March 30, 2012 | 3:10 pm

ACLU’s Dishonest Report

Posted by  David A. Lehrer

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This week the LA Times reported that the ACLU of Northern California had charged the FBI with -profiling Northern California Muslims in what the ACLU termed “an affront to religious liberty and equal protection of the law.”  The Times reported that the Bureau had used their “community outreach efforts as a guise for compiling intelligence on local mosques.”

The ACLU’s allegations of spying during the 2004 to 2008 period are based on material they, and others, obtained pursuant to a Freedom of Information Act request filed in 2010 and a lawsuit filed in 2011.

The ACLU’s incendiary allegations and breathless charges decry the FBI for the “secret gathering of intelligence [that] raised grave constitutional concerns because it…. undermines the trust and mutual understanding necessary to effective law enforcement [and it] violates the federal Privacy Act prohibitions against the maintenance of records about individuals.”

The sweep of the ACLU’s accusations is broad and the charges serious—-they just happen to be misleading and false.

The ACLU has issued a dishonest set of allegations that smack more of a political agenda than any real civil libertarian concerns. If one delves just an iota beneath the surface of the ACLU’s charges they are revealed as troubling distortions of the truth and manifestly inaccurate. It’s as if an intern at the ACLU wrote the report full of hyperbolic prose but failed to consult the underlying documents to see if what he/she was alleging was true.

A portion of the Times’ and ACLU’s puffiness can be ascribed to the term “intelligence” itself. It has become a pejorative that evokes memories of COINTELPRO, Abscam and Watergate. In fact it means no more than “information”—it is neither positive nor negative.

The documents ostensibly blow the cover on Special Agents using the “guise” of outreach to the Muslim community to undermine the community’s rights. But the documents are the reports of agents engaging in that outreach—-discussing the problems of Islamophobia, the inconvenience of waiting in security lines at airports, concerns regarding hate crimes, and then reporting on those meetings (in the most bland and perfunctory way) as any bureaucracy would demand. These are memos written by agents doing their job and presumably accounting for their time by reporting on what they did.

Read the documents, there is not a hint of concealment, eavesdropping or in any way exploiting the contacts that the agents have developed. The memos are disarmingly sympathetic and straightforward, “the writer [the special agent] wished ____well on the Hajj,” the FBI handed out FBI pens to ____ ,gave the writer several video and audio CD’s regarding both the Hajj and Islam in general….____was very friendly and once again expressed an interest in continuing a dialogue with the FBI.”

In reviewing the dozen or so FBI memos that are the purported “smoking guns” they are all similar in their straightforward accounting of open and friendly encounters of FBI Special Agents with a community they are reaching out to. There is nothing nefarious, no hint of derision or cunning.

Were the ACLU’s agenda not so transparently accusatory and aimed to rouse its donors, it could as easily have written a report on the seriousness with which the FBI takes its outreach efforts to the Muslim community—-chronicling open and pleasant meetings, offering assistance to congregants at religious gatherings and then sharing the congregants concerns with others in government—-that’s how the memos read.

The ACLU subtly deflects from the paucity of its documentation when it admits that even if the intelligence in the files is of “otherwise innocent activities” it could have very serious negative consequences. Those hypothetical consequences are farfetched, to say the least.

The ACLU asserts that the innocuous reports, by their very existence, would lead agents to “assume it was relevant to an investigative and intelligence mission,” the innocuous information might “cast a cloud of suspicion over the group or individual” and might lead “to more intensive scrutiny or investigation” and other law enforcement agencies might “investigate innocent groups or individuals.”  It’s true. There could be stupid people out there who might misconstrue innocent information and misuse it, but that’s hardly a reason to condemn the folks who reach out and gather that information.

These bizarre hypothetical concerns are the nub of the ACLU’s allegations that the FBI is “chilling American Muslims’ religious rights.” The allegations are transparently false; the report is dishonestly hyperbolic and is beneath the dignity and historic tradition of the ACLU.

If this is the best that the ACLU can come up with after a Freedom of Information Act request and lawsuit, there is little to be concerned about. It owes the public, its supporters and the FBI an apology.

March 27, 2012 | 4:53 pm

Tragedy Gets Exploited

Posted by  David A. Lehrer

Rev. Jesse Jackson and Rev. Al Sharpton are just two of the civil rights all stars who are weighing in on the tragic death of Trayvon Martin. Each seemingly intent on outdoing the other in ratcheting up the rhetoric to make sure that America gets the message——racism is alive and well and young black men are at serious risk.

