnart v. Dukes decision that ended one of the largest class-action suits in history and set civil rights progress backward for years. Scalia opposed gay rights and a woman’s right to choose what to do with her own body. Scalia denied protection to victims of domestic violence and he wanted to abolish the Miranda rule protecting a defendant’s right to remain silent. The truth is, if Judge Gorsuch starts where Scalia left off, he too will be “defective from the start.”

Will He Keep His Promises?

By pypriceesq

On November 10, 2016

In Black Lives Matter, Politics and Elections, United States Supreme Court

Will He Keep His Promises?

I woke up Wednesday morning in Trumpland. My worst fears are coming true. Will he keep his promises? In the first days I am upset and depressed. I feel better as I hear others calling out to fight back. In the months between Trump’s election as President and his inauguration, most of us will gather our thoughts and renew our passports (just in case).

The media tries to push the country into denial. Even elected officials maligned by Trump insist that he did not really mean what he said. They say he will be “different” as the President than the person who ran for President.

If He Keeps His Promises

If he is true to his word, on Day 1, President Trump will issue an Executive Order suspending the Patient Protection and Affordable Care Act (“Obamacare”) and any funding to support the Act. His actions may send the economy and world markets into a downward spiral.

If he keeps his promises, President Trump will direct the FBI to re-open its investigation of Hillary Clinton. We should not be surprised if newly appointed Attorney General Rudy Giuliani orders Hillary’s arrest.

first-they-came If he keeps his promises, President Trump will invest millions of dollars to ramp up the Immigration and Customs Enforcement Agency (ICE). ICE will develop a comprehensive plan to locate and deport millions of working and poor people suspected of immigrating from Mexico, South America, Syria or Haiti. We should expect that vigilantes will volunteer to assist in the effort to deport these “illegal aliens.” He will also immediately start construction of the wall between the U.S. and Mexico.

We should not be surprised if President Trump rejects the Obama administration’s position on private prisons and directs the Bureau of Prisons to renew all of the private contracts. We should expect that funding for re-entry of formerly incarcerated persons, community policing and mental health services will be severely reduced. California will continue to be the leader if not the only state committed to working against mass incarceration in America.

If he keeps his promises, President Trump will champion laws to defund Planned Parenthood and declare abortion completely illegal. Led by Speaker Paul Ryan, the Republican-controlled Congress will likely pass these laws.

What President Trump labels “locker room talk” may became more prevalent in our schools and public places. Our efforts to stop violence against women and eliminate commercial sexual exploitation of women and under-age girls are likely to receive minimal support in the new Trump administration.

Packing SCOTUS with Scalia Clones

If he keeps his promises, President Trump will immediately appoint a Scalia-like judge to replace Justice Antonin Scalia on the United States Supreme Court. Justice Scalia was a rabid opponent of affirmative action appointed to the Supreme Court by Ronald Reagan. In 2015, Justice Scalia appeared to openly endorse a racist argument that Black students do better at “slower-track schools” stating:

Most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them. . . . I’m just not impressed by the fact that the University of Texas may have fewer [Black students]. Maybe it ought to have fewer.

President Trump will likely have more opportunities to “pack the court” with Scalia-inspired justices, based on suggestions from the Federalist Society and The Heritage Foundation, two right-wing conservative think-tanks.

The Good News

The good news is that already, everywhere, resisters to the Trump Presidency are organizing. In the Democratic Party, progressives are organizing to redeem the party. One of the most poignant “calls to action” was issued “the day after” by former Emerge Director, Kimberly Ellis. She’s running to change the face of the Democratic Party.

Outside the party, thousands, perhaps millions, have joined Bernie Sanders’ ourrevolution.org. Black Lives Matter continues to be an inspiring movement rooted in the experiences of Black people in this country and committed to the empowerment of our community. And I really believe that if there ever comes a day that Latinos and immigrants are being hunted down en masse and sent off to concentration camps, most of us will not watch silently and fail to “speak out.”* We are our brother’s keeper.

Finally, I was honored by Hillary’s final words to the Obamas: “To Barack and Michelle Obama, our country owes you an enormous debt of gratitude. We thank you for your graceful, determined leadership.” The Obamas together, made all of us look kindly on and feel better about America. I hope that once we recover from the shock of Trump’s election, we will “shake the dust off our feet” and keep stepping toward the light. The race is clearly not given to the strong or the swift but to he that endureth. “Banish the darkness with light.”

* Quote from “First They Came for the Socialists”. Martin Niemoller (1946).

