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Nothing Inevitable About Clinton Nomination

A new CBS poll on Hillary Clinton this week suggests that the former first lady, New York senator and secretary of state faces a steeper road to the White House than her supporters might think. Only 26 percent in the poll of the adult population had a favorable view of Clinton, while 37 percent had an unfavorable opinion, and an astonishing 36 percent said they hadn't heard enough to form an opinion or were undecided.

Because the poll sampled all adults, not just registered voters, the poll's political significance is limited. Much of the general public pays little attention to politics, and even less so this far out from an election. And, obviously, only those who register and vote actually matter on Election Day.

Nonetheless, the inevitability of a Clinton presidency is far from secure. For one thing, many people don't trust her. According to the CBS poll, only 42 percent view her as trustworthy, while 47 percent do not. What is unusual about this finding is that it goes against the usual gender advantage women candidates have on issues of trust and ethics. For decades, studies and polling have shown that voters think women politicians are more likely than men to be trustworthy and ethical.

Hillary's problems go back to her days in the White House in the 1990s. Who among those who follow politics can forget the battle over her billing records from the Rose Law Firm, subpoenaed but "lost," until they showed up mysteriously two years later in the first couple's White House residence? From her response to the Benghazi attack, which killed a U.S. ambassador and two other Americans, to the dustup over her using a personal email account to conduct State Department business, Clinton has shown herself to be both defensive and secretive, neither of which qualities inspires trust.

Clinton also seems tired. As a woman who is the same age as Clinton, I can understand it. I travel a great deal -- about 100,000 miles a year -- but nothing like Clinton will when she runs. Sixteen-hour days are one thing when you're in your 40s and another as you approach 70. And, let's face it, women may hold a gender advantage with the public on some personal attributes, but age isn't one of them.

Clinton will be 69 in 2016 -- the same age as Ronald Reagan was in 1980 when he ran and won in a landslide. But age was kinder to Reagan, as it often is to men. Reagan managed to convey energy and vigor by riding horseback and chopping wood in his leisure time and engaging with voters and debating on the campaign trail. Clinton doesn't seem to have that same gift. Sure, it's not fair that women are judged more harshly on age -- but it probably matters in an election, even if few people are willing to say so.

Clinton has tremendous advantages -- not least intelligence, ambition and a fundraising juggernaut -- which have discouraged other serious Democrats from entering the race. But it's important to remember that in 2008 her nomination seemed pretty inevitable, too, until a little-known first-term senator decided to launch a challenge. We all know how that ended.

But Clinton can't be beat unless someone else gets in the race. Right now, former Maryland Gov. Martin O'Malley looks like he might make a go of it. O'Malley isn't a household name, but neither was Barack Obama, and unlike Obama, O'Malley has had actual executive experience.

Massachusetts Sen. Elizabeth Warren keeps saying she's not running, but she has a fervent fan base in the left wing of the Democratic Party and could cause Clinton some problems if she decided to throw her hat in the ring. But there are other Democratic senators who also could step into the fray.

Sen. Sherrod Brown from Ohio comes to mind. A former Eagle Scout and a devout member of the Evangelical Lutheran Church of America, he seems solidly Middle American and would win support among union members and populists for his role in blocking U.S. free trade agreements. He also happens not to be up for reelection until 2018, which means he could run without giving up his current job.

It is far too early to know what will happen once the race for president begins. But I, for one, am not betting that Hillary Clinton will be the Democratic nominee.

Abandoning Our Friends

The Obama administration seems to have taken the old adage about keeping friends close but enemies closer to new extremes, judging from the reaction to the Israeli elections.

The United States has no real friends in the Middle East, save Israel. Our strategic relationships with other governments, from Saudi Arabia to Jordan to Egypt and others, are not true friendships but are based on mutual self-interest. They can and do change depending on circumstances and players.

We were allied with Egypt under Hosni Mubarak, but abandoned him when the Arab Spring promised new, democratic leadership. Then -- thankfully -- we restrained our support for his successor, Mohammed Morsi, who turned out to be no democrat, despite being elected.