As a proviso, it seems likely that race played a role in the Martin tragedy and that the killing warrants a thorough examination at the local and, if needed, federal levels. The delay in arriving at some action regarding George Zimmerman seems inexplicable. 

But acknowledging the problematic set of facts in Sanford, Florida does not justify what we are witnessing.

Rev. Jackson went so far as to tell the Los Angeles Times that “blacks are under attack” listing home foreclosures, unemployment, student loan debt, disenfranchisement of black voters, and the black prison population as part of the assault. He also dismissed any notion that the election of Barack Obama had ameliorated the position of blacks in this country, “There was a feeling that we were kind of beyond racism…that’s not true. His victory has triggered tremendous backlash (sic).” He then made it seem like America is a dystopian nightmare for blacks; that it’s open season on African Americans because “targeting, arresting, convicting blacks and ultimately killing us is big business.”

Jackson’s words, and those of countless other mavens on race relations, have dramatically illustrated how tragedy gets exploited and perverted by activists with their own, self-serving agendas and how complicit the media is in amplifying divisive and sensational messages. While this phenomenon is nothing new (we opined about this issue when certain Jewish leaders crassly exploited the 2009 shooting at the US Holocaust Memorial Museum in the Times)—-it seems to have reached a new height and depth in recent weeks, and is pervasive.

First, let’s look at something that Rev. Jackson chooses to ignore; data.

Other than relying on anecdotal incidents of horror that are, mercifully few and far between, it’s not clear what metrics exist to support the notion that hate against blacks is on the rise. The FBI’s Annual Hate Crime Report documents hate “incidents and offenses” (over 80% of the acts directed at “persons” were either intimidation or simple assault) based on race, religion, ethnicity, sexual orientation, and disability gathered from across the country since 1990. It is the yardstick for measuring acts of violence directed at minorities. In terms of hate in which African Americans are the victims, the number of incidents and offenses has

.

Admittedly, hate crime data is fraught with numerous methodological problems (under-reporting, categorization, law enforcement agencies that don’t report, etc.) but the trend is indisputable and moving in the right direction. Presumably, if there were a “tremendous backlash” against blacks where “killing us is a big business” the FBI and its bosses at the US Department of Justice (headed by an African American) would have seen the data and alerted the nation.

Locally, the LA County Relations Commission’s Hate Crime Report is no different in the movement of the trend line. In 1999 the Commission reported 232 hate crimes directed at African Americans in LA County. By 2010 (the last reported year for which data is available),

. Apparently, the “backlash” and “open season” against African Americans hasn’t reached LA County with a population of some 850,000 potential targets.

The studies that evidence increased tolerance and recognition by Americans of the changed environment are plentiful. That the attitudes of 95 million Millennials reveal more racial tolerance than “any generation” is indisputable (93% approve of inter-racial dating). A 2010 Pew Center survey, “Blacks Upbeat about Black Progress, Prospects” found that “a majority of blacks believe that life for blacks in the future will be better than now, that most blacks (as do whites) believe that blacks and whites have grown more alike in their standard of living and core values, that 54% of blacks believe that President Obama’s election has improved race relations and that 32% of blacks (in late 2009, well into the Great Recession) rate their personal finances as ‘excellent or good’.”

The hyperbole surrounding the tragedy of Trayvon Martin is understandable and all too predictable. The exaggeration around race relations will, undoubtedly, only increase locally in the weeks ahead as numerous talking heads will analyze where we have come in the twenty years since the 1992 riots.

There is a special toxic brew that results when kvetching by spokesmen for civil rights/human relations organizations (most of whom have a vested interest in portraying a bigoted America that continues to need their help and guidance) combines with a tragedy that has a racial, ethnic, or religious overlay and that blend is put before the media. These spokespersons are treated as if they were academics neutrally analyzing data and the world around them rather than folks with an agenda that presupposes and thrives on the perception of continued inter-group tension (lest they be superfluous). The media loves the hyperbole—-it’s a great lead-in to the 11:00 news and fuels the 24/7 news cycle—the spokespeople love the exposure and seeming relevance—and the viewers and readers are the poorer for it. A portrait of America gets painted and absorbed that does not comport with reality.

Reverends Jackson and Sharpton would do us a favor by cooling it for a bit and adapting their agendas and their rhetoric to the changed world around them.

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March 23, 2012 | 3:56 pm

A Pyrrhic Victory for Labor

Posted by  David A. Lehrer

The latest news on the Wal-Mart saga has just broken.