Your Blessing Is On the Way

By pypriceesq

On October 12, 2016

In Justice Reform, United States Supreme Court

Your Blessing Is On the Way

I run up the stairs in my office to the lobby. Robin Morgan sits there waiting. I am so excited. Today is closing argument in Morgan v. Amtrak and I love closing argument. I know how long Robin has been supporting her husband, Abner Morgan. I tell her to “hold on, your blessing is on the way!” Little did I know that “her blessing” would not come for another seven (7) years.

Morgan v. Amtrak – the Racial Harassment Case

Robin’s husband Abner was an electrician for Amtrak in the Oakland Yard. He worked there for five (5) years. Abner walked off the job when the foreman told him to “get your black ass in here.” That “direct order” from a racist foreman was the last straw for Abner. For years he and his co-workers had complained about racism in the Yard. Their complaints had even triggered Senator Barbara Boxer to request an investigation by Amtrak’s Office of Inspector General (OIG). The OIG investigation confirmed that Amtrak subjected Black men working on the Yard to harsher discipline, more dangerous job assignments and abusive treatment.

Amtrak fired Abner in 1995. At the trial in 1998, one of the white foreman came forward and testified that one Amtrak supervisor regularly performed something he called “the shufflebutt ni–er dance.” The foreman testified that the white supervisor did his dance in the office at night for the other supervisors’ entertainment.

pyramid-of-prejudice We presented evidence of the most despicable racism in any workplace. The jury found that Amtrak’s management was “grossly unprofessional” and engaged in “questionable ethical conduct.” The jury also found that the response from Amtrak’s EEO Office was “woefully remiss.” But, the jury still ruled in favor of Amtrak.

Our Trip to the Supreme Court

Fast forward to 2000. I’m standing in my guest bedroom crying. We had won the appeal in the Ninth Circuit. Amtrak had filed a petition for hearing in the United States Supreme Court. We opposed it. After months, the Court granted the petition and accepted the case. I was so upset. We had waited so long and won the case on appeal. Robin and Abner had three children: two teenagers and a mentally disabled adult son. Abner’s firing meant they had to survive mainly on Robin’s income for years. They had suffered great hardships. My firm had been tested by the years of unpaid legal services as well.

I called my mentor Howard Moore, Jr., the famous civil rights lawyer who raised me from a pup lawyer. The conversation with Howard was very short. I told him through my tears that the United States Supreme Court had granted the petition for hearing. Howard said “that’s great kid. Congratulations! This will be great for your career.” And hung up.

I had no idea what Howard knew. I would be one of the few Black women in history to argue a case in the United States Supreme Court. We spent six (6) months preparing for the oral argument. Bill McNeill and the Employment Law Center offered their assistance as soon as it became public that it was my case. My team included Bill and his lawyers Jory Steele and Willie and Shelley Gregory. Of course, Howard agreed to serve as my co-counsel on appeal and sponsored my request to be admitted to the United States Supreme Court bar.

The Fight for the Case

It was not long before lawyers around the country contacted me. Some offered help with the briefing and strategy on how to win the case. Others simply wanted to take the case. There was intense pressure on me to let an “experienced” Supreme Court lawyer handle the case. I quickly learned that “Supreme Court lawyer” was an exclusive all white male club. So, I called Howard again. This time, the conversation was equally short but not so happy. Howard was angry. When I told him that people wanted to take my case and argue it for me, he said “If a woman with a degree from Yale and two degrees from UC Berkeley can not argue her own case in the Supreme Court, she should give all of her degrees back.” And he hung up on me again.

morgan-v-amtrak-1 And so that was decided. Abner Morgan, to his credit, co-signed Howard’s statement by saying that I was his lawyer and he was not going to let anyone else argue his case. I got it. So I gathered my wits, my spirit, took charge of the situation and got us all to Washington, D.C.

morgan-04

I argued the case in January 2002. We “claimed the victory” in my office in Oakland and again in the hallowed halls of the United States Supreme Court. The Court ruled in our favor in June 2002. We WON!

The Final Outcome

Winning in the Supreme Court meant that we got to try the case again. It took another two years to get through the appellate process and back to the trial court. In May 2004, we tried the case a second time. pam-with-abner-morgan This time, the jury got it right and awarded Abner $500,000.

After nine (9) years of litigation, Amtrak finally settled the case later that year.

Robin’s blessing finally arrived. What I can say to anyone reading this who has ever been tested, from a woman of faith who has been blessed and highly favored over and over and who believes in the power of prayer, “hold on. Your blessing is on the way.“