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A conservative successor to Justice Scalia?

The Supreme Court will be back in a week or two, so I thought this would be a good time to share with you an essay I did over the summer and at the request of the website SCOTUSblog:

I’ve been asked to discuss what will happen in the area of racial preferences – a.k.a. “affirmative action” – if Justice Antonin Scalia’s successor is a conservative.

Well, since Justice Scalia was a conservative, then what will happen is basically what has been happening. The new Justice will line up with Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, who are pretty much categorically opposed to such discrimination, and will be in opposition to Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who can be counted on to defend politically correct racial preferences more or less categorically. And so it will continue to be a Kennedy Court.

And so, as well, we will continue to have to predict what Justice Anthony Kennedy would do in this area. This has always been a tricky business, and even trickier now after his surprising decisions the last two years in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project and the second Fisher v. University of Texas at Austin, in which he joined with the liberals after years of voting with the conservatives (albeit sometimes with narrowing concurrences).

There are those, on both left and right, who read Justice Kennedy’s recent decisions as showing that he is no longer a conservative on issues like affirmative action and its close cousin, disparate impact. Those decisions were certainly a great disappointment to conservatives like me, but the hedging that Justice Kennedy included in them provides some silver linings (discussed here and here) that make me reluctant to write him off as a lost cause quite yet.

More broadly, the bad news is that the use of racial preferences remains too common.  The good news is that such preferences are mostly concentrated in the three areas of contracting, employment, and higher education.  And the further good news is that there is reason for hope in each area if Justice Scalia’s successor rejects them.

Three areas

In government contracting, for example, the Court has already established that preferences will be subjected to strict scrutiny, whatever level of government is involved.  It is unlikely to recognize a compelling interest here other than remedying discrimination, there being no uniquely African-American perspective on, for example, how to pave a road.

Even more critically, contracts are not like employment selection or university admissions, where there is often an irreducible and significant amount of subjectivity in the decision making.  Rather, the low-bid process in government contracting (and subcontracting) can be made very transparent at every step, and this transparency should make it relatively easy to achieve any remedial purpose, that is, to detect and correct discrimination.  This is an area where, as Chief Justice Roberts wrote famously, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Accordingly, the Court should make clear that, in 2017, the narrowly tailored way to remedy discrimination in the award of government contracts will not involve preferential treatment. Recall that Justice Kennedy, in the Fisher cases, emphasized that the “narrow tailoring” requirement is to be taken seriously.
Employment is like contracting in that the Court has never recognized a “diversity” rationale (nor is it likely to do so, since the key federal statute, Title VII of the 1964 Civil Rights Act, allows no “bona fide occupational qualification” for race).  Once again, the predicate is essentially remedial, requiring an employer that wants to use preferences to show a “manifest imbalance” in a “traditionally segregated” position.  One hopes that, sixty-two years after Brown v. Board of Education and fifty-two years after the 1964 Civil Rights Act, there is not much traditional segregation left – especially at companies that have cheerfully been discriminating in favor of “underrepresented” minorities.

The Ricci v. DeStefano decision in 2009 now further suggests that an employer’s track record of discrimination against, say, Latinos has to be so bad and so recent that, if it did not provide them a preference, there is a “strong basis in evidence” that it could be successfully sued for that failure – a very high bar.  If, per Ricci, an employer cannot legally engage in disparate treatment unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to engage in disparate treatment when it is not motivated by fear of a Title VII lawsuit at all?

So what’s needed in the employment area is for the Court to clarify the remedial predicate required by Title VII, and to interpret the legal standards in Steelworkers v. Weber and Johnson v. Transportation Agency to conform with the one articulated in Ricci.  Any employer that wants to use otherwise forbidden disparate treatment must have “a strong basis in evidence” that it would otherwise be liable, and that evidence would typically include not only severe statistical disparities (“manifest imbalance”) but also recent discriminatory practices (“traditional segregat[ion]”). This is similar to the standard Justice Sandra Day O’Connor supported in her concurrence in Johnson.

Or the Court could simply overturn Weber and Johnson, since those much-criticized and unstable opinions also held that preferences cannot “unnecessarily trammel” the interests of nonpreferred employees – and, in 2017, there will never be a situation where the “necessary” way to fight discrimination is through more discrimination, rather than simply stopping discrimination.  The decisions are now obsolete by their own terms. I note again that Justice Kennedy has in past cases emphasized the importance of putting real teeth in “narrow tailoring.”

It is the third and remaining area, higher education, where perhaps the Court now has the most heavy lifting to do.  There’s no way around the fact that, to end racial preferences here, it must overturn Grutter v. Bollinger and, in particular, the holding there that the educational benefits of racial diversity in a student body are so compelling as to justify discrimination in order to ensure them.  The fundamental problem in Grutter is that the social-science evidence cited is uncertain and the purported benefits only marginal; furthermore, the Court did not weigh the heavy costs of such discrimination.  In his opinion in a more recent case involving the alleged educational benefits of diversity, Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts nodded toward such benefits being “dispute[d]” and “intangible,” while “the costs are undeniable.”

Surely all this has to be weighed in determining if the asserted interest in compelling.  The result will simply move up by a few years Grutter‘s self-imposed 2028 expiration date.

