Thursday, July 8, 2010

Abigail Thernstrom Disagrees On The Black Panthers Cases

Never let it be said that all conservatives march in lockstep. I recently posted an article on the reprehensible dismissal of the Black Panther voter intimidation cases. Dr. Abigail Thernstrom, a member of the US Commission on Civil Rights and a solid conservative takes issue with those of us who felt this deserved serious scrutiny and a few lopped-off heads.

Dr. Thernstrom has been a strong advocate for civil rights the old-fashioned way. Equal treatment for all, regardless of race, creed, color, social station or economic class. So when she takes a stand quite different from mine, I can't simply dismiss her as being a kook. She is not. And I feel that if I am to justify my position, I must examine hers with a neutral eye (not easy to do for someone with my ego). I respectfully disagree, but she makes a point. Let's talk a bit about where she's coming from, and where she wants to go.

In the wake of the Black Panther controversy, Thernstrom says: "Forget about the New Black Panther Party case; it is very small potatoes. Perhaps the Panthers should have been prosecuted under section 11 (b) of the Voting Rights Act for their actions of November 2008, but the legal standards that must be met to prove voter intimidation--the charge--are very high." Fair enough. But just because a case is difficult doesn't automatically mean it shouldn't be pursued. More importantly, default judgments had already been entered in specific cases, so there's nothing left to prove except monetary damages--and that's the easy part.

"Too much overheated rhetoric filled with insinuations and unsubstantiated charges has been devoted to this case," says Thernstrom. I respectfully disagree. She bases her "overheated" accusation on the fact that "the two Panthers have been described as 'armed'--which suggests guns." No, it suggests armed--as in clubs and chains. Dr. Thernstrom has never been involved in a gang fight. She apparently doesn't know that those instruments can inflict serious bodily harm. The law is about the threat--the intimidation--not about an actual assault and battery. "Brandishing" is a charge all of its own, yet Dr. Thernstrom says "one of them was carrying a billy club, and it is alleged (actually it was proved) that his repeated slapping of the club against his palm constituted brandishing it in a menacing way." Yep--I'd certainly call that brandishing.

Here's where I think Dr. Thernstrom went over the cliff (on this single issue only): "Get a grip, folks. The New Black Panther Party is a lunatic fringe group that is clearly into racial theater of minor importance. It may dream of a large-scale effort to suppress voting . . . . But the Panthers have not realized their dream even on a small scale." When it comes to a basic American right such as voting, there is no "small scale," and just as it doesn't take a weatherman to know which way the wind blows, it doesn't take a genius to know that what the Panthers did in Phildelphia was voter-intimidation. There's absolutely no way to spin that into harmlessness.

It's also important to remember that these were civil, not criminal prosecutions against the Panthers. Dr. Thernstrom seems to be making the mistake of thinking that proving the cases beyond a reasonable doubt would be difficult if not impossible. But that is not the standard in civil prosecutions. Such suits require only proof by clear and convincing evidence, of which there was plenty.

So now that I've discussed why I think Dr. Thernstrom is wrong on the Black Panther cases, how do I go on to be almost effusive in my praise for her? I look to her record, which is one of bold support of equal rights and bold opposition to special rights, and her inability to remain silent in the face of massive injustice and race preferences. Her tenure on the Civil Rights Commission has included many ugly confrontations with the race-baiting leftist members. One of the most intense was Thernstrom's ongoing battle with former Chairman Mary Frances Berry who refused to seat a Bush appointee to the Commission and attempted to retain her own seat at the end of her term. One of Berry's statements particularly incensed Thernstrom: "Civil rights laws were not passed to protect white men and do not apply to them."

She might take issue with me on this, but I think two factors motivated her outburst on the Black Panther cases. First, after so many years on the Commission, Dr. Thernstrom has become just plain exhausted trying to rectify even the simplest and most obvious of civil rights violations. It has been a herculean task, and she can be forgiven for being dismissive of a series of cases which will probably end up going nowhere, given the nature of the Holder Justice Department and the passage of time.

Equally importantly, Dr. Thernstrom sees the possibility of major future confrontations over the Voting Rights Act, most specifically the ongoing problem of majority minority districts which wish to free themselves from earlier consent decrees that required minimum representation by minorities. The Holder Justice Department has consistently refused the pleas of nearly all black districts to be released from the consent decrees which were entered when whites completely controlled those districts. These decrees have ceased to serve their purpose, since the odds are extremely high that no matter which party or which philosophy prevails in one of those districts, the winner will almost certainly be a black person. And that was the sole purpose of the consent decrees in the first place.

