SCOTUS Swings Left on Employment Discrimination and Racial Gerrymandering
Monday was a bad day for racist prosecutors, racist employers, and racist congressmen at the Supreme Court. My colleague Dahlia Lithwick is covering the court’s rebuke of those grotesquely racist prosecutors; let’s focus here on the stinging defeats that the justices handed bigoted employers and gerrymandering legislators.
First up is Green v. Brennan, a critically important decision that will undoubtedly help victims of workplace discrimination achieve restitution. Marvin Green was a mailman who suffered serious racial discrimination at work. He complained to an Equal Employment Opportunity counselor—and, in response, his superior at the Postal Service launched a campaign of retaliation. Eventually, unable to endure further harassment, Green quit. Shortly thereafter, he contacted another EEO counselor to complain of “constructive discharge”—meaning his workplace had grown so hostile that he was essentially forced to resign.
A judge, however, dismissed Green’s case for not being filed in a timely enough fashion, and an appeals court affirmed the ruling. Federal law requires constructive discharge plaintiffs to contact an EEO counselor within 45 days of the “matter alleged to be discriminatory”—and by the time Green reached out to the EEOC, it had been longer than 45 days since his employer actively discriminated against him. Even if all the horrible facts in Green’s complaint was correct, the court held, his case could not move forward.
The Supreme Court reversed that ruling on Monday, with only Justice Clarence Thomas dissenting. (As is his wont, Justice Samuel Alito filed a separate concurrence, floating his own funky theory why the lower ruling should be overturned and nitpicking at the majority’s logic.) Writing for six justices, Sonia Sotomayor explained that “the ‘matter alleged to be discriminatory’ in a constructive discharge claim necessarily includes the employee’s resignation.” Sotomayor noted that, according to the “standard rule” governing statutes of limitations, the “limitations period commences when the plaintiff has a complete and present cause of action.” What does that mean? It means that period begins when the plaintiff “can file suit and obtain relief.” Plaintiffs may only sue for constructive discharge when “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” So a constructive discharge plaintiff only has a “complete and present cause of action” once he has actually quit.
The Austrian Version of Trump Lost His Election, but Only Just Barely
Right-wing Austrian presidential candidate Norbert Hofer has lost a runoff election against liberal opponent Alexander Van der Bellen 50.3 percent to 49.7 percent, the country's interior minister announced. Hofer is a member of the Freedom Party, a group founded in the 1950s by former Nazis and led for many years by the nationalist politician Jörg Haider, who died in 2008. Hofer carried a handgun while campaigning and advocates strict limits on immigration and the admittance of refugees.
Austria's president is its official head of state but is not its most powerful figure—that's the chancellor. The presidency is not a completely irrelevant position, however: "The president does have the power to dissolve the National Council—the more powerful lower house of parliament—and so trigger a general election," the BBC writes.
Second Freddie Gray Trial Ends With Not Guilty Verdict
The second criminal trial stemming from the death of Freddie Gray in Baltimore ended this morning with a not guilty verdict for Police Officer Edward Nero, the Baltimore Sun reports.
Nero was one of six officers to be charged in connection with Gray’s death, which resulted from injuries that Gray sustained while he was in police custody after being arrested on April 12, 2015. Another Baltimore officer, William Porter, was tried last year, in a case that ended in a hung jury and is expected to be retried later this year.
Nero, who elected to have a bench trial instead of facing a jury, had been charged with second-degree assault, two counts of misconduct in office, and reckless endangerment. He was acquitted Monday on all charges.
During Nero’s five-day trial, prosecutors argued that, since there had been no probable cause for Gray’s arrest, Nero had committed a crime when he chased him and aided other officers in his detention. The 30-year-old officer was on bike patrol when his supervisor, Lt. Brian Rice, radioed for help in chasing Gray, who had fled from officers after making eye contact with one of them.