The U.S. relationship with Israel has always been different, owing not to who leads either government, but based on shared values, culture and history. Those ties have been important since the founding of Israel. Harry Truman played a pivotal role in recognizing Israel in 1948 -- against the vigorous opposition of his secretary of state and others in the administration -- legitimating the Jewish state when much of the world was opposed to its creation.

But history is not the primary reason we have always stood by Israel and must do so today. We are part of the same civilization. Our values are the same, part of a continuing tradition that traces its roots back some 4,000 years. Our Founders understood the profound importance of Judeo-Christian values in the American conception of individual rights, believing a Creator -- not government -- endowed each person with the unalienable right to life, liberty and the pursuit of happiness.

President Obama, however, seems oblivious to what makes Israel different from other allies in the region. He seems not to understand the basis on which we have a special relationship with Israel. It goes beyond his repeated personal snubs of Prime Minister Benjamin Netanyahu, most recently by delaying calling Netanyahu after his Likud Party's surprising victory in the Israeli parliamentary elections. Obama was much quicker to make congratulatory calls to tyrants like Russia's Vladimir Putin and Iran's Hassan Rouhani following their elections. The White House seems intent on insulting Netanyahu, but, more importantly, on punishing Israel.

It's a dangerous game the president and his administration are playing. On Wednesday, anonymous high-level administration officials hinted to Politico that the U.S. might have to rethink the way it deals with Israel, perhaps not opposing U.N. resolutions condemning the Jewish state on settlements and other issues as we always have. Congressional support for Israel is strong enough to make it highly unlikely that the administration could reduce foreign or defense aid. But it is not inconceivable that Israel's support in Congress could, in the long run, be jeopardized if more Democrats follow Obama's lead.

Obama is on track to go down as more hostile toward Israel than any president in the past 68 years. It is hard to believe his actions stem from nothing more than personal animus toward Netanyahu. Obama has no trouble reaching out to the likes of Iran's Supreme Leader Ayatollah Ali Khamenei, writing him a fawning letter back in November. But he can't seem to bury the hatchet with Netanyahu. Is there more to this than his dislike for one man?

The left has largely abandoned Israel. And unfortunately, Obama is a man of the left. Having won reelection, he seems willing to allow his leftist instincts to guide him more openly in foreign policy than in his first term. But those instincts were always there. They are what made him promise as a candidate that he would meet with Fidel Castro, Hugo Chavez and Kim Jong Il without preconditions, calling the failure of other presidents to do so a "disgrace."

But the real disgrace is a president who does not stand by our friends and who would embrace our enemies. Eight years of Barack Obama's presidency may well leave the United States with fewer friends and will have done little to stop more tyrants from occupying the world stage.

CEO Needs Your Help

Dear CEO supporter,

We recently sent you an email updating you on our work and asking for your continued help but we haven’t heard back, so I wanted to make sure you received it and also update you on some of our more recent work.

2014 was a banner year for the Center for Equal Opportunity (CEO), as we continue in our relentless opposition to race-based policies by the Obama administration and other politically correct institutions. That’s why we are asking for your help again.

But first let me tell you about some of what we’ve been up to. This past year, especially with the events in Ferguson, Missouri, the race baiters like Al Sharpton have been out in full force like never before—trying to inflame the nation and irresponsibly playing the race card at every turn. But CEO has been out there fighting back, speaking and writing on these issues and leading the fight against the irresponsible playing of the race card.

And we’ve had major successes not only in the court of public opinion but in some recent court cases as well. In Schuette v. BAMN, the Court of Appeals had held that Michigan's Proposal 2 violates the U.S. Constitution. Proposal 2 was a ballot initiative that amended the state constitution to provide that state and local government agencies (including public universities) in Michigan "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." 

There’s nothing wrong with that! The problem is that liberal judges didn’t like the fact that it banned racial preferences in university admissions.

CEO was involved in this case for a long time, first in the lower courts and then in the Supreme Court.  In fact, we helped get Proposal 2 passed in the first place, by releasing studies that documented how heavily racial and ethnic preferences were being used at Michigan public universities.  We joined and helped write numerous briefs — twice in the lower courts, then urging the Court to take the case, and finally on the merits. We participated in a moot court for the State of Michigan counsel and provided comments on the state’s brief. And we won: The Court upheld Proposal 2.  Now we’re explaining how other states can follow suit.

