Friday, December 13, 2019

Webster Smith Court-martial Case, An American Tragedy

The U.S. Coast Guard’s leadership has failed to conduct prompt, thorough and impartial investigations of harassment and bullying allegations, according to a congressional investigation released Wednesday December 11, 2019. 

The U.S. Coast Guard’s leadership has failed to conduct prompt, thorough and impartial investigations of harassment and bullying allegations, according to a congressional investigation released Wednesday December 11, 2019.
Conspicuously absent from the Report was any mention of the Cadet Webster Smith Case where a Senior Black Cadet was expelled in 2006 after being punished by a General Court-martial. Nine months after his girlfriend had aborted their child, he was charged with having raped her, among other things.
The Rape Charge was dismissed at the trial, but Cadet Smith was convicted of other charges. He was sentenced to 6 months in jail, and a Bad Conduct Discharge, among other things.
The severe undeserved punishment directed at Cadet Smith makes harassment and bullying seem like child’s play. He took it like a man. He moved on. He appealed his conviction all the way to the Supreme Court, to no avail.
This was the first court-martial of a Cadet. It was an American Tragedy. The story of the case was fully documented in a book, CONDUCT UNBECOMING AN OFFICER AND A LADY, UCGC, Vol 02, Nr 01A, by Judge London Steverson (Amazon.com).
The report, called “Righting the Ship,” also found Coast Guard leaders didn’t hold officials accountable for deficient and incomplete investigations and didn’t take corrective action to address retaliation against people who report harassment and bullying. It concludes that the service needs to make “significant improvements” in its policies and procedures.
The U.S. House Oversight and Homeland Security Committees launched the 18-month investigation after questions were raised about how complaints were handled at the Coast Guard Academy in New London, Connecticut. Subcommittees for the two committees discussed the findings Wednesday during a joint hearing.
Coast Guard Vice Adm. Michael McAllister said at the hearing the service’s senior leaders are taking “every step to foster and develop a climate that’s free from harassment, bullying and retaliation” and take all complaints seriously. The congressional investigation was launched by the late U.S. Rep. Elijah Cummings, a Maryland Democrat who worked on Coast Guard diversity issues throughout his career, and Thompson, in consultation with U.S. Rep. Joe Courtney. Courtney, a Connecticut Democrat whose district includes the academy, said the report isn’t an attack on the Coast Guard, but if there’s a problem it needs to be fixed.
Adm. Karl Schultz, the Commandant of the Coast Guard, was asked to testify Wednesday December 11, 2019. Committee leaders said Schultz declining to appear reinforces their concerns that the Coast Guard leadership does not takes the issues seriously enough. They criticized the Coast Guard for delaying the delivery of requested documents and heavily redacting them during the investigation.
In their report, the lawmakers said other Coast Guard officers, including retired Capt. Kevin Lopes, former head of the Coast Guard Academy’s Management Department, and retired Rear Adm. James Rendon, the former Superintendent of the Coast Guard Academy, also declined requests to speak to the congressional investigators.
But McAllister said he spoke for the service because he is in charge of human resources, training and personnel policy. He said it was their intent to be responsive and transparent, and pursuing a diverse and inclusive service is a top priority.
#ucgc #justice
#ucgc #justice



Conspicuously absent from the Report was any mention of the Cadet Webster Smith Case where a Senior Black Cadet was expelled in 2006 after being punished by a General Court-martial. Nine months after his girlfriend had aborted their child, he was charged with having raped her, among other things. This was the first Court-martial of a Cadet. The story of the case was fully documented in a book, CONDUCT UNBECOMING AN OFFICER AND A LADY, UCGC, Vol 02, Nr 01A, by Judge London Steverson (Amazon.com).

Thursday, November 7, 2019

Mr JUSTICE Clarence Thomas, The Eniigma



Posted Thu, November 7th, 2019 3:00 pm

Ask the author: Making the invisible justice visible – “The Enigma of Clarence Thomas”

