Thursday, September 22, 2011

Post No. 176: A Peek into the Affirmative Action Trial of the Century


© 2009 and 2011, the Institute for Applied Common Sense

Today marked the first day of trial in a landmark class action lawsuit in Los Angeles in the United States District Court for the Central District of California.

The plaintiffs, representing all African-American citizens who failed to receive the benefits of affirmative action programs and policies commenced in 1961, allege that the defendants, who were direct beneficiaries of such policies, kept all financial and other benefits, and failed to share them with the African-American population at large.

Federal Judge Lance Ito, having been roundly criticized for allowing the press and media into the courtroom during the O.J. Simpson criminal trial, chose to deny access to all press and media outlets. Last week, the media sought a writ of mandamus to force Judge Ito to permit them into the courtroom. The Ninth Circuit Court of Appeals out of San Francisco summarily denied the petition this past Friday.

However, certain friends of the Institute have acquired information, from sources who wish to remain anonymous, which provides us with some insight into this ground-breaking litigation.

The plaintiffs, led by black descendants of former Senator Strom Thurmond, claim that following the implementation of affirmative action policies, only a small percentage of African-American individuals benefited from set-asides and government contracts, preferential hiring, and admissions to institutions of higher learning.

They further argue that the policies and programs were designed to address centuries of slavery and disparate treatment under Jim Crow laws, and thus were to benefit the African-American community at large and not just certain individuals who fortuitously were in the right place at the right time.

Elliott Spitzer, counsel for the plaintiffs, met with reporters outside of the federal courthouse this morning before testimony began. “We plan to show two things. First, that the beneficiaries of the policies and programs at issue were overwhelmingly individuals who were already doing fairly well in the black community, and were primarily from the black middle and upper classes.

“Second, we plan to show that once these beneficiaries of affirmative action entered the workplace, established their respective businesses, entered Corporate America, or otherwise benefited from these programs, they failed to share the financial and societal benefits with those less educated and less fortunate. The poor state of the black community and the high incidence of poverty and crime are evidence of their failure to pass on the benefits.”

Spitzer called as his first witness (on a hostile basis), former Republican National Committee Chairperson Michael Steele. He traced Steele’s financial history since completing law school, and questioned him intensely about what Steele had given back to the African-American community, both financially and otherwise.

Spitzer elicited testimony from Steele to the effect that when Steele was in college and law school, he and his fellow black students reveled in black pride, and the need to empower the black community. Spitzer was able to show that once Steele graduated from school, he began his rapid ascent professionally, including moving to a predominantly Caucasian suburb, removed from the problems of inner-city blacks.

“Do you feel that you have any responsibility to Dr. King and other civil-rights leaders, to pass on your wealth and good fortune to those in the black community less fortunate, and at a minimum, live amongst poor blacks?”

The question drew long stares from the predominantly Hispanic jury, while they awaited Steele’s response. The Judge adjourned the trial for the day before Steele could answer.

In speaking with Rod Blagojevich, counsel for the defendant beneficiaries of the programs and policies, he noted, “There is no legal basis upon which this suit can be brought. There is no legal requirement that the beneficiaries of affirmative action share their good fortune with other members of the black community, or engage in conduct beneficial to the community.”

Spitzer concedes that there is no legal precedent for his position, but argues that that there is an equitable and moral basis for his clients’ suit. He contends that the legal doctrine of quantum meruit is applicable, in that the defendants have been unjustly enriched.

Spitzer further claims that since Jim Crow was not outlawed until 1962, it is too soon for those fortunate enough to have received the benefits of remedial programs and policies to pursue their selfish desires and needs. He suggests that perhaps 150 years should pass before the beneficiaries are relieved of their ethical and moral responsibilities to the other members of the black population who were not fortunate enough to receive the benefits.

Judge Ito’s prior rulings in unrelated cases may provide some insight as to his leanings. He previously expressed that in his opinion, both Jim Crow laws, which established segregation by law, and the Civil Rights cases and legislation, which established integration by law, were inappropriate exercises of governmental power, despite strained legal arguments to the contrary. His position appears to be that the decision to associate, or not associate with, others should be a personal decision, no matter what the environment, and that enforcing or addressing segregation or integration in any manner should be left to the hearts and minds of individual citizens, and are not the province of governmental entities, no matter the branch.

Furthermore, he contends that governmental interference in any way actually hurts race relations.

The Justice Department, under the Obama Administration, has chosen not to file briefs in support of, or in opposition against either position. According to a Justice spokesperson, the President has not contacted Justice regarding his position. Observers note that during the Presidential campaign then-candidate Obama (as well as the First Lady) were referred to as affirmative-action beneficiaries who lacked the academic skills and sophistication warranting their admission into the high-caliber educational institutions where they matriculated.

The trial is expected to last 2 years, longer than the O.J. Simpson trial over which Judge Ito presided.

Tuesday, September 20, 2011

Post No. 175: Congressman Ron Paul - the Rodney Dangerfield of Presidential Candidates


© 2011, the Institute for Applied Common Sense

“Most of the arguments to which I am a party fall somewhat short of being impressive, owing to the fact that neither I nor my opponent know what we are talking about.”
-- Rodney Dangerfield

It is our contention that Los Angeles is the new face of the world. With its multiple seaports, access to the Pacific Rim, world-class universities, and 6,743 cultures residing there, it is a microcosm of the globe. When the Institute was located there, we had both the detriment and benefit of coming into contact with every imaginable character.

