Anti-Gay Michigan Official Andrew Shirvell

After spending much of the week refusing to discipline an assistant attorney general who launched a bizarre harassment campaign against the first openly-gay president of the University of Michigan student body, Michigan Attorney General Mike Cox (R) finally announced today that his subordinate would face a disciplinary hearing:

Cox spokesman John Sellek said, however, Andrew Shirvell will be the subject of a disciplinary hearing after he returns to work at an undetermined future date. . . .

Cox said he hadn’t earlier read all of Shirvell’s blog, “Chris Armstrong Watch,” which dogs Armstrong, the 21-year-old, openly gay president of U-M’s student government and accuses him of “anti-Christian behavior,” “mocking God,” promoting homosexuality and trying “to recruit your sons and daughters” into the gay lifestyle.

“I’m at fault here,” Cox said. “I’ve been saying for weeks that (Shirvell’s) been acting like a bully, that his behavior is immature, but it’s after-hours and protected by the First Amendment.”

Cox’s prior assertion that Shirvell enjoys First Amendment protection was always a little bizarre.  While the First Amendment does provide a fairly robust shield to public employees who engage in political advocacy during their time off, it should not apply to someone who engages in a public campaign of harassment and stalking a single individual because of their sexual orientation.

In Rankin v. McPherson, the Supreme Court established that even the most awful forms of speech on a matter of public concern cannot themselves be the sole basis for firing a public employee.  In that case, a clerical official in a local police station was fired after she commented to a co-worker that if someone tries to assassinate President Reagan again, she hopes they “get him.”  The Supreme Court deemed this to be protected speech, despite the inexcusable nature of the comment.  But that is hardly the entirety of the Court’s analysis.

As Rankin makes clear, “the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.”  Most significantly for Shirvell’s case, statements which publicly discredit a government agency are much more likely to be firing offenses:

Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson’s speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson’s statement. Nor is there any evidence that employees other than Jackson who worked in the room even heard the remark. Not only was McPherson’s discharge unrelated to the functioning of the office, it was not based on any assessment by the Constable that the remark demonstrated a character trait that made respondent unfit to perform her work.

Unlike the fired employee in Rankin, Shirvell has gone out of his way to publicize his views.  He launched a hate blog attacking a gay undergraduate student, did multiple press interviews and even appeared on prime time TV news.  Gay Michiganders should worry about the kind of justice Shirvell would advocate for on their behalf, and all Michiganders should worry that their legal interests are being advanced by an obviously unstable individual.

To be clear, just like the First Amendment protects inexcusible verbal attacks on President Reagan, it also permits state employees to hold anti-gay views and to express those views in most settings.  When a single state employee reasonably causes the state’s residents to doubt the competence and the motivations of an agency, however, that agency has the right to let him go.

Yesterday, in a letter to the two Senate Leaders and the Chair and Ranking Member of the Judicary Committee, President Obama slammed the widespread obstructionism that has slowed judicial confirmations to a trickle:

I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary. . . .

Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.

The President’s letter largely repeats the strong case against obstructionism that has been made by numerous commentators, including myself.  But its significance is not the content of the letter, it is the person who is now making it.  President Obama’s letter — along with a recent op-ed on the same topic by Attorney General Eric Holder — is a hopeful sign that the White House will ramp up its efforts to fill the more than one hundred vacant judgeships.

There is no question that the nation has suffered dearly because of the right’s current stranglehold on the judiciary.  This stranglehold enabled conservatives to give corporate America sweeping immunity from the law.  Indeed, in just the last few years, right-wing judges and justices have immunized powerful corporate interest groups from campaign finance law, from laws intended to protect the environment, and from laws intended to protect women and older Americans in the workplace.

And as the President points out, the right’s crusade has now created a whole new problem for the American people — obstructionism has reached such a level that the courts are being hollowed out.  Presently, the average litigant waits more than nine months for a decision in federal court, and they can wait years for justice if the case is appealed or requires a full trial.

These numbers will only get worse if conservatives continue to block Obama’s nominees, but they sadly show no desire to let up now.  Simply put, the right has decided that if it can’t have corporate justice, there will be no justice at all.