Legally Speaking With Pamela Price

Pamela Y. Price, Attorney at Law

Category: United States Supreme Court

Losing the Federal Government

I feel like we’re tettering on the edge of a cliff.  The next deep breath, we fall into the abyss.

What Just Happened?

Today, April 6, 2017, is truly one of the last days of American democracy.  Why? Because today, the Republican Senators voted to change the rules of the U.S. Senate. They made the change to ensure that Democratic Senators will no longer have a voice in voting on federal judges at any level. It also means that, tomorrow, the right wing of the American judiciary will take over the U.S. Supreme Court for possibly at least the next 50 years. So, the transformation of America is complete.  Elections do matter. The bloodless coup which became apparent in November 2016 is complete.

Who Is Neil Gorsuch?

This dramatic rule change was necessary to get Judge Neil Gorsuch of Colorado appointed to the U.S. Supreme Court. Judge Gorsuch is the son of Anne Gorsuch. Anne was a Ronald Reagan appointee who at one point was the head of the Environmental Protection Agency (EPA). She cut the EPA’s budget by 22% and reduced the number of cases filed against polluters. Ann also relaxed Clean Air Act regulations and facilitated the spraying of restricted-use pesticides. She hired EPA staff from the industries they were supposed to be regulating.  According to her Wikipedia page, Anne is the first agency director in U.S. history to be cited for contempt of Congress after she refused to comply with a subpoena.

Judge Gorsuch’s background as a litigator is one of privilege. He graduated from Harvard Law School in 1991.  He clerked in the D.C. Circuit federal court and the U.S. Supreme Court after law school. He then joined an elite D.C. law firm and stayed there for 10 years, representing corporate clients and billionaires.  In 2015, his former firm paid new associates “a starting bonus “of $175,000 or a $330,000 signing bonus to those who clerked for Supreme Court Justices. Gorsuch left the firm in 2006 when George Bush appointed him to the 10th Circuit Court of Appeals.

What is His Record?

Judge Gorsuch is the heir to Antonin Scalia. Like Scalia, Judge Gorsuch says he will “look backward.” He believes the Constitution should be interpreted the way it was interpreted when it was written. No matter that in the original Constitution, Black folks are only 3/5 of a person and women do not have the right to vote. In Gorsuch’s view, the infamous Dred Scott decision would be “good law” because it is based on what the judges then understood the law to be. He would also support the decision in Plessy v. Ferguson which ruled that Jim Crow laws were constitutional. The Court’s understanding of the law at that time legalized discrimination that endured for nearly sixty years.

His record on women’s rights and civil rights as a federal judge is troubling.  In February 2017, the Leadership Conference on Civil and Human Rights and 107 civil rights organizations signed a letter opposing his nomination. What is really scary, however, is that the National Rifle Association (the NRA) just dropped a million dollars to support his nomination. Gorsuch’s apparent views on guns led Americans for Responsible Solutions, the gun violence prevention organization founded by former Congresswoman Gabrielle Giffords and Navy combat veteran and NASA astronaut Captain Mark Kelly, and its sister organization, the Law Center to Prevent Gun Violence, to oppose his nomination. Under Gorsuch, America’s status as the most violent country in the world will be preserved.

“Defective from The Start”

Gorsuch says using the courtroom to “debate social policy is bad for the country and bad for the judiciary.”  If Gorsuch opposes using courts to debate social policy, he likely will oppose efforts to change any policies in the Courts.  His views are exactly opposite from the greatest lawyer and judge America has ever known, Justice Thurgood Marshall.  In 1987, Justice Marshall pointed out that “we the people no longer enslave, but the credit does not belong to the framers. It belongs to those who refuse to acquiesce to outdated notions of liberty, justice, and equality and who strived to better them.” He said “the government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.”

Donald Trump promised to appoint a “Scalia-like” justice to the Supreme Court. He is keeping his promise. Justice Scalia was a rabid opponent of affirmative action and voting rights. He wrote the Walnart v. Dukes decision that ended one of the largest class-action suits in history and set civil rights progress backward for years. Scalia opposed gay rights and a woman’s right to choose what to do with her own body. Scalia denied protection to victims of domestic violence and he wanted to abolish the Miranda rule protecting a defendant’s right to remain silent. The truth is, if Judge Gorsuch starts where Scalia left off, he too will be “defective from the start.”

Will He Keep His Promises?

Will He Keep His Promises?

I woke up Wednesday morning in Trumpland. My worst fears are coming true. Will he keep his promises?  In the first days I am upset and depressed. I feel better as I hear others calling out to fight back. In the months between Trump’s election as President and his inauguration, most of us will gather our thoughts and renew our passports (just in case).

The media tries to push the country into denial. Even elected officials maligned by Trump insist that he did not really mean what he said. They say he will be “different” as the President than the person who ran for President.

If He Keeps His Promises

If he is true to his word, on Day 1, President Trump will issue an Executive Order suspending the Patient Protection and Affordable Care Act (“Obamacare”) and any funding to support the Act. His actions may send the economy and world markets into a downward spiral.

If he keeps his promises, President Trump will direct the FBI to re-open its investigation of Hillary Clinton. We should not be surprised if newly appointed Attorney General Rudy Giuliani orders Hillary’s arrest.

first-they-cameIf he keeps his promises, President Trump will invest millions of dollars to ramp up the Immigration and Customs Enforcement Agency (ICE). ICE will develop a comprehensive plan to locate and deport millions of working and poor people suspected of immigrating from Mexico, South America, Syria or Haiti. We should expect that vigilantes will volunteer to assist in the effort to deport these “illegal aliens.” He will also immediately start construction of the wall between the U.S. and Mexico.

We should not be surprised if President Trump rejects the Obama administration’s position on private prisons and directs the Bureau of Prisons to renew all of the private contracts.  We should expect that funding for re-entry of formerly incarcerated persons, community policing and mental health services will be severely reduced. California will continue to be the leader if not the only state committed to working against mass incarceration in America.

If he keeps his promises, President Trump will champion laws to defund Planned Parenthood and declare abortion completely illegal. Led by Speaker Paul Ryan, the Republican-controlled Congress will likely pass these laws.

What President Trump labels “locker room talk” may became more prevalent in our schools and public places. Our efforts to stop violence against women and eliminate commercial sexual exploitation of women and under-age girls are likely to receive minimal support in the new Trump administration.

Packing SCOTUS with Scalia Clones

If he keeps his promises, President Trump will immediately appoint a Scalia-like judge to replace Justice Antonin Scalia on the United States Supreme Court.  Justice Scalia was a rabid opponent of affirmative action appointed to the Supreme Court by Ronald Reagan. In 2015, Justice Scalia appeared to openly endorse a racist argument that Black students do better at “slower-track schools” stating:

Most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them. . . . I’m just not impressed by the fact that the University of Texas may have fewer [Black students]. Maybe it ought to have fewer.

President Trump will likely have more opportunities to “pack the court” with Scalia-inspired justices, based on suggestions from the Federalist Society and The Heritage Foundation, two right-wing conservative think-tanks.

The Good News

The good news is that already, everywhere, resisters to the Trump Presidency are organizing. In the Democratic Party, progressives are organizing to redeem the party. One of the most poignant “calls to action” was issued “the day after” by former Emerge Director, Kimberly Ellis.  She’s running to change the face of the Democratic Party.

Outside the party, thousands, perhaps millions, have joined Bernie Sanders’ ourrevolution.org. Black Lives Matter continues to be an inspiring movement rooted in the experiences of Black people in this country and committed to the empowerment of our community. And I really believe that if there ever comes a day that Latinos and immigrants are being hunted down en masse and sent off to concentration camps, most of us will not watch silently and fail to “speak out.”*  We are our brother’s keeper.

Finally, I was honored by Hillary’s final words to the Obamas: “To Barack and Michelle Obama, our country owes you an enormous debt of gratitude. We thank you for your graceful, determined leadership.” The Obamas together, made all of us look kindly on and feel better about America. I hope that once we recover from the shock of Trump’s election, we will “shake the dust off our feet” and keep stepping toward the light. The race is clearly not given to the strong or the swift but to he that endureth.  “Banish the darkness with light.”

*  Quote from “First They Came for the Socialists”.  Martin Niemoller (1946).

Your Blessing Is On the Way

Your Blessing Is On the Way

I run up the stairs in my office to the lobby.  Robin Morgan sits there waiting.  I am so excited.  Today is closing argument in Morgan v. Amtrak and I love closing argument.  I know how long Robin has been supporting her husband, Abner Morgan.  I tell her to “hold on, your blessing is on the way!”  Little did I know that “her blessing” would not come for another seven (7) years.

Morgan v. Amtrak – the Racial Harassment Case

Robin’s husband Abner was an electrician for Amtrak in the Oakland Yard.  He worked there for five (5) years.  Abner walked off the job when the foreman told him to “get your black ass in here.”  That “direct order” from a racist foreman was the last straw for Abner.  For years he and his co-workers had complained about racism in the Yard.  Their complaints had even triggered Senator Barbara Boxer to request an investigation by Amtrak’s Office of Inspector General (OIG).  The OIG investigation confirmed that Amtrak subjected Black men working on the Yard to harsher discipline, more dangerous job assignments and abusive treatment.

Amtrak fired Abner in 1995.  At the trial in 1998, one of the white foreman came forward and testified that one Amtrak supervisor regularly performed something he called “the shufflebutt ni–er dance.”  The foreman testified that the white supervisor did his dance in the office at night for the other supervisors’ entertainment.

pyramid-of-prejudiceWe presented evidence of the most despicable racism in any workplace.  The jury found that Amtrak’s management was “grossly unprofessional” and engaged in “questionable ethical conduct.”  The jury also found that the response from Amtrak’s EEO Office was “woefully remiss.”  But, the jury still ruled in favor of Amtrak.

 

Our Trip to the Supreme Court

Fast forward to 2000.  I’m standing in my guest bedroom crying.  We had won the appeal in the Ninth Circuit.  Amtrak had filed a petition for hearing in the United States Supreme Court.  We opposed it.  After months, the Court granted the petition and accepted the case.  I was so upset.  We had waited so long and won the case on appeal.  Robin and Abner had three children: two teenagers and a mentally disabled adult son.  Abner’s firing meant they had to survive mainly on Robin’s income for years.  They had suffered great hardships.  My firm had been tested by the years of unpaid legal services as well.

I called my mentor Howard Moore, Jr., the famous civil rights lawyer who raised me from a pup  lawyer.  The conversation with Howard was very short.  I told him through my tears that the United States Supreme Court had granted the petition for hearing.  Howard said “that’s great kid.  Congratulations! This will be great for your career.” And hung up.

I had no idea what Howard knew.  I would be one of the few Black women in history to argue a case in the United States Supreme Court.  We spent six (6) months preparing for the oral argument.  Bill McNeill and the Employment Law Center offered their assistance as soon as it became public that it was my case.  My team included Bill and his lawyers Jory Steele and Willie and Shelley Gregory.  Of course, Howard agreed to serve as my co-counsel on appeal and sponsored my request to be admitted to the United States Supreme Court bar.

The Fight for the Case

It was not long before lawyers around the country contacted me.  Some offered help with the briefing and strategy on how to win the case.  Others simply wanted to take the case.  There was intense pressure on me to let an “experienced” Supreme Court lawyer handle the case.  I quickly learned that “Supreme Court lawyer” was an exclusive all white male club.  So, I called Howard again.  This time, the conversation was equally short but not so happy.  Howard was angry.  When I told him that people wanted to take my case and argue it for me, he said “If a woman with a degree from Yale and two degrees from UC Berkeley can not argue her own case in the Supreme Court, she should give all of her degrees back.”  And he hung up on me again.

morgan-v-amtrak-1And so that was decided.  Abner Morgan, to his credit, co-signed Howard’s statement by saying that I was his lawyer and he was not going to let anyone else argue his case.  I got it.  So I gathered my wits, my spirit, took charge of the situation and got us all to Washington, D.C.

morgan-04

I argued the case in January 2002.  We “claimed the victory” in my office in Oakland and again in the hallowed halls of the United States Supreme Court.  The Court ruled in our favor in June 2002.  We WON!

The Final Outcome

Winning in the Supreme Court meant that we got to try the case again.  It took another two years to get through the appellate process and back to the trial court.  In May 2004, we tried the case a second time.  pam-with-abner-morganThis time, the jury got it right and awarded Abner $500,000.

After nine (9) years of litigation, Amtrak finally settled the case later that year.

Robin’s blessing finally arrived.  What I can say to anyone reading this who has ever been tested, from a woman of faith who has been blessed and highly favored over and over and who believes in the power of prayer, “hold on. Your blessing is on the way.