One of the more memorable was a fellow we met on a train, who was trying to sell his movie concept. The movie was to be based on the quotes of Rodney Dangerfield, the comedian who claimed he never got any respect in life. He showed us a notebook containing every single 15 second joke by the King of Succinct.

We thought about Dangerfield last week while watching a CNN newscast after the Republican Presidential Candidate Debate. One commentator said that any prospect for success, which Ron Paul of Texas may have had, suddenly disappeared when he “suggested” that the Islamic world’s antipathy toward the U. S. was in some part due to our policies in the Middle East. The anchor on the show expressed surprise at the use of the word “suggested,” and said that Paul came right out and said it. This, according to them, was the death nail in his coffin.

For anyone to suggest that the U.S. bears absolutely no responsibility for the Islamic world’s attitude toward us is sheer idiocy, and yet any ultimately successful candidate cannot acknowledge any responsibility on our part. Paul was actually booed during his comments.

We once wrote a piece entitled, 27 Situations Where People We Respect Claim That Lying is Appropriate, and we weren’t referring to politicians. Some contend that it is the magic show that matters, not the reality, and that voters are more interested in being told what they want to hear, consistent with their belief systems.

A straight talker might get elected, with some other attributes working in his or her favor. But a straight shooter has absolutely no chance at all, and will not receive any respect. The candidate may get some notice, from the media in particular, who will label him or her either a fool or an idiot. They will euphemistically refer to it as a lack of “political sophistication,” and blame the candidate’s handlers.

(Presidential elections are also about media appeal, and a little bit of glamour. Another reason Ron Paul will not be elected is because he does not look “presidential.”)


In our view, a “straight talker” is different than a “straight shooter,” and while straight talk may be emotionally appealing, it does not necessarily contain much truth. Both qualities can theoretically be found in the same person, but rarely are both found in a politician.

A couple of years ago, between President Obama’s election and his inauguration, George Will appeared on Charlie Rose. He said that all of Obama’s idealism and lofty thinking might have gotten him elected, but that on the first day on the job, someone would take him aside, expose the realities to him, and tell him, “This is what you need to do,” essentially because the public can’t handle the truth.

Earlier this month, one of the nation’s governors claimed that his administration was trying to create a stable business environment. We immediately had 2 thoughts.

First, any real businessperson will tell you that there is no such thing as a stable business environment. The environment is unpredictable and changes daily. Business owners must stay on their toes like Isadora Duncan, dance like Fred Astaire, and jump through hoops like Siegfried and Roy tigers. And all of this with their eyes and ears wide open, while conducting research on the market and their competitors.

Like an animal in the jungle living to survive, one cannot rest, either to catch one’s breadth, or upon one’s laurels. As we noted in an earlier post, Pigs Get Fat; Hogs Get Slaughtered.

Second, the typical horse pukey spewed by politicians is salesman-type, smoke and mirrors stuff, which is the realm of snake oil, used-car, and cosmetic counter salespeople. For some reason, that appeals to voters, as long as there is a little music in the background.

During the entire time that Congressman Paul has been in politics, he has been nothing but a straight shooter. Try to find something, directly attributable to him, which might be termed “kooky.”

And yet, no one has taken him seriously, or given him any respect.

Unfortunately, presidential races are popularity contests based on images and sound bites, not on reason.

Imagine picking a doctor based on his or her popularity, bedside manner, and oratory skills, as opposed to their skill at addressing medical problems. Further imagine a doctor (which Paul happens to be) telling an obese patient, “No, you don’t have obesity, and you don’t need to change your dietary or exercise habits. It’s those family members of yours who keep telling you that you are fat. They are the problem.”

And then we voters complain about the elected officials we get. Is it any surprise that they don’t respect us once they get elected?

Plus, when a society (through its leaders) can not openly accept responsibility for your conduct, you're dun' fur'.

This nation might be better served by putting some technocrats in charge right now, instead of salespeople, hawkers, and those with media appeal.

Tuesday, September 13, 2011

Post No. 174a: Answer Us This Regarding Job Creation


It has been a while since we simply posed a question, and we thought that this might be a good time to do so again.

President Obama recently unveiled his job creation proposal. It was roundly criticized in a number of circles from various angles. The private sector "job creators" essentially took many of the jobs previously held by Americans and transferred them to China, India, and other countries where they could find workers willing to work for far less than most Americans. An argument has been made that the regulatory and tax environment here in the United States is what drove them to transfer the jobs elsewhere.

While listening to the criticism of the President's proposal, several questions occurred to us:

1. Assuming no change in regulations and the reduction of corporate and capital gain taxes here in the United States, will they create new jobs here or bring those jobs back here to the United States?

2. Assuming regulations are eliminated, but taxes remain the same, will they create new jobs here or bring those jobs back here to the United States?

3. Assuming regulations are eliminated, AND taxes are reduced or eliminated, do you think that the private sector "job creators" will create new jobs here or bring the jobs back home?

The ultimate question is whether we have a guarantee from the private sector "job creators" that if the government gives in to their requests, it will inure to the benefit of middle-class American workers.

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