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Monday, February 11, 2019

Trump judge stops court from writing a new law

Democrats and their minions in the media opposed the appointment of James C. Ho to succeed a Carter appointee as a Fifth Circuit judge. NPR wrote last summer, "Critics say Ho is writing op-ed columns, not legal opinions. Friends and former colleagues said he's an intellectual engaging with ideas. And that he's just getting started."

All legal opinions are op-eds.

This week Judge Ho proved critics correct by demolishing the argument that somehow Congress has banned "transgender discrimination."

The case is Wittmer vs. Phillips 66.

Ho explained the facts:
Nicole Wittmer, a transgender woman, applied for an Instrument and Reliability Engineer position with Phillips 66 in 2015. Phillips 66 conducted four interviews, including an in-person interview on August 3. During these interviews, Phillips 66 asked about Wittmer’s current employment with Agrium. They discussed on-going projects at Agrium that would require significant future travel to Canada as the reason Wittmer was looking for a new job.
On August 10, Phillips 66 offered Wittmer the job, contingent on passing certain background checks. On September 2, Ellen Fulton, Phillips 66’s Human Resources Manager, informed Wittmer that the background check uncovered a discrepancy: Agrium terminated Wittmer on July 28, with pay continuing through August 2.
In response, Wittmer acknowledged the discrepancy, but did not think “it was that big of a deal.” Wittmer sent Fulton the July 28 termination letter from Agrium, clearly stating that their employment relationship ended on July 28.
Fulton and several other Phillips 66 executives conferred on September 8. Everyone at the meeting agreed that the offer of employment should be rescinded due to Wittmer’s misrepresentations.
On September 10, Wittmer sent an unsolicited email to Fulton and another Phillips 66 employee, accusing them of transgender discrimination. Fulton responded that Phillips 66 was unaware of Wittmer’s transgender status prior to the email, and that in any event, the information would not affect Phillips 66’s decision.
On September 14, Fulton formally rescinded the offer of employment. Fulton explained that it was due to the discrepancies revealed during the background check after the initial conditional offer.
So Phillips 66 declined to hire a liar. Wittmer claimed discrimination. On the face of it, this is baloney as Phillips 66 knew Wittmer was transgendered and offered the job anyway. The lie was a legitimate reason to rescind the offer.

The district judge agreed with the company and dismissed the case. The Fifth Circuit heard the appeal to rule on the broader case of transgender discrimination -- and ruled Title VII protections against sex discrimination apply to the two genders of God, not the 57 of man.

This upheld four decades of rulings on the subject.

Paul Mirengoff -- a real lawyer at Power Line -- praised Judge Ho's concurring opinion, saying Ho crushed it.

Mirengoff loved Ho's conclusion. It read:
Under our Constitution, contentious policy disputes are resolved by the people, through their elected representatives in Congress. And when a particular policy position garners enough support to leap the hurdles of Article I, Section 7, it becomes the law of the land.
For our system to work, however, we must share a common language. When the American people come to a consensus, there must be a way to reduce the agreement to words that we can all understand and accept — both today and in the years to come. We must have confidence that our words will be faithfully construed in the future, consistent with our common understanding.
That confidence is lost if the people undertake to debate difficult issues, accept the daunting task of forging compromise, and then reduce that compromise to legislation — only to have courts surprise the people with rulings that bear no resemblance to our common language. I agree with Judge Lynch that “we need to respect the choices made by Congress about which social problems to address, and how to address them.” Zarda, 883 F.3d at 166 (Lynch, J., dissenting). We should not “impos[e] on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Hively, 853 F.3d at 357 (Posner, J., concurring).
Mirengoff made a prediction.

"I’m confident that if the Supreme Court decides whether Title VII prohibits discrimination under the basis of sexual orientation and gender identity, it will agree with Judge Ho. The problem is that Chief Justice Roberts and Justice Kavanaugh seem to prefer ducking the issue to resolving it," Mirengoff wrote.

Donald John Trump is the game changer. For the first time in my life, a conservative president is fundamentally transforming the federal judiciary into an arbiter of what is written in the law and in the Constitution and not what is the passing political fancy of the day.

Ho is 45. He'll be Ginsburg's age in 2059. President Trump and Mitch McConnell will be long gone by then, but their legacy will have lived on.

Reward these two with re-election next year.


  1. > Kavanaugh seem to prefer ducking the issue to resolving it

    Powerline defended Republican squishes when the alternative was Trump.

    Seems they don't care much for squishes when it's their own line of work.

  2. Treating people equally despite of both manufactured as well as inherent differences is an idea that is eventually going to crash into itself, especially in an increasingly quantitative world.

    I have probably mentioned this before, and anyone who has read Joseph Pieper's Leisure the Basis of Culture will recognize that there are two fundamental competing means of dealing with the world, ratio, and intellectus. Ratio being the idea that one can reach knowledge of all things by analytical thinking, that everything can be broken down into its component parts. Intellectus is not analytical, but observational; instead of breaking things down one observes them and sees how they exist in primary experience and in reaction and interaction with other things and in what these interactions produce (you will know them by their fruits). As time has progressed, the use of the ratio approach to life has predominated and the intellectus approach has been actively suppressed.

    The way I look at it these ideas are a sort of yin and yang and balance each other. The over reliance on one or the other creates an imbalance which will by necessity be corrected at some point, the manner of the correction being known only to God.

    One simple way to look at how this applies to the gender crap is to say that this is a fight between lumpers and splitters. In most fights the splitters win because they have been on an historic roll and we are used to seeing them win. In this case the splitters are the Heinz 57 varieties of gender. After analyzing sexuality into what they think are its component parts these people have come to the conclusion that sex is not a primary state of being but a state of mind that is in some cases completely fluid, and in others ineluctably fixed according to a sort of modern Ptolemaic epicycle.

    It's as if the ratio thinkers are drunk with their past successes and are running amok in confidence that victory is theirs. But even if they win in the world we have manufactured and have surrounded ourselves with, there remains a very real world that will allow very little deviation to exist unchecked for very long. The Gods of the Copybook Headings for social constructions.

    1. There are some very confused people out there. Unfortunately, many of them can vote.

      And Kipling really was ahead of his time.

      - Elric

    2. The truth of the nature of the world as designed, created, implemented and ongoing, is found when belly can no longer be filled.

      That obliterates all thinkings but one: feed or die.

      As all bodies thus designed are compelled to resist death, to feed is the only thought allowed. The primary. The every other thought can just fucking wait.

      Forget to remember this and all kinds of absurd shit bubbles up into the thinking.

  3. Lawyers can be asses, unless you need them and can pay them.

    1. Lawyers are always assholes.

      Who makes the laws that ensure they will always have business?

      By ensuring there will always be a constant flow of customers?

      Laws are truly that blade with an cutting edge on both sides.

  4. Trump's judges are indeed a huge accomplishment to be celebrated.