BurningbirdI was asked in comments associated with the post on Judge Dierker, what’s the harm in someone saying something offensive.
Read the original story in the Riverfront Times about the woman and the case that forms the basis for the first chapter in Judge Dierker’s book.
Then tell me: do you see harm?
I have long been brought up to a belief that tolerance is a virtue, not a vice or a vise. Evidently, not all people have this same belief. The irony of the situation is, of course, that if I truly believe in tolerance, then I must also be tolerant of the intolerant.
I must admit that at times this stretches my capacity for tolerance to the maximum, but I hope that I refrain from harassing the intolerant too much. Refrain, that is, until faced with situations where I feel the intolerant can exercise power over others, and then I’m afraid I must set aside my tolerance of the intolerant and practice a little of what they preach.
Such is the case with the story in St. Louis Today, about the release this week of a book by a sitting Missouri judge, Robert Dierker, titled Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault.
This is a man who currently sits as judge in the 22nd district court of the city of St. Louis. He hears both criminal and civil cases, including civil cases based on discrimination and sexual harassment. Keep this mind as you read this excerpt from the first chapter of the book:
In 1998, a case came before me in which a woman alleged that the male defendant, who apparently had been her employer, had inflicted emotional distress based on alleged sexual harassment. The defendant’s alleged harassment involved making sexual advances and touching the plaintiff (in a manner that stopped well short of actual sexual assault). The plaintiff had previously litigated a claim of employment discrimination based on the same course of conduct of the defendant, and lost. So now she was recasting the claims, in part to avoid the statute of limi- tations that now barred the employment claims.
I carefully researched the law of Missouri to see whether the plaintiff’s theories were defensible as a matter of law. As pleaded, they were not, I concluded. I had law clerks do independent research on the matter, and they confirmed my own view of Missouri law. At the time the case came before me, Missouri law on “sexual harassment” as infliction of emotional distress was sparse; it seemed the plaintiff wanted to import certain theories of federal employment law regarding “sexual harassment” into Missouri common law.
Having reached a conclusion based on impartial examination of the law, I wrote an opinion dismissing the woman’s claim of infliction of emotional distress, but giving the plaintiff an opportunity to revise her claim to meet what I thought were proper legal standards.
In that opinion, I felt obliged to sound an alarm about the threat that radical feminist sexual harassment theories pose to common sense and common law, especially because such views could easily lead to fictitious claims and vexatious suits. I was blunt in my criticism of radical feminist views of sexual harassment law. “The question before this Court,” I wrote, “is whether a wholesale extension of notions of ‘sexual harassment’ into tort law is warranted, without direction from the people through the [legislature]. The Court concludes that the common law does not enact Cardinal Newman’s definition of a gentleman, nor [feminist scholar] Catharine MacKinnon’s vapid maunderings, and that Plaintiff’s petition at present fails to state a claim.”
I concluded my opinion by observing the danger of imposing liability based solely on speech. “[T]he sexual harassment police,” I wrote, “seem oblivious to the First Amendment as they eagerly enlist the courts as censors of words and literature in the workplace.” More specifically, I noted that it seems clear to everyone “except for the denizens of the cloud cuckooland of radical feminism” that no court had ever held a sexual advance to be actionable in and of itself.
This is a man who goes on to write that there is nothing wrong with your boss or co-worker hitting on you, asking for sexual favors on the job, as long as they don’t hold up your promotion or decrease your pay because you said no. Now, I have to ask the women reading this: how would you like to work in an environment where you’re faced with sexual innuendo, unwanted advances, and ‘non-sexually assaulting’ touch on a day to day basis? That casual hand on the knee during a meeting, or caress on the cheek? Repeated requests to “Go out for me for a drink after work”, or “I really want to fuck you, bad”?
I’ll ask the men: how would you like to see your mothers, wives, sisters, daughters, and friends treated in this way?
As one weblog, Pub Def noted, it’s interesting to note how publication of this book was held up until after the recent election. Dierker defends himself saying that the voters moved to keep him on the seat and therefore we cannot have problems with his viewpoints or actions.
Judge retention is based on a spot in a ballot with a question: retain this person or not? Remaining on the bench based on this is nothing more than the action of a typical lazy voting public that does not research each judge’s actions, but can’t resist responding to every item on the ballot. It is not a vote of confidence: it is a vote of automation.
If the judge believes he is saying nothing wrong, one would think he would have promoted this book before the election, rather than after.
When one also considers the favorable, almost worshipful review of the book by the St. Louis chapter of the Council of Conservative Citizens–a group with indirect links to the KKK and other white supremacists organizations–you won’t be surprised to read that the judge questions decisions based on affirmative action, desegregation, as well as the 14th Amendment (the one granting equal justice to all under the Constitution. Stupid forefathers for ruining a good thing for the white boys, anyway.)
Leaving aside the fact that it’s OK for the boys to make sexual slurs and unwanted advances on women at work (because such is protected by the First Amendment you see), how do we react when we read about the tyranny of tolerance? How can a judge remain seated on the bench who believes that tolerance is a tyranny practiced on judges so that they can’t freely treat law as they would really prefer to treat law? The judge’s victims in his first chapter are women, but this same ‘tyranny of tolerance’ must also apply to blacks for their race and the Jewish and atheist, equally, for their beliefs.
From the excerpt, this book seems less an exposure of a ‘liberal’ (read that, fair and nondiscriminatory) judicial bias, and more a plaint by a man passed over, chastised, and fretting that he won’t have his say. Such deep seated bias cannot not impact on his judgments, leaving anything he’s ruled on open for both appeal and endless rounds of debate. He’s exposed the Missouri judicial system to ridicule and embarrassment. As noted at The Carpetbagger Report:
Naturally, lawyers in St. Louis have already noted that they could cite the book in demanding recusals on issues involving women, liberals, or the ACLU, because he’s made clear that he’s not impartial and has already made up his mind about these Americans he perceives as enemies.
Dierker, of course, disagrees, and argued, “Conservative judges are much more likely to know where their biases are and how to draw the line.”
Does that make any sense? A judge writes a book-length diatribe against Americans he doesn’t like, but can maintain his impartiality because he knows where his biases are? Will that inspire confidence in the courtroom?
I’m sure he’ll eventually have to leave the bench–I imagine he’s counting on it to make him more of a celebrity–but not before doing great damage to how the Missouri courts are perceived, both within and without the state. I’m also sure that he’ll enjoy a lucrative run with this book, be feted and celebrated in the grossest conservative circles, before ultimately spending the rest of his days, happily dispensing his own brand of squalid bias and hateful fear as yet another conservative talk show host on Fox.
I edited the note about the CoCC to say ‘indirect links to the KKK’ as per this and other online articles.
More on the history of this story here.
I can agree understand why this Springfield Newspaper opinion piece suggests we need to bring in a third party to negotiate with Ameren, but I disagree with much of what was written.
We can’t leave aside that Ameren is a multi-billion dollar agency that put profits ahead of safety. It is not a Mom and Pop organization, but a large utility company and corporation that has been pitting Nixon and the DNR against each other, as much as they’ve been fighting between themselves. To treat it otherwise, is ridiculous in the extreme.
Now, I do agree that the state of Missouri is embarrassing itself with this three-way battle between Nixon, Blunt, and Childers. I also agree that all parties have some financial association with Ameren. Whatever ‘neutral’ party is brought in, though, will most likely just add yet another voice rather than end the bickering. What we need to do is think about bringing in the ombudsmen to represent our interests, and also see legally who does have the final say in this matter. Once this is determined, then let them do their job.
If politics has so contaminated this state that people can’t, or won’t, do their jobs, then we have serious problems far beyond Ameren and the Taum Sauk Dam failure.
Frankly, I’m putting my support behind Nixon, and not just because he’s Democrat. If the only reason he was ‘fired’ as legal representative by the DNR was that one campaign contribution, which he returned and was subsequently cleared of any ethical wrong doing by state officials, then I can see no further reason for Childers or the DNR to resist his efforts–particularly if this is his job.
At the same time, Nixon must stop playing into the political gaming, and meet with the DNR and Childers. If he needs a third party to mediate between them because of bad blood, then he needs to find this party and begin this effort.
Both putting out their press releases and bringing this entire fiasco into the public eye is embarrassing the state. Rightly so: we should be embarrassed. We should also be working to end this, once and for all. However, if none of the parties can do their jobs, then I suggest they resign. Or we work to impeach them if we feel there is sufficient cause to do so.
We are paying these men’s salaries. We have a right, an obligation, to demand they do their job. If we have to bring in another party, then we might as well say right now that Missouri fails at government and can’t be trusted to govern itself. Perhaps Illinois or Arkansas will wish to annex us, until we mature sufficiently to be trusted to be on our own again.
(Thanks to Black River News, yet again, for finding this story. It’s a good thing the webloggers in this state are on top of this, because the St. Louis Post-Dispatch and many of the other publications sure aren’t.)
Here is Chapter 640 which governs the Department of Natural Resources.
Here is a link to the DNR Ombudsman program, with listings of ombudsman representatives for each area of the state. Assuming it’s more than a token list of people who never expected to be called on for anything, perhaps this is an area where some influence can be felt.
Something else to keep in mind: the state’s Attorney General has filed a lawsuit. This is not a frivolous act that can be quickly put aside. Much of the wrangling is now moot, as a court of law will now determine what is the responsibility of Ameren, and in what way will they be forced to meet their obligations.
It is now out of DNR’s hands, it is even out of the hands of the Attorney General and now in the hands of that third party so much wanted by us all: our state’s judicial system.
Unfortunately, this also means that we can kiss Johnson’s opening next year, good-bye. We can also kiss further Black River clean up good-bye, as well as a re-build of the Taum Sauk reservoir anytime soon. I would suggest those in the area who are economically impacted consider getting their own lawyers, and filing suit individually.
Let’s not all sue at once.
I thought that now would be a good time to recommend two legal weblogs associated with consumer law, credit, and bankruptcy:
We focus so much on DRM and copyright in weblogs that we forget that consumer law probably has far more impact on us, and far less public exposure.
Another related weblog is Ross’ Arbitration Blog, which covers the growing proliferation of mandatory arbitration clauses, and lack of accountability in the arbitration process. In particular he points to a LA Times article on arbitration that discusses some of the concerns associated with the increasing use of arbitration for any non-criminal court activity. (Sorry, free registration required for this article.)
A more pungent discussion on the current state of arbitration can be found in the article: Arbitration and the Godless Bloodsuckers, by a former state supreme justice of West Virginia. Richard Neely really lets loose with both barrels. PDF of actual article and be forewarned, it’s a large document.
The Columbia Missourian has a thoughtful article on how the different religions in Missouri view Amendment 2. It’s timely, for me at least, because I needed to be reminded that religion does not automatically kill brain cells.
The St. Louis Post Post-Dispatch has an excellent article on the economic impact of not passing Amendment 2. Not only are we closing the doors to most stem cell research (including adult stem cell), it’s closing the doors to almost all biolife research in this state–primarily because any time someone wants to introduce a bill encouraging such, those opposed to embryonic stem cell research attack it, worried that in some small way the unrelated research might open a door for this activity.
Note in the article the reasons for Amendment 2: people like Rep. Lembke and state Senator Bartle, who spend all their time trying to pass legislation every year to criminalize embryonic stem cell research. Year after year, they try to push this through, and if they succeed, this means people such as Dr. Stephanie Watson can’t seek help for her daughter’s diabetes, even in another state, if such is based on embryonic stem cell research. To do so, would make her a felon. Oh excuse me, our beloved state representative and senator are thinking on not pushing this through as a felony–just making it one of extremely huge fines, which I’m sure that most Missourians can afford.
I got into a joke of a debate at Blogher with a person who is against such effort because of her religious beliefs. What she failed to explain is why it’s better to trash unused embryos left over from In Vitro Fertilization (IVF) than it is to use them for research that could possibly help find cures for Dr. Watson’s daughter’s diabetes, as well as Michael J. Fox’s Parkinson’s, or Matt Fickie’s congenital kidney disease. I am finding that the right to life people seem to be willing to kill off any number of living people in order to save one embryo–and this doesn’t make sense. Is it really life they value? Or is it the empowerment that comes from being able to exert control in a world, and on a world, where they feel increasingly powerless and threatened?
(PS Also see Marianne Richmond’s post at Blogher on this issue for another Missourian’s view. And another article on denominational views on Amendment 2. )