Most of what I am writing here is about the At-Large County Council primary, in which 33 candidates are vying for 4 seats. As for other positions on the ballot, I have pasted below a thoughtful Facebook post from Delegate Eric Luedtke (D- 14). I live in District 14, and strongly endorse Eric's reelection (as well as the other D-14 incumbents, State Senator Craig Zucker and Delegates Anne Kaiser and Pamela Queen. Eric is an amazingly knowledgeable and dedicated public servant for whom I have enormous respect. While my At-Large endorsements do not entirely line up with his, I agree with all of his other conclusions. I am going to follow them, and suggest others do, as well.
But before discussing the At-Large Council candidates, I want to say a few things about one of the other House of Delegates candidates. Lily Qi, is someone very special. I first heard about her when she testified before the Board of Education in favor of naming a new elementary school after civil rights activist Bayard Rustin. She spoke with passion and caring about her son (a recent graduate of Richard Montgomery High School), who is gay, and how choosing to name the school after Rustin would send such a positive signal to LGBTQ students. See here and here. This statement cost her support in the Asian-American community, but she strongly stood by it. I subsequently had a long conversation with her, and learned more about her life story and work in the Leggett Administration as Assistant Chief Administrative Officer for Economic and Workforce Development. I could not have been more impressed. Lily's experience as an immigrant, her understanding of the impact of our community's changing population, and long history in Montgomery County would be valuable in Annapolis. To get a sense of the breadth of her knowledge and wisdom, you can check out this presentation she made last December to the Lifelong Learning Institute. See here. After listening to it, I was not at all surprised at Ike's endorsement.
On to the At-Large seats now. It is impressive that so many people are running. But it has created a challenge for voters who want to make informed choices. I have had conversations with many of the candidates, attended one of the large campaign forums this spring, looked over the various organizational and individual endorsements, and read over many of their websites. There are many more really good candidates than there are At-Large seats, so the choices -- which include figuring out the best mix of skills and backgrounds for the Council -- are not easy. Here is who I am voting for:
Gabe Alboronoz has been Ike Leggett's Recreation Department Director for 11 years, and has been endorsed by Ike. From my brief conversations and an examination of his record of service, I believe he would be an excellent addition to the Council. I have been pleased with how Ike has navigated the County through trying times, and having one of his chief aides and administrators on the Council, particularly one with ties to the County's growing Hispanic community, would be very useful.
Bill Conway, a longtime County resident, is an attorney, a former Senate staffer who developed important energy policies, and in more recent years has worked to bring wind and solar facilities on to the electrical grid. I had a very long discussion with him at the beginning of the campaign and was very impressed not just with his resume, but with how he thinks. How a person approaches difficult issues is, I believe, one of the most important factors in deciding whether to hire them for a policy-making position. Talking with Bill, I was reminded about how I reacted to Barack Obama's book, the Audacity of Hope, in which the future President took much space trying to show us how his mind worked. That effort impressed me greatly. Bill really passed that test for me with flying colors.
Evan Glass, a former CNN journalist, has been an effective community activist in the County for a decade and a half, focusing on infrastructure issues that impact every-day people and, more recently, serving as Executive Director of the Gandhi Youth Brigade Media, working to empower minority and immigrant youth. As with Bill Conway, I had a long discussion with him, and am convinced that he would be a major, useful force on the Council.
Jill Ortman-Fouse was elected to an At-Large Board of Education seat in 2014. During that campaign, I heard her answers to tough questions about educational policy and diversity in our public schools, and was very impressed with her background, knowledge, and wisdom. Her performance on the Board has been as advertised during that campaign. In every subsequent discussion I have had with her, her commitment and intelligence has shown through. She, too, would be a major, useful force on the Council.
Here, as promised earlier, are Delegate Eric Luedtke's thoughts on the primaries, as well as his wise concluding admonition at the end:
As always, I've gotten a few questions about who I'm supporting in the primaries. So here's a long post about my endorsements if you're interested - if not, I won't be insulted if you keep scrolling down to the cat videos in your feed! And important to note: none of my endorsements imply criticism of other candidates. We have an unprecedented number of talented, dedicated, hard-working people running for office this year, and every single one of them deserves credit for putting their names out there. Also, I've skipped a number of races, sometimes because they are uncontested, sometimes because I don't feel strongly, and sometimes because I frankly haven't decided myself who to vote for. Here we go:
First and foremost, if you live in District 14, I hope you'll support the entire district 14 team, which is Senator Craig Zucker, Delegate Anne Kaiser, Delegate Pam Queen, and yours truly. I count myself as deeply blessed not only to serve, but to serve alongside three of the most amazing public servants I've ever known.