The Holder Justice Department has also strongly stated that in the wake of the Census, it will actively support the maximum possible number of majority minority districts, whether they are under the consent decrees or not. This no longer simply guarantees black representation, it in reality nearly assures the perpetual election of Democrats. And this all flies in the face of the core civil rights belief that in a non-racist society, minorities would be elected to political office solely in numbers proportional to the black and Hispanic populations. By careful redistricting, the Holder people will be supporting artificially gerrymandered "all black" districts regardless of the actual distribution of the racial and ethnic groups over the larger picture of a given geographical area.

So long as the consent decrees continue, that means that in those districts, any consideration other than race will give rise to massive litigation and delays in holding elections, particularly when the office of the Attorney General (charged with allowing or disallowing release from the consents) is determined never to let a good consent decree go to waste. Requests for release from the decrees are routinely denied, despite what has frequently turned out to produce ludicrous results. This process is called "preclearance," and it only requires the disapproval of a very minor DOJ functionary.

Though Thernstrom (and I) believe that absent a major shift in the makeup of the US Supreme Court, it is substantially likely that Section 5 of the Voting Rights Act will ultimately be declared unconstitutional. But we both recognize how much serious damage can be done both to voting rights and racial relations between now and then. Thus, she considers the Black Panthers cases to be "small potatoes" because of the limited number of perpetrators and victims involved as compared with the vast potential mischief built into the plans of the Holder Justice Department as they relate to the Voting Rights Act. I concede that she has a point, but just because one issue may involve fewer people than a bigger issue, that doesn't mean it's small potatoes when major rights are involved. The Black Panthers weren't charged with spitting on the sidewalk, after all.

On July 5, I posted a piece about the Black Panthers, and one attorney specifically (even though half your comments still seem to be in the Blogger Black Hole). J. Christian Adams testified as scheduled, and though it was not a blockbuster, he did name a few names, referred to several others, and fully demonstrated that the dismissal of the Black Panthers cases was purely political. The Committee seems to be viewing the testimony with the same lack of enthusiasm shown by Dr. Thernstrom, though likely for entirely less noble reasons.

But there has been another development involving this attorney, and the "bigger picture" that Dr. Thernstrom was determined to call to the attention of the public. While Thernstrom emphasized the importance of the consent decrees and future gerrymandering, Adams has decided to go public with a related issue. Section 8 of the Federal Motor Voter Act specifically requires that voter registrars remove deceased and illegal voters from the voter rolls. A section chief at Holder's DOJ has apparently ordered the DOJ attorneys not to enforce this provision because "it would decrease voter participation." I'm afraid that there's no way to parody that remark because it is pure parody in and of itself. Yes, it's true. If dead people are forbidden to vote, participation will indeed go down. In Chicago alone, dead Democrats comprise 20 or 30 percent of the vote.

I mention this recent development for two reasons. First and most obviously, it will be interesting to see how Dr. Thernstrom feels that this facet of the law fits into the pending future voting disasters along with the consent decrees. But secondly, it is fascinating that Adams has decided that just being a good boy and doing his job, even at the risk of being fired, is not sufficient. He has now decided to go very public with his accusations. And he has proven he's a smart lawyer by pre-empting many future attacks on his character and abilities. He has used PajamasMedia to post his entire work record, which is comprised entirely of favorable to highly-favorable reviews by his superiors at DOJ, Democrats and Republicans alike.


23 comments:

Tennessee Jed said...

interesting, Hawk and a very honest appraisal (I would expect nothing less, of course.) I find the routine denial of freeing up minority districts disturbing even if not surprising.

Joel Farnham said...

LawHawk,

I wonder just how many people were intimidated into not voting because of the New Black Panthers?

patti said...

i wonder if she would feel the same had they intimidated her, or blocked her, from voting. wonder if she would still think it was small potatoes. doubtful.

AndrewPrice said...

This sounds to me like she's confused politics and law. It's one thing to pick your battles carefully in politics. . . in fact, you need to. But it's something completely different to ignore illegality just because you think it isn't the biggest crime that could have happened. That's like saying "don't prosecute this bank robber because he only got away with $500."

