Monthly Archives: February 2009

A Strong and Clear Decision by the Supreme Court and a Legal Black Eye in Tennessee

Originally published on January 29, 2009, at’srights/blog



Rejecting the tortured logic of a decision of the United States Court of Appeals for the Sixth Circuit (KY, TN, OH, MI), the U.S. Supreme Courthas ruled that a woman fired for cooperating with an internal investigation of sexual harassment is entitled to protection from federal law. 

Vicky Crawford, a 30-year-old payroll-department employee of theMetropolitan Government of Nashville and Davidson County was interviewed by the county’s legal staff in the course of an inquiry into sexual harassment allegations.  Crawford did not file a sexual harassment complaint herself, but did provide evidence of harassment during the inquiry into rumors that a county director had harassed another female county employee.  After cooperating in the investigation, Crawford was terminated.

Protection under the Civil Rights Act of 1964

Crawford then filed suit claiming the protections of the Civil Rights Act of 1964, which protects employees from retaliatory firing for complaining against or opposing unlawful discrimination.  A federal judge and eventually the Court of Appeals sitting in Nashville rejected Crawford’s claim, ruling that the Civil Rights Act of 1964 protects only people who actively oppose discrimination, filing formal complaints or seek to give evidence, but that merely cooperating in an investigation which results in firing is not enough to deserve the law’s protection. 

The U.S. Supreme Court, in a unanimous decision, reversed the Court of Appeals, ruling in Crawford’s favor.  Justice  David Souter sharply rejected the lower courts’ reasoning, offering as much a rebuke to the judges below as the ever-respectful high court is want to do.  Souter called “freakish” the courts’ interpretation of the law that cooperation in an investigation, resulting in termination, is insufficient to merit the protection given to those who oppose discrimination by taking action such as filing a complaint or suit. 

The High Court’s Reasoning 

The Supreme Court essentially said that if the action taken by the employee against unlawful harassment was enough to get her fired, it must have been enough to qualify as “opposing” unlawful discrimination under the “opposition” protection of the Civil Rights Act.  It would be ludicrous to say that she was fired for what she did, but that what she did wasn’t action enough to trigger legal protection against firing.  

The sixth circuit’s interpretation was remarkably narrow and not one likely to have come from the United States Court of Appeals in other districts.  In any case, the lower threshold for what constitutes protected “opposition” is now the law of the land, and the logic of the decision should apply beyond sexual harassment cases to unlawful employment practices covered by the Civil Rights Act. 

A Clear Message

Despite statements from both sides of the political spectrum that the U.S. Supreme Court is irreconcilably split, the high court does as times speak with one voice.  In this case, there should be no doubt what the court is saying to American workers:  The government stands on the side of those who oppose or give evidence against illegal discrimination.

See the text of the court’s decision and Justice Alito’s concurring opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee at

President Obama’s Speech at Signing of Stimulus Legislation

Originally published on February 18, 2009, at


President Obama spoke briefly today in Denver before signing the stimulus bill. His remarks and the event were thoughtfully orchestrated to make clear the President’s vision of an American renewal through public investment.  The President’s entire speech as well the introduction by Blake Jones of Namaste Solar, a Denver company aided by the stimulus legislation, is well-worth viewing.

View the CNBC broadcast of the President’s speech here.

President Obama made plain that he believes investment in public education, green technologies, traditional infrastructure, and health care information technology contained in the bill is a recipe for America’s long-term growth, prosperity and leadership.  The President made references to John F. Kennedy’s Mission to the Moon and Dwight Eisenhower’s interstate highway program as examples of large-scale public investment that stimulated private enterprise and served a national purpose.

President Obama did not shy away from his accomplishment, just three weeks into office, calling it, “the most sweeping economic recovery package in our history.”  The President touted its support by governors and mayors and, in a comment aimed to shore up support among skeptics, proclaimed,

“What makes this recovery plan so important is not just that it will create or save three and a half million jobs over the next two years, including nearly 60,000 in Colorado. It’s that we are putting Americans to work doing the work that America needs done in critical areas that have been neglected for too long – work that will bring real and lasting change for generations to come.” (Transcript)

He noted jobs saved, but focused on education, noting that 14,000 New York City teachers will likely keep their jobs because of the bill.  Over and over he attempted to demonstrate that the spending was in areas that were necessary to meet the needs of tomorrow.