The City Council, in an all too predictable display of spinelessness, adopted the motion to restrict “formula retail uses” of over 20,000 square feet in “Chinatown”—the motion we wrote about yesterday and today. In a 13-0 vote, the Council went along with its supporters in labor and can reassure them, “we did your bidding.”

The interesting twist to the tale is that Wal-Mart secured its building permit yesterday so that the motion will have no impact on its plans. That is, unless the Council can figure out how to end run the Constitution’s ban on ex post facto laws. 

While Wal-Mart may have made it through by the skin of its teeth, the unfortunate message has been sent to businesses that are considering opening up in LA—beware, LA can change the rules in mid-stream and, if you aren’t nimble enough, you may drown.

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March 23, 2012 | 2:15 pm

The Times Hits the Nail on the Head—-Again

Posted by  David A. Lehrer

Photo by Jared C. Benedict/Wikipedia.

Yesterday, Community Advocates blogged about the dishonesty animating a motion (as you read the motion keep in mind that the Wal-Mart is nowhere near what is commonly thought of as Chinatown, but at the top of Downtown where Grand meets Cesar Chavez/Sunset) offered by Councilmen Garcetti and Reyes to effectively ban Wal-Mart from leasing a space in an existing building that has been vacant for years at Cesar Chavez and Grand . You can read our blog here. 

The conclusion of our piece was,

We aren’t Muppets and we aren’t idiots and our electeds ought not treat us as such. If they have a problem with Wal-Mart because their union supporters do—admit it. If those concerns trump new jobs and enlivening a neighborhood that needs retail be honest about it. Don’t hide behind a façade of concern that is transparently dishonest.

Today the Los Angeles Times chose the same topic to editorialize on and their conclusion mirrors ours (this is the second time this week that the Times has taken a position consistent with The Wide Angle’s).

….. the proposal is unwise and counterproductive …if the council approves the moratorium, Wal-Mart will be asked to produce studies and endure delay for a proposal that already meets the city’s rules and objectives.

Some people don’t want to work at Wal-Mart because of its labor practices. They shouldn’t have to. Some don’t like the way it treats its suppliers or the fact that its workers are not unionized. Those critics should feel free to shop elsewhere. But the government should not change the rules on this project when it already is underway. The council should reject Reyes’ proposal.

The Times argues that changing the rules of the game on Wal-Mart at the behest of labor will make LA even more unattractive to new businesses than it presently is, a risk that LA can ill afford.

It will be interesting to see what the City Council does today—-will they acquiesce to labor’s demand and kill Wal-Mart’s plans or will they allow a legitimate business to comply with existing rules and provide jobs and services to a community that needs them.

The result will tell us a lot about the mettle of the Council we have and about those who would be mayor.

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March 22, 2012 | 12:24 pm

A Not So Hidden Agenda

Posted by  David A. Lehrer

A game changer that the City Council didn’t stop, it is just one block from where the new mini Wal-Mart would be. There are three of these behemoths with empty retail on the ground floor; so much for concern about "neighborhood character."

Goldman Sachs may have referred in their internal emails to their clients as “muppets”, but were we to see the internal emails of members of the Los Angeles City Council undoubtedly they would refer to their constituents as “fools.”

How else to explain the obvious contempt that members of the Los Angeles City Council have for the citizens of LA and our intelligence?

Today’s LA Times reports that the City Council is considering an ordinance that would block Wal-Mart from opening a 33,000 square foot “Neighborhood Market” at the corner of Cesar Chavez (Sunset) and Grand Avenue. According to the Times, Councilman Ed Reyes and Councilman Eric Garcetti have introduced a bill that would deny building permits to “formula retail” stores—-those that have standardized facades, color schemes, décor, employee uniforms and merchandise.

The proffered reason for the Council’s sudden concern about décor, design and uniforms is to “protect the character of Chinatown” and the small businesses there. The Times reports that the bill is on an expedited schedule so that it can deny Wal-Mart the building permits it needs to proceed with remodeling the presently empty retail space on the bottom floor of a non-descript mixed use apartment building.

The reality, as anyone who has a glimmer of knowledge of LA politics knows, is that Reyes and Garcetti are doing the bidding of labor unions who have made Wal-Mart their target of choice and the seeming incarnation of all that is evil in American society. It’s a non-union chain so labor wants to pull every string it can to prevent it from opening stores in LA until it unionizes.  Clearly Council members Reyes and Garcetti have had their strings pulled and have responded slavishly.