Another case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, was also a Supreme Court matter in which CEO has been heavily involved. It presents the question of whether “disparate impact” causes of action may be brought under the Fair Housing Act. The Court has recognized but never decided this important issue — that is, whether a policy that is neutral by its terms, in its intent, and in its application can still be illegally “discriminatory” because it has disproportionate racial effects (for example, suppose a landlord won’t rent to people with felony convictions for violent crimes—why should that be illegal?).

We filed an amicus brief successfully urging the Supreme Court to take this case, have now filed a brief on the merits, and have been advising party counsel.  This is the third case and the third term in a row we have played a key role in such litigation. More generally, we have played a key role in bringing greater public visibility to abusive “disparate impact” lawsuits and regulations by the Obama administration.

This was on the heels of two previous landmark Supreme Court cases in which CEO has also recently played an important role. The first was the Supreme Court’s decision in Fisher v. University of Texas, overturning the court appeals ruling that had upheld the University of Texas’s use of racial preferences in university admissions. 

CEO had filed a series of amicus briefs in this litigation—first in the U.S. Court of Appeals, then urging the Supreme Court to take the case, and then urging the Court to end racial preferences.  Before that, we also filed an administrative complaint against the University’s policy.

The Supreme Court was right to tell the lower court to take a harder look.  In a country that is more and more multiracial and multiethnic, our laws and institutions simply cannot sort Americans by skin color and what country their ancestors came from.

The other landmark Supreme Court case we’ve recently been involved in was the challenge to Section 5 of the Voting Rights Act, Shelby County v. Holder. And we won there, too! CEO was very glad that the Court struck down as unconstitutional the coverage formula of Section 5 of the Voting Rights Act.  CEO had filed amicus briefs at both the petition stage and on the merits, urging this result.  In addition, CEO president and general counsel Roger Clegg and I had testified against re-enacting Section 5 when it was last before Congress.

None of this would have been possible without the help of loyal supporters like you. But to continue our efforts, we need your help now more than ever.  Thanks to the sluggish Obama economy, CEO is facing a difficult budget crisis.  Yet no one does the work CEO does on these critical issues. 

Once again, the race baiters—including, amazingly, President Obama himself—have been full force telling the public that the Voting Rights Act case ruling turned back the clock on civil rights. But CEO has been out there giving countless interviews in mainstream media outlets, educating the public that, for instance, the Court ruling in the Shelby County case simply made one thing clear: that there is no justification for treating some states unequally and subjecting only some states to extraordinarily intrusive federal oversight, based on obsolete data.  

This does not turn the clock back; it simply recognizes that times have changed!

What’s more, the Court’s decision will put an end to much of the politically correct racial gerrymandering that was the main use—along with challenging antifraud voter ID laws—to which Section 5 was put. 

As we predicted, liberals will try to undo the Shelby County voting rights decision by seeking to pass new legislation that would, for example, perpetuate politically correct racial gerrymandering. But CEO is working to blow the whistle and educate congressional staff on this issue:  In fact, we started that process even before the decision came down. 

As for racial preferences in university admissions, the Fisher case can be a useful tool--but only if the opponents of racial preferences use it. CEO will do just that, by systematically contacting schools all over the country and using freedom-of-information laws to make sure they are following the rules that the Court’s Fisher opinion has set out.

Again, we couldn’t get this message out there without your donations. And we need your support now more than ever. CEO is not resting on its laurels.

All that I’ve discussed so far is just what the Center for Equal Opportunity has been doing in the courts. But there is much, much more that we do.  We testify before Congress and the U.S. Commission on Civil Rights on issues like whether felons should automatically have voting rights restored (no), whether there should be a commission set up to lay the groundwork for African-American reparations (no again), whether there should be federal legislation on racial profiling (also no), whether Native Hawaiians should be declared an “Indian tribe” so that they can be eligible for preferential treatment (you guessed it:  no), and on many other