As the Sun put it, the state’s argument was that “Nero should have sought more information from Rice about why Gray’s stop was warranted before allowing his detention to play out and moving him.” Chief Deputy State's Attorney Michael Schatzow said in court that Nero “had no idea what was suspected, and he made no effort to find out.”
The Sun called the state’s argument an “unprecedented effort to attach criminal liability to everyday policing tactics,” noting that it was premised on the idea that “officers who stray from laws surrounding the search and seizure of suspects are not only liable to administrative reprimand, the tossing of evidence in court and civil lawsuits, but criminal charges as well.”
The defense’s case centered around the assertion that Nero played only a limited role in actually carrying out Gray’s arrest; the officer's defense attorney, Marc Zayon, said a different officer was responsible for catching Gray at the end of the chase and putting handcuffs on him.
The judge in the case, Barry G. Williams, said Monday morning that witness testimony from Nero’s fellow officers had confirmed that account. The judge’s decision was not a surprise: As the Sun reported throughout last week’s proceedings, Williams made it abundantly clear during the trial that he did not buy the state’s theory of the case, at one point asking Deputy State’s Attorney Janice Bledsoe whether she was suggesting that “every time there is an arrest without probable cause, it is a crime.”
The next officer to be tried in connection with Gray’s death is Caesar Goodson Jr., who drove the police van in which Gray sustained his injuries. Goodson faces a charge of second degree murder, the most serious charge of all those involved. His trial is scheduled to begin on June 6.
The Baltimore Police Department issued a statement following Monday's verdict saying that Nero will remain on administrative duty and under internal investigation until after the criminal cases against all five of the other officers implicated in Gray's death are complete.
Lindsey Graham Is Full of It
Donald Trump is a “race-baiting, xenophobic, religious bigot,” Lindsey Graham declared in December. “I think Donald Trump is all-over-the-board crazy,” the South Carolina senator said the following month, after he had dropped out of the presidential race. "I think he's a kook. I think he's crazy. I think he's unfit for office," Graham said in February. “I cannot in good conscience support Donald Trump because I do not believe he is a reliable Republican conservative, nor has he displayed the judgment and temperament to serve as commander in chief," Graham said earlier this month.
All of which makes this report from CNN just a little infuriating:
Graham urged GOP donors at a private fundraiser Saturday in Florida to unite behind Trump's campaign and stressed the importance of keeping likely Democratic nominee Hillary Clinton from the White House. The fundraiser was hosted by former U.S. Ambassador to Portugal Al Hoffman, a former Republican National Committee finance chairman who also co-chaired Sen. John McCain's 2008 presidential bid.
Graham’s office is being coy about the whole thing. His spokesman, Kevin Bishop, has suggested the report is “thinly sourced” but isn’t actually refuting it. Instead, he’s stressing that Graham—who has been clear he’s against the idea of a third-party presidential bid from a conservative more to his liking—is focused on Senate and House races this fall.
There has been no change in Senator Graham's position. He's still focused on helping GOP retain House and the Senate majorities.— Kevin Bishop (@KevinDBishop) May 22, 2016
Graham’s long-held position, then, seems to be that Trump is a dangerous bigot who is unfit for office, but also a dangerous bigot who is worth supporting if it will help his Republican colleagues keep their jobs.
Graham’s coyness over the CNN story might have something to do with this nugget: Florida GOP fundraiser Teresa Dailey told CNN that Graham, in CNN’s words, “reiterated … that he has no plans to formally endorse Trump because it would not necessarily help Trump.” That, if true, suggests the senator believes he’s more helpful as an establishment foil than as a public ally. Which … gross.
Obama Says Taliban Leader Is Confirmed Dead in Drone Strike
President Obama has announced in a statement that the death of Taliban leader Mullah Akhtar Mansour, which was tentatively reported over the weekend, has been confirmed. Mansour is said to have been killed in a drone strike on a car in which he was traveling near the town of Ahmad Wal, Pakistan. Here's where that is:
The attack is believed to be the U.S.'s first drone strike in Baluchistan, which is one of Pakistan's four provinces.