The following is a series of questions posed by Ronald Collins to Corey Robin in connection with Robin’s new book, “The Enigma of Clarence Thomas” (Metropolitan Books, 2019).
Corey Robin is a professor of political science at Brooklyn College and the CUNY Graduate Center. He is the author of “The Reactionary Mind: Conservatism from Edmund Burke to Donald Trump” (2017) and “Fear: The History of a Political Idea” (2006). His essays have appeared in The New York Times, The New Yorker and The London Review of Books. He has received fellowships from the Cullman Center for Scholars and Writers at the New York Public Library, the Russell Sage Foundation and the American Council of Learned Societies.
Welcome, Corey, and thank you for taking the time to participate in this question-and-answer for our readers. And congratulations to you on the publication of this exceptionally thoughtful book.
* * *
I marched. I protested. I asked the government to help black people,” Thomas told The Washington Post in 1980. “I did all those things. But it hasn’t worked.”
Question: Did you attempt to interview Thomas for this book?
Robin: No. Thomas is a practiced political person who’s got his lines down. You’d have to be a superbly skilled journalist, someone like Janet Malcolm, who I’m not, to get Thomas to break out of his script.
Also, Thomas’ persona is so present throughout his opinions, his self is so stamped on the page, that I felt there was no need to talk to him. His opinions are brutal and revealing enough: That was all the self I needed to know.
Question: You use the word “enigma” in your title. As you know, the term comes from a Greek term that means “to speak in riddles,” fables or metaphors that test a listener’s or reader’s alertness. What is the riddle of Thomas’ life story?
Robin: At first I thought the enigma was how this man who was once a black nationalist on the left could have come to embrace the right. With time, that came to seem less of an enigma to me. Not only have there been other African Americans who have made that journey (not to mention whites who’ve moved from left to right), but there’s also an overlap between some strains of black nationalism and black conservatism.
What ultimately came to seem more enigmatic was that this man is on the Supreme Court, where he’s managed for nearly 30 years to maintain that traffic between these two traditions of black nationalism and black conservatism, with hardly anyone noticing. There’s no precedent for that on the court, and unpacking how Thomas has translated this peculiar blend of beliefs into this distinctive genre of American writing, the Supreme Court opinion, in which that blend is so unfamiliar – again, without many people noticing – that is an enigma. It requires approaching his opinions with a certain amount of literary attention, historical knowledge and political care — precisely the kind of readerly alertness that you rightly bring up in your question.
Question: The epigraph to your book is taken from Ralph Ellison’s “Invisible Man” (1952), a novel that explored the social and intellectual issues facing African Americans in the early 20th century: “I am invisible, understand, simply because people refuse to see me … When they approach me they see only my surroundings, themselves, or figments of their imagination – indeed, everything and anything except me.” How does this quote set the stage for what unfolds in your book?
Robin: While I was writing this book, I constantly had people, the most well meaning, liberal-minded people, tell me who Thomas is and what he thinks. It didn’t matter that their perceptions seldom matched reality. It didn’t matter that I was the one who was writing the book. They knew what they knew. They refused to listen, to look; they refused to hear or see. Their reactions reached beyond politics; it was almost as is if they had no curiosity about this man, had no need to know anything about him, even though he is longest-serving member of the current Supreme Court, and increasingly one of the more powerful members of that court.
The great bulk of the evidence I rely upon in my book is not hard to find or hidden away. It’s right there in Thomas’ opinions, which anyone can read on the web. Yet very few people read those opinions or even know that they exist, and when they do read them, whether as admirers or critics of Thomas, they don’t see what’s in them. They don’t hear the voice that’s speaking, they don’t see the man who’s speaking.
So here you have a man with the most distinctive voice of any justice on the court yet who remains completely unheard and completely unseen. As outrageous and tendentious as this may sound — and believe me, I came to this position quite slowly, and still say it with a certain amount of trepidation — it’s hard not to conclude that Clarence Thomas is the “Invisible Man” of the Supreme Court.
Question: By many measures, yours is an unorthodox judicial biography in that it portrays its subject from neither a chronological nor a doctrinal perspective. You present Thomas’ life story and jurisprudence through the lens of three main ideas – race, capitalism and competing views of the Constitution. Why did you organize the book this way?
Robin: All of the biographies about Thomas emphasize the life he led before he joined the court at the expense of the life he has led since joining the court. And those biographies that do discuss the latter tend to focus less on the jurisprudence than on Thomas’ (or his wife Ginny Thomas’) extramural activities off the court.
Because I saw a thematic unity between Thomas’ life before he joined the court and his opinions on the court, I wanted a structure that would capture that unity. Not only are race, capitalism and Constitution the three main ideas of his jurisprudence, but they also track and tell the story of Thomas’ life. Thomas first comes to race as a younger man in the 1950s and 1960s. He comes to capitalism as an emergent conservative in the 1970s. He comes to ideas about the Constitution as an aspirant to the Supreme Court in the 1980s. So the structure enabled me to present both the life and jurisprudence in a coherent way.
But there’s another reason I chose to structure the book in this way, which is to challenge how court-watchers talk about the court.
Many legal scholars, in fact, counseled me against this structure, urging me to organize the book along conventional doctrinal lines that they’re familiar with and used to: a chapter on Thomas’ views of the First Amendment, another on his views of federalism and so on. But once you start parceling out Thomas’ arguments in that way, you miss not only the life story but also the underlying political and ideological consistency of his thought. You stop being able to make sense of his writing as a whole.
As political theorist and an intellectual historian, I tend to view ideas and arguments as politics by other means. Thomas is a very political person — not simply in the conventional partisan sense of that term, though he is that, but also in the deeper sense of politics as expressing a coherent worldview about power and authority in society.
So where legal scholars, focused on doctrinal questions, can only see inconsistency and opportunism in Thomas’ opinions, or want to psychologize his views as a way of not thinking about them as political ideas (I can’t tell you how many legal scholars want to reduce everything Thomas says to his bad experiences at Yale Law School, as if he were the only person who was miserable at Yale Law School!), I tend to see deeper consistencies and visions, which don’t track tidy doctrinal or even partisan lines but do reflect a larger political imagination.
Question: In 1989, while he was chairman of the Equal Employment Opportunity Commission, Thomas published a law review article based on remarks delivered at a 1988 Federalist Society event. In that article he wrote that “[c]onservatives need to realize that their audience is not [simply] composed of … lawyers.” He urged conservatives not to confine themselves to “litigation” but to view their cause as “a political struggle.”
However, there is something apolitical about Thomas’ philosophy as you describe it. Can you address this apparent paradox?
Robin: I wouldn’t say Thomas’ philosophy is apolitical so much as it is anti-political.
Thomas does not believe that politics in any sense of that term — electoral politics, social movements, state action and regulation, organizing, even more radical notions of transformative change — can positively affect black people; he thinks politics mostly hurts black people. Since the mid-1970s, he has been deeply pessimistic about the possibilities of political change: Political action of any sort, he believes, cannot improve or ameliorate the condition of black people in the United States.
At the same time, Thomas passionately wants to persuade black people of the truth of this belief, to convince them to shed their commitments to liberalism and the Democratic Party. That’s what gives his Supreme Court opinions their distinctive political cast. That may be a paradox or a contradiction — that is, using the persuasive means and mechanisms of politics (the court, after all, is a political institution) to cultivate a deeply anti-political set of beliefs — but if it is, it’s not Thomas’ alone. It’s fairly common to many right-wing people — libertarians, for example — though Thomas is not a libertarian.
Question: Thomas’ concurrence in Holder v. Hall (1994) offers a glimpse into his views about “black power” in the electoral realm. And that opinion, as you analyze it, aligns with his views on the value of electoral politics for African Americans. Can you open a window into Thomas’ thinking in this area?
Robin: Back in 1987, long after he had made his right turn and joined the Reagan Administration, and just four years before he joined the court, Thomas declared in The Atlantic: “Blacks are the least favored group in this society. Suppose we did band together, group against group—which group do you think would win? … Which group always winds up with the least? Which group always seems to get the hell kicked out of it? Blacks, and maybe American Indians.”
Notice what Thomas is and isn’t saying. He isn’t saying African Americans don’t have a common interest or shared position in society. They do. He isn’t saying African Americans aren’t the most oppressed, or close to the most oppressed, group in society. They are. But what he is also saying is that when African Americans act collectively to express and pursue that interest, when they try to overcome their fate through political means, they will lose. Badly and dangerously.
That view lies at the heart of Thomas’ opinions on voting rights and various efforts to empower black people collectively in the electoral realm. He thinks it’s a fool’s errand, that black people will always or at least mostly lose in a white majoritarian system, and the only way they won’t lose is to depend upon the good wishes and benevolence of white people, which again, he thinks is a dangerous and crippling illusion.
Question: “Race,” you write, “is the foundational principle of Thomas’ philosophy and jurisprudence.” Later you suggest that his “jurisprudence may be a bitter mix of right-wing revanchism and black nationalism, but it is distinctively American and of the moment.” What do you mean by this, and why do you find his jurisprudence to be “of the moment?”
Robin: We live at a time when conservatives, at least in the Republican Party, are not shy about their white nationalism. They don’t dress up their racism in the garb of colorblindness or a concern with federalism, as they used to do, or try to pretend that they care about the content of people’s character rather than the color of their skin.
From early on, Thomas has claimed to prefer the overt racism he knew while growing up in the Jim Crow South to the racial duplicity he claims to have experienced in the North, where whites professed a racial innocence or racial benevolence that covered up their secret belief in the inferiority or difference of black people. In many ways, Trump’s coming out of the closet on race, his willingness to say what many people thought they had to keep secret, is consonant with Thomas’ view of the permanence of racial conflict and enmity.
Thomas’ beliefs and opinions — which support the vast and unequal accumulation of wealth, the arming of people to the teeth, the imprisonment of so many people and racial conflict as far as the eye can see — are so consonant with the world we live in today that I think you could safely say, of all the justices on the Supreme Court, he has the greatest claim to being the public philosopher of our moment, this wretched, wretched moment.
Question: How does Thomas’ black nationalism fit in with his jurisprudence of “race-conscious conservatism,” as you label it? And how does this impact Thomas’ views on affirmative action, as expressed in his dissent in Grutter v. Bollinger (2003)?
Robin: Unlike many conservatives, Thomas does not believe, and doesn’t give any lip service to the belief, that colorblind policies will lead to a colorblind society. He simply does not believe it’s possible for America not to be racist. He has said quite clearly that he is not sympathetic to integration as an ideal. And in some of his opinions — from United States v. Fordice (1992) to Parents Involved in Community Schools v. Seattle (2007) — he not only has questioned whether integration works for black people and improves racial attitudes but also has voiced support for black people’s having separate institutions of their own, apart from white people.
This makes Thomas’ views on affirmative action quite different from those of most white conservatives. Thomas doesn’t focus on the alleged harms suffered by alleged white victims of affirmative action, the way other white conservatives do. Instead, he focuses on what he thinks are the harms imposed upon black people, the stigma of inferiority that he believes taints all black achievements.
He often comes close to arguing that affirmative action is simply the continuation of Jim Crow: not simply because, as other white conservatives claim, it is race-conscious, but because it is race consciousness that he thinks harms African Americans, a race consciousness that is defended, as Jim Crow often was, as in the interests of African Americans.
More important, he sees affirmative action as a program of white elites who are less interested in diversifying their institutions than they are in maintaining their hegemony and power.
Question: Thomas has an abiding interest in reviving the privileges and immunities clause of the 14th Amendment so as to reverse the holding in the Slaughter House Cases (1875). Among other places, Thomas made that point in his dissent in Saenz v. Roe (1999). What is the drift of his thinking here?
Robin: Thomas sees the privileges and immunities clause as the foundational right won for and by African Americans during the struggle over slavery and its aftermath, a period he knows quite well and has written about at length, often citing the work of left-wing scholars such as Herbert Aptheker and Eric Foner. More than the equal protection clause, he thinks, the privileges and immunities clause is the foundation of black freedom.
At the same time, Thomas has a fairly narrow view of the kinds of freedoms the privileges and immunities clause is meant to protect (this is part of the argument he makes in Saenz). The central freedom, it becomes clear over the course of Thomas’ later jurisprudence, is the right to bear arms. The right to bear arms can obviously have a distinctive right-wing valence, but it also has had, throughout American history, left-wing and black-nationalist valences. Thomas draws from all those traditions. But whether his views are right-wing or left-wing or both, it’s pretty clear that his vision of the privileges and immunities clause protects a more limited set of freedoms than the equal protection clause or the due process clause would protect.
I should add that Thomas’ commitment to the privileges and immunities clause, and his grounding of the clause in the struggle for emancipation, has distinguished him, at least thus far, from most conservatives on the court. It often leads him into conflict with his conservative colleagues, who opt for substantive interpretations of the due process clause as the basis for extending the right to bear arms to the states — a move that Thomas rejects.
Question: In reading your book, one gets a strong sense that for Thomas the wrongs of slavery can never be repaired. Where does Thomas believe that leaves the nation, black and white alike, in the struggle for racial justice?