LawHawkRFD said...

Tennessee: Some of the denials have been absolutely ridiculous. The Bush administration was a little better, but not by much. By granting the ability to stop a sea-change in voting (principles, not parties) to a low level employee of the department, the statute almost guarantees a "no change." With the Obamacrats, that's intentional. With the Bushies, it was more laziness than anything else.

One of the reasons I think the statute may ultimately be found unconstitutional (at least part of it) is that this is a huge amount of power delegated to low-level functionaries without much oversight from either the executive or legislative branch. A fundamental right of a free society is being decided on by amateurs, hacks, and without the light of public scrutiny.

AndrewPrice said...

FYI Everyone:

If you want to see what the Black Panther Party is about, check out this link at 3:00 and at 4:20 where he advocates killing "crackers" and "their cracker babies."

Click Me


I wonder when the Justice Department will bring hate crimes charges?

LawHawkRFD said...

Joel: I'm sure there were plenty. The former civil rights worker and member of Bobby Kennedy's voting rights staff who was present at and testified about the Philadelphia cases said that what he saw there was as bad as anything he had seen in the Deep South during the voter registration drives in the 60s, short of actual physical violence. Whether it's a redneck sheriff with a billy club, or a Black Panther with a billy club, you're going to get the message.

And that is one reason I diverge from Thernstrom on this. One voter intimidated into giving up his vote is one too many because voting is just too important an issue to discuss in terms of numbers affected. The intimidation is the issue, and it doesn't matter if it can be proven absolutely that someone was turned away. The statute is designed to punish those who would even attempt to turn voters away by intimidation.

LawHawkRFD said...

Andrew: Dr. Thernstrom is normally a cool if vocal intellectual. As I mentioned in the article, I really think she got frustrated and this step off the path was more an anomaly than anything else. I would usually expect her not to conflate law and politics, which she did this time. And when she does discuss the law, she usually does so via a knowledgeable lawyer rather than rely on her layman's opinion. By mixing law and the politics in her piece, she got the law wrong and the politics skewed. I doubt we'll see her do anything like this again for a very long time. She knows very well that there's no such thing as being "a little pregnant."

Dr. Thernstrom has favorably discussed James Q. Wilson's "broken windows" theory many times. In this piece, she completely ignored the theory, and in fact turned it on its head. She knows full well that even if these cases were not horrific and involved small numbers, ignoring and dismissing them only leads thugs to move on to bigger things.

HamiltonsGhost said...

Lawhawk--I saw repeated clips of King Samir Shabbaz (sp?) on Fox News yesterday. He was one of the defendants who refused to show up in court, had a default entered against him, then had his case dismissed by Holder's people. His answer to those who criticized the dismissal and the intimidation was a five minute rant filled with race-hatred and violent threats.

In a weird sidenote, the word verification I had to use to post this comment was, are you ready?, "acquiter."

LawHawkRFD said...

HamiltonsGhost: I wouldn't worry about the spelling. It's a made-up name anyway, and a turd by any other name still stinks. That's the guy in the original photos shown in paramilitary garb, brandishing the billy club.

I also saw the clips all over the network news. No, wait, I didn't see it anywhere on the nets, only on Fox News Channel.

The first time I ever heard that kind of vile, violent, racist venom being spewed, the speaker was using German, and he had a funny little mustache rather than dreadlocks.

LawHawkRFD said...

Andrew: I also love his "I don't tolerate one iota of white people." He also did a pretty good number on black men who brought their "white whores" to the rally.

Joel Farnham said...

LawHawk,

The idiot in front of the polling place wasn't intimidating. What is intimidating is that this administration refuses to prosecute to the fullest extent of the law the attempted intimidation. Refusal to enforce this particular law violated in this particular manner is so intimidating. It is almost as if this administration endorses such behavior, and would like to see more of it.

AndrewPrice said...

Lawhawk, Yeah, the whole thing is very, very nasty. This reminds me of the Nation of Islam speakers who kept coming to D.C. to speak at Howard (an "historically black" school).

I wonder when Obama is going to condemn these comments? I guess I shouldn't hold my breath.


By the way, the broken windows theory is the perfect analogy to this. If you ignore the little stuff, the big stuff falls apart all on it's own.

LawHawkRFD said...