From Obama's statement:
“Mansour rejected efforts by the Afghan government to seriously engage in peace talks and end the violence that has taken the lives of countless innocent Afghan men, women and children,” Mr. Obama continued in the statement. “The Taliban should seize the opportunity to pursue the only real path for ending this long conflict — joining the Afghan government in a reconciliation process that leads to lasting peace and stability.”
Mansour's ascendance to Taliban leadership was reported in 2015; he took over from Mullah Mohammed Omar, who founded the group and is believed to have died of an illness in 2013.
Obama Visits Vietnam as Human Rights Violations Persist
Update, 8:15 a.m.: The U.S. fully lifted the arms embargo this morning.
President Obama’s visit to Vietnam this week comes amidst a debate about American arms sales to the country. The current, partial American arms embargo—which had been in place since 1984, and has not been lifted because of human rights violations by the Vietnamese government—is seen by some as outdated given China’s rise in the region. But, although America has been encouraging allies to build up their own defenses against China, Vietnam remains an extremely repressive country.
To discuss the state of human rights in Vietnam, I spoke by phone with John Coughlan, a researcher at Amnesty International for Cambodia, Laos, and Vietnam. We discussed the Vietnamese government’s record of repression, Obama’s trip, and the surprising Vietnamese attitude toward Americans lecturing them on human rights. The conversation has been edited and condensed.
Isaac Chotiner: How has the human rights situation in Vietnam changed in recent years?
John Coughlan: Vietnam is a closed country. There are tight limitations on media and civil society organizations. Legally and formally, human rights organizations and unions cannot exist independently of the Communist Party of Vietnam. It is broadly acknowledged that there has been some small relaxation of restrictions over the years. There is still no mainstream independent media, but there is a proliferation of blogs, and people are increasingly able to access social media like Facebook. There are more ways for people to share information about what is happening inside the country. That being said, restrictions still persist. Even international human rights organizations still don’t have research access to the country. We estimate conservatively that there are currently 83 prisoners of conscience detained in Vietnam. That’s 83 men and women who have been imprisoned for voicing legitimate opinions and taking part in legitimate and peaceful activism.
What issues in Vietnam are people currently protesting?
There were anti-Chinese demonstrations a few years back. The relationship is certainly something that energizes people within Vietnam. For the last three weeks in Vietnam, there have been organized demonstrations calling on the government to provide information about an ecological catastrophe facing the country. Huge numbers of fish stock have been dying in coastal waters. People are calling for the government to provide answers, which they feel are not forthcoming. There have been demonstrations, or at least people have tried to demonstrate. It has been met with a heavy hand from the government, such as police measures including torture. This environmental disaster has really energized the population. We are seeing a lot of people taking real risks to demonstrate. So Obama’s visit is certainly interestingly timed. I am sure it wasn’t the intention, but he is coming at a time when many people are forbidden from leaving their homes to go to demonstrations, and demonstrators are being beaten up and detained.
Has the possibility of the U.S. embargo being lifted influenced the Vietnamese government at all?
It’s always hard to tell with these things, but it seems that a lot of these deals, or trade deals between the U.S. and Vietnam, go on without human rights being taken into consideration. Obama will be the fourth consecutive U.S. president to visit Vietnam; relations are certainly normalizing, but we aren’t seeing that human rights are at all central to that relationship.
What is the domestic reaction when America lectures the country on human rights, given the unhappy history of American involvement in the country?
That’s a very interesting question. Broadly speaking, people within the country see any discussions that may lead to a relaxation of restrictions as a positive thing.
That’s fascinating, given our legacy there.
People in the country see America as representing certain values like freedom of speech and freedom of assembly. These are rights in Vietnam that are very tightly restricted. So, if Obama was to call on the government to relax restrictions, people will not be thinking, “how dare he.” It would be seen as an act of solidarity. I think when Obama comes, most Vietnamese people will feel extremely proud. The problem is that human rights do not seem to be central to the visit.