Robin: Thomas does not believe in racial justice. It’s that simple. He believes in racial survival, the survival and persistence of the African American community. He doesn’t think that can be achieved through conventional liberal or left-wing means; it can only be achieved if black people withdraw from the institutions of the state and focus on their collective development, apart from white people.
Question: How does Thomas’ purported allegiance to black nationalism and the push for a “state of exigency” comport with his acknowledgment of the disproportionate imprisonment of blacks? Why, as in his dissent in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (2015), does he appear to discount disparate-impact analysis?
Robin: At the heart of Thomas’ vision of the survival of the black community are black men — really, black patriarchs. In black men he finds the potential salvation of black people as a collective.
He also thinks generations of black men have been crippled by the rights revolutions of liberalism: by the alleged relief of responsibility and diminution of discipline that were wrought by the New Deal and the Great Society and the Warren Court. The combination of the welfare state, the sexual revolution and the rise of due-process rights for defendants — all this has led black men, Thomas believes, to abandon their responsibilities to their families and their communities.
Because of their precarious position in a white racist society, Thomas believes that black people are more dependent upon the power and strength of men than are other communities. But the only way black men will find that power and strength, he thinks, is through firm modes of punishment and authority. That punishment and authority were crippled by the rights revolutions; the only way they can be restored is by a restoration of the state’s capacity to punish. This, I should add, is not necessarily a black-nationalist belief; it’s one of the cornerstones of Thomas’ conservatism, but it’s a conservatism that is very much framed by reference to black people.
Thomas’ opinion in Inclusive Communities reflects a different element of his philosophy. In the early 1980s, when Thomas was at the EEOC, he was more sympathetic to disparate-impact analysis (at least when it came to race; when it came to gender, he refused to entertain the idea) on the ground that racism was so systemic, so pervasive throughout society, that even the most racially neutral policies could reproduce racial inequalities.
By the time of Inclusive Communities, Thomas had turned 180 degrees on the question of disparate impact. He rejects the doctrine completely. But what’s so interesting about his rejection is that his underlying social view of race — that it’s systemic throughout society, that institutional policies are ineffective in countering it — remains the same. Only this time, he concludes that it makes no sense to try and redress the problem at the level of housing or other policy, or at the level of an institution, because “a given racial disparity at an institution” is not “a product of that institution” but is instead “a reflection of the disparities that exist outside of it” in society. His pivot on disparate impact shows, I think, how a deeply pessimistic view of the pervasiveness of racism in society can cut in either a leftward or rightward direction.
Question: And how does his dissent in Brumfield v. Cain (2015), which affirmed that it is unconstitutional to execute the mentally disabled, figure into all of this?
Robin: For Thomas, Brumfield is the story of two black men. One is Kevan Brumfield, whose father abandoned him when he was young and who murdered a police officer named Betty Smothers. The other is Warrick Dunn, who was the child of Smothers. Dunn’s father also abandoned him when he was young. But after his mother was murdered by Brumfield, Dunn not only managed to raise his five younger brothers and sisters but also became an NFL player.
For Thomas, the case is “a study in contrasts” between these two black men, both abandoned by their fathers, but one of whom rose to become the patriarch he never had, providing an example for and leadership to the black community. Thomas believes the only way to create more Warrick Dunns is to punish, harshly, all the Kevan Brumfields. That might leave some black sons without black fathers, but it will ensure, in Thomas’ view, that the black fathers who remain are the kinds of patriarchs Thomas believes the black community depends upon.
I should add here that so jarring and explosive is Thomas’ analysis in this case that Justice Samuel Alito and Chief Justice John Roberts, who joined part of Thomas’ opinion, took flight exactly at the point when he talks about these two men. Alito, with Roberts, claimed that the story had nothing to do with the legal analysis of the case, which was, as you say, about the constitutionality of executing the mentally disabled. But for Thomas, those two black men, that study in contrasts, is really what the case is all about.
Question: As I understood your book, unbridled capitalism – largely unencumbered by the constraints of democracy and ruled by “men of money” – is a key tenet of Thomas’ life philosophy and jurisprudence. Is that correct? If so, please explain how this interacts with his views on race. 
Robin: It’s definitely correct. Thomas’ commitment to capitalism is the corollary of his skepticism of politics. It’s not that Thomas believes black people will get a fair shake under capitalism or that racism is not rife throughout the market. Instead, he thinks the market offers black people niches, spaces apart from white people, where they can accumulate wealth that will then serve the black community.
Interestingly, Thomas is not partial to wage labor; his vision focuses much more on black entrepreneurialism. The reason for that, it’s clear, is that he thinks waged black laborers will often find themselves working for white employers. The whole goal of black business is so that black people won’t have to be in the position of working for white people, which Thomas sees as reminiscent of the kind of domination and dependency that black people experience when they involve themselves in the political sphere.
Question: Thomas’ understanding of the commerce clause is radically different from that of Chief Justice John Marshall as set out in Gibbons v. Ogden (1824) – consider, for example, Thomas’s lone concurrence in United States v. Lopez (1995) and his lone dissent in Gonzales v. Raich (2005). What do these outlier opinions tell us about how Thomas thinks federal power gets distributed in society and how that power affects the lives of African Americans?
Robin: As Thomas argued throughout the 1980s and at his Senate confirmation hearing, the expansion of national regulatory power is at the heart of the black-freedom struggle and civil-rights liberalism, and the commerce clause is the constitutional centerpiece of that effort. Thomas understands this full well.
Thomas’ project is to bring about an ideological shift in the black community; he wants black people to stop looking at the federal government as the benevolent agent of black interests and to start looking at the economy as a more favorable space for black interests – not a nationally regulated economy but a deregulated economy, in which there will be more niches, he believes, for black entrepreneurs.
In order to do that, he believes, this benign view of federal power and the commerce clause must be confronted. Head on. That’s what leads him to such a radically restrictive view of what constitutes commerce: He understands that the more expansive a view we have of commerce, the more that will allow the federal government to act on behalf of African Americans and other groups. “With each new locution,” Thomas writes of our battles over the definition of commerce, “federal power expands, but never contracts.” So he aims to cut that project of expansion off at the knees: at the very interpretation of what commerce means.
Question: Thomas filed a lone dissent in Brown v. Entertainment Merchants Association (2011), in which he wrote: “The practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” How does that square with his free-speech jurisprudence?
Robin: Going back to 1987, Thomas has been extremely interested in securing for property and money and the market the same sacred status that the rights of speech and belief then had in the liberal imagination. So it’s no accident that his most important First Amendment opinions involve the extension of free-speech rights, the right to expression, to moneyed and commercial interests. We saw this most recently in the concurrence he wrote in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), which was joined only by Justice Neil Gorsuch. Conversely, his interest in free speech, as that term is understood by liberals, is not particularly robust. His restrictive view of free speech in Entertainment Merchants is illustrative. What’s more interesting about that opinion, to me, is how much it reveals about Thomas’ view of the authority and power of parents, particularly fathers, which he thinks is, or at least should be, extensive.
Question: Explain how Thomas’ robust defense of Second Amendment rights fits with his idea of “the Black Constitution,” as you term it.
Robin: One of the keystones of the struggle for emancipation during the 19th century was the right of black people to arm themselves against white people. First against white masters under slavery, then against white supremacists under Jim Crow. The black radical tradition has long championed this right as critical to black freedom, as seeing the right to arms as the foundation of black expression and black manhood. (Elaine Brown, who chaired the Black Panther Party in the 1970s, even wrote and recorded a song, “The End of Silence,” that makes these connections between black arms, black men and black speech explicit.) In Thomas’ view of the Black Constitution, which he thinks was created by the struggle over slavery and emancipation, the right to bear arms is equally central. His opinion in McDonald v. Chicago (2010) is an extended meditation on these connections.
Question: In your discussion of “the White Constitution,” you write of a society “in a permanent state of tension, forever suspended between promise and betrayal.” Tell us more about that society and its role in Thomas’ philosophy.
Robin: Like many conservatives, Thomas has a deep uneasiness about life being too easy, about a society in which the avenues of social advancement have been cleared of hurdles and obstacles. And like many conservatives, he mistakenly believes that liberalism has created such a society. (The truth, of course, is that many of these obstacles and hurdles remain.) The result of that society, he thinks, is not that the wrong people get ahead — that’s not Thomas’ concern, and here he departs from many conservatives — but rather that black people are disabled by its comfort and ease.
A person’s and a people’s development, he thinks, depends upon the adversity they face, and the overcoming of that adversity; that, Thomas says, is where freedom lies. So there needs to be a tension in any society between the vision of advancement, the hope for moving forward, and its frustration. If things get too tractable, if advancement is too easy, if frustration is not felt, black people won’t develop the kinds of habits and discipline that sustained them through the long night of slavery and Jim Crow.
One of the reasons Thomas believes in what I call the White Constitution is that he thinks it will maintain the conditions of harshness and adversity that black people need in order to develop those habits and that discipline.
Question: In a new documentary, Thomas speaks critically of those who opposed his nomination to the Supreme Court: “This is the wrong black guy; he has to be destroyed. Just say it!” In another segment he added: “There are different sets of rules for different people. If you criticize a black person who is more liberal, you’re racist, whereas you can do whatever to me, or to now Ben Carson, that’s fine because you’re not really black because you’re not doing what we expect black people to do.”
What do you make of this statement?
Robin: Like Thomas’ testimony at his Senate confirmation hearing, it’s a combination of truth and untruth.
The truth is that Thomas has been subjected to an astonishing amount of racist criticism from liberals and the left that would simply not be leveled at him if he were white or liberal. The full range of charges and criticism that have been lodged against him, in fact, are reminiscent of the charges and criticisms that were made against Thurgood Marshall on the court, not simply by right-wingers, but even by liberals like Archibald Cox, who said that “Marshall may not be very bright or hard-working but he deserves credit for picking the best law clerks in town.”
Thomas’ statement also reflects another truth, which is that a lot of white people don’t realize or recognize the full diversity of opinions among African Americans, that there is a long tradition of black conservatism, that black nationalism assumes a variety of guises, and so on. So when white people — and this is true of the white left and the white right — listen to Thomas, they can’t hear what he’s saying because they have a prior set of beliefs about what it is that black people must think. So all that is true.
The untruth, the falseness, is twofold. First, before Anita Hill, many Democrats were going to vote for Thomas; he had widespread support in the black community. Even though his Senate testimony was underwhelming, liberals got very little traction in mounting opposition. I happen to think, like many, that there is overwhelming evidence that Anita Hill told the truth and Thomas lied. So his protestations here misconstrue how much support he had, even among the Democrats, before Hill’s allegations were made public, and fail to confront his own role in harassing Hill.
But the untruth — not in the sense of a lie, but of the failure to tell the whole truth — goes beyond that. It’s representative of Thomas’ general view of racism. As I show in the book, in Thomas’ view, racism assumes the form of racial stigmas and unconscious bias (which makes his view not unlike that of many contemporary social scientists). This is a view of racism that is focused overwhelmingly on verbal acts and gestures rather than material disparities. So Thomas sees racism in one respect — not limited to how he’s been treated, it should be said — but not in others.
Thomas also sees those stigmas and that bias operating in a very rarefied atmosphere: that of the black professional class, where ambitious strivers like him are subjected to a certain kind of suspicion about their talents and abilities. He doesn’t see those stigmas operating in the same way for the black poor or the black working class. Now Thomas has a complicated set of beliefs that would explain that disjuncture, which I explore in the book — in other words, I don’t think he’s merely being self-serving or hypocritical or inconsistent here — but nevertheless, it’s ultimately a very limited worldview.
Question: You end “Enigma” on an unusual note – the need to realize something largely ignored yet fundamental: “[T]he task at hand,” you write, “is not to retrace and rebut his moves from premise to conclusion, but to go back and start again with different premises.” Whose task is this? And with what different premises should we approach our view of Thomas?
Robin: That’s a set of comments addressed both to the left and to Americans who have given up on the idea that politics — whether movements in the streets or action by the state — can transform social conditions. Thomas believes that racism is so fixed and permanent that it cannot be altered by political action. In this regard, I think his views are emblematic rather than idiosyncratic. The conclusions he draws from that belief are not widely shared, but the underlying assumptions are. I think that so long as people share that worldview, we’ll never see the kind of transformative politics and genuinely mass action that we saw in earlier moments of the black freedom struggle or other struggles in this nation’s history.
Recommended Citation: Ron Collins, Ask the author: Making the invisible justice visible – “The Enigma of Clarence Thomas”, SCOTUSblog (Nov. 7, 2019, 3:00 PM), https://www.scotusblog.com/2019/11/ask-the-author-making-the-invisible-justice-visible-the-enigma-of-clarence-thomas/
   