Patti: Don't be too hard on her. I agree totally that she has lived a more sheltered life than many of us, and I don't excuse her dismissal of the matter as "small potatoes." But I can see both her frustration and reasoning.

I'm a tough character (well, at least I was in my youth), but I can tell you with no uncertainty that if I'm confronted by a dreadlocked black guy brandishing a billy club and wearing paramilitary garb, I'm going to be intimidated--period. Now whether that would stop me from voting is another issue, and I can't say with any certainty what the result would be since I've never faced it. But I saw it being done to blacks in the South in the 60s, and I faced a billy club or two in order to stop that denial of a basic American right. Not a black right. Not a white right. An American right.

LawHawkRFD said...

Joel: I think he was as intimidating as hell. And though I doubt I would be dissuaded from voting by that intimidation, I would still feel less intimidated by that billy club if I were allowed to carry my gun to the polls. I saw far too many characters exactly like this guy not to have the good sense to feel a certain amount of intimidation. Most of them were standing behind bullet-proof glass in "murderers' row" at the downtown Los Angeles criminal court, awaiting their arraignments. They still made me nervous.

On the other hand, I find people like Holder and his racist sycophantic political lawyers very unintimidating. That's why he needs people like the Black Panthers to make him look tough. Of course that's one of the reasons he dismissed the cases.

StanH said...

In my mind, this is a very dangerous precedent. By not prosecuting this makes it, in some peoples mind, okay.

CalFederalist said...

LawHawk. Now that you've moved into our part of the state, here's an analogy. If you round a corner on those country roads on foot, and there's a nice coiled-up California diamondback rattlesnake shaking his rattles at you, would you be intimidated? I know I would, and I wouldn't take the time to analyze whether that rattle might mean he's going to bite me or not.

LawHawkRFD said...

CalFed: Not a half-bad analogy. I would indeed be intimidated because that rattle is a lot like the billy club being thumped against that Black Panther's palm. I would have three choices. Directly confront the snake and get bitten. Back off completely and let the snake hold his ground. Or find a way to get around the snake and accomplish my goal without getting bitten.

To add to the analogy, if I needed to get to water because I was dangerously thirsty, I'd find a way around the snake to get to the water. That thirst is comparable to the fundamental American right to vote. I'd have the good sense to avoid the snake, but the determination to get to the water.

On the other hand, if I considered my right to vote comparable to a simple stroll in the country, I'd probably turn around and head home. That's why the laws prohibit both intimidation and brandishing. Not because they actually keep people from voting, but only because there's a substantial likelihood that some people would be sufficiently (and realistically) frightened to turn away and go home.

LawHawkRFD said...

Stan: That's very true. In addition, he encourages them even farther by dismissing default judgments already won. I wonder how unimportant Holder would have considered it if he had been a potential voter in, say, Mississippi in 1962 and arrived at the polls to be greeted by a herd of rednecks wielding billy clubs and chains and wearing paramilitary garb.

rlaWTX said...

Around here if you are confronted with a rattlesnake, you chop its head off with a hoe (or blow it off with a gun).
Insert that into your analogy and where do you get... Unfortunately, the law is supposed to step into that space and do the figurative "head-blowing-off" and it did not do so. So, the snakes in the neighbohood & country lanes now know who owns that road.


I read Dr. Thernstrom's piece on NRO and it did make some valid points (like not ignoring the big stuff), but I couldn't articulate why it wasn't quite right. Thanks, Lawhawk, for doing that for me!

LawHawkRFD said...

rlaWTX: I hadn't really thought of that intervening step. Good show. And you're right--law enforcement did nothing. Several of the voters who were confronted by the thugs called the police, and were told "they aren't doing anything illegal." Which explains why lawyers are able to rip up the testimony of cops so easily in many cases.

If I had not been a longtime fan of Abigail Thernstrom, I would have dismissed her statement as more political correctness gone mad. But knowing her work, I felt there had to more to it than that. I think she minimized the confrontation far too much, but I also think she's absolutely right about those bigger fish we're going to have to fry--soon.

LawHawkRFD said...

Andrew: Don't know how I missed your comment, but I just saw it. It's funny, but I was fishing for the thought the whole time I was writing the post, but I just couldn't come up with James Q. Wilson until it simply flashed into my mind here on the comment thread.

AndrewPrice said...

Lawhawk, Sometimes genius happens when you need it most! And the connection really is an excellent one!

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