The notion that limiting Wal-Mart from moving into an empty retail space at Cesar Chavez and Grand is benefiting Chinatown is absurd. Drive by that corner the “small businesses” being protected there are a Burger King (which, by the way, has a standardized façade, color scheme, décor and employee uniforms), the massive LA Unified’s Arts High School, an apartment house set back from the street and the mixed use building where the Wal-Mart planned to move. There is one full service market serving a thirty block radius from that corner.

The reality is that Reyes and Garcetti are assuming that few folks will venture to the corner of Cesar Chavez and Grand and see what a ridiculous notion it is that small businesses are being protected or that the “character of Chinatown” is being preserved. Most people’s notion of Chinatown is blocks away. Additionally, they assume that most of their supporters view Wal-Mart with such disdain that abrogating normal processes to punish Wal-Mart is acceptable.

One only has to travel one block west to the intersection of Cesar Chavez and Figueroa Streets to observe monstrously over-sized, gaudy, Italianate apartment houses that occupy three of the four corners—-buildings that clearly didn’t bother the City Council and which do, in fact, alter the “character” of the neighborhood.

The councilmen’s move is also distressing because it will cavalierly put in jeopardy dozens of jobs that the city desperately needs. Wal-Mart has 28 stores in LA County employing 12,000 people (an average of 428 employees/store). This store would be about a fifth the size of a normal Wal-Mart, so it might employ about a fifth of the number in a normal store, about 85 folks (Wal-Marts provide health care coverage to employees who work at least 24 hours/week). For a city that is only now returning to 2004 levels of employment, those are 85 jobs we need that neither the councilmen nor the unions should be killing.

To disabuse anyone of the notion that Wal-Mart is the incarnation of evil that deserves the special animus of the City Council, read the op/ed written last year in the Times by Michael Kinsley, former editor of The New Republic and former editorial page editor of the LA Times—hardly a right wing, anti-union propagandist: 

There are those whose objections to Wal-Mart are more aesthetic than economic: the barn-like quality of the stores, the impact of a Wal-Mart on old downtowns, even the whole culture of consumption that some people find distasteful. They’re welcome to those views as long as they acknowledge that higher prices at non-Wal-Mart stores are bad for consumers — especially poor consumers.

Wal-Mart’s employees seem as cheerful as those at Target or Costco. But perhaps the company has hypnotized them — or possibly me — in some sort of Stepford wives scenario.

Big companies make fat targets, but a more deserving target might be small companies. Instead, we have the ever-inflating myth of small business. Small businesses come and go, creating and eliminating jobs along the way. Yes, they are an important part of the economy, and often they come with inspiring tales of hard-working immigrants and so on. But they’re in it to make a profit, just like Wal-Mart. And I doubt that many offer healthcare to people working less than 24 hours a week.

We aren’t Muppets and we aren’t idiots and our electeds ought not treat us as such. If they have a problem with Wal-Mart because their union supporters do—admit it. If those concerns trump new jobs and enlivening a neighborhood that needs retail be honest about it. Don’t hide behind a façade of concern that is transparently dishonest.

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March 20, 2012 | 2:14 pm

The Times Hits the Nail on the Head

Posted by  David A. Lehrer

Ten days ago Community Advocates wrote an op/ed in the Los Angeles Times decrying a recently passed statute that authorized the state to survey all judges and judicial applicants in California as to their sexual orientation. We commented that the law was “pernicious in its application and insidious in its potential impact.”

In today’s editorial the Times agreed,

State lawmakers may have had the best of intentions when they approved legislation last year to require that California judges be asked in an annual demographic survey about their sexual orientation. The goal was to assess diversity on the bench. Instead,

the Legislature has inappropriately and ineffectively intruded into the private lives of judges

(emphasis added).

A good portion of the judiciary seems to think so too. Answering all or any of the survey questions is optional, and 40% of those who responded opted not to answer the question about sexual orientation, according to the recently released survey, which also queried jurists about their race, ethnicity and gender. The Administrative Office of the Courts — the staff agency to the Judicial Council of California — is required by the law to collect the information on all judges and judicial officers in the state. The data are released in the aggregate, arranged by court systems, not by individual jurists; no one is identified. However, in some small jurisdictions, that anonymity may be meaningless. For example, in the Mariposa court, both judges who responded to the survey declined to say whether they are heterosexual, gay, lesbian, bisexual or transgender. Overall, 672 judges and officers, from the Supreme Court to the trial courts, declined to answer. An additional 1,005 did answer the question. (Nineteen said they were lesbian, 17 said they were gay, and one answered transgender.)