Tuesday, May 21, 2019

Trump's First Black Female Judge Nominee

Trump’s First Black Female Judicial Nominee a Bipartisan Pick


Stephanie Dawkins Davis is Donald Trump’s first black female judicial nominee, and her bipartisan appointment comes amid the contentious drive by the president and his Senate allies to reshape the federal courts.
The magistrate judge and former federal prosecutor will appear this week before the Senate Judiciary Committee to answer questions about her nomination to the U.S. District Court for the Eastern District of Michigan, which includes Detroit.
“She has a strong intellect, tireless work ethic and sound judgment,” said Barbara McQuade, a former U.S. attorney for that Michigan district who supervised Davis.
The GOP-led Senate has accelerated the pace of Trump nominations and Senate confirmations at the expense of bipartisan cooperation, Democrats complain.
More than 100 district and circuit court judges have been confirmed since Trump took office.
Partisan rancor over judicial selections escalated this spring when Republicans changed Senate rules to expedite votes for district court appointments over fierce Democratic objection. The GOP also is excluding circuit nominees from the so-called “blue slip” tradition of only moving forward on judicial nominees supported by both home-state senators.
Davis’s nomination is a bipartisan affair. The Trump Administration negotiated with both Michigan senators, Democrats Gary Peters and Debbie Stabenow, before putting her name forward, the Detroit News reported.
She’s the first of two black female judicial nominees advanced by Trump, whose selections so far are mainly white and male. Ada Brown has been nominated to the Northern District of Texas.
Barack Obama appointed 26 black women to the bench in eight years, while Trump has seen one black nominee confirmed, Terry Moorer of the Southern District of Alabama.

Role Models

Monday, May 6, 2019

Social Security Lawyers Can Now Earn Higher Fees Because of Supreme Court Decision


Since 1956, the Social Security Administration(SSA) has made disability benefits available to people whose long-term medical conditions make completing their jobs impossible.
Lawyers who want to maximize their earning capacity don’t do Social Security law. They would be crazy to do Social Security law.
Recognizing that many Social Security disability claimants are in poor financial health, the federal government devised a payment scheme whereby lawyers receive a portion of their client's judgment if they win and nothing if they don't.
Since 1956, the Social Security Administration has made disability benefits available to people whose long-term medical conditions make completing their jobs impossible.
A U.S. Supreme Court ruling earlier this year created a uniform method for allocating fees across judicial jurisdictions, ensuring attorneys will have access to higher fees regardless of where they practice.
Considering that just 22% of workers receive disability benefits on the first try, the attorneys who help these workers often don't see payment for years, if ever.
Without attorneys, disability benefit applicants can get lost in the confusing maze of the claim process. They must first take their case before an administrative law judge(ALJ), and if the judge rejects the claim or makes a mistake — which attorneys say is fairly common — they then must go to federal court to dispute the decision.
In some Federal Circuits, judges interpreted separate limits the Social Security Act placed on fees for legal work before the SSA and the federal court as a single limit, capping the overall fees at an amount equivalent to 25% of the client's benefit award.
As an example, Lawyers in the Third Circuit, were not affected by the fee cap that plagued disability attorneys in the Fourth, Fifth and Eleventh circuits before the recent Supreme Court decision.
In those circuits, judges interpreted separate limits the Social Security Act placed on fees for legal work before the SSA and the federal court as a single limit, capping the overall fees at an amount equivalent to 25% of the client's benefit award.
In other circuits, like the Third, judges allowed attorneys to collect an amount equivalent to 25% of the client's benefit award for court-level work. For agency-level work, attorneys could collect either $6,000 or an amount equivalent to 25% of the benefit award, whichever is less. Fees could come from both the benefit award and the federal government, which offers a pool of money to disability attorneys under the Equal Access to Justice Act.
The ruling's main impact could be to encourage Social Security attorneys who already practice in federal court to continue doing so, rather than abandon cases at the appeal stage because the money isn't good.
In the past, Social Security claimants' probability of successfully going up against the SSA varied depending on where they were. Now, claimants should have an easier time across the country.

