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.

Post No. 144: At Least the Marines Seem to Have It Down

© 2010, the Institute for Applied Common Sense

Several weeks ago, the movie A Few Good Men aired on a TV channel.

In the movie, a young Marine dies during a disciplinary session which is prohibited by regulations. The discipline was administered by two low ranking fellow Marines. The question is whether the Marines were following orders issued by higher ranking officers, or acting on their own accord.

Most recall the exchange between Tom Cruise, who represents the two Marines on trial, and the base’s commanding officer, Colonel Jessup portrayed by Jack Nicholson, resulting in the explosive, “You can’t handle the truth!”

But there is another exchange, prior to Nicholson’s outburst, which merits some consideration. It is between Cruise in his capacity as defense attorney, and one of his clients, the more senior and clear headed of the two Marines on trial.

Kaffee (Cruise): “Did you assault Santiago with the intent of killing him?”

Dawson: “No sir.”

Kaffee: “What was your intent?”

Dawson: “To train him, sir.”

Kaffee: “To train him to do what?”

Dawson: “To train him to think of the unit before himself. To respect the Code.”

Kaffee: “What’s the Code?”

Dawson: “Unit. Corps. God. Country.”

Co-Defense Counsel Weinberg: “I beg your pardon?”

Dawson: “Unit. Corps. God. Country. Sir.

In reciting this “Code,” the issue of the order of importance, or priority of the components, becomes apparent. The Marines seem to have it down to a science.

Prior to the airing of the movie, C-Span2 Book TV aired a program during which they discussed the priorities of politicians. There were allusions to (1) doing what they thought best for their constituents; (2) addressing issues as expressed by their constituents; (3) adherence to Constitutional principles; and (4) pursuit of religious goals. Some would argue that advancing their own financial interests should be somewhere in the mix.

However, when a politician declares that he or she will no longer run for office, or resigns from office, they almost universally claim that they want to “spend more time with their families.”

How do we decide what is more important in the grand scheme of things? Who decided that family is more important than other societal units? Why should more attention be devoted to family as opposed to other societal pursuits?

The son of legendary United Farm Workers leader Cesar Chavez criticized his Father for not spending enough time with his family, and yet millions of farm workers view Chavez as a hero who improved their lives dramatically.

Who decides? What’s right? What’s wrong? What’s the appropriate balance?

In the case of the Marines, it appears to be a somewhat rigid, well thought out prioritization, which is drilled into them. Former Senator Robert Dole, a WWII hero and winner of the Bronze Star, when asked why he risked his life to save that of a fellow soldier, remarked (paraphrasing), “Because you’d like to think that they would do the same for you under the same circumstances.”

According to Colonel Jessup, adherence to the Code by Marines “saves lives,” and permits those of us not on the front line, but who derive the benefit of their protection, to sleep peacefully at night. And anyone who has ever known a Marine, even if just briefly, or socially, knows how deeply this Code runs….

Marines become Marines because of those in whose hands they want to put their lives. It is not a matter of who you want to follow into combat so much as who you want to follow you, over the hill, or through the door.

Which brings us to Senators Ensign and Edwards, and Governors Spitzer and Sanford, and Presidents Kennedy and Clinton, and most recently Tiger Woods (although not an elected official with specifically outlined responsibilities to the public) who seem to have muddled the line of acceptable prioritization.

Or did they?

If these public figures had not been married, and had children, would we feel any differently about their societal contributions?

On the other hand, none of the above (with the possible exception of Tiger) seems to have had any qualms about using their marriages in any and every way possible to persuade the public to view them as individuals who would not behave in the manner is which they were obviously behaving.

For those contemplating public life and being in the public eye, it might prove prudent to get the applicable code down pat before becoming famous. A failure to do so could have dramatic negative consequences.

And the folks who are sending our Marines into harm’s way seem to be telling the rest of us that in a closed political society, where everybody is guilty, the only crime is in getting caught, and the only sin is stupidity.

With all due respect to our elected officials, the adaptation of some variation of “Unit. Corps. God. Country.” might prove to be the better approach.

And who would have thunk that society might benefit from emulating principles espoused by an entity run by the government….