The President also brought up discipline and responsibility to remind Americans that the road ahead will not be easy.  But he returned to his belief that the stimulus bill achieved a balance between public and private, present and future. 

Obama was introduced by Blake Jones, a Denver area entrepreneur in solar technologies.  Mr. Jones aptly discussed his firm’s difficulties because of the recession and the likely benefits to his firm and his industry because of the new legislation.  He enthusiastically pointed out that in green technology, the legislation was good for employment, for the environment, and for America’s bid for energy independence.

Barack Obama on Abraham Lincoln

Originally published on February 16, 2008, at


Abraham Lincoln, 16th president of the United States

licensed creative commons:</a&gt;


President Obama reflected recently on Abraham Lincoln at the 200th anniversary of Lincoln’s birth.  His remarks, and the fact that Obama has mentioned focusing on the 16th president in looking to the past, give some indication of how Mr. Obama sees the nation and the presidency:

“It’s only by coming together to do what people need done that we will, in Lincoln’s words, . . . ‘Give an unfettered start and a fair chance in the race of life.’  That’s all people are looking for: a fair chance in the race of life.  That’s what’s required of us —  now, and in the years ahead.”  

“We will be remembered for what we choose to make of this moment, and when posterity looks back on our time, as we are looking back on Lincoln’s, I don’t want it said that we saw an economic crisis but did not stem it, that we saw our schools decline and our bridges crumble, but we did not rebuild them, that the world changed in the 21st century, but that America did not lead it, that we were consumed with small things, petty things, when we were called to do great things.”  

“Instead, let them say that this generation, our generation of Americans rose to the moment and gave America a new birth of freedom and opportunity in our time.”

Clear themes of coming together, fairness, action in the face of challenges, and rising to the historical moment show that the current president is thinking about his and the nation’s choices in a historic context.  

This may be rhetoric or it may be Obama’s belief that the financial crisis is a major historic event in line with the Great Depression, but he seems to be asking the people of the United States to move beyond competing political parties and social agendas to act together on common interests in education, infrastructure and leadership. 

The rush to pass stimulus legislation did not bridge any partisan divides, but President Obama will have a chance at a more deliberate pace to gather together political leaders, parities and populace, going forward.  

It may be worth remembering that Abraham Lincoln called the people of his time to make great personal sacrifice for the nation, and in honoring the fallen and leading the living he reminded Americans of the noble purpose of the American experiment:

“the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.” (excerpted from Gettysburg Address)

After the Spending Spree

Originally published on February 18, 2009, at


Efforts to balance long-term budget through entitlement reform could help restore confidence.

Efforts to balance long-term budget through entitlement reform could help restore confidence.


Following the historic passage of substantial stimulus legislation, President Barack Obama must now show he is capable of fiscal discipline.  

The 789 billion spending and tax relief bill passed with overwhelming Democratic support, and despite almost unanimous Republican opposition, showing that bi-partisanship, a central theme of his campaign, proved to be harder to achieve than propose.  

The President urgently sought a short-term stimulus bill to reverse the economic decline. Now that he has achieved this goal, the President should turn his attention to the long-term fiscal health of the nation.   

Most Americans are dismayed at the fiscal irresponsibility of government leaders and feel powerless to stop the government from spending their money unwisely.  Mr. Obama has a unique opportunity to put his political weight behind drafting legislation to control long term spending, including outlays for Social Security and other so called entitlement programs, that will only take effect once the recession passes.

The government is currently committed to spend more than it is projected to take in on Social Security and Medicare.  This deficit will require spending cuts or revenue increases to make up the difference.  The public will certainly not like either solution.

Operating with a deficit is justifiable under certain conditions such as emergency needs or long term improvements, programs which could not be afforded without borrowing.  However, operating the government with a chronic deficit is irresponsible and hardly confidence-inspiring.  