...

This was an ill-conceived attempt at promoting diversity on the part of the Legislature (emphasis added).

Read the full story here.

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March 16, 2012 | 3:48 pm

Asking Too Much

Posted by  David A. Lehrer

Last Friday we had an op/ed in the Times about Senate Bill 182 that mandates that California’s Administrative Office of the Courts (“AOC”)  survey every judge and justice in California and all judicial applicants as to their gender, their gender identity and their sexual orientation.

Since that op/ed was published we have heard from judges and others intimately involved in this sorry story. One judge informed us that the AOC in its e-mails to sitting judges never mentioned that their intrusive queries were voluntary. That, despite the fact that the legislative analysis by both the Assembly and Senate staffs concluded that the questionnaire was voluntary.

In fact, not only did the AOC not note the voluntariness of the survey, its tone was demanding:

We have not received your response to the survey as of noon today. Please follow the link below and provide your information at your earliest convenience on or before this Friday. If you prefer to provide your information by telephone, please contact Romunda Price at the AOC.

     
Betraying their amazing obtuseness regarding what they were asking about, the AOC suggests that perhaps the judges would like to offer their responses as to sexual orientation and sexual identity “by telephone.” I can imagine a Bob Newhart-like telephone routine where the questions probe a judge about his/her bisexuality, transgenderness and gayness and what it means to him/her (i.e.“sexual identity”).

The AOC’s emails felt compelled to offer a rationale for their prying beyond simply the mandate of SB 182. Gathering the data, they wrote, “is crucial to garnering legislative support for securing critically needed judgeships.”  In other words, the judiciary has to satisfy the legislature’s demand for their personal information or likely no new judges down the road.

In fact, the legislature has made clear; it is the personal data they want. Senator Ellen Corbett, the author of the snooping legislation, has written that she wants to collect information on “sexual orientation or gender identity and gender expression” to help identify who’s who and if there is a “lack of diversity” on the bench. 

You can’t make this stuff up. As the federal government abandons “Don’t Ask Don’t Tell”, California embraces its antithesis, “Ask and Tell.”

Imagine receiving a survey like this and trying to parse what it all means. As one of our correspondents from the bench sagely observed,

What does gender identification mean? ‘Is it a purely sexual inquiry or is it broader than that?’ I asked myself. I concluded that survey questions were clearly prying into sexuality.  This is how I processed the question; ‘gender identification’ in the survey context given the purported survey purpose was inextricable interwoven with sexuality.  For example, if a survey subject were biologically a woman with a male gender identification, and a sexual orientation as “lesbian” then this means one type of sexuality though the survey subject could be a biological woman with a male gender identification with a sexual orientation of heterosexual which connotes a very different type of sexuality.  Bottom line, the survey demanded sexual information which is my own damn business. 

Even just asking the question as a mandate for the judicial branch subjects us to criticism analogous to that of our military, albeit at least the military doesn’t ask.  The legislatively enacted policy directed at the California judicial branch of “Do ask, and tell” outranks “Don’t ask, don’t tell” when considered side-by-side.

The legislation, its implementation by the bureaucracy, and its impact bespeak an attitude in Sacramento that is deeply troubling.

Despite the fact that the electorate has made transparently clear that it endorses equality of opportunity and rejects preferences, the legislature seems to have no compunction about setting up systems that seem ultimately designed to promote preferences and mandates for sexual orientation-based outcomes.  Since Sen. Corbett declared the intent of the legislation was to determine whether there is a “lack of diversity” on the bench, one has to wonder not only how she will determine that “lack of diversity,” but how she will know when the “lack” is gone (i.e. what is the goal?).

Determining whether there is a “lack of diversity” is the first hurdle. Forty percent of the judges surveyed refused to provide the information on sexual orientation. Does the legislature act on the data received (i.e. in the latest survey 1.1% of judges said they were lesbian, 1% said they were gay, .06% said they were transgender, 0% were bisexual). If that’s not sufficient, do they force the mute judges to talk?

If it were up to Equality California, which lobbied for SB 182, the absence of knowledge is not a bar to concluding that the “California judiciary suffers from a substantial lack of diversity…..While LGBT people represent a sizable and important part of the state, their representation in the judicial branch of government is virtually unknown.”  But, if we don’t know the number of LGBT judges and a significant number of judges are clearly not interested in telling us about their sexual orientation how does Equality California conclude that there is a “substantial lack of diversity?”