But the obvious question is whether Justice Kennedy would be willing to overturn Grutter when he was not even willing to rule against the University of Texas in Fisher II. It certainly is an uphill battle, but not necessarily a hopeless one.

Grutter was not directly challenged in the Fisher cases, and of course we are not yet at its twenty-five-year expiration date. The social science evidence is changing – consider the overwhelming documentation now of the “mismatch” problem – and the demographics of the country are, too. One of the cases in the lower-court pipeline directly involves allegations of politically correct discrimination against Asian Americans, the fastest growing racial group in America. Perhaps this context would be a better one in which our new Justice could persuade Justice Kennedy that, you know, Tony, it’s simply untenable in our increasingly multiracial and multiethnic society for our major universities to be sorting people according to skin color and national origin and treating some better and others worse depending on which silly little box gets checked.

The unrest on our campuses is very much a two-edged sword as well. It might frighten Justice Kennedy from ending racial preferences; on the other hand, it underscores the poisonous effects that political correctness and identity politics have had on campus, and argues for an end to the Court’s complicity in this nonsense.

Voting and disparate impact
A couple of other points, related to one another.  We could plausibly add voting, and especially redistricting, as a fourth category in which racial preferences are common.  In particular, Sections 2 and 5 of the Voting Rights Act have been frequently used to require racial gerrymandering designed to advantage minority voters.  This is done through a “results” and “effects” test, respectively.  Each is an example of a “disparate impact” mechanism, which is also found in Title VII of the 1964 Civil Rights Act (and, allegedly, in some other federal statutes, and, inarguably if illegally, in a variety of federal regulations).  Practices, procedures, and selection criteria that are nondiscriminatory by their terms, intent, and application are nonetheless deemed discriminatory because they lead to racially disproportionate results.

Thus, this approach, in the name of nondiscrimination, bans selection devices that no reasonable person would label as discrimination, and, what’s worse, drives many public and private actors to adopt either overt or covert racial quotas.

So, when the Court finishes getting rid of overt racial preferences in contracting, employment, and higher education, it can also strike down the disparate-impact approach as a form of racial preference.  Justice Scalia signaled his willingness in this regard in his separate concurrence in the Ricci case, and in a footnote in his opinion for the Court earlier in Alexander v. Sandoval. His conservative successor would do the same. Here again, though, the fifth vote would have to be Justice Kennedy’s, and, after his opinion in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, it cannot be counted on.

The Court has already effectively, and rightly, ended the use of Section 5 and its “effects” test; likewise, it should cabin the “results” test under Section 2 so that it focuses as much on disparate treatment and as little on disparate impact as possible. It’s remarkable that, though the “results” language was added in 1982, there has been very little case law to date, especially from the High Court, on its meaning outside the redistricting context.

Sex and a smile

I’ve focused on race here, but much of what I’ve written applies to sex discrimination and preferences as well. I’ll add only that a conservative successor to Justice Scalia would interpret the word “sex” in federal statutes like Title IX of the 1972 Education Amendments and Title VII to mean “sex,” and would reject the absurd arguments that it means “sexual orientation” or “gender identity.” If Congress wants to amend those statutes to read that way, that’s its job, not the Court’s.

A final, happy note: If a conservative replaces Justice Scalia, we can deduce that Hillary Clinton is not President of the United States and that someone else is. This means that there is a chance that there will be other conservative appointments to the Court, although it is also possible that future picks might be Donald Trump’s sister or Donald Duck. There is also a chance that future oral arguments will be held in the Huge Trump Courtroom at the remodeled Old Post Office Building. It also means that we are living in an alternative universe, in which SCOTUSblog may pay me a gazillion dollars for this essay and I can happily retire to a luxurious condo on a distant planet.

Age Matters for Clinton and Trump

In March 2015, I wrote a column suggesting Hillary Clinton was too old to run for president. It generated a lot of blowback, as I suspected it would, even though she hadn't yet formally announced her candidacy. Carter Eskew, who ran Al Gore's media campaign in 2000, berated me in The Washington Post for "the sexist and ageist nature" of what I had written and called it "remarkably outrageous." But Clinton's recent bout of pneumonia and episodes of appearing to lose her balance in public raise important questions, and age should not be off-limits as a topic. To be clear, the same concerns apply to Donald Trump -- in my view, even more so.

No matter who wins the election this year, we will be getting a president not in his or her prime. Why do we have to pretend that age doesn't matter anymore -- that 70 is the new 60 or even the new 50? Yes, we're living longer, but our bodies and minds deteriorate over time, no matter how well we take care of ourselves.

I say this as a 69-year-old woman who eats well, walks 4 or 5 miles nearly every day, works long hours, travels 75,000 miles a year, writes prolifically and is in generally good health. But I can't pull an all-nighter working on an article as I did even a few years ago or do a 10-mile mountain hike without paying the consequences.