If President Obama were to begin the work of entitlement reform and act with the deliberate and decisive hand that has guided his campaign and his Presidency so far, he would again succeed.  Leaders must compromise.  The public must make sacrifices.  This will truly have to be a bi-partisan effort. 

This debate must be had in the next few years, before it is too late to plan responsibly.  Why not move on it now in order to show a very skeptical public that the government is not only good at spending its money, but can manage it as well?

Bush’s Final Act

Originally published at



Exercise of presidential power to commute controversial sentences.

President George Bush ended the imprisonment of two former federal border guards, Jose Compean and Ignacio Ramos, convicted in the 2005 shooting of an unarmed drug dealer as he fled across the Mexican border.

Each man had been sentenced to more than a decade in prison, not only for the shooting, but also for covering up their actions, tampering with evidence and filing false reports.

Implications for Border Enforcement

The trial and subsequent convictions in 2006, unleashed a wave of controversy as supporters of the men argued that they were too harshly, or wrongly punished for seriously injuring the illegal-alien drug runner. During a period when many in the border states demanded stricter border enforcement, advocates for the men saw the prosecutions as protecting illegal immigration and punishing aggressive border enforcement.

Law Enforcement and the Use of Deadly Force

The lead prosecutor in the case, U.S. Attorney Johnny Sutton, rejected sympathy saying that the law does not allow the use of lethal force against someone fleeing, unless the lives of the officers or the public are put in danger.  

“These agents shot someone whom they knew to be unarmed and running away,” said Sutton.

Were the sentences too harsh as some have argued?  Should President Bush have overridden the judge’s discretion and given the men their freedom?

In commuting Compean’s and Ramos’ sentences, rather than giving each a full pardon, Bush has seen that the men will soon be released from prison, but will still be responsible for fines and meeting probation obligations. 

New Foreign Policy Emerging

Originally published at

Secretary of State Hillary Rodham Clinton

Secretary of State Hillary Rodham Clinton

(Photo credit:  Marc Nozell; license — creative commons)

Hillary Clinton’s confirmation hearing reveals Obama’s new approach to the world.

The Senate confirmation hearing of Hillary Rodham Clinton provided the first insights into Barack Obama’s foreign policy.

The nominee for Secretary of State sought to make clear the principles that would guide the administration in its approach to international problems from terrorism, wars in Iraq and Afghanistan and nuclear proliferation in Iran and North Korea.  

The most clear break with the Bush administration came in the insistence on a multilateral approach, recognizing the “overwhelming fact of our interdependence.”

“For me, consultation is not a catch-word.  It is a commitment,” Ms. Clinton stated.

Clinton also spoke for a greater emphasis on diplomacy and the use of what she labeled smart power, citing negotiation, development aid and cultural support to supplement the traditional use of military and economic power.  She cited Secretary of Defense Robert Gates, who will retain his position in the new administration, for the belief that “our civilian institutions of diplomacy and development have been chronically undermanned and under-funded for far too long.”

Ms. Clinton took a hard line however, with Hamas, currently facing a costly war in Gaza, and Iran, whose nuclear ambitions will be a high priority in the next administration. 

Clinton stated that the administration would not negotiate with Hamas until it renounces violence and acceptsIsrael’s right to exist, and told Senators that Iran would not be allowed to obtain nuclear weapons.  When asked by Senator John Kerry, Chairman of the Foreign Relations Committeehow far the administration was prepared to go in standing up to Iran, she replied, “nothing is off the table.” 

This aggressive tone may upset some Obama supporters, depending on their isolationist or less confrontational views.  There has been a nearly universal hope that after the Bush Administration’s tough talk (axis of evil) and willingness to use military force, the incoming administration would tone down the rhetoric.  

Clinton appears to be trying to signal both an increased effort at diplomacy and a willingness to consider force when necessary.

“We will lead with diplomacy because it’s the smart approach.  But we also know that military force will sometimes be necessary, and we will rely on it to protect our people and our interests when and where needed, as a last resort.”