This post has been updated with new information since it was originally published.
5-Year-Old Girl Fatally Shot Herself While Father Was Taking a Shower
Haley Moore happened to find her father’s unsecured gun on a table at his home in Louisiana while he was taking a shower. Then, according to what her father, Eric Moore, told St. John the Baptist Parish police officers, she started playing with the gun and shot herself. "The father said he was taking a shower when he heard a gunshot," sheriff's Lt. Greg Baker told local NBC affiliate WDSU. "He got out of the shower, and that's when he discovered that his daughter had accidentally shot herself." The 5-year-old girl was rushed to the hospital but died of her injuries.
Haley Moore’s sister and brother ran into the street after the shot was fired and a neighbor, Joy Ursin, took them inside.“The oldest kid, she repeatedly said, 'My sister shot herself. My sister shot herself. I don't know if she's going to be OK,' ” Ursin told WDSU.
Ursin told local CBS affiliate WWL that the whole thing was a bit unusual because the father, a military veteran, would often speak about the importance of gun safety. “He would tell them about the dangers and he had this thing about safety," she said. "He did not want them to be ignorant of the fact that they can harm you." Neighbors said Moore had served in Iraq and was recently divorced.
Sanders: Clinton Is “Jumping the Gun” by Saying She Will Be Nominee
Sen. Bernie Sanders said Hillary Clinton is getting a bit ahead of herself. The senator from Vermont said on ABC News’ This Week that his Democratic opponent is “jumping the gun” by claiming she will definitely be the Democratic presidential contender. “We're going to have to do very, very, very well in the remaining nine contests,” Sanders recognized before adding, “I think we have a shot.”
On CNN, Sanders appeared to get a bit frustrated with host Jake Tapper when he asked whether he wasn’t misleading his supporters when he downplayed that Clinton had won “roughly 54 percent” of pledged delegates. “No,” Sanders fired back, “I assume that most of the people who come to my rallies can do arithmetic.”
The senator from Vermont went further, saying that the current rules to pick a presidential nominee need to change. “Some 400 of Hillary Clinton's superdelegates came on board her campaign before anybody else announced,” Sanders said. “It was an anointment.”
Sanders also called on Clinton to “keep her word” on holding a debate ahead of the June 7 California primary. “We are hoping that Democratic National Committee will ask her to keep her word and allow that debate to go forward,” Sanders said on CBS’ Face the Nation.
Clinton, for her part, took a more conciliatory tone, saying on NBC’s Meet the Press that Sanders has “every right” to end his campaign however he chooses. She did say though that it is a bit too simplistic to think that current polls would give you an accurate idea of how Sanders would do in a general election. “I don’t think he’s had a single negative ad ever run against him,” Clinton said. She added that her campaign is willing to listen to Sanders’ demands “when he’s ready to talk.”
Clinton, Trump Locked in a Statistical Dead Heat, According to Latest Polls
Hillary Clinton’s once-comfortable advantage over Donald Trump appears to have vanished, according to the latest polls. In the NBC News/Wall Street Journal poll, Clinton continues to hold the lead over Trump by 3 points—46 percent to 43 percent—but that is within the survey’s margin of error of plus-or-minus 3.1 percentage points. And it is a far cry from the 11-point advantage Clinton had over Trump in April. Things are flipped in the latest Washington Post/ABC News poll that shows Trump on top by 2 points—46 percent to 44 percent—and that is also well within the margin of error. That poll also shows how voters appear to be warming to Trump, as his support amounts to an 11-point gain in support since March. In contrast, Bernie Sanders leads Trump by a much more comfortable margin: 54 percent to 39 percent, according to the NBC/WSJ poll.