Friday, February 1, 2019

SSA Defrauds Another Widow(er)

Social Security Defrauds Yet Another Widow(er) -This Could Be You!
A bunch of American dollars in denominations of 100 dollars notes rolled up and held together with a simple rubber band with two stack of american dollars in denominations of 100 dollars isolated on a white background.Getty
Social Security just defrauded Seattle-based William Shimeall of tens of thousands of dollars in widower benefits based on a decision by Social Security's Administrative Law Judge Glenn G. Myers.
Bill's story is instructive. It teaches us a lesson we all should already know - You can't trust anything the Social Security staff tells you. Nor can you rely on them to keep you from doing something that can only lower, potentially dramatically, your future benefits.
It also teaches us a new lesson. Social Security's self-appointed "judges" aren't, apparently, sworn to uphold justice. Instead, they appear sworn to uphold Social Security's patently fraudulent decisions no matter the size of the swindle.
Here are the facts. Judge for yourself.
Bill Shimeall turned full retirement age on August 3, 2015. Around that time much was written, including by me and my co-authors in our book, Get What's Yours - the Secrets to Maxing Out Your Social Security, about the file and suspend option which let eligible disabled children and spouses collect child and spousal benefits without forcing the primary earner to file before age 70 and accept permanently reduced benefits.

Some high-earning spouses were also able to use this mechanism to collect spousal benefits while waiting to collect their own highest retirement benefit. People in the Obama Administration decided, with no hearings or actual evidence, that this was, on balance, a boondoggle for the rich. So in November 2015, the Democrats in the House let House Republicans rewrite the law and hide the changes inside the Bipartisan Budget Act of 2015.
I saw a draft of the bill on a Sunday. The vote was scheduled for later that week. The next morning I posted a Forbes column pointing out that the new Social Security provisions would mean benefit cuts in six months for lots of people. Within a few hours of the appearance of the column, there were two highly complex amendments passed by Congress that included grandfathering clauses, some of which still pertain to millions of people, by the way.
In any case, the new law with its complex amendments went into effect in November 2017. Then Social Security's headquarters sent misleading instructions to staff all around the country about the new  provisions. Through December, January and February of 2016, I kept getting emails from people saying they had read my columns, which said X, but that Social Security staff were saying not X. I started writing these mistakes up on a weekly basis hoping someone at Social Security was monitoring my columns and would fix things. Sure enough, in February 2016, senior staff at Social Security set up a conference call with me. During the call, I explained what the new law actually said and how it differed from what had been stated in the instructions. Within hours of the call, new instructions were issued. But the damage had been done. People continued to be misadvised by Social Security staff for months all over the country.
Bill appears to have been one of them. He went into his local Lynnwood Social Security office, located near Seattle, Washington, in early April 2016 to discuss filing and suspending his retirement benefit so his ailing wife could start collecting a spousal benefit while waiting for her disability benefit to be approved. Bill was under the impression that by going into the office and calling Social Security before the April 29, 2016 deadline he would be viewed as having met the deadline and be given more time to complete the paperwork. April 29th was the deadline for people who were grandfathered to file and suspend and have others collect benefits on their work records. We can still file and suspend. What we can't do, if we filed and suspended after April 29, 2016, is let others collect benefits on our records while our own retirement benefit is in suspension.
Bill spoke with several different people at the Lynwood Office that day and in the ensuing weeks. Each told him something different. In any case, in early May, Bill, thinking he was grandfathered because he had gone into the Lynwood Office to discuss filing and suspending before April 29th, proceeded to file and suspend.
Thereafter, Bill had lots of confusing back and fourths with the folks at the Lynwood office to find out why his wife's spousal benefits hadn't started. But by October, his wife had been granted disability benefits, so he stopped worrying about getting her spousal benefits.
In June 2017, Bill's wife died. Bill then applied for his widower's benefit believing a) he would receive his full widower's benefit of $944 a month and b) that he could wait until 70 to collect his own age-70 retirement benefit. Instead of receiving the $944, Bill was awarded $18 per month in widower's benefits. Why? Because he had filed for his retirement benefit back in May 2016. It didn't matter that his benefit was in suspension. Nor did it matter that his filing for and suspending his retirement benefit could never have helped his wife get spousal benefits under the new law.
No, Bill had filed for his retirement benefit, so Social Security treated him as if he were actually collecting his retirement benefit and since his retirement benefit exceeded his widowers benefit he was to receive the difference, if positive, between his widower and retirement benefit. I.e., he was to receive zero. The fact that Social Security decided he was owed $18 per month was another mistake.
Bill appealed the decision saying he had been mislead by Social Security when he filed and suspended. He hadn't been told that doing so could wipe out his potential widower benefit. Given his wife's physical condition, potentially losing his widower's benefit was a real possibility. But no one at the Lynnwood office told him this in either April or May. Indeed, in early May, before filing, he contacted a top Seattle financial planner, Julie Price, who warned him that he might endanger his potential widower benefit if he filed and suspended and that he should come see her. Bill didn't want to spend the money on outside advice, so went with what the Lynnwood staff were saying and weren't saying.
What the staff should have told Bill was, It's past the April 29, 2016 deadline. You and your wife have absolutely NOTHING to gain by your filing and suspending and potentially some $40,000 to LOSE in widowers benefits if she passes in the near term.
But the staff didn't tell Bill any of this. Instead they sat back and helped him shoot himself in the head by filing and suspending, whose sole impact, they knew or should have known, would only serve to eliminate his widower's benefit were his wife to die before he reached 70.
"Judge" Myers looked at the evidence and decided that Bill had, in fact, been warned about a possible widower's benefit issue by, get this, Julie Price and should have followed Julie's advice, not what the Lynnwood staff Social Security were and weren't saying. I.e., Bill, according to the "judge," should have followed the advice not of the Social Security professionals, but of a financial advisor whom Bill didn't know.
Based on Bill's "mistake" in relying on Social Security, he, not Social Security was at fault and he must suffer the consequences. This was the 'judge's" ruling.
The injustice here is staggering. Just think about this. Due to the Lynnwood's office's clear mistake (It should have refused to process Bill's request unless he signed a paper stating that filing could only hurt him financially.), the Judge Myers not only defrauded Bill. He also defrauded Bill's wife. She worked her entire life, paid Social Security taxes her entire life, only to have those taxes be confiscated by incompetent bureaucrats and a judge who seems not to understand the requirements of the word justice.
Bill is not alone in being defrauded by the Social Security system. Social Security's Inspector General's Report of (https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-09-18-50559.pdf) of February 14, 2018 documents the routine failure of Social Security staff to provide proper guidance to actual, let alone near-term prospective widow(er)s).
I wrote about this report last year. And I wrote about the problem of Social Security's defrauding widow(er)s back in 2015 based on a courageous Social Security whistle blower's inside account. Social Security has the ability to go back and determine how much money they stole from people by letting them make filing decisions or making those filing decisions for them when such decisions could only work to their detriment. Once that determination is made, Social Security should provide restitution of such stolen benefits to participants or their survivors.
But back to Bill and "Judge" Myers. Any decent Social Security judge would conclude that if the staff assists someone in filing a claim that can only lower their benefits in the future and can never raise them, under any circumstance, that the staff has clearly made an error, to put it mildly. In this case, the judge should withdrawal the filing even if it's beyond the 12-month withdraw deadline, of which Bill was also not informed.
Judge Myers, it's time to reverse your decision and stand up for the millions of widows and widowers who have been terribly defrauded by Social Security staff, either knowingly or accidentally, over the years via staff-assisted or unilateral staff decisions that served only to financially injure actual or prospective widow(er)s.
Follow me @kotlikoff To safely raise your living standard and assess your investment risk, check out MaxiFi and my company. Pls pose Social Security questions at Ask Larry.
I am a professor of economics at Boston University, a Fellow of the American Academy, a Research Associate of the NBER, and President of Economic Security Planning, Inc. -- a company that markets personal financial planning tools at maxifi.com, maximizemysocialsecurity.com,...