It is foolish for most people my age to pretend they have the same energy, stamina or capacity they did when they were young. There are exceptions -- athletes and fitness fanatics, perhaps -- but neither Clinton nor Trump falls in those categories, which is why it is so important that both of them release their medical records. Clinton, despite hiding her pneumonia from the public for several days after it was diagnosed, has been far more forthcoming than Trump. She's released a list of her medications and details about her history of hyperthyroidism and deep vein thrombosis, as well as information on a concussion she suffered while secretary of state.

Trump, on the other hand, has given virtually no useful information. On Thursday, he pulled a typical Trump public relations stunt by going on "The Dr. Oz Show," releasing the barest of details about his health but not the actual medical records.

Campaigns are grueling, and it's no wonder Clinton became ill, especially at her age. According to the National Institute on Aging, "a lifetime of stress on our bodies is thought to contribute to immunosenescence," or the gradual deterioration of our immune systems' ability to respond to infections or receive protection through vaccinations. Clinton was vaccinated against pneumonia, according to her doctor, but she got it anyway, which suggests her immune system didn't respond as well as might a younger person's.

But if Clinton's age is a factor, Trump is even older and is hardly a fit specimen. So why hasn't Trump become ill on the campaign trail? Maybe he has. Who knows? He's not the same kind of retail politician as Clinton, and his schedule has been lighter than hers. He takes days off from campaigning, travels in luxury and infamously dislikes shaking hands (though he seems to do it more often now than in the primaries). Maybe he is as healthy as he claims to be, but his late-night tweets, his repetitive speech patterns, his apparent inability to learn anything about public policy, his memory lapses -- even about his own statements -- his paranoia and his conspiracy theories all raise at least the possibility that he's suffering some cognitive decline. Given the choice between a candidate who is physically less robust and one who's declining mentally, I'd say the latter is scarier.

The Constitution bars candidates below the age of 35 from running for president, and no one complains. Maybe it's time we think about upper limits, as well. Nearly three-quarters of S&P 500 companies have mandatory retirement policies in place for their corporate directors, and about a third of big corporations set upper limits on the age of CEOs, as well. Although a 1986 law prohibits employers from forcing retirement because of age, important categories are exempt, including airline pilots, air traffic controllers and law enforcement officers. The presidency is certainly more complex and demanding than any of those jobs.

The 25th Amendment provides for the removal of a president who becomes incapacitated, but is it really so outrageous to consider whether we need to put a cap on the age at which a president can be sworn in, too? It's just hubris to pretend age is totally irrelevant to the ability to do the job. Sure, the voters are capable of deciding the issue in most elections. But this time around, they really have no choice.

Trump's Amnesty Plan

It would be funny if the stakes weren't so deadly serious. Donald Trump, who launched his campaign for the presidency by attacking Mexican immigrants as "rapists" and "criminals," is suddenly embracing the idea of working out a way to give legal status to undocumented immigrants who have been here a long time and have kept out of trouble.

Trump won't call it amnesty, of course, but his position is little different from what's in the "Gang of Eight" bill his allies on conservative talk radio and cable shows have been deriding as amnesty for years. Of course, Trump's position could change again between the time you begin reading this column and the time you finish it, but for the moment, let's take Trump at his (latest) word.

In a town hall meeting hosted by Sean Hannity this week, Trump said the following: "Everybody agrees we get the bad ones out. But when I go through and I meet thousands and thousands of people on this subject, and I've had very strong people come up to me, really great, great people come up to me, and they've said, 'Mr. Trump, I love you, but to take a person that's been here for 15 or 20 years and throw them and their family out, it's so tough, Mr. Trump.' I mean, I have it all the time. It's a very, very hard thing." Indeed.

Trump said his version isn't amnesty. "No citizenship. Let me go a step further: They'll pay back taxes. They have to pay taxes. There's no amnesty, as such, there's no amnesty, but we work with them," he said.

Has Trump even read the Senate's Gang of Eight bill?

The legislation, sponsored by four Republicans -- Sens. John McCain, Marco Rubio, Lindsey Graham and Jeff Flake -- passed the Senate in 2013 but subsequently died in the House after conservative talk radio and cable news shows sparked a populist assault on the bill by crying "Amnesty!" But many of the bill's actual provisions would be much tougher than Trump's latest, admittedly sketchy, plan.

Immigrants who entered illegally would have to not only pay back taxes but also pay a $1,000-per-person fine, learn English and remain employed. Though the bill would provide a so-called path to citizenship, following that path would take a long, long time. During the first 10 years, the immigrants would be eligible for renewable temporary permits and then could apply for permanent residency. Only after three additional years -- 13 years in total -- could they apply for citizenship, and they would have to meet all the usual requirements to qualify.

Most importantly, all the provisions easing access to legal status for the undocumented would require that the government demonstrate that border security has improved significantly. Toward that end, the legislation would include an additional $3 billion in funding for more drones and other security measures, allow for the hiring of 3,500 additional border agents, and appropriate another $1.5 billion for more border fencing. The Department of Homeland Security would have to demonstrate it has achieved 100 percent surveillance along the Mexican border and can apprehend 90 percent of unlawful crossers at high-intensity cross points along the southern border before any permanent status or citizenship could take place. Moreover, no previously undocumented immigrant would be provided permanent resident status until all current legal applicants receive their green cards.

The bill is far from perfect, but it's not the free ticket to citizenship for lawbreakers that its detractors claim. Trump's latest comments that it makes no sense to deport millions of people who have lived in the U.S. for a decade or more -- which constitutes two-thirds of the undocumented immigrants here now -- are a far cry from what he had been saying for the previous 14 months. If he were a serious man rather than a provocateur, he'd have figured this out a long time ago. Better late than never? Maybe. We'll see how long he sticks to this new proposal after the anti-immigrant crowds he's stirred up turn on him.

Dave Davis’s right to vote

I am proud to announce my first publication in the Guam Daily Post, which ran earlier this month:

On Sept. 1 at the federal courthouse, Dave Davis will argue that the much-discussed status plebiscite should at last be put out of its misery.

It is commonly understood everywhere else that, under the United States Constitution, the right to vote is violated when you parcel out voting rights based on your ethnic group.

But in Guam, it will take judges to enforce the law. The same thing happened, by the way, in Hawaii, and the Supreme Court ruled in Rice v. Cayetano that the state government there could not limit the right to vote to “Native Hawaiians.”

History repeating itself

A long time ago in the American South, states cooked up all sorts of ways to deny the right to vote to black Americans – poll taxes, grandfather clauses and even a pop quiz or two. Courageous white federal judges in the Deep South refused to play the same games. They saw through the ruse and struck down the laws as unconstitutional.

In Guam, who your parents or grandparents are determines if you have a voice in the status plebiscite. Mr. Davis, despite serving his country in the Air Force, didn’t have the right bloodlines to vote in the election regarding Guam’s relationship with the United States. He isn’t among the chosen.
Guam has advanced arguments that would be laughed out of any other American courtroom – that the plebiscite isn’t discriminatory, or it’s OK to give a chosen people a political voice. Already, the U.S. Court of Appeals for the Ninth Circuit Court has rejected the lion’s share of Guam’s argument, finding that Mr. Davis suffered an injury because he wasn’t treated equally and that the plebiscite is an official election affecting government policy.

As Mr. Davis has put it in his argument to the court: “Classifying citizens into different groups with different political rights and permitting only one of those groups to register for and participate in a government-run election denies the disfavored groups their fundamental right to vote. It is, indeed, the antithesis of the principles that the (U.S. Constitution) adopts as a bedrock constitutional guarantee.”

Well said.

People in positions of power in Guam should take notice. It might help to be taken seriously by the United States if you play by the rules everyone in the United States follows.

Blocking access to the ballot because you don’t have the right blood is right out of the Jim Crow South or apartheid South Africa. It has no place where the American flag flies and the Constitution of the United States applies.

Missing in action in the case, by the way, is the Obama administration’s Department of Justice. Alas, the administration has consistently sacrificed its obligation to enforce the laws equally for all Americans on the altar of political correctness. This case is no exception.

Fortunately, the Center for Individual Rights and former DOJ attorney Christian Adams are representing Mr. Davis in his lawsuit to compel Guam to comply with federal law. In a better world, Mr. Davis would have the federal government on his side, too.

This case has dragged on too long and one hopes that the federal court will do what needs to be done and strike down the plebiscite law. Everyone deserves a voice on Guam’s future, not just those who have the chosen parents or grandparents.

Be careful what you wish for

And advocates of discrimination should be wary of what they ask for. The Chamorro population in Guam is now a distinct minority. Dave Davis’ interpretation of the law will prevent future majorities in Guam from enacting creative barriers to the ballot against Chamorros, like the plebiscite does to Mr. Davis.

So those who want to prohibit Mr. Davis from voting in the plebiscite should be careful what they wish for, because the next favored “ancestral” class might not be linked to Chamorro history, but some other group.

Epilogue:  The argument before the court seems to have gone very well.  Keep your fingers crossed.  Oh, and I should note that the Center for Equal Opportunity had filed an amicus brief in the Supreme Court case mentioned above, Rice v. Cayetano, in which we successfully urged the Court to strike down a racially exclusive election in Hawaii.

*          *          *

Judicial Elections and Disparate Impact – Here’s another item regarding the intersection of race, courts, and elections.

The civil-rights Left appears to have a new priority:  Attacking the at-large election of judges when this results in a politically incorrect racial and ethnic mix.  It will instead be insisted that elections be on the basis of racially gerrymandered districts. Earlier this summer, there was a lawsuit in Texas; last week, the complaint was filed in Alabama.

This sort of challenge to at-large elections has long been a staple of the Left when it comes to city councils and the like. But, as distasteful as it is to have racially-defined districts for local politicians, having racially-defined districts for judges takes the yuckiness to a whole new level.  Even Justice John Paul Stevens seemed to recognize that there might be some problems with that

Get used to it.  As the federal judiciary gets worse and worse, from the top down, the Left will get more and more creative in the disparate-impact claims it files. Voter ID? Of course not.  At-large elections for judges?  No way.  A ban on felons voting?  Don’t be silly, and this will apply to felons still in prison.  And don’t be surprised to see lawsuits demanding that 16-year-olds be allowed to vote, and noncitizens as well, since Neanderthal restrictions like allowing only adult citizens to vote have a disparate impact on, for example, Latinos in many jurisdictions. 

Facebook Breaks the Law

The Wall Street Journal had an article last week about how Facebook, in an attempt to increase its workforce “diversity,” gave its in-house recruiters a paid incentive to encourage applications from people who weren’t white or Asian males. That is: “Previously, recruiters were awarded one point for every new hire. Under the new system, they could earn 1.5 points for a so-called ‘diversity hire’ — a black, Hispanic or female engineer — according to people familiar with the matter. More points can lead to a stronger performance review for recruiters and, potentially, a larger bonus, the people said.”

As I immediately pointed out (on National Review Online and in a Wall Street Journal comment), Facebook’s approach is illegal. Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-2(a), says, “It shall be an unlawful employment practice for an employer — . . .  to . . . classify his . . .  applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.” 

I’ll be expecting an investigation by the Obama administration’s Equal Employment Opportunity Commission right away.

Mismatch at Smith – Inside Higher Ed reports that two professors have complained about a “mismatch” problem at Smith College.  And, predictably, the fact that they would make such a complaint has resulted in them being labeled as racist.

“Extreme Vetting” – Donald Trump recently called for the “extreme vetting” of potential immigrants.  Well, whatever you call it, here’s my top-ten list of what we should expect from those who want to become Americans (and those who are already Americans, for that matter). The list was first published in a pre-9/11 National Review Online column, and it is fleshed out in Congressional testimony:

1. Don’t disparage anyone else’s race or ethnicity.
2. Respect women.
3. Learn to speak English.
4. Be polite.
5. Don’t break the law.
6. Don’t have children out of wedlock.
7. Don’t demand anything because of your race or ethnicity.
8. Don’t view working and studying hard as “acting white.”
9. Don’t hold historical grudges.
10. Be proud of being an American.

Are “Microaggressions” Migrating to the Workplace? – The answer to that question, alas, may be yes.  George Leef’s recent Forbes column discusses a recent complaint filed with the U.S. Equal Employment Opportunity Commission by an employee who thought a “Don’t Tread on Me” cap worn by another employee was racist.  The EEOC seems to be taking this pretty seriously, and Mr. Leef is not amused.  As with similar complaints in the campus context, there are First Amendment concerns here, and the column discusses them, too.

*          *          *

Finally, you might be interested in this memorandum that the Center for Equal Opportunity and the Pacific Legal Foundation recently sent to the city council and mayor of Austin, Texas (CEO sends many of these every year to various state and local governments that are contemplating the use of preferential treatment in their contracting):

To: City Council & Mayor
Austin, Texas

From: Roger Clegg, Center for Equal Opportunity
Meriem L. Hubbard, Pacific Legal Foundation

Re: Discrimination in city contracting

Our understanding, based on various news stories, is that the City is considering the role that race, ethnicity, and sex should play in the award of municipal contracts, in light of a disparity study that was completed earlier this year.

We are writing to urge the City to be race-, ethnicity-, and gender-neutral in all its contracting programs.

We know that frequently disparity studies are used to try to justify legally something that in our opinion the City should not want to do — that is, engage in discrimination — but such studies no longer offer that legal justification. What’s more, disparity studies are frequently revealed to be defective, and even fraudulent. This has happened quite recently, by the way. See, e.g.,
http://www.cleveland.com/cityhall/index.ssf/2013/02/cleveland_minority_contractor_groups_bla.html . It is also worth noting that frequently these programs end up discriminating not only against nonminorities but also against members of some racial and ethnic minority groups. See, e.g., http://www.nationalreview.com/corner/353489/good-guys-win-one-milwaukee-roger-clegg

To elaborate: The City can undertake race-, ethnicity-, and gender-neutral measures to ensure that the bidding process is fair and open, with or without a disparity study. It can, that is, make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex.

A disparity study is needed, supposedly, if the City wants to have a legal justification for non-neutral measures, like “targets”
and “goals” and so forth. But the City should not want to engage in such preferential treatment on the basis of race, ethnicity, and sex, even if it had a legal justification for it, since such discrimination is unfair and divisive; it breeds corruption; and it costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder. What’s more, it is very doubtful that, in 2016, a disparity study would justify preferential policies, since there will always be nonpreferential ways to remedy any disparities in treatment that are found.

… See also this model brief our two organizations have prepared and posted for those wishing to challenge preferential contracting programs:
http://www.pacificlegal.org/page.aspx?pid=1342

Thank you very much for your attention to our concerns.

Blame Voters, Not the Candidates

In a democracy, we generally get the leaders we deserve. So what does that say about this year's election? Nothing good. It's easy to focus on the faults of the candidates -- and Hillary Clinton and Donald Trump may be the two most flawed presidential candidates in history -- but at the end of the day, the voters chose them. Or some of the voters did, and that is part of the problem.

In the modern world's oldest democracy, we've become complacent. A tiny fraction of eligible voters bother to participate in primaries, and those who do are hardly representative of the broader population. Less than 14.8 percent of eligible voters participated in the GOP primaries, while 14.1 percent voted in the Democratic contests. But even if everyone eligible to vote actually cast a ballot, we'd still have a major problem in the United States.

There is little question that Trump rose to the top of the field among 17 candidates largely because of his celebrity status as a reality TV star. The very qualities he exhibits that turn off many educated voters and principled conservatives made him attractive to the masses who get their news in sound bites from talking heads who shout insults at one another on cable networks. He's opinionated, even when his opinions aren't based on substantive knowledge, and he's willing to say anything to guarantee a lead spot on the day's news coverage.

Our schools have done a poor job of educating students about the U.S. Constitution, American history and our civic institutions. And the poorly educated kids grow into adults who haven't the faintest idea about separation of powers or the protections enshrined in the Bill of Rights, much less basic economics. And we are paying the price this year.

On the one hand, we have Hillary Clinton, who is promising free community college, paid family leave, universal health care and a host of other costly programs, which she thinks she can pay for by upping taxes on only the rich. On the other hand, Donald Trump wants to deploy a deportation force to round up the nearly 6 percent of those in our workforce who are in the country illegally, wants to administer an ideological test to immigrants and visitors to the U.S., which he hopes would weed out Muslims, and says he'd fire much of the top military brass because, as he's asserted before, he knows "more about ISIS than the generals do."

Clinton's appeal is the traditional Democratic sop: Government will take care of you. Trump's appeal is darker: Your problems are the result of foreigners who are invading our country. Depending on where voters fall on this scary spectrum, we will have either a president who expands the role and cost of government at the cost of freedom and a vibrant economy or one who blames ethnic and religious scapegoats for problems at home and abroad and uses demagoguery to whip up mobs, endangering minority protections in favor of absolute majority rule.

Neither prospect is a happy one. Worse is the probability that when voters go into the voting booth, they will most likely be voting their gut, not their head. When our Founding Fathers devised this new form of government -- a representative democracy -- they could not have imagined how it would devolve. There is a real danger that if Americans do not take their responsibilities more seriously, we will lose our freedoms.

The trend in recent years has been to expand the franchise more and more broadly, which in theory is a good thing, but only if the people casting their vote understand the system in which they are participating. Call me an elitist -- I've been called worse -- but I want voters to do more than show up and vote for the person they like the most or against the one they detest. I want them to understand the duties and limits the Constitution imposes on the commander in chief. I want them to have some understanding of the separation of powers, of why majority rule cannot abrogate unpopular but constitutionally protected minority opinions and rights. I want them to be informed enough about the policy differences between the candidates to get some glimpse into how each would govern.

If American citizens don't do a better job living up to their responsibilities in choosing our leaders, we can't expect we will ever get better candidates than the ones we have to choose from this year. We need to quit blaming Clinton and Trump for being bad candidates and look in the mirror to see how they got here.

Email Scandal

Hillary Clinton is leading in the polls, but the public still doesn't entirely trust her. This week, those suspicions focused on the candidate's relationship to the organization her husband founded, which she joined following her tenure as secretary of state. Appointees to high office must avoid not just actual conflicts of interest but the appearance of conflict, and the since-renamed Bill, Hillary and Chelsea Clinton Foundation's aggressive pursuit of donations from individuals and governments that might want special access to the State Department made it difficult, if not impossible, to avoid such conflicts. Thanks to Judicial Watch, a conservative watchdog group, we now have evidence that the Clintons may have crossed the line.

In a batch of emails newly released this week as a result of a Freedom of Information Act request, we see concrete proof that foundation staff sought access to top-level State Department officials on behalf of donors. In some cases, doors appeared to open for donors; in others, it is less clear. But in several cases, the foundation sought help from two of Hillary Clinton's top, longtime aides: Huma Abedin and Cheryl Mills. No quid pro quo is necessary to determine that such contact was highly inappropriate.

In a normal election cycle this story would be dominating the news -- but Donald Trump's comments that maybe "Second Amendment people" could do something to stop a President Clinton from appointing unfriendly judges managed to take the focus off Clinton and put it on Trump once again. Nonetheless, this story has legs, and Clinton must come to terms with the problems the Clinton Foundation poses to a Clinton presidency.

Neither Bill Clinton, president of the foundation, nor daughter Chelsea, who is vice chair, have announced what their relationship to the eponymous foundation will be should Hillary become president. Resigning their posts would seem a prerequisite to avoid actual conflicts, but I believe they would be wise to go much further. Even the name of the foundation presents problems. Donors would perceive gifts to a foundation named for a former and current president and their daughter as their way of showing "appreciation," not simply fostering good deeds. Whether or not the Clintons and their aides provided access to such individuals, the donation would always raise suspicions. The first step, then, in avoiding such conflicts would be to drop the Clinton name. Why not rename the group simply the Global Initiative, which the foundation uses in the titles of many of its projects?

But even that would not be enough, so long as the charity was headed by Clinton allies and staffed with Clinton stalwarts. The best way to avoid the problem would be for the Clintons to hand over the leadership to a prominent Republican, a former governor, senator or president. George H.W. Bush is probably too old to assume the duties, but what about George W. Bush? No, I'm not kidding. President Bush was very active in the fight against AIDS and malaria in Africa, among other humanitarian efforts. Certainly no one could accuse donors to a foundation headed by such a prominent Republican as trying to curry favor with a Democratic president. If naming a Bush to head up the group is a bridge too far, the Clintons could appoint co-chairs or co-presidents, one Democrat and one Republican, and make sure the executive director had no previous ties to the expansive Clinton network.

The Clintons have always relied on "friends" to get them what they wanted, whether it was getting deals on investment properties on the White River; making miraculously profitable trades on the commodity markets; or securing huge donations to charities that would burnish the Clinton legacy.

And they've managed to enrich themselves along the way, earning fabulous speaking fees: Bill has a talent for public speaking that could possibly justify those fees, but no one could say the same for Hillary. And it was those fees that helped turn the couple from being "flat broke" when they left the White House (as Hillary claimed in an interview) to being worth more than a hundred million today. No president in recent history has cashed in on the presidency to the degree Bill Clinton has, and part of the reason is that Hillary moved into a position of power just as Bill was relinquishing his, first as a U.S. senator then as secretary of state.

If the Clintons don't give up their ties to the Clinton Foundation entirely should Hillary become president, you can bet they will be hounded by skeptical Republicans in Congress, who will haul the foundation into hearings and maybe even try to bring in the president herself. The last thing she needs if she assumes office is to keep feeding the suspicion that she's not entirely trustworthy. So, why not get out front now? Who knows, she might even boost her favorability ratings by a few points.

Donald Trump Ends Up Where He Started

Donald Trump's immigration "pivot" has been more like a whirling dervish act these past few weeks. He's gone from meeting with Hispanic leaders, promising to soften his position, to sending out his surrogates to make mutually contradictory promises that he definitely would or would not find a way to allow some undocumented immigrants to stay in the U.S. Then on Wednesday, he jetted off to Mexico for a photo-op with President Enrique Pena Nieto. He held a short and mild-mannered news conference afterward but ended the day delivering a rant in Phoenix that reiterated his commitment to deport everyone here illegally and also his goal of restricting legal immigration in radical ways. So what are voters left with, besides a bad case of vertigo?

Most commentators after Trump's speech focused on his tough line on getting rid of immigrants already here illegally. Indeed, he broke new ground in his Phoenix speech, promising to revoke not only President Barack Obama's executive action giving temporary reprieve from deportation to the undocumented parents of American-born children but also Obama's earlier, mostly noncontroversial executive action that temporarily shielded undocumented immigrants who were brought here as children. The courts struck down President Obama's executive action for parents of American-born children but did not touch the exemption for young adults who came illegally as children. Trump now seems ready to deploy his new "deportation force" to rid the country of law-abiding young people who've lived here for as long as they can remember and know no other home.

This callousness has already prompted some of Trump's National Hispanic Advisory Council to quit, most notably Alfonso Aguilar, former chief of the U.S. Office of Citizenship in the George W. Bush administration, businessman Jacob Monty and Pastor Ramiro Pena, who offered a stinging rebuke after the speech. "The 'National Hispanic Advisory Council' seems to be simply for optics and I do not have the time or energy for a scam," Politico reports Pena as writing to campaign and Republican National Committee officials.

Less noticed in Trump's speech were his words on legal immigration -- but in many ways, they are the most radical thing he said. Trump has, from the beginning of his campaign, surrounded himself with immigration hard-liners, not just people concerned about illegal immigration. It's no coincidence that accompanying Trump on his visit south of the border was Sen. Jeff Sessions, arguably the most anti-immigrant politician since Sen. William Paul Dillingham, whose opposition to immigrants from southern and eastern Europe resulted in the first mass restriction legislation in the early 1900s. And whenever Trump cites studies on the supposed ill effect of immigration, they are usually from the restrictionist Center for Immigration Studies, which not only opposes illegal immigration but, more importantly, wants to put strict limits on legal immigration, as well.

Conservatives have tried to argue for years that they are not anti-immigrant, just anti-illegal immigration. And most, I believe, are sincere. But goaded by Sessions and restrictionist organizations such as CIS, Trump made clear in Phoenix that he wants to return to the days of Dillingham.

"We take anybody," Trump said, referring to current law. "Come on in, anybody. Just come on in. Not anymore," he vowed. What he was promising was to roll back the 1965 immigration law that abolished quotas on national origins put in place a half-century earlier to favor immigrants from northern Europe. In its place, Trump says he wants "to keep immigration levels measured by population share within historical norms," and he's not talking about recent years or even the levels of the early 20th century. He wants fewer immigrants, period, and he wants to make sure immigration does not upset the historical racial balance of the U.S.

Trump also said he will "select immigrants based on their likelihood of success in U.S. society." The language may sound benign, but the sentiment is not all that different from what prompted Dillingham and others in the early 20th century to want to keep out Italians, Slavs and others deemed inferior to people of northern European descent.

It's easy to forget that anti-immigrant fervor isn't new. Trump and his most fervent followers may want to bar Mexicans and other Latinos now, but the grandparents of many of the people gathered in Phoenix this week to hear Trump speak faced the same opposition when they came from Ireland, Italy, Greece, Czechoslovakia, Hungary, Poland -- and, yes, Germany, where Trump's grandfather was born.