This begs another practical question, how will the legislature know when the proper “diversity” has been reached, what percentage is the appropriate percentage of judges who are gay, lesbian, bisexual or transgender? Is the Kinsey Report (10% of the population is gay) the benchmark, or is it the Hite Report, or is it “just a feeling”? Is it judges who are openly gay or do closeted folks count too?

The problem is that the legislature and the AOC are in quicksand and can’t get out of it. They want to resolve what may or may not be a problem, absent information that will probably never be forthcoming, with a remedy that Californians and reasonable concerns about privacy say should be rejected out of hand.

Thank goodness the judiciary has more sense. They are, by a sizeable minority refusing to provide the intimate details of their sexual interests, telling us it’s none of our or the state’s business. 

It will be telling whether the legislature amends an offensive statute that asks the unaskable and has engendered such substantial resistance from the folks it probes. Sadly, I doubt they will see the light.

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March 9, 2012 | 1:57 pm

Prying in the Name of Diversity

Posted by  David A. Lehrer

The following op/ed appears in today’s Los Angeles Times:

The results are in. Of the 1,005 California judges who responded to a government survey released last week, 969 identified themselves as heterosexual, 19 as lesbians and 17 as gay men.

We know this — though it’s none of our business — because of a highly intrusive law passed by the Legislature last year. Under its provisions, every judge in the state, as well as all judicial applicants, nominees and appointees, is asked to provide information about his or her “gender, gender identity and sexual orientation.”

The statute that authorizes this new intrusion into judges’ private lives was enacted after lopsided votes in both the Assembly (52 to 25) and the Senate (23 to 15). But if the Legislature seemed to have no concern about the bench’s privacy, many of the state’s judges do. Some 40% of those surveyed didn’t answer the question on this year’s survey.

The goal of the legislation, according to those who backed it, was to promote greater diversity on the bench. But treating sexual orientation as if it were totally analogous to race, gender or ethnicity is wrong. Of course people should be protected from discrimination in employment or public accommodations because of their sexuality. But there’s no justification for the next level of intrusion — seeking to develop demographic data to ostensibly further “diversity.”

The law’s author, Senate Majority Leader Ellen Corbett (D-San Leandro), said she was trying to rectify a “deficiency in current law” by collecting “self-reported information to help identify diversity of sexual orientation or gender identity and gender expression, or lack thereof.” But do we really want sitting judges and justices, and prospective appointees, to be asked to reveal to a government bureaucrat what their preferences in the bedroom are? Is it anyone’s business? Is it relevant?

In an effort to balance the obvious privacy issues caused by a prying governmental agency, the statute mandates that answering the question is voluntary, and the agency reports that only “aggregate” statistical information by “specific jurisdiction” will be released. Aggregating information, however, is not enough to protect judges’ privacy. In counties with hundreds of judges such as Los Angeles and San Diego, it might be. But what about in jurisdictions where there are very few judges? Mono, Alpine, Plumas, Sierra, Calaveras and eight other counties have only two judges, and nearly 30 of the state’s counties have 10 or fewer judges.

People might start speculating about which judges are the straight, gay, transgender or bisexual ones among the handful in each county. Would that really promote diversity on the bench? Or would it be more likely to lead to a reluctance by some prospective gay jurists to put themselves forward?

There is a further lapse in logic in the seemingly well-intentioned effort to know “how the lesbian, gay, bisexual and transgender community is being represented in the judiciary.” Is it relevant to the administration of justice or the appearance of fairness to engage in promoting sexual orientation diversity on the bench?

In the case of visible minorities, one can make the argument that litigants and others with business before the courts are put at ease by seeing individuals on the bench who look like them or who share their ethnic background. Having an all-male or all-white judiciary can distance the bench from both the bar and litigants. But a judge’s sexual orientation isn’t automatically discernible, nor should it be. It’s something we simply don’t need to know, just as we don’t need to know whether a judge is left-handed or right-handed, or a twin.

One might argue that diversity of sexual orientation is necessary for the sake of the type of justice dispensed, but a ruling in the recent Proposition 8 case (the ban on gay marriage) disproved that notion out of hand. The fact that the trial judge on the case was a gay federal jurist in a long-term, same-sex relationship was found by a higher court to be irrelevant to the substance of his ruling. The presiding judge hearing the appeal ruled that assertions of differential justice being dispensed because of the judge’s sexual orientation and relationship were “warrantless” and were, in fact, “intimate but irrelevant details of his (the judge’s) personal life.”

California’s legislators mindlessly enacted a law in service of political correctness that is pernicious in its application and insidious in its potential impact.

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