For Governor, we have a number of good candidates running to take on Larry Hogan, but I'm supporting Rich Madaleno. I've known and worked with Rich for many years, and I can tell you honestly he is one of the smartest people I've ever met. Our state faces complex challenges around school construction and education funding, protecting our environment, and ensuring everyone has economic opportunity. Rich has the experience and talent to find solutions to these issues and more.
For Congress in District 3, John Sarbanes has been doing incredible work, particularly on campaign finance issues, and in District 8 the irrepressible Jamie Raskin has been a champion pushing back against the worst policies of the Trump administration.
We have an incredible range of candidates running for the 4 County Council at-large seats. So many of them would be great that I've had trouble narrowing down my own choices. But I know for sure that for 2 of the 4 seats I'm supporting Hans Riemer, the only incumbent, who I think has done a good job and deserves to be sent back, and Jill Ortman-Fouse for Montgomery County Council, who I've worked with since she's been on the Board of Education and who is a fantastic advocate for kids.
In the Council District 5 race, I'm a big fan of Tom Hucker. He has been a stalwart supporter of east county and an effective partner at the county level. I also think Nancy Navarro and Craig Rice deserve re-election.
For Clerk of the Circuit Court, I'm supporting the incumbent, Barbara Meiklejohn. She's been doing a good job at the courthouse, and I see no reason to replace her. [NOTE from David: I do not see why this position, in the 21st Century, should still be an elected position.]
For Democratic Central Committee, I have to tell you I think they've been doing a fantastic job reinvigorating the local party. Again, there are a number of great candidates running, but I'm voting for the following candidates: for District 14's female seat: Mimi Hassanein, for District 14's male seat: Arthur Edmunds, for the at large female seats: Marie Mapes, Michelle Ngwafon, Marjorie Goldman, and I'm undecided right now on the 4th seat, and for the male at large seats: Dave Kunes, Chris Bradbury, Scott Goldberg, and Justin W. Chappell.
I'll just finish by saying this: things often get heated in the final days of a campaign. Passions are inflamed. But after June 26th we need to come together to fight the wrong-headed right-wing policies of Donald Trump and his clones at the state and local level. I'm proud to be a member of a party that has so many extraordinary people running for office to take on that work.
On June 14, I published ablogpostwith my
recommendations for Governor and Montgomery County Executive. As I noted then, every two years a lot of
people ask me for my voting recommendations. I chalk that up mostly
to the fact that I immerse myself more in politics and school matters than most
people, so I have more information than many of my friends have the time to
the uninitiated, the Montgomery County Board of Education (BOE) has seven members (and a student member). There are two At-large
seats and five District seats.While
candidates for the District seats must live in their districts, all County
voters may vote in all the District races.Because the BOE positions are non-partisan, the top two vote-getters
in the primary move on to the general election.In this cycle, one At-Large and three District seats are up for election.Because only two candidates each filed for the District 1 and 5 seats,
the candidates for those seats will not be on the June 26 primary ballot. There are seven candidates for the At-Large
Seat, and three candidates for the District 3 seat.
At the outset, I should note that for the last
several BOE election cycles, my principal concern was how
the candidates felt about LGBTQ issues in the Montgomery County Public Schools
(MCPS).In the last few years, the
principal policy battles have been definitively won. In recent cycles we have had candidates who
opposed the progress with have made in this area, but all have been defeated.
In 2010, there was a “stealth” candidate who initially tried
to hide her history of anti-LGBTQ advocacy; once her activities were made public, her star faded, and she was defeated. This year the Metro DC Chapter of PFLAG sent
out short questionnaires to all the candidates to get them on record.All but two candidates responded, and all who
responded indicated support for the progress we have made.The questions and answers may be found here here
experience and concerns with respect to public education in Montgomery County
go beyond LGBTQ issues, dating 1984-86, when when I was co-president of the Rosemary Hills Magnet Integration Primary School PTA, and continuing with my
involvement as Advocacy Chair of the Montgomery County Gifted and Talented
Association (1991-94), and as a member the Richard Montgomery H.S. PTSA
Executive Committee (1994-97).
I do want to let readers know my perspective on
voting for what is essentially the Board of Directors of a large organization,
serving a very diverse community. First, it is important that Board members be thoughtful, experienced people who have the knowledge and wisdom to make wise choices. While some people believe that the role of the Board is simply to hire a Superintendent and then be supportive of the choices made by the Superintendent, my view is that the running of the school system should be a collaborative effort between the Board and the Superintendent. Also, it is important to understand that traditional ways of teaching are not necessarily the most effective. There are many innovative techniques that are being tried nation-wide, some of which I know that MCPS is trying.I think this should be a constant effort, since the world (and this County) is changing, and we cannot rest on our laurels.This does not mean we should follow the fad of the month, but it does mean we should be open to new ideas. I also think that it is useful to have a BOE that is reflective of the diversity in MCPS.We have been fortunate in recent years to
have very good Board members, including African Americans, three of whom currently sit on the Board. Current Board President Mike Durso is not
running for reelection, and he will be succeeded as the member from District 5
by Brenda Wolff, who is African American (her primary opponent, Peter Pykosh,
dropped out of the running after the filing deadline).
But we do not have any Hispanics or Asians on
the Board, and such inclusion would be useful.We need as many perspectives as possible to
have discussions that can lead to the wisest policies.
So, with these factors in mind, here are my
I have sought to examine the records and
positions of the Board candidates, and had conversations with many of
them.I am glad to say that there are
many good, qualified people running.And
that has made my decisions more difficult than in the
past.This is a problem I welcome.
With Patricia O’Neill running for re-election, I thought this would be an easy call.Since 2002, she has been the preeminent BOE voice for policies supporting LGBTQ students.I know from personal experience that her answers to the PFLAG questionnaire were far too modest. She has been a tiger. With a lot of turnover on the BOE (neither Mike Durso nor Jill Ortman-Fouse are running for reelection, and Rebecca Smondrowski is running for a House of Delegates – if she wins, she, too, will be leaving the Board) and two other members only two years into their first terms, Pat’s institutional memory would be even more important than it has been in the past.It is noteworthy that Pat has been endorsed for reelection by Ike Leggett and current Board President Mike Durso and Vice President Shebra Evans, for whom I have enormous respect, as well as former Board member Shirley Brandman, another person for whom I have enormous respect. For more information on Pat, click here and here.
What gave me pause was the quality of one of Pat’s challengers, Lynn Amano. I was extremely impressed with her answers at the April candidates forum, and with the conversation I had with her afterwards. Her background in social activism, including her PTA activism, is impressive.And, on a more personal note, her decision to move to the Rosemary Hills neighborhood because of the diversity of the school, touches me, since, as noted above, I was Rosemary Hills PTA co-president in the mid-1980s, when we had to work particularly hard to establish it as a success in racial and economic diversity.I very much enjoyed talking with her about how Rosemary Hills is doing today, more than three decades later.We need institutional knowledge, but fresh blood is also useful. For more information on Lynn, click here and here.
At the end of the day, however, I have decided to vote for Pat.She has demonstrated the strength to stand up to bullies and to do the right thing on what once were extremely controversial issues.Due in part to that work, these issues are no longer controversial in our community.As a PFLAG dad, I am very grateful.And institutional memory in a time of rapid change is very important. I do hope that Lynn stays involved and considers running again in the future.A number of people have run for the Board, lost the first time, but won the second time.
AT-LARGE:I AM UNDECIDED AMONG THREE EXCELLENT
Of the seven At-Large candidates, there are
three who impressed me the most. In alphabetical order, they are Julie Reiley, John Robertson, and Karla Silvestre.
These candidates truly present for us an
embarrassment of riches.I heard them at
an April candidates forum, and had good conversations with all three. All have children in MCPS. The problem is that only one of them can win
Julie Reiley is of Hispanic background, and is the first member of her family to graduate college. She became a lawyer and law professor, has been an effective special education citizen activist, and has been recognized by the Montgomery County PTA has an outstanding advocate.I suggest reading her website. See also here.(I have had a number of Facebook conversations with her, and find her to be knowledgeable and progressive on a wide number of issues). John Robertson is a Vice Principal at Roberto
Clemente Middle School. His life story
is inspiring, his commitment to children is apparent, and his innovative
educational ideas are intriguing.That
incumbent Board Member Jill Ortman-Fouse – who I think has been a really strong
member of the Board – decided to forego reelection upon chatting with Mr.
Robertson about his candidacy, is certainly worth taking into account. See here.On the other hand, I have not heard much from
him on the campaign trail, and he does not appear to have a website. (Are websites now passé? Maybe I am getting too old.) Here is a link to some basic information, including his impressive biography. See also here.
Karla Silvestre's Hispanic background and
her work in the Hispanic community would add an important element to Board
discussions. Her experience in education and Hispanic community outreach is considerable, and she has been endorsed by Ike Leggett, in whose administration she worked before becoming Director of Community Outreach at Montgomery College. I suggest reading her website. See also here.
It is rare that I have not decided for whom to
vote this close to Election Day.Each of
these three would be a strong addition to the Board of Education. The Mymcmedia links (provided above as "See also here") for each candidate contain a number of clips from campaign events which should be useful. I am going to review those links and the websites again before voting. I welcome thoughts from fellow Montgomery County voters on this race.
Every two years, a lot of people ask me for my voting recommendations. I chalk that up mostly to the fact that I immerse myself more in
politics and school matters than most people, so I have more information than many
of my friends have the time to absorb.
There are so many races in this year’s primary that I
thought it easier to post this on my blog, so I may simply pass it along the link or links.
With a major exception at the top of the ballot – the Governor’s race – it has been hard to choose among a number of very good
candidates, so in some cases I will lay out my sense of the pros and cons.My analysis may really get into the weeds, so
I will not feel hurt if you skip those parts (not that I would have anyway of
This blogpost addresses the races for Governor of Maryland
and Montgomery County Executive. I hope to address other races in the next
couple of days.
I have no doubt that Rich Madaleno, of all the candidates, would make the best Governor.I was excited
when he announced.While all the other
candidates have their strengths, I am convinced that, as Congressman Jamie
Raskin explains in hisvideoendorsing Rich, “In Maryland, good ain’t good enough.We need the best.”
I have already posted a couple of blogs explaining why I am voting for Rich. I will not further repeat my affirmative case for Rich being the best candidate to be Governor – I set it forth in the blog posts, which may be foundhere and here.
But as the Campaign has unfolded, I
have also become convinced that Rich is the Democrat most likely to win the
race against the politically-crafty and well-funded Republican incumbent, Larry
Hogan.Why?Because the two other most prominent
candidates, Rushern Baker and Ben Jealous, are less likely to be able to unite
the coalition of voters who have elected Democrats state-wide in recent
Baker, an estimable
public servant, has seriously alienated the Prince George’s County teachers’
union to the point where the union’s delegation to the state teachers’ union
convention last year walked out on him.It may well be that Baker has the better of the arguments he has had
with the union, but that is not the point.This Fall must be an “all hands on deck” electoral struggle, and if any
segment of the coalition sits on its hands, we could well lose the
gubernatorial race. Likewise, while Jealous has been endorsed by Bernie
Sanders, the most prominent progressives in the Maryland – most notably, Jamie
Raskin -- have not coalesced behind him.I fear that lingering tensions between those who strongly backed Hilary
Clinton in the 2016 primary and those who strongly backed Bernie could carry
over to the general election.Again, I
would strongly urge that everyone get behind whoever the Democrats nominate,
but the reality is that we do have these internal divisions, and we desperately
Rich Madaleno, on the other hand, is the progressive,
activist, experienced candidate who has not engendered antipathy anywhere in
the base. As the Baltimore Sun recently
noted in its endorsement of Jealous, “We have long admired state Sen. Richard
Madaleno’s intellect and skills at working the levers of power in Annapolis.” And as the Washington Post noted in its
endorsement of Baker, both Ben Jealous and
Rich Madaleno, “a longtime legislator known for his expertise on Maryland’s
budget, . . . are serious and substantive candidates.”What neither the Sun nor the Post grapple
with is the danger of lack of unity that could emerge with the nomination of
either Jealous or Baker – a danger which would not be present in the nomination
of the universally-admired Rich Madaleno, and his running mate Luwanda
So on all counts, I strongly believe that we should nominate
Rich Madaleno to be our next Governor.
This has been a tough one, and has gotten tougher with the Post’s
endorsement of previously unknown businessman David Blair – and his influx of
money into the Campaign.
I have been comforted
knowing that Ike Leggett has been our County Executive for the last dozen
years.A man of great experience, skill,
wisdom, and temperament, he rightly engenders confidence even on those
occasions when he makes a decision with which I may not entirely agree.Because reasonable people may differ on
particulars of policy, and I invariably recognize that he might be right and I
might be wrong.So I see this race to
succeed him through that lens.
Initially, I was not terribly concerned about who might win,
because all the active Montgomery County Democrats are generally on the same
page.I figured my job as a citizen
member of a hiring committee of a few hundred thousand members (the Democratic
Primary voters) was to figure out who would come closest to Ike’s virtues, and
be prepared to move us forward. As I attended campaign forums and did more
research, I saw differences in the styles and backgrounds of the candidates,
and eventually narrowed my choices down to Roger Berliner and Marc Elrich.I would be comfortable with either one,
although on the issues immediately before us, I tend to agree more with Marc
than with Roger, who, while not a slave to business entreaties, seems to me to
be overly open to ideas I find unwise, like some of the road projects and the
termination of the Department of Liquor Control, which provides significant
revenue to the County and whose efficiency, under the Leggett Administration,
has been improving. On the other hand, I
see the virtue in having a County Executive like Ike Leggett who is not perceived
by large elements of the business community as hostile.
So I see the merits of both Marc and Roger, and, before the
Blair onslaught, I might not have weighed in.But David Blair has changed the calculus.
At the first forum I attended, Blair seemed to have only a
surface understanding of the issues facing the County. As I tried to learn more about him, I found
out that he was an extremely wealthy businessman who had NO history of
community involvement, no history of financially supporting Democratic
candidates (or even voting in Democratic primaries), and who feigned ignorance
of when he had switched party affiliation from the Republican to the Democratic
Party. See here.Yet, the Washington Post (which, for the highest offices,
almost always tries, on economic grounds, to find the most conservative
candidate it can stomach) endorsed him, and then the torrent of television and
mail ads began, paid for by Blair’s seemingly bottomless resources.His position papers are mainstream and not
terribly controversial, but I would not hire him to be County Executive because
we have no way of knowing how much he really knows about governing and how he
would deal with tough issues.Blair is
running the slickest campaign money can buy.This is the antithesis of a grass roots candidacy; it is totally top
down, from the Post, business interests, and Blair’s own wealth.Even the young man who came to our house to
canvass admitted he had no idea why Blair should be elected, but that he, the
canvasser, was being paid. See here.(In my canvassing for Rich Madaleno, I
visited a house in which a college-age fellow was wearing a Blair for County
Executive shirt.He told me he only used
it for working out, had decided not to canvass for Blair, and told me that
Blair was paying $15 per hour. I fear
that many of those supporting Blair do not know much about him, other than that
he is a “fresh face.” Well, as Roger Berliner’s controversialTV ad notes, we know where that can lead us (Roger now runs a version
without the visual morph of Blair’s face into Trump’s).I am not willing to take the leap of faith
that the Post and Blair wish us to take, particularly when there are clearly
I have not seen any recent polling, so I do not know who has
the best chance of defeating Blair. While business interests seek to portray Marc
Elrich as mindlessly anti-business because he will not roll over to their every
request, Marc’s record over many years on the County Council shows that he is a
practical problem solver. Marc’s TV ad really does encapsulate his career. While I
like Roger, I think Marc would be the better choice.The range and depth ofhis endorsements by so
many community organizations suggests that he is best positioned to defeat the unknown and untested David
Earlier this evening, there was a knock on our door from a
young man wearing a David Blair T-Shirt and carrying campaign literature.I opened the door, and gently explained to
him why I was not going to vote for Mr. Blair for Montgomery County Executive: That Mr. Blair had no public sector
experience; no history of social engagement in the County (or anywhere else); had not demonstrated any history of public service; had
not voted in Democratic primaries; and, indeed, had been a Republican.And that while I thought it unfair to morph
him into Donald Trump in TV ads, I really had no way to judge him – in
contrast to the other candidates, who have long records of public service which I could examine.
The young man seemed a bit dazed, and I felt a tiny bit
badly about not giving him a chance to make his pitch.So I apologized, and asked him to present his
reasons why he thinks Mr. Blair should be elected County Executive.
He responded that he really did not have anything to say,
that he was new at this job.I then
asked why he was taking the time to go door-to-door for Mr. Blair.He said that he was friends of Mr. Blair’s
family.I said that that was nice, but asked why he thinks we should elect Mr. Blair to be County Executive.No answer, but it turned out that he was being
I complimented him on getting involved in civic affairs, and
urged him next time to examine the candidate and the issues before
The conventional wisdom is that the Washington Post endorsement of Mr. Blair gives him the edge in the race against five long-time office holders, particularly since it only takes a plurality to win the nomination. Maybe so. But this encounter with Mr. Blair's "grass-roots" operation reinforces my belief that nominating him would be a mistake. I will vote for the best candidate who appears to be most likely to secure the plurality.
(NB: I think this year's experience shows that in Montgomery County, we need to have run-offs in the primaries, if no one gets a majority.)
When President Trump takes credit for appointing Justice Gorsuch -- as he often does -- he should be held to account for the anti-worker appointment.
Yesterday, the United States Supreme Court, in a 5-4 decision in Epic Systems v. Lewis, ruled that workers could be barred from bringing a class action suit to recover payments unlawfully withheld under the Fair Labor Standards Act. The decision was written by Justice Neil Gorsuch.Justice Gorsuch’s decision was properly denounced by proponents of labor rights and in a stinging dissent by Justice Ruth Bader Ginsburg.
Briefly, the majority opinion by Justice Gorsuch held that employers, as a condition of employment, may require prospective employees to agree in advance to private arbitration of disputes, on a case-by-case basis, rather than keeping the right to sue in court. Justice Gorsuch held that the federal Arbitration Act, which generally defers to private arbitration agreements, was not superseded by the protections of the National Labor Relations Act. In plain English, that means that employers may, as a practical matter, avoid their legal responsibility to pay workers according to law, even though the NLRA protects collective action by workers. Justice Ginsburg clearly set forth the matter at pp. 1-2 of her dissent:
The employees in these cases complain that their employers have underpaid them in violation of the wage and hours prescriptions of the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq., and analogous state laws. Individually, their claims are small, scarcely of a size warranting the expense of seeking redress alone. . . . But by joining together with others similarly circumstanced, employees can gain effective redress for wage underpayment commonly experienced. To block such concerted action, their employers required them to sign, as a condition of employment, arbitration agreements banning collective judicial and arbitral proceedings of any kind. The question presented: Does the Federal Arbitration Act (Arbitration Act or FAA), 9 U. S. C. §1 et seq., permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA), 29 U. S. C. §151 et seq., “to engage in . . . concerted activities” for their “mutual aid or protection”? §157. The answer should be a resounding “No.”
In 1978, I was the most junior lawyer on the National Labor Relations Board's Supreme Court brief in Eastex v. National Labor Relations Board The issue in that case was whether the NLRA, which grants to employees the right to “the right to self-organization, to form join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” included protection against employer prohibition of distribution of an employee newsletter which advocated for increase in the minimum wage (even though all of those employees made more than the minimum wage) and for repeal of the Texas “Right to Work” law.
The employer in Eastex asserted that since the employee advocacy there did not involve actual union organizing or collective bargaining, the NLRA did not prevent it from barring the distribution.
The Supreme Court disagreed 7-2, in a decision written by Justice Lewis Powell, who was appointed to the Court by President Nixon. Typically, Powell, a corporate lawyer by trade, was not sympathetic to unions.But, as a jurist who truly endeavored to call “balls and strikes” (Chief Justice Roberts’ formulation, which he often, as in Epic Systems, disregards),Justice Powell recognized that the language of the NLRA, bolstered by everything that led up to the enactment of the NLRA, required a ruling in favor of the employees.The linchpin of the New Deal’s National Labor Relations Act was the recognition that individual workers typically were in no position to individually challenge employers, who had infinitely greater economic power. Only through collective action could every-day people level the playing field.And that is why the protections provided by the NLRA went beyond direct protections of collective bargaining to include “other mutual aid or protection.” (Having gone to work for the NLRB to help to protect worker rights, and having become steeped in the details of the origin of New Deal era labor laws, the Eastex decision holds a special place in my heart).
Justice Gorsuch ignored the truths set forth in Eastex. And he ignored the long-standing precedent that the NLRA protects worker actions for “other mutual aid or protection” even when no union is in the picture. See, for example, Brown & Root v. National Labor Relations Board, a 1979 case from the Fifth Circuit. It is hard to see how a class action lawsuit by employees to secure compliance with the Fair Labor Standards Act in order to secure payments they should have received is not action for “mutual aid or protection.”
The Arbitration Act, which Justice Gorsuch invoked, was enacted in 1925, ten years before the NLRA was enacted in 1935. The NLRA pretty clearly superceded the Arbitration Act’s requirements when they were in conflict with that later-enacted statute. Why? Because the Arbitration Act includes a “saving clause,” which allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract,” including “duress or unconscionability.” The language and circumstances surrounding the enactment of the NLRA ten years later demonstrate that the arbitration contract at issue in Epic Systems was the sort of contractual requirement that is unconscionable – and that is why workers’ efforts to act collectively for “mutual aid and protection” are protected by the NLRA Justice Ginsburg’s dissent, which provides an excellent discussion of the origins and rationales for the worker protections enacted during the New Deal, shows the result-oriented, pro-employer bias of Justice Gorsuch’s reasoning.
We saw during Justice Gorsuch’s confirmation hearings that, in labor disputes, he will find a way to find against workers – the very people Donald Trump asserted he would protect if elected President. Just take a few minutes to read about the TransAm Trucking case or listen to former Senator Franken’s description of then-Judge Gorsuch’s dissent. See, here. Justice Gorsuch is reflexively pro-business. And in both TransAm and Epic Systems, we see what that means for everyday working people.
So next time President Trump brags about having put Neil Gorsuch on the Supreme Court, call him out. Trump asserted he would be the President for the “common man.” But there was no mystery concerning Neil Gorsuch's approach to deciding cases. Trump knew exactly what he was doing. Trump lied about wanting to help the "common man." And Neil Gorsuch’s judicial approach is a classic example proving that Trump lied. Donald Trump is a parody of the greedy businessman.
The New York Timesreview of Timothy Snyder’s new book, TheRoad to Unfreedom, is instructive.The book describes the impact of Russian fascism on the West.Indeed, although the review does not mention it, the spread of fascism Europe in the 1920s and ‘30s has troubling parallels to what has been happening in recent years.
What the review also does not address are the following questions: Why is the American Right Wing, which was so opposed to the Soviet Union, seem amenable to former KGB officer Vladimir Putin’s Russia? And why is the American Right Wing so undisturbed about evidence of Trump personal corruption and his collusion with Putin’s Russia?
It seems to me that both questions have the same answer: What upset the Right Wing during the Cold War was not so much the Soviet Union’s suppression of dissent generally or its anti-democratic one-party dictatorship, but rather the fact that Soviet Union was officially atheist and ideologically opposed to Capitalism. The American Right Wing has always been perfectly happy to impose conformity, to use vile tactics to undermine political opposition, and to ignore basic human rights. So now that Russia poses as a fundamentalist Christian State (particularly in its hostility to LGBTQ people and its determination to suppress Muslims who live within its borders) and has become a corrupt Capitalist state, the Right Wing embraces Putin. This should not surprise anyone, because Putin embodies nothing they hated about the Soviet Union, and everything they themselves hold dear. So since the Right Wing does not really have a problem with Putin, it should be no surprise that it has no problem with Trump.
The Right Wing is so besotted with its cultural “conservatism,” its un-Christ-like Christian triumphalism, and its elements of White Supremacism that it is perfectly willing to turn a blind eye to Putin’s anti-democratic and anti-American approach in both his domestic and foreign policy. So anyone seeing Putin’s Russia as acting inimicable to American interest should not be surprised to see the Right Wing becoming something akin to the Fifth Column posited in Philip Roth’s The Plot Against America, a book I read more than a decade ago. The Plot Against America is an imagining of how the anti-Semitic Charles Lindbergh could have become President in 1940 and put us on the road to fascism. See here and here and here and here.
Roth, in his fictional story of what could have happened, ends the story with events that fortuitously turned things around. But a novelist’s rendering will not save American democracy now. We have to do that ourselves.