Donald Trump's runaround on immigration the past week leaves him right about where he started -- demonizing people based on not just how they got here but where they come from.

Some Blunt Talk on Race

Many African Americans have blown it.  By no means all, but many.  By no means only African Americans, as I’ll discuss in later, but a disproportionate number of them.

African Americans finally and rightly achieved great equality of law, and along with it much greater equality of opportunity than they had ever had, as a result of the Civil Rights Movement that culminated in the 1960s.  But they have failed to take advantage of it.  

It’s a sad irony that, at the same time something good was happening for them, sometime bad was happening, too.  This is not to say that great progress hasn’t been made in shrinking various socioeconomic gaps between African Americans and other groups, but the progress could have been much greater.

To be blunt:  The reason I say that African Americans have blown it is because, at the same time that they were achieving so much, they abandoned marital childbearing.  At the same time the civil-rights advances were occurring, the black family started to implode, so that now 71 percent of African Americans are born out of wedlock.

And now those in organizations on the left like Black Lives Matter are blaming others for this failure by too many African Americans.  Yet it is this failure that accounts for the persistence of racial disparities, not racial discrimination.   For raising children without fathers results in more crime, more poverty, more unemployment, more substance abuse, more high-school dropouts — you name the social problem, and it goes along with illegitimacy, and that includes the problem of illegitimacy itself, which has become intergenerational and culturally ingrained.

And, what’s more, the persistence of racial discrimination is itself caused by the racial disparities as much as it is a cause of them.  Racial stereotypes are not, alas, completely divorced from reality. 

Recall the confession years ago of Jesse Jackson — yes, Jesse Jackson of all people — that if he hears footsteps behind him on a dark street he is relieved when a nervous glance back over his shoulder reveals that the two youths behind him are white, not black.

Why did this happen — why, that is, did the African American family implode at the same time as the Civil Rights Movement was triumphing? 

I don’t know.  John McWhorter, a decade ago in his book Winning the Race, blamed it on the hippies — or, more precisely, on the cavalier liberal attitude in the 1960s toward sexual promiscuity.  It’s as good a theory as any I’ve heard.  The same forces that gave us the Civil Rights Movement also gave us the Great Society, and with the latter came a decidedly anti-bourgeois mentality.  But, as Irving Kristol warned, it’s a mistake to look down on the bourgeoisie, and we ignore its values at our peril. 

Upper class whites were able to recover from the sixties nonsense.  Lower-income blacks, not so much.

Whatever the cause of that 71 percent number, in any event, what is to be done now? 

Here again, I’m afraid that it’s hard to say.  You can’t pass laws against illegitimacy and promiscuity.  These are fundamentally moral problems.  My own view is that we need another Great Awakening.  And of course that’s something else that can’t be legislated.

But the good news is that the out-of-wedlock birthrate can go from 71 percent to 0 percent in exactly 9 months without it costing anyone a dime.  All that’s necessary if for African Americans — and, in particular, African American women — to will it.  

I stress women not because they are more culpable.  To the contrary, biology being what it is, I think it is more likely that they can be persuaded to behave responsibly than men, especially young men.  And women, after all, are the ones more likely to bear the brunt of the problems of single parenthood. 

I’m under no illusions, though:  This message has to be carried by someone like Oprah Winfrey, or better yet whoever the younger version of her is these days, rather than an old white guy like yours truly.

And, while I’m focusing on African Americans here, let me also hasten to add that all of this is true for members of other racial and ethnic minority groups — and for whites, too

Indeed, much is being made now of the collapse of strong families and the concurrent rise of social pathologies in large swaths of white America.  That seems to be the theme of J.D. Vance’s new book Hillbilly Elegy: A Memoir of a Family and Culture in Crisis.  That was also the point of Charles Murray’s earlier book, Coming Apart.

That’s all true.  This is really not about race.  Bad behavior leads to bad results for any demographic group, and bad behavior for any demographic group is strongly correlated with raising children in a home without a father.

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Last week, the Washington Post published an op-ed by the head of the Obama administration’s Civil Rights Division at the Department of Justice, calling on Congress to overturn the Supreme Court’s decision three years ago in Shelby County v. Holder.  She wants, that is, to resurrect the “preclearance” provision in the Voting Rights Act, which requires many state and local jurisdictions to get advance permission from her minions before making any changes in voting practices or procedures.

My published response in the Washington Post can be read here:

No new legislation is needed. The Supreme Court invalidated only one provision in the Voting Rights Act, and that provision was indeed unconstitutional. There are plenty of voting-rights laws on the books to ensure that the right to vote is protected.

In every other area of civil rights law, if someone believes his rights have been violated, he has to prove it in court. That is fair, and there is no reason that our voting laws should be any different.

Liberal lawyers would prefer to be able to get their way without proving anything, simply working behind the scenes with left-of-center bureaucrats to block laws they dislike. They are not concerned about ballot integrity and use racial gerrymandering to advance their own interests.

Also, the principal bill that has been drafted is bad legislation. It does not protect all races equally from discrimination, contains much that has nothing to do with the Supreme Court’s decision and violates the Constitution by prohibiting practices that are not actually racially discriminatory but have only racially disproportionate effects.