Changes in Social Security 5-Step Disability Application Process 2019.

Changes in Social Security 5-Step Disability Application Process


 Administration has recently implemented changes to their Social Security Disability Income application process, including the reinstatement of the reconsideration step in the claim application process in five states, with Louisiana among them.
The SSA removed the reconsideration step from the claim application process in ten states in 1999, and is adding it back now as part of an effort to save money. Some filing for disability may benefit from reconsideration, but others will see longer delays in claim processing.
“What people basically need to know is that starting January 1, Louisiana applicants see a new step in the process of filing for SSDI,” said Mike Stein, assistant vice president of Operations Strategy and Planning with Allsup, an organization that helps claim applicants navigate the process.
Reconsideration takes places after an initial application has been denied, which happens in two out of every three claims. For the 13 percent of people who get accepted after reconsideration, this step saves them time and saves the government money. The other 87 percent of applicants will continue to the appeal process, so reconsideration effectively adds three to six months processing time to their claim,” Stein said.
Part of FICA taxes workers pay each year funds SSDI benefits, as sort of a long term insurance program for workers who become injured beyond their ability to continue working.
“There are a lot of myths and misconceptions about the program,” Stein said. “People think it’s easy to get on and the government just gives away money, but it’s actually a very stringent program. It’s only open to people who have paid in through their taxes and have been injured in a serious and long term way. So, most of our clients are people who have been dealt some of the worst hands anyone can be dealt, from a medical standpoint.”
After a worker is injured and files a claim with the SSA, an initial determination is made after four to six months, with about 34 percent of claims approved on average. For nearly twenty years, Louisiana claimants moved from an initial rejection into an appeal process, held before a judge, with wait times that currently average around 450 days. Rejected claims filed after January 1 will now move into the reconsideration phase prior to an appeal process.
“Back in the late 90s, the SSA looked at the reality that only 13 percent of applications were accepted following reconsideration and decided to see if they could save money, or speed things up, by eliminating that step,” Stein said. “The Trump Administration now says it has research indicating it could result in a net savings to keep reconsideration.”
SSDI appeal hearings are expensive, requiring judges, vocational and medical experts and travel budgets.
“The Trump Administration says that 13 percent less appeal hearings could save money,” Stein said. “For the people who see their application granted during reconsideration, this will also save time. The vast majority of people will see additional time and paperwork as part of their SSDI claim process.”
There has been some controversy surrounding the introduction of the SSA’s new policy. During a congressional meeting of the House Ways and Means Committee last summer, several members objected to the reinstatement of the reconciliation process, and acting SSA commissioner Nancy Berryhill signed a letter along with eleven members of Congress arguing that “there is little evidence to show that reconsideration is a meaningful step in the disability appeals process.”
Despite some resistance to recent changes, the Trump Administration has nominated a new commissioner to head the agency – Andrew Saul and plans to move forward.
“They have a roll out schedule in place and we can expect to see more changes in April and October, and well as early next year. These changes can make an already complex situation more confusing, and we just encourage people to hire someone knowledgeable to try and shorten what will already be a long time without income after an injury,” Stein said.
28th January 2019 
 
By Meghan Holmes
Contributing Writer
The Social Security

Friday, January 11, 2019

What Do You Think of Ruth Bader Ginsburg?

One might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and a recent feature film, “On the Basis of Sex,” which focuses on the first sex-discrimination case Ginsburg argued in federal court. Now comes “Ruth Bader Ginsburg: A Life,” by Jane Sherron De Hart, a retired professor of history at the University of California, Santa Barbara. This book began as a research project examining Ginsburg’s early career as a women’s-rights litigator at the American Civil Liberties Union, and it expanded into a full-length biography (540 pages of text and 110 pages of footnotes).
Ginsburg spoke at length to the author during the early, limited part of the project, but she curtailed her cooperation later, likely because an authorized biography was (and remains) in the works. Whether because of De Hart’s own initial interest or the benefits of consultation with Ginsburg, the book is strongest when it focuses on Ginsburg’s early life and her work before her appointment to the U.S. Court of Appeals for the District of Columbia Circuit in 1980. Readers will meet straight-A student and Brooklyn baton-twirler “Kiki” Bader, whose mother Celia died of cancer two days before Kiki’s high-school graduation. They will shake their heads at the notion that Ginsburg, although graduating at the top of her class from Columbia Law School, was offered a clerkship with a federal judge only after her law professor Gerald Gunther offered to substitute another (presumably male) candidate if Ginsburg did not pan out. And they will be touched by Ginsburg’s enduring partnership with her husband, Marty, who, as Ginsburg has said, “believed in me more than I believed in myself.”

Some of De Hart’s most valuable insights come in her account of how Ginsburg, who, in an effort “not [to] be considered confrontational,” responded to Harvard Law School Dean Erwin Griswold’s query about why she was occupying a place in the first-year class that could have gone to a man by saying it was important for her to “understand her husband’s work,” came to espouse women’s rights so whole-heartedly. De Hart traces some through lines that help explain how Ginsburg developed the ideas of equality that informed her determination to secure equal treatment for women under the law. Notable among these was a fortuitous sojourn in Sweden to research Swedish civil procedure. Ginsburg was struck by “the greater gender equality Swedes enjoyed” and by Swedish theorists’ and social scientists’ contention that “culturally constructed roles – stereotypical assumptions about the proper role of men and women – imposed constraints on both sexes that penalized individuals and impoverished society.”
Ginsburg’s experiences in Sweden, coupled with the sexism she had experienced and the influence of feminist writers like Simone de Beauvoir, prompted her to helm the ACLU’s new Women’s Rights Project. Her analytical tenacity, single-minded focus on work, meticulous planning, and uncompromisingly high standards enabled her to devise and carry out her goals successfully. De Hart offers detailed accounts of the series of cases through which Ginsburg succeeded in persuading the Supreme Court to raise the standard of review for laws that treated men and women differently based on damaging stereotypes about gender roles. She observes, as have others before her, that Ginsburg’s incremental approach – building in small steps on early cases with sympathetic plaintiffs, often men – was modeled on Justice Thurgood Marshall’s strategy of combating racial discrimination as a litigator for the NAACP. But she also highlights the pitfalls of equating gender discrimination with racial discrimination, particularly as an increasingly conservative Supreme Court began to insist on a “color blind” approach to the Constitution that subjected affirmative action programs to strict scrutiny.
Readers familiar with the pop-culture trope of Ginsburg as a fearless champion of liberal ideals may be surprised by De Hart’s reminder that the justice’s nomination was almost forestalled by her criticism of Roe v. Wade, which she publicly suggested may have done abortion rights a disservice by, among other things, leapfrogging legislative change and prompting a powerful political backlash. De Hart exposes the rifts within the feminist movement that led President Bill Clinton to respond, when Ginsburg’s name was first floated, that “the women are against her.”
De Hart’s account of Ginsburg’s years on the Supreme Court, though detailed and methodical, is less compelling, perhaps because De Hart had to rely on oral argument transcripts and opinions instead of interviews and the contemporaneous documents of the justices, most of which are not publicly available. Also evident in this section of the book is De Hart’s unhappiness with the conservative bent of the current Supreme Court. Although this ideological stance is not surprising given the clear respect for Ginsburg’s work that led De Hart to write this book, the author’s stridency sometimes detracts from her analysis.
These criticisms aside, De Hart offers the reader a comprehensive tour of Ginsburg’s Supreme Court career. She catalogs the justice’s occasional victories, like United States v. Virginia, in which Ginsburg wrote a majority opinion striking down the Virginia Military Institute’s male-only admission policy, and her more frequent setbacks. Those setbacks spurred Ginsburg to write the strong dissents that inspired her pop-culture persona, the “Notorious RBG.” Court-watchers humorously compared her scathing critique of the conservative majority’s decision in a landmark voting-rights case to Biggie Smalls’ biting rap lyrics. The rest is history – and shelves full of RBG merchandise.
A central question in the book is how a tiny, soft-spoken civil-procedure maven memorably described by Justice Harry Blackmun after an oral argument as a “very precise female” became a progressive icon. To some degree, this apparent contradiction simply reflects the differing facets of the justice’s personality: She is a detail-oriented workaholic who is moved to tears by grand opera, an ambitious achiever who delights in friends and family, and a rule-follower willing to rewrite the rules to correct injustice. In another sense, Ginsburg’s perceived evolution from “a woman for whom the word ‘moderate’ dangled from her wrist like an ID bracelet” to the inspiration for a Kickstarter-funded action figure is a function of the increasing conservatism of the Supreme Court. Yesterday’s New Deal moderate is today’s left-wing dissenter. In the immortal words of Norma Desmond in “Sunset Boulevard” – whom Ginsburg otherwise resembles only in her fondness for wearing turbans – “I am big. It’s the pictures that got small.”
The author of this book review clerked for Ginsburg from 1989-1990 on the U.S. Court of Appeals for the District of Columbia Circuit and testified before the Senate Judiciary Committee in support of Ginsburg’s nomination to the Supreme Court in 1993.
The post Book review: “Ruth Bader Ginsburg”: The evolution of a justice appeared first on SCOTUSblog.

No Cap On Attorneys' Fees For Lawyers Representing Social Security Claimants

Opinion analysis: Social Security cap on attorney’s fees applies separately to successful representation before a court

According to a unanimous opinion released today, Social Security law does not impose an aggregate cap of 25 percent on attorney’s fees for successful representation of a Social Security disability claimant before both the Social Security Administration and a court. Instead, a 25 percent cap applies separately to representation before the court. This is a win for attorney Richard Culbertson, who represented a disability claimant both before the Social Security Administration and in court. He may now collect separate attorney’s fees for his successful representation before the court.
The case turned on the meaning of “such representation” in 42 U.S.C. § 406(b), which provides in relevant part:
Whenever a court renders a judgment favorable to a claimant under [Title II of the Social Security Act] who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.
The opinion, written by Justice Clarence Thomas, first applied a plain-meaning approach. The court quoted the Concise Oxford Dictionary of Current English for the definition of “such”: “[o]f the kind or degree already described or implied,” and declared that “the only form of representation ‘already described’ in § 406(b) is ‘represent[ation] before the court by an attorney.’” Based on this statutory language, the court announced that “the 25% cap applies only to fees for representation before the court, not the agency.”

Although the court began its analysis by quoting an earlier opinion: “We begi[n] with the language of the statute itself, and that is also where the inquiry should end, for the statute’s language is plain,” the court did not end the inquiry with the dictionary definition of “such.” Instead, it also considered other provisions of the statute and found that the structure of the statute and its other provisions were consistent with its interpretation of the statute.
The court noted that two different provisions, 42 U.S.C. § 406(a) and 42 U.S.C. § 406(b), address different stages of representation and calculate fees differently. Section 406(b) applies to court representation and imposes a flat 25 percent cap on fees for court representation. Section 406(a) applies to representation before the agency and provides two methods for determining fees for agency representation. One method, Section 406(a)(2), applies to fee agreements and caps fees at the lesser of 25 percent of past-due benefits or $6,000. The second method, Section 406(a)(1), applies when there is no fee agreement and authorizes the agency to set any fee, including a fee that exceeds 25 percent of past-due benefits, as long as the fee is “reasonable.”
The Supreme Court concluded that it would make little sense to apply the Section 406(b) court-stage cap to agency-stage Section 406(a) fees or the aggregate of Sections 406(a) and 406(b) fees. First, because many claimants never litigate in court, it would be incongruous to impose a 25 percent cap on agency fees based on a statutory provision regulating representation before a court. Second, applying the 406(b) cap to agency representation without a fee agreement would impose a limitation that Congress did not include in the relevant statutory provision. According to the court, “[i]f Congress had wanted these fees to be capped at 25%, it presumably would have said so directly in subsection (a), instead of providing for a ‘reasonable fee’ in that subsection [§ 406(a)(1)] and adding a 25% cap in § 406(b) without even referencing subsection (a).”
The court then turned to amicus Amy Weil’s argument that, when the statute is read as a whole, it is evident that Congress intended to place a cumulative 25 percent cap on attorney’s fees. The court acknowledged that Weil was correct in noting that the Social Security Administration only withholds a single pool of 25 percent of past-due benefits from which to pay fees for both agency and court representation. The court, however, noted that the single pool was the result of agency policy and the statute itself authorizes two pools of money for direct payment of fees. More importantly, according to the court, “the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court.” Until 1968, the Social Security Act allowed fees for successful representation before the agency but did not provide for direct payment from past-due benefits. In addition, under current “§§ 406(a)(1) and (4), the agency can award a ‘reasonable fee’ that exceeds the 25% of past-due benefits it can withhold for direct payment.”
The outcome is not surprising in light of the clear text of the statute and the fact that neither party defended the judgment below. Although Weil “ably discharged her assigned responsibilities” as amicus, and “despite the force of [her] arguments,” the court ruled against her as it does in 75 percent of cases with court-appointed amici curiae.

Argument preview: Justices consider cap on attorney’s fees for successful representation of Social Security disability claimants (Corrected)


Attorney Richard Culbertson successfully represented several Social Security disability claimants both before the Social Security Administration and in federal court. Prior to his representation, he entered into fee agreements that provided that the clients would pay him attorney’s fees equal to 25 percent of past-due benefits for successful representation before the court as well as separate attorney’s fees for successful representation before the agency. Following longstanding precedent of the U.S. Court of Appeals for the 5th Circuit, adopted by the U.S. Court of Appeals for the 11th Circuit, the court below capped his attorney’s fees at 25 percent of past-due benefits for representation before both the Social Security Administration and the court.
In granting certiorari, the Supreme Court agreed to resolve a split among the federal courts of appeals as to whether the Social Security Act imposes an aggregate cap on attorney’s fees of 25 percent of past-due benefits for representation before both the court and the Social Security Administration, or instead the 25 percent cap applies separately to representation before the court.

The Social Security Act regulates the amount and manner in which an attorney may collect fees from a disability claimant for successful representation before the agency and the court. 42 USC § 406(a) governs attorney’s fees for successful representation before the agency, while 42 USC § 406(b) governs attorney’s fees for successful representation before the court. The Equal Access to Justice Act also authorizes a court to order recovery of “reasonable attorney’s fees” from the government in certain cases in which the claimant is successful and the government’s position was not “substantially justified.” If attorney’s fees are awarded under the EAJA and under Section 406(b), the attorney must refund the lesser fee to the claimant. The Social Security Administration withholds a single pool of 25 percent of past-due benefits from which to certify for payment any and all attorney’s fees awarded under Section 406(a) and/or 406(b).
Section 406(a) authorizes two avenues for recovery of attorney’s fees from a claimant for successful representation before the agency. Under Section 406(a)(1), an attorney may file a “fee petition” with the Social Security Administration. Alternatively, under a more recent and more commonly used, streamlined process, an attorney may seek approval of a “fee agreement” with a claimant under Section 406(a)(2). No cap is imposed under Section 406(a)(1). Section 406(a)(2) limits attorney’s fees to the lesser of 25 percent of past-due benefits or a specified dollar amount, currently set at $6,000.
For successful representation before a court, Section 406(b)(1)(A) provides in relevant part:
Whenever a court renders a judgment favorable to a claimant under [Title II] who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.
Section 406(b)(1)(A) further provides that “no other fee may be payable or certified for payment for such representation except as provided in this paragraph.”
Focusing on the “plain meaning” of Section 406(b), Culbertson argues that the term “such representation” in Section 406(b)(1)(A) clearly refers to the antecedent phrase “represented before the court,” and thus under the plain meaning of Section 406(b), the 25 percent cap applies to representation “before the court by an attorney” and does not include representation before the agency. Culbertson also argues that a separate cap on attorney’s fees for representation before the court is consistent with the structure of Section 406 as well as the purpose of the statute and its legislative history.
Almost 40 years ago, in the first circuit-court decision to address this issue, Dawson v. Finch, the 5th Circuit held that Section 406(b) imposes an aggregate cap on attorney’s fees for representation in the administrative proceedings as well as before the court. In reaching this result, the 5th Circuit looked to the legislative history of the provision in order to discern Congress’ intent. Specifically, the court focused on the fact that Congress added Section 406(b) to address two goals. First, Congress sought to encourage effective legal representation by “insuring lawyers that they will receive reasonable fees directly through certification by the Secretary.” Second, Congress sought to protect claimants against excessive attorneys’ fees, which in the past had reached one-third to one-half of claimants’ past-due benefits, by imposing the 25 percent cap on fees. In 1982, the U.S. Court of Appeals for the 4th Circuit also looked to this legislative history to hold in Morris v. Social Security Administration that Section 406(b) imposes a cumulative 25 percent cap on attorney’s fees.
More recently, the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits have focused on the text of section 406(b) to hold that the 25 percent cap only applies to representation before a court. See Horenstein v. Secretary of Health and Human Services; Clark v. Astrue; and Wrenn v. Astrue, respectively.
The commissioner’s position on this issue has flipflopped over the years. Almost 40 years ago, the commissioner sided with the 5th Circuit in interpreting Section 406(b) to impose an aggregate cap and opposed the grant of certiorari in Dawson. Then about 15 years later, the commissioner sought and obtained 6th Circuit en banc review of the panel’s decision in Horenstein v. Secretary of Health and Human Services based on arguments that were logically inconsistent with an aggregate 25 percent cap. Almost 15 years after that, the commissioner argued in briefs before the 9th and 10th Circuits that an aggregate cap honors congressional intent and it would be inappropriate to permit attorneys to potentially collect up to 25 percent of a disability claimant’s past-due benefits at both the agency and court levels.
In this case, the acting commissioner initially supported the 11th Circuit’s rule imposing an aggregate cap. Then, after requesting four extensions to file a response, the acting commissioner filed a response siding with Culbertson and arguing that the text of Section 406(b) unambiguously applies the 25 percent cap only to attorney’s fees for representation before a court. The acting commissioner further argues that a 25 percent cap would be inconsistent with other provisions of Section 406(a) and that the absence of an aggregate cap does not mean that the agency and courts should approve fees that in the aggregate are equal to or greater than 50 percent of a claimant’s past-due benefits.
Because the acting commissioner agrees with Culbertson, the Supreme Court appointed Amy Levin Weil, an experienced 11th Circuit appellate litigator, to serve as amicus curiae in support of the 11th Circuit’s decision. Weil argues that the statute itself does not specifically state whether combined attorney’s fees may exceed 25 percent, and that the text of Section 406(a) and Section 406(b), read together, supports the aggregate rule. She also points to the legislative history on which the 4th and 5th Circuits relied in support of an aggregate 25 percent cap.  She contends that permitting attorney’s fees to exceed 25 percent in the aggregate could lead to attorneys suing their clients to collect fees out of their present or future Social Security benefits contrary to the Social Security Act’s purpose of ensuring beneficiaries a protected source of income. She also argues that rejecting the 25 percent aggregate rule would lead to absurd results, with fees of up to 75 percent of past-due benefits if a favorable district court opinion is appealed and the applicant is successful in the court of appeals. She contends that the aggregate cap allows a logical division of agency and court fees from the 25-percent-of-accrued-benefit pool in a manner that recognizes that a portion of the accrued benefits is attributable to the time that the case was pending before the agency while the other portion is attributable to the time the case was pending before the court.
The National Organization of Social Security Claimants’ Representatives filed an amicus brief in the case. The NOSSCR does not address the plain meaning of the statute. Instead, it contends that Section 406(b) cannot impose an aggregate 25 percent cap on attorney’s fees for representation before a court and the agency because Section 406(a)(1) does not impose a cap on fees before the agency. NOSSCR further argues that a court has no discretion to impose an aggregate cap. NOSSCR informs the court that in circuits without an aggregate cap, the prevailing market rate includes a cumulative cap either by contract or in practice.
Weil faces an uphill battle in convincing the Supreme Court to uphold the 11th Circuit’s decision. The plain-meaning approach to statutory interpretation currently favored by the court supports Culbertson’s position. Moreover, amici curiae appointed by the Supreme Court typically only win about 25 percent of their cases.
If, however, Weil can convince the court to look beyond the text of the Section 406(b) in isolation, it may, like Chief Judge Geoffrey Crawford of the District of Vermont, find that “it would be strange indeed to believe that Congress would in 1965 denounce 50% contingency fees as excessive and enact a statute to stop them, and then, in 1968, pass a law with the effect of permitting 50% contingency fees.”
A previous version of this post inadvertently implied that NOSSCR advocated a particular method for EAJA offsets.


Posted Wed, October 31st, 2018 11:04 am


CULBERTSON vs BERRYHILL 

On January 8, 2019, the Supreme Court of the United States decided Culbertson v. Berryhill, No. 17-773, holding that the Social Security Act permits an attorney fee award greater than 25 percent of the claimant’s past-due benefits for representation before both the Social Security Administration and a reviewing federal court.
The Social Security Act, 42 U.S.C. § 406 et seq., addresses attorney’s fees in two discrete phases: ‘“§406(a) governs fees for representation in administrative proceedings; §406(b) controls fees for representation in court.’” (quoting Gisbrecht v. Barnhart, 535 U. S. 789, 794 (2002)). Section 406(a) gives the agency discretion to award a reasonable fee to an attorney who obtains a favorable agency determination in the absence of a fee arrangement with the claimant, but, if there is a fee arrangement, section 406(a) “caps fees at the lesser of 25 [percent] of past-due benefits or a set dollar amount—currently $6,000.” Section 406(b), titled “Fees for representation before court,” allows a court to award “a reasonable fee for such representation, not in excess of 25 [percent] of the total of the past-due benefits” if “a court renders a judgment favorable to a claimant.” Id. § 406(b)(1)(A).
Attorney Richard Culbertson represented a Social Security claimant before the Social Security Administration as well as before a federal district court. The agency denied the claimant’s benefits, and Culbertson sought review of that decision before the District Court. The District Court ruled in favor of the claimant, reversing the agency’s denial of benefits and remanding the case to the agency to determine the benefits due the claimant. On remand, the agency awarded the claimant past-due benefits and also awarded Culbertson fees under section 406(a) for representing the claimant before the agency. Culbertson subsequently moved the District Court for a separate fee award under section 406(b) based on his representation of the claimant there. “The court granted Culbertson’s request only in part because he did not subtract the amount he had already received under §406(a) for his agency-level representation.” The Eleventh Circuit affirmed based on its precedent at the time which dictated that ‘“the 25 [percent] limit from §406(b) applies to total fees awarded under both §406(a) and (b), precluding the aggregate allowance of attorney’s fees greater than [25] percent of the past due benefits received by the claimant.’” (quoting Wood v. Commissioner of Social Security, 861 F. 3d 1197, 1205 (11th Cir. 2017) (internal quotations omitted)).
The Supreme Court began and ended its inquiry with the language of the statute because ‘“the statute’s language is plain.’” The Court observed that § 406(b) specifically addresses representation in court and allows a court to award ‘“a reasonable fee for such representation.’” (quoting 42 U.S.C. § 406(b)(1)(A)). The Court held that the phrase “such representation” in section 406(b) demonstrated that section 406(b)’s “25 [percent] cap applies only to fees for representation before the court, not the agency.” The Court explained that “the adjective ‘such’ means ‘[o]f the kind or degree already described or implied,’” (quoting H. Fowler & F. Fowler, Concise Oxford Dictionary of Current English 1289 (5th ed. 1964)), and that “the only form of representation ‘already described’ in §406(b) is ‘represent[ation] before the court by an attorney.’”
The Court went on to explain that the structure of the statute confirmed the Court’s interpretation. First, “subsections (a) and (b) address different stages of the representation,” and it makes sense “that the statute contemplates separate fees for each stage of representation.” And, second, the subsections calculate the attorney’s fees differently. Were the Eleventh Circuit’s interpretation correct, section 406(b)’s calculation of fees would limit section 406(a)’s calculation, which “would make little sense” given that “[m]any claimants will never litigate in court.”
The Court rejected the argument advanced by amicus curiae that, reading the statute as a whole, Congress intended a cumulative 25 percent cap on attorney’s fees for successful representation before the agency and the court. Acknowledging the Commissioner’s current policy to withhold only 25 percent of past-due benefits for direct payment of agency and court fees, the Court nonetheless noted that the statute provides “two pools of money for direct payment of fees” and further that “[a]ny shortage of withheld benefits for direct payment of fees is thus due to agency policy.” The Court also observed that the amount of past-due benefits withheld for direct payment did not limit the amount of fees that could be charged, observing that the statute historically did not have a direct payment mechanism.
Justice Thomas delivered the decision for a unanimous Court.