Saturday, May 12, 2012
Checking The Wrong Box
It wasn’t supposed to be like this.
Democrats thought they had the perfect candidate to take on Sen. Scott Brown in Massachusetts, whose January 2010 capture of Ted Kennedy’s long-held seat presaged the tea party uprising in November of that year. Retaking that seat in a hard-blue state was a big Democratic priority.
Enter Harvard law professor Elizabeth Warren. She had already become a progressive darling for her tough criticism of Wall Street. While not confirmed by the U.S. Senate, she briefly joined the Obama administration after the passage of the Dodd-Frank regulatory reform bill to organize the Consumer Financial Protection Bureau, a financial markets watchdog agency.
And then she headed back to Massachusetts to take on Brown.
Now, it seems, decisions she made years ago threaten not only to undermine her Senate bid, but also — ironically enough — to help put the final nail in the coffin of a much-beloved liberal policy: affirmative action.
Last month, the Boston Herald reported that Warren was listed as a “minority” in a law school directory from 1986 to 1995. Warren explained it by claiming to be one-thirty-second Cherokee, via her great-great-grandmother. (Subsequent reports have called that part of the story into question.) Her claim led many to ask about her possible use of her “Indian” heritage to navigate through various law schools before she got to Harvard. Warren denied gaming the system, saying she merely claimed Native American heritage to meet new people and go to special lunches.
The fact that these institutions initially refused to reveal whether Warren was considered a “minority” faculty member just kept the story alive. Even more embarrassing, at least one report suggests that a different Warren ancestor may have been part of the Tennessee militia that marched Cherokees out of the state and forced them to relocate in Oklahoma (the Trail of Tears).
But a question remains: Why did Warren perpetrate an apparent subterfuge? While many people disagree with her ideologically, few argue with her intellectual bona fides. But evidently, in her rise through the professional ranks, it wasn’t enough that she was a woman; he had to check off another box, so to speak.
That brings us to the 2003’s Supreme Court decision in Grutter v. Bollinger, in which Justice Sandra Day O’Connor crafted a tight 5-4 decision continuing the use of race as a factor in law school admissions. O’Connor declared, “It has been 25 years since Justice Powell first approved the use of race to further an interest in the context of public higher education … We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
For many conservatives, O’Connor’s decision wasn’t merely wrong, it was a near-abomination. Twenty-five years for affirmative action to sunset? What more outrageous example of judges writing law instead of interpreting it could one ask for?
Considering the fact that O’Connor was once a state legislator, her decision was not too surprising. And she may indeed have stepped beyond where she should have as a judge. However, looking at affirmative action broadly — as both a moral and historic issue — O’Connor was making a valid (if deeply misguided) point.
Government shouldn’t be counting by race. Yet affirmative action came about as an attempt to correct centuries of America stacking the deck against African-Americans. It was out of that background that the complicated racial-preferences structure came to be. It’s hard to completely ignore the fact that slavery, segregation and institutional racism severely undercut the economic aspirations of millions of black Americans. Affirmative action, more or less, arose as redress for that economic damage.
Yet despite affirmative action’s honorable intentions, it’s pretty damn easy to game the system. Today, not only are millions of black Americans in the middle class, many are upper-middle class — and a few are even in the top 1 percent. Should their children benefit from affirmative action? More to the point: Should a very smart white woman get bonus points as a law school hire because she checks the Native American box on her application? And should an academic institution rack up political-correctness cred for such a questionable move?
Without a coherent answer to these questions, O’Connor’s 25-year window may shut far earlier than she imagined. Before the end of the current session next month, the Supreme Court is expected to render a decision in Fisher v. Texas assessing the use of race-based affirmative action in college admissions. If the current Supreme Court effectively ends affirmative action, Elizabeh Warren may have helped add moral support to its demise. She will be the one leading liberals down their own trail of tears. How ironic: By asserting minority status from one supposed ancestor, she may end up fulfilling the terrible goal of another.
But regardless of the legal conclusions the court reaches, Elizabeth Warren has effectively helped undermine any moral claim affirmative action once held. It was a system designed to allow the underprivileged a place at the economic table. It wasn’t supposed to help the already-privileged who happen to be cunning enough to game the system. For decades, light-skinned black Americans “passed” as white just to survive. Now — at least in Warren’s case — white Americans try to get ahead by “passing” as minority. And while conservatives are understandably furious, minorities of all backgrounds should be even angrier at how a policy has been perverted.
Robert A. George is a New York Post editorial writer.
Labels: affirmative action, Elizabeth Warren, Sandra Day O'Connor, Supreme Court
# posted by Robert A. George @ 12:35 PM

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Thursday, May 28, 2009
The Sotomayor Record
As Hilzoy at Obsidian Wings points out, the Pappas vs. Giuliani case shows that Sotomayor isn't necessarily locked into a PC "minority grievance" mindset. Sotomayor wrote a dissent, supporting the plaintiff -- a staff support employee for the New York City police department who was fired for sending anonymous racist material to a charity. Sotomayor argued that the NYPD's action violated the plaintiff's First Amendment rights. She also didn't accept the majority argument that NYPD's action was warranted for broader public policy reasons -- that it would hamper the organization's ability to keep order if it were learned that an avowed racist was employed there.
Sotomayor argued that this wasn't an on-the-beat cop or anyone who had regular interaction with the public.
One can disagree with Sotomayor's conclusion. But she clearly has an interesting, nuanced view that calls for a wide preference toward First Amendment claims.
Just one case, but an intriguing one.
Meanwhile, here is the complete text of the speech the judge gave with the controversial line that has some people -- including a certain former boss of mine -- calling Sotomayor a racist. Read the full speech yourself. It may not win any awards for eloquence, but I think the broader argument that she makes -- that it is impossible for a judge (or, arguably, anyone) to completely divorce one's experiences when making a decision -- is actually a fair one. Sotomayor concludes, however, that it is better to be aware of all of those biases -- or baggage, one might say -- when bringing them to the task at hand. And, yes, that means working within the law to come to correct decision.
Anyway, that's how I read it. I wouldn't call her a racist, though her view on how much of a role experience might/would/should play in decision-making is a more than reasonable line of inquiry for a Republican -- or any -- senator to pursue in confirmation hearings. As for Newt, of all people, he should know better than to take one line out of a speech and make a complete assertion about someone's mindset. Remember, "wither on the vine," Newt? That was a line in a speech where he said that he thought the Health Care Financing Administration bureaucracy running Medicare needed to be gotten rid of.
That, of course, ended up getting reported as Gingrich -- and, by extension, Republicans as a whole -- wanted Medicare to "wither on the vine." Funny how context matters.
Labels: Sonia Sotomayor, Supreme Court
# posted by Robert A. George @ 9:30 AM

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Tuesday, May 26, 2009
Sonia Sotto Voce
So, the fact that Barack Obama's SCOTUS pick, Sonia Sotomayor, is a homegirl from around the Bronx-way is nice. That she helped re-start major league baseball after the disastrous 1994-95 strike is a non-ideological plus in her favor. (FWIW, I thought her Maurice Clarett/NFL ruling was way too much of a favor the labor unions and a failure to consider the rights of an individual who wasn't subject to the collective bargaining process.)
Her being a Latina (the first appointed to the Supreme Court) from a struggling background impresses me very little -- and I would love for all this bio stuff to be dropped. Is she smart and does she operate with something approaching common sense. After all, as George Will aptly put it this weekend, both the left and the right like judicial activism and "empathy" on cases -- if only the ruling is eventually in their favor (Will pointed out that the 2005 Kelo decision affirming the power of eminent domain -- which outraged conservatives -- was arguably an example of judicial restraint: The liberal cohort -- plus William Kennedy -- aceded to the power of the local legislative body, which conservatives usually argue for.)
Alas, the up-from-poverty/tough middle-class struggle is a bipartisan game now -- especially when the nominee is from a minority group -- or non-male (see a previous rant about this on the Republican side here.
Still it would be nice to hear the demographics stuff toned down and the jurisprudence issues be elevated. Yeah, I know.
Dream on.
Labels: Sonia Sotomayor, Supreme Court
# posted by Robert A. George @ 10:13 AM

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Friday, May 01, 2009
Your SCOTUS List
The Atlantic's Marc Ambinder assembles an ultimate "mention" list (sure to be expanded in the weeks ahead) to be the next Supreme Court justice.
The rest will have to get used being, ahem, rejected Souters!
Heh heh.
Labels: David Souter, SCOTUS, Supreme Court
# posted by Robert A. George @ 7:15 PM

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Obama's Supreme Chance
SCOTUS Justice David Souter will retire in June, CNN reports.
God, this has been a bad week for the GOP (though, frankly, an Obama appointee to replace Souter won't change the make-up of the Court that much).
Labels: Barack Obama, David Souter, Supreme Court
# posted by Robert A. George @ 12:29 AM

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Monday, June 25, 2007
Free Speech Wins...And Loses
The exact same 5-4 Supreme Court split managed to get only one free speech case right today. By partially overturning McCain-Feingold restrictions on advocacy ads right before an election, the SC -- basically the five conservative justices -- got it correct. It upheld the right for anti-abortion groups to run ads urging listeners to "call their senator."
The Bush administration filed briefs in support of the restrictions (not surprising, given that Bush signed the bill into law, but sad nonetheless).
Unfortunately, the conservative majority got it wrong on the other case -- ruling against a student who unveiled a sign that said"Bong Hits 4 Jesus" -- off school grounds (though on the other side of the street) during a rally for the Olympic torch relay. The principal of the high school saw her students with the sign, ripped it away and suspended the student who came up with the idea. The student claimed that this was a violation of his free speech.
The court basically said that students do not have a free speech right to say something that constitutes support for illegal drug use:
Roberts said that Frederick was indeed at a school sponsored event and his sign while cryptic" could reasonably be defined by Principal Morse as "promoting illegal drug use."
Roberts wrote: "School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act -- or not act -- on the spot."
Justice John Paul Stevens, writing for Justices David Souter and Ruth Bader Ginsburg, in dissent agreed that the principal should not be held liable for pulling down Frederick's banner but that the school "cannot justify" it's punishment of Frederick for an "ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more."
Lawyers for Morse had argued that she was responsible for "maintaining order and proper decorum" at a gathering outside of the school. In briefs her lawyers argued, "She responsibly took the appropriate action to ensure that the Olympic torch relay event was not further disrupted by Frederick's pro-drug banner."
Note the language that SC Chief Justice John Roberts uses, "when [the student] suddently and unexpectedly unfurled his banner, [the principal] had to decide to act -- or not act -- on the spot."
The principal is described almost like a law-enforcement or military officer derailing the actions of a terrorist. As if an Olympic torch relay event could somehow be "disrupted" by the appearance of a seemingly pro-drug banner.
As many have observed in the past, the war on terror is the fraternal twin to the war on drugs: Two invidious siblings happily destroying the American family's rights.UPDATE: Ryan Sager collects a number of responses to the McCain-Feingold pushback (i.e. Wisconsin Right To Life)Labels: free speech, McCain-Feingold, Supreme Court, war on drugs, war on terror
# posted by Robert A. George @ 12:15 PM

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Wednesday, April 18, 2007
An Echo, Not a Pro-Choice ...
Madscribe:Imus just dropped to No. 3 in the news cycle. Virginia Tech Killer still No. 1. Supreme Court might have decided something about something. Might be No. 2. Might not. Hey, what's the latest with Anna Nicole and what's-her-name in Aruba?! Clarence Thomas: "Just say it's in the Commerce Clause, and be done with it ... "Labels: abortion, Supreme Court
# posted by Anonymous @ 2:12 PM

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Thursday, March 22, 2007
Crito Alito
Madscribe:
Just on the basis of Justice Alito's statements this past week on the issue of the First Amendment and free speech rights (the so-called "Bong Hits for Jesus" case), I'm hesitantly willing to concede that George W. Bush may have actually gotten one thing, the nomination of Samuel Alito, correct in his wretchedly pathetic presidency. I was particularly heartened by Justice Alito's critique of public schools using ambiguous arguments for the expansion of state power and curtailment of individual expression. (Sidenote: With more than one scholarly Italian-American on today's court, maybe the idiots in Hollywood and the so-called "non-racist liberal" mainstream media will stop portraying them all as breakers of the law rather than defenders? Spike Lee, that means you too.)
I don't expect Justice Alito to be the Gatekeeper of Free Speech that Hugo Black was (a justice that took every word of "Congress shall make NO LAW" quite literally). It is a wonderful thing, however, to see that there is at least one Republican-nominee on the SCOTUS that can still faintly remember what constituted conservative jurisprudence, before the arrival of Le Texan Terrible and his Son of Great Society endless welfare-warfare state.
For those of us who'd rather read and use their own brains, as opposed to accepting the facile regurgitations of Al Franken, Bill O'Reilly, Chris Matthews, Rush Limbaugh or other puerile pundits, you can access the oral arguments here.
As a side rant, those pebble-brained partisans (LEFT or RIGHT) that complain about the nature of our land's Highest Court should remember that one reason the Founding Fathers chose to make Supreme Court justices lifetime appointees was to give them an opportunity to decide matters of constitutional law with little fear of political repercussion, the popularity contest psychology and cognitive stupidity of elections, or having to appeal to the lowly IQs and jurisprudential ignorance of the moronic masses. On historical balance, this decision by the Constitution's Framers has done more good than harm.
Case in point: Earl Warren who, as governor of California in the 1940s was responsible for the unjust incarceration of the Japanese-American population in his state (somebody PLEASE bitchslap Michelle Malkin for me). As an elected official, Warren bowed to the pressures of elections, polls, and a racist idiot electorate. As a Supreme Court justice, however, he was able to humanely and sanely rule on integration in the 1950s, even at the point of death threats and physical intimidation, without the fear of electoral repercussion or financial support.
Labels: First Amendment, Samuel Alito, Supreme Court
# posted by Anonymous @ 7:31 AM

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