A big part of the reason why Trump appears to have improved in the polls is that Republicans are starting to unite behind his candidacy. The share of Republican voters who say they will support Clinton dropped to 6 percent from 13 percent in mid-April, notes the Journal. And in a potentially troubling development for Democrats, both polls show Trump’s favorability rating has improved over the past few months. Democratic support for Clinton remained relatively steady as she continues to battle Sanders in the remaining primaries.
In the most hard-fought states, the trend is very similar, although Clinton does appear to have an edge in Ohio, where she leads Trump by 5 points. In Florida, Clinton has a 1-point lead—43 percent to 42 percent, according to CBS News.
Beyond the horserace numbers, if there is one thing that is clear from all the numbers is that Americans generally don’t like the two top candidates for the presidency. “Never in the history of the Post-ABC poll have the two major party nominees been viewed as harshly as Clinton and Trump,” notes the Washington Post. The Wall Street Journal agrees, noting that Clinton and Trump “suffer from the worst public images in the modern history of presidential politics, with 58 percent viewing Mr. Trump negatively and 54 percent expressing similar sentiments about Mrs. Clinton.”
According to the Post/ABC poll, a majority, or 57 percent, of registered voters have a negative view of both candidates. Clinton is viewed positively by 41 percent of registered voters, very close to Trump’s 40 percent. That means voters say they will be casting a ballot as much against the other candidate as in favor of their own.
In contrast to both Trump and Clinton, Bernie Sanders has a positive rating—49 percent to 41 percent. Yet he is hardly the only politician viewed positively. In what is a good sign for Clinton, President Obama is seen positively as his approval ratings have stayed at 51 percent. Moody’s Analytics recently cited Obama’s approval ratings as one of the key reasons why it expects Clinton to win the White House. The Moody's Analytics model, which has correctly predicted every presidential contest since 1980, claims the Democratic nominee would get 332 electoral votes compared to 206 for the Republican nominee.
Hillary Clinton Says Trump’s Stance on Guns “Isn’t Just Way Out There, It’s Dangerous”
Hillary Clinton characterized Donald Trump as just another politician beholden to the gun lobby, who will do anything to get the support of powerful lobbyists. “I believe it’s the most powerful lobby in Washington,” Clinton said at the Trayvon Martin Foundation’s Circle of Mothers dinner in Fort Lauderdale on Saturday night. “And we know some candidates will say or do anything to make them happy.” In contrast, Clinton emphasized she has the necessary experience to stand up to the gun lobby. "Unlike Donald Trump, I will not pander to the gun lobby and we will not be silenced and we will not be intimidated," she said. "As long as children anywhere are being killed by gun violence, we will keep fighting."
Clinton particularly went after Trump’s promise to end gun-free school zones. “That idea isn’t just way out there, it’s dangerous,” she said. “This is someone running to be president of the United States of America, a country facing a gun-violence epidemic, and he’s talking about more guns in our schools.”
A day after Trump said Clinton wanted to get rid of the Second Amendment, the former secretary of State said the real estate mogul’s policies would only fan existing tensions and increase violence. "If you want to imagine what Trump's America will look like, picture more kids at risk of violence and bigotry," she said. "Picture more anger and fear. Ask any of the mothers here tonight if they want to live in that kind of America."
In front of several mothers who had lost their children to gun violence, Clinton said that partisan politics is preventing progress on stronger controls. “Despite all the political noise we are actually united on this issue,” Clinton said. “The vast majority of Americans support comprehensive background checks.”
Trump took to Twitter Saturday night to say that Clinton had lied about his position on guns in classrooms.
Crooked Hillary said that I want guns brought into the school classroom. Wrong!— Donald J. Trump (@realDonaldTrump) May 22, 2016
On Sunday, he sent a bit of a contradictory message on the issue. "I don't want to have guns in classrooms, but sometimes teachers should have guns," Trump said on Fox News’ Fox and Friends. "I am not advocating guns in classrooms ... trained teachers should have guns."