The Law In Black & White

I’ve had Thurgood Marshall on my mind of late. He was a reluctant judge: he was a litigator at heart. How could he say no when JFK and LBJ nominated him to the bench? He briefly left the bench to serve as Johnson’s solicitor general but when Justice Tom Clark retired so his son Ramsey could become Attorney General, Marshall made history as the first Black Supreme, non-singing variety.

Tom Clark had an undistinguished career as Truman’s AG and as a Justice. But he was willing to do the right thing and recuse himself from the court. Ironically, Clark was a conservative justice and Ramsey is best remembered as a leftist attorney after leaving the DOJ.

Unfortunately, there are no rules governing SCOTUS recusals. It’s strictly voluntary, The recusal issue is back in the news because of Marshall’s successor, Clarence Thomas, whose wife Ginni is a right-wing activist.

Ginni Thomas is a bona fide radical who has worked for or with many groups that have litigated cases in front of SCOTUS. Her husband has never recused himself in any of these cases as documented by the great Jane Mayer in a recent piece in The New Yorker: Is Ginni Thomas a Threat to the Supreme Court?

Mayer and I both think she is. Stay tuned

Former right-wing superstar Sarah Palin is suing the New York Times. She claims that they libeled her in this 2017 editorial after the attack on the GOP Congressional baseball team:

Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old-girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.

The real focus of Palin’s legal team is an attempt to overturn the 1964 New York Times v. Sullivan case, which loosened the libel laws as applied to public figures. Team Palin won’t mind losing at trial because their real goal is appealing the case all the way to a Supreme Court whose new majority has contempt for stare decisis. Stay tuned.

Finally, recently fired Miami Dolphins head coach Brian Flores has filed a civil rights case alleging racism in hiring practices against the NFL and three teams in federal court.

Flores inherited a dismal Dolphins squad and made substantial progress in 3 seasons. I’m just a casual observer but he seemed to be a rising star in the coaching ranks. The NFL, however, is notoriously impatient with Black coaches even though 70% of the players are African American. Imagine that.

Flores is also attacking the NFL’s so-called Rooney Rule, which requires teams to interview minority candidates when a head coaching job opens up. The rule is a sham.

Flores interviewed for the Saints head coaching job. It appears to be a token interview as the team’s defensive coordinator Dennis Allen is the favorite to replace Sean Payton. In this case, I want Allen to be the coach but the process strikes me as demeaning to all concerned.

Repeat after me: the Rooney Rule is a sham.

Brian Flores is a mensch. He’s sacrificing his own career to further the interests of younger coaches. I’m uncertain if Flores will prevail but he seems to have enough evidence for his case to move forward. Given federal discovery rules, we’re going to learn a lot about how the NFL operates.

I’m particularly interested in how often teams tank to land a choice draft pick. The Cincinnati Bengals have gone in two years from 2-14 to the Super Bowl mostly because they drafted LSU QB Joe Burrow who has the potential to become a non-whiny version of Tom Brady.

Brian Flores has a chance to be the Curt Flood of the NFL. Flood was the St. Louis Cardinals ballplayer whose suit against MLB eventually led to the abolition of the reserve clause biding players to a team in perpetuity. Flood lost the case but won the war. I hope Flores wins his case, but he’s already won a moral victory over the NFL. Stay tuned.

And that’s the law in black and white. The last word goes to Todd Rundgren: