- Published on Wednesday, 13 April 2016 09:43
- Written by Roger Clegg
President Obama spoke at the University of Chicago law school last week about his nomination of Merrick Garland — a white male (tsk, tsk) — to the Supreme Court. At one point, he was asked about “diversity” in this context, and the answer he gave is interesting (search for the word “diversity” to find the relevant question and answer).
The president professed not to make judicial appointment decisions on the basis of race, ethnicity, or sex, instead insisting only on a process that ensures that all the best candidates are identified and looked at. He said the same thing for other kinds of recruiting, hiring, and promotion, too.
What’s interesting is that this is an answer that honors the principle of colorblindness. There’s no argument in it about favoring some to correct past discrimination, or about weighing race, ethnicity, and sex to ensure a “diversity” of outlooks.
Now, to be sure, the president talks out of both sides of his mouth, because in the same answer he brags about the fact that he has set records for appointing racial and ethnic minorities, that “it’s important that our courts are reflective of a changing society,” and so forth. But, again, he is professing that his decisions were made on a colorblind basis, and that no one got appointed on account of his or her skin color or what country his or her ancestors came from.
Hypocrisy is the tribute that vice pays to virtue. It is significant that even this president is unwilling to challenge the principle that colorblindness is a virtue and that race-based decisionmaking is a vice. Too bad that this principle is violated on a daily basis by the rest of his administration.
Housing Segregation at the University of Connecticut – Center for Equal Opportunity ally Michael Meyers is taking the University of Connecticut to task for its plan to encourage racial segregation in dorm-room assignments there (as has CEO itself).
A Happy GVR Thought -- There are a pair of promising petitions for review before the Supreme Court, both involving racial preferences and both likely to be taken up by the Court at conference soon.
The first, Shea v. Kerry, challenges racial preferences in employment at the State Department. The second, Dunnet Bay Construction Co. v. Blankenhorn, challenges racial preferences in government contracting. Review in the latter is important because of, among other things, conflicts in the way the courts of appeals have handled similar cases. Review in the former is likewise important because the Court’s two pro-employment-preference decisions are dated, dubious, and in tension with later Court rulings — and because such politically correct discrimination is nonetheless commonplace.
So both cases are worthy, but it will take five votes to overturn the pro-preference decisions below. With Justice Scalia’s death, that is less likely unless and until someone with something close to his judicial philosophy is appointed as the ninth justice. And that’s likely a year away.
But here’s a thought: The Court will be ruling at some point in the next few months, for a second time, in Fisher v. University of Texas – Austin. In that decision, the justices are likely to say something of interest about the right way to approach racial preference cases generally (indeed, the briefing in Shea and Dunnet Bay discusses Fisher I). So perhaps the Court plans to hold the two pending cases until after it has issued its decision in Fisher II, and then send both cases back to their respective courts of appeals — “grant, vacate, and remand” in light of Fisher II, to use the Court’s parlance — for them to reconsider in light of what will likely be an important new precedent.
That would keep these two worthy cases alive, and also avoid the futility of having them briefed and argued at a time when, realistically, all that will likely result is an inconclusive 4-4 affirmance.
By the way, the Center for Equal Opportunity helped write and joined amicus briefs in both cases.
The Nanny State, Literally -- It might have a dubious record of success with ISIS, the economy, and any number of other issues, but the Obama administration is going to save us from gender-biased toys, thank heavens.
Simple Question Re: Evenwel v. Abbott -- By a vote of 8–0 last week in Evenwel v. Abbott, the Supreme Court ruled that Texas is permitted to use total population numbers in its districting, rather than having to use voter population instead. This was disappointing to many Republicans, since the former tends to favor urban areas (which are generally more likely to vote Democratic). But what I want to do here is not to comment on the rightness or wrongness of that ruling, but to ask whether — had the shoe been on the other foot — there is any matter in which the Court’s Democrat-appointed justices would have voted against their party’s interests?
The answer, of course, is no — and that’s why, if we are to have any hope of pretending to be a country that follows the rule of law, we have to hope that the next justice is appointed by a president who understands the rule of law, too.