Presidential campaigns contain many general statements of philosophy, but not until the incoming administration finds itself face to face with the facts on the ground can a specific program be developed. Israel’s recent invasion of the Gaza strip is just the type of unanticipated event administrations are forced to deal with at their peril.  The risk for the Obama administration is that efforts at solving the Palestinian dilemma will take attention away from Iran’s nuclear ambitions, Russia’s resurgent power in Europe and effective action to manage the current world economic crisis as well.

Challenging Obama’s Presidency

Originally published December 22, 2008, at


United States Supreme Court

United States Supreme Court

Photo by dbking licensed


A little known aspect of the judicial system was made a bit more public recently, as courts have rejected lawsuits challenging the legitimacy of Barack Obama’s presidential election.

Anthony Martin-Trigona, a documented legal system abuser, did it again, filing a lawsuit regarding Obama’s citizenship in Hawaii state court. Federal courts have already imposed rules barring him from bringing any more frivolous claims to their courts.

federal appeals court has previously described Martin-Trigona’s actions and called out the harm caused by people who use our justice system for their own personal agenda without regard to the legal validity of their claims.

“To those who follow the business of the courts, the appellant needs no introduction. He is the source of literally hundreds of lawsuits, motions and miscellaneous pleadings, all but a small fraction of which lack any merit whatsoever. Viewing Martin-Trigona’s litigious conduct in its entirety yields the inescapable conclusion that he persistently resorts to legal processes without regard to the merits of the claims asserted and that he invokes those processes largely to harass persons who have unluckily crossed his path.”

And the 2nd Circuit Court of Appeals continued:

“Martin-Trigona is known to have filed over 250 civil actions, appeals, and other matters throughout the United States, which have been pursued with ‘persistence, viciousness, and general disregard for decency and logic.’  He has used legal pleadings to ventilate his contempt and hatred of persons of Jewish heritage and to level accusations which ‘have often been personal, have often emphasized racial or religious affiliations, and have often involved the members of . . . judges’ and counsel’s families.’ The purpose, nature and effect of his resort to multiple litigation has been to involve as many persons in as many confounding legal processes as possible. . . . Martin-Trigona’s voluminous filings have ‘inundated’ the District of Connecticut and his activities have burdened judicial operations to the point of impairing the administration of justice. Finally, Martin-Trigona has not desisted from his course of vexatious litigation but has expressly stated his intent to file yet more actions.”

Fox News put Martin-Trigona on the air during the campaign to impugn Obama.  The real offense, political positions aside, was that a person known for such extensive and frivolous abuse of the American legal system was given the credibility of broadcast time.

But he is not alone.  Seventeen lawsuits (so far) have been filed in various jurisdictions, claiming Barack Obama was not born a U.S. citizen, and thus, cannot become president.

The facts:

Hawaii achieved statehood in 1959.  Obama was born in Hawaii in 1961.   Obama’s birth certificate, conveying U.S. citizenship and noting birth in Hawaii’s capital, Honolulu, has been examined by the State of Hawaii and found to be authentic.

Case closed.

None-the-less, seventeen individuals have filed suit, and upon rejection of their claims by trial judges, haveappealed as high as the U.S. Supreme Court.  The legal basis of the challenges is Article II of the U.S. Constitution, requiring a president to be a natural-born citizen.  Precious resources are used, briefs read, arguments heard, all to give every possible advantage to litigants who want their day in court.  To date, the U.S. Supreme Court has rejected two petitions that have made it to the court for consideration.

The “natural-born citizen” clause has received publicity in recent years with California Republican GovernorArnold Schwarzenegger, who is an Austrian-born, naturalized U.S. citizen, appearing to emerge as apresidential hopeful, except for Article II.  Discussion was also prompted by the candidacy of Republican Presidential aspirant John McCain, was born in the Panama Canal Zone to a U.S. military family.  McCain, however, was a citizen at birth, via his parents, both citizens and the status of the U.S.-controlled Canal Zone.

Can you imagine challenges to the birth certificates of George W. Bush, William Jefferson Clinton, George H.W. Bush, or Ronald Reagan?