Waiting for Franken, or someone like him

Waiting for Franken, or someone like him

Power Line - Saturday September 2, 2017

by Scott Johnson

(Scott Johnson) 

Earlier this week I quoted Minnesota Senator Al Franken on his obstruction of the Senate consideration of the nomination of Justice David Stras to the Eighth Circuit: “I think we’re going to have a decision very soon.” That is a somewhat cryptic statement. What is he waiting for? If we had a free press operating in Minnesota, the obvious follow-up question would have been asked. Coverage of the blocking of the Stras nomination by Senators Franken and Klobuchar would be deep and continuing. As it is, nada.

Now we know (no thanks to the Star Tribune, I may add). On Thursday left-wing interest groups released a deeply dishonest 7-page letter opposing the confirmation of Justice Stras. The statement of these left-wing groups — Alliance for Justice, Courage Campaign, Every Voice, The Leadership Conference on Civil and Human Rights Main Street Alliance, NAACP, NAACP Legal Defense & Educational Fund, NARAL Pro-Choice America, National Association of Social Workers, National Council of Jewish Women, National Education Association, People For the American Way, Service Employees International Union and Voting Rights Forward — lacks any individual signatory. The groups sign off on a corporate basis.

In the world of Democratic politics where Franken and Klobuchar swim, some of these groups are more important than others and some even political junkies like me have never even heard of. For Franken and Klobuchar, however, with big dreams of their own for the future, several matter.

As if on cue, this morning’s Star Tribune carries an op-ed column by representatives of the leftist identitarians of the Minnesota bar opposing Stras. The column appears over the names of Marie Failinger of MitchellHamiline Law School; Kendra Brodin, president of Minnesota Women Lawyers; Mike Essien, president of the Minnesota Association of Black Lawyers; Ben Kwan, president of the Minnesota Asian Pacific American Bar Association; and Lariss Maldonado, president of the Minnesota Hispanic Bar Association.

This dishonest column cannot even get basic facts right. It asserts that “only one lawyer of color has ever served as a member of th[e Eighth Circuit] — Judge Lavenski Smith from Arkansas.” Anyone who knows anything about the court knows that this is wrong. Missouri’s Judge Theodore McMillan was the court’s first black member. His long tenure on the court ran from 1978 until his death in 2006. On a personal note, I wrote an opinion for Judge McMillian in 1981 when I worked as a law clerk to Judge Bright and I appeared before him as a practicing lawyer. I recall his memory with pleasure.

If Franken and Klobuchar were to permit hearings on Stras’s nomination by the Senate Judiciary Committee, Justice Stras would easily answer the case made against him. His left-wing wing opponents don’t make much of a case. They disagree with a few of his opinions and dissents. As a nonconservative attorney friend wrote me this morning: “The reasons given in the Strib column opposing Stras’s nomination were ludicrous and demonstrate a total lack or any understanding of the proper and restraining role of law.”

One point made by the left-wing opponents of Justice Stras gets to the heart of the dishonesty with which Justice Stras’s nomination must contend at this point. He is opposed supposedly because the Eighth Circuit lacks “diversity.” He is not black. He is not a woman. He is not Asian Pacific. He is not Hispanic. He is not a member of a recognized minority group. Justice Stras is not “diverse.”

Here we see the moral and intellectual evil of the left. Here we see, as a bonus, the bigotry of the left.

Justice Stras is Jewish. Indeed, he is the grandson of a Holocaust survivor. In the course of his life he has reflected deeply on lessons learned from his grandfather. The video below derives from Justice Stras’s speech to our Cardozo Society annual dinner this past November in Minneapolis.

If one wants to play this game, which I don’t, one might note that the (great) Chief Judge of the Eighth Circuit (Little Rock’s Lavenski Smith, noted above) is black. Judge Jane Kelly is a woman. Since the death of Judge Bright, the court lacks a Jewish member. If one looks at life through the lens of identity politics, one might see that Justice Stras fills a void.

Somehow the left-wing opponents of Justice Stras make no mention of this. Why might that be? What ancient prejudice might drive them to omit any mention of his Jewish heritage?

This, however, takes the stated opposition to Justice Stras at face value. I don’t. Perhaps pawns like Failinger and her co-signatories mean it, but I doubt it, as one can infer from their failure to offer any express consideration of Justice Stras’s otherwise all-important ethnic status. Or maybe they are just ignorant, as their omission of Judge McMillan from Eighth Circuit history suggests. However, the inclusion of the National Council of (Left-Wing) Jewish Women as a signatory on the letter shows the awareness of Justice Stras’s heritage among his opponents.

If a highly qualified Minnesota attorney who happened to be a conservative woman “of color” were to be nominated — I have a friend in mind — do you suppose we would we be hearing about the valuable “diversity” she would contribute to the court? Of course not.

Like the race card, the “diversity” game is played solely to defeat conservative nominees. See, for example, the case of Justice Thomas. Justice Thomas’s confirmation to the Supreme Court was opposed (to take just one example) by the Congressional Black Caucus. 

The case of Justice Thomas really makes my point. The letter opposing Justice Stras amounts to a reunion of sorts for several of the groups opposing Stras; they also opposed the confirmation of Justice Thomas in 1991. For them it’s just like old times.

One question confronts Franken and Klobuchar as they continue to obstruct the nomination of Justice Stras. Their blue slips matter only because Justice Stras’s home state is Minnesota. Franken and Klobuchar must pause to consider whether the White House will move on to seek a qualified nominee from an Eighth Circuit state with two Republican senators — Iowa, say, or North Dakota, or South Dakota, or Nebraska, or Arkansas — and put them and their left-wing friends in the rearview mirror.

Perhaps Franken and Klobuchar are willing to appease their friends in the service of interests other than Minnesota’s. Perhaps not. I should think we stand to find out some time before too long.

  

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