Daily Digest |  |
- Chauvin trial day 2
- Coke demands that its law firms engage in unlawful discrimination
- Kristi Noem, Moderate?
- Who was that masked man?
- The Deep Rig
| Posted: 09 Mar 2021 04:30 PM PST (Scott Johnson) At the end of the first day of jury selection, three jurors had been seated. Looking for 16 — 12 and four alternates — the court might complete the process of next week. Opening statements would not kick the trial proper off until March 29. Yesterday the parties stipulated to the dismissal of 16 of the first 50 prospective jurors for cause based on their answers to the 14-page questionnaire fashioned for the case. Today it took 9 prospective jurors to yield three. My imperfect notes reflect that three were excused as a result of peremptory strikes (one by the prosecution, two by the defense) and three for cause. Prospective juror number 1 was a woman originally from Mexico who spoke poor English with a heavy Spanish accent. I had a hard time understanding her. I thought her English was so bad I wondered if she could pass a citizenship test. Her husband helped her complete the juror questionnaire. She rated her English a 7 or 8 on a scale of 1 to 10. At least she has no problems with self-image. She certainly wanted to serve on the jury. Why? “Because I would like to give my opinion of the unjust death of George Floyd.” That’s how she framed her answer on the questionnaire. I thought that was the quote of the day. However, she will not be serving on the jury as a result of a peremptory strike by the defense. Two of the prosecution’s pro bono attorneys appeared in court today: Steve Schleicher of the Maslon LLC and Jerry Blackwell of Blackwell Burke. Assistant Attorney General Matthew Frank will lead the prosecution of Chauvin for the state at trial. He must have been back in the office tending to the appellate issues raised by the state’s effort to reinstate the third-degree murder charge. Eric Nelson is handling Chauvin’s defense by himself in what looks like a David versus Goliath match-up. The questionnaire completed by prospective jurors proved instrumental. The form is posted online here. The attorneys have capably used the completed questionnaires to home in on the issues of pretrial publicity, personal security and other possible secondary effects of their verdict. I was most impressed with Judge Peter Cahill. Although I continue to harbor doubts about the ability of the judicial system to deal with this case, I have no doubt that Judge Cahill will control the courtroom and protect Chauvin’s right to a fair trial insofar as it is in his power to do so.     |
| Coke demands that its law firms engage in unlawful discrimination Posted: 09 Mar 2021 12:20 PM PST (Paul Mirengoff) In January 2021, the general counsel of Coca Cola sent a letter to the law firms that represent it. The letter demanded, among other things, that these firms “commit that at least 30% of each of billed associate and partner time will be from diverse attorneys, and of such amounts at least half will be from Black attorneys.” To enforce this demand, Coke’s general counsel warned that failure to comply on a given new legal engagement over two quarterly reviews “will result in a non-refundable 30% reduction in the fees payable for such New Matter going forward until the commitment is met and, continued failure may result in your firm no longer being considered for. . .work.” Meeting Coke’s diversity requirements will also “be a significant factor in determining. . .inclusion and ongoing status on [Coke’s soon-to-be -released] panel” of “preferred firms.” Except in very limited circumstances, it is illegal for an employer to make hiring, staffing, and assignment decisions based on race. It is also illegal for a company to require its contractors to do so. If a company demanded that law firms staff its matters with only White attorneys, no one would deny the illegality of the mandate. What is Coke’s basis for imposing quotas on its law firms? The general counsel’s letter expresses alarm over the color of the “new partner headshots” he sees on law firms’ websites. He claims that at the rate things are going, the representation of Black equity partners at law firms won’t reach parity with Black representation in the U.S. population until 2391. But racial quotas can’t be justified based on a gap between the percentage of Blacks among law firm partners and the percentage of Blacks in the general population. Law firm partners aren’t selected from the general population, they are selected, by and large, from the population of law firm associates, partners at other firms, and high-ranking lawyers at corporations. Black representation in that population is way below such representation in the general population. Law firm associates aren’t selected from the general population, either. Big law firms choose their associates mostly from the pool of graduates with good grades from good law schools. Black representation in that population is less than Black representation in the general population. In fact, according to the ABA’s 2019 report, Blacks make up only 5 percent of Americans licensed to practice law. Yet, Coke demands that Blacks account for 15 percent of billable hours on its work. In other words, it is demanding that law firms deploy Blacks in wildly disproportionate numbers under any non-frivolous legal analysis. It’s also worth noting that Black representation even in the general U.S. population is less than 15 percent. Yet, Coke has set its requirement for Black representation on its matters (in terms of hours billed) at 15 percent. Coke’s demand that 30 percent of billable hours go to “diverse” lawyers is also curious. The general counsel’s letter does not provide any indication — even a frivolous one — that racial/ethnic groups other than Blacks are underrepresented at the law firms it uses. Before firms lawfully should even think about making hiring, staffing, and assignment decisions based on race or ethnicity — and before their clients can lawfully demand this — there must be clear evidence of past racial discrimination by law firms. Under a 1979 Supreme Court decision, United Steelworkers v. Weber, discrimination can be justified “to eliminate manifest racial imbalances in traditionally segregated job categories” where “the plan is a temporary measure [and] it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.” The Supreme Court emphasized that an “absence of any reference to or showing of past or present discrimination in the [relevant] industry is fatal” to a racially discriminatory program. Coke’s letter cites no past or present discrimination in the legal industry. It does not point to any manifest imbalances in Black representation at the law firms it utilizes. And it does not tie its discriminatory program to any reasonable measure of imbalance. Nor, of course, does Coke suggest that it has a history of selecting law firms in a racially discriminatory manner. Finally, Coke’s letter does not describe a “temporary measure.” The letter describes a quota regime of indefinite duration. In fact, it promises a quota regime that will become more onerous over time. Law firms will be expected to increase the percentage of hours billed by Blacks and “diverse” lawyers as a whole to 25 percent and 50 percent, respectively. Coke has brazenly announced that it is basing contracting decisions on race. Based on race, it will decide which firms to continue doing business with and how much the firms will be paid. Coke will pay firms that make race-based assignment decisions more for the same work than firms that don’t discriminate in this manner. Coke has made it clear that its decision to rely on race is unmoored to findings of discrimination, past or present. It has done so by setting its racial quotas at a levels that do not measure discrimination. Accordingly, Coke is vulnerable to being sued for racial discrimination. So are the individuals at the company who are behind its discriminatory policy. They can be held personally liable under Section 1981 of the Civil Rights Act of 1866. Coke can take comfort from the fact that no law firm is likely to sue the company or its officers. Similarly, no lawyer at one of these firms is likely to challenge Coke’s practice. However, I invite anyone with knowledge about how Coke’s policy is being implemented at law firms and/or the effects of that implementation to email us at Power Line. All requests for anonymity will be honored.   |
| Posted: 09 Mar 2021 09:06 AM PST (John Hinderaker) South Dakota Governor Kristi Noem has been under heavy fire from the Left over the last year, as a result of being America’s most pro-freedom governor, while leading one of the country’s most successful states. No surprise there. It is, however, a little odd to see her taking fire from the right, in the form of this piece at the American Thinker. The author looks at Noem’s eight years in the House of Representatives and finds her record insufficiently conservative and perhaps insufficiently distinguished. But we aren’t talking about Lisa Murkowski or Susan Collins here. Noem is a solid conservative, as reflected in her 77% lifetime ACU conservative rating. In her last two years in Congress, 2017 and 2018, her ACU rating was 81% and 82%, respectively. Noem was a member of the House leadership team, which tends to depress conservative ratings because leadership is more or less required to vote in favor of compromise legislation they have negotiated, while backbenchers have the luxury of voting “no.” Representative Noem was highly respected during her term in Congress, as reflected in the fact that she was chosen to be the Class of 2010's representative to the leadership team. She was on the final conference committee that crafted the Tax Cuts and Jobs Act, a signature achievement of the Trump administration. She was also on the conference committee for 2014 farm bill, and helped to negotiate both the USMCA and the Phase One China Deal, both of which opened up markets for South Dakota’s agricultural products. The American Thinker piece acknowledges that Noem has been a staunch pro-lifer, and the first bill that she signed into law as Governor of South Dakota was a Constitutional Carry act to protect the state’s firearms rights. The Thinker piece rehearses the familiar, but pointless, comparison between Kristi Noem and Sarah Palin. I was a fan of Palin, but she had nothing like Noem’s record of solid achievement. And it would be futile to try to convince anyone who watched Noem’s CPAC speech, or who has followed her career as governor, that she is anything but a philosophically committed conservative. Here is the acid test, though: my South Dakota relatives, who are at least as conservative as I am and who know her family, think the world of her. If she is conservative enough for South Dakota conservatives, trust me, she is more than conservative enough for America. I have no idea whether Kristi Noem will wind up on the national ticket in 2024, but I would certainly be happy to see her there.   |
| Posted: 09 Mar 2021 03:56 AM PST (Scott Johnson) The New York Post’s Steven Nelson gives a straight news account of President Biden blanking out even as he is reading remarks from a teleprompter stationed in front of him (the Post’s account is accompanied by the video below):
RedState’s Nick Arama provides a more colorful rendition in “Biden’s Incoherence Just Hit Critical Mass, This Is Scary Awful.” Arama adds that Biden also “forgets [Secretary Austin’s] position, as well as the name of the Pentagon…” Consistent with Nelson’s account that should probably read “seemed to forget,” but something here does not compute.   |
| Posted: 08 Mar 2021 06:53 PM PST (John Hinderaker) Was the 2020 presidential election stolen? That question continues to reverberate through our public life. Today I downloaded a new book by Patrick Byrne called The Deep Rig. It purports to tell the true story of how the Democrats stole the election, and why the Trump administration and the GOP bungled their opportunity to do something about it. I am half-way through the book, and am not prepared to express an opinion on it. I will say this: Byrne is not a nobody. And he describes events in detail, like his account of a meeting with President Trump in the Oval Office. In his telling, the heroes are quants and hackers like him, along with General Michael Flynn, Sydney Powell, and one or two others. Villains (if only on account of their haplessness) include Rudy Giuliani, White House Counsel Pat Cipollone, and most of those who tried and failed to do something about the election. Byrne’s account is riveting and contains links to videos, spread sheets, etc. Is he correct in alleging that Democrats in a handful of key swing state counties used electronic mischief to swing the election to Joe Biden? I don’t know. I hope that over the next year or two the truth will emerge. Meanwhile, Byrne’s book is a good place to start. I would suggest that you buy it fast, before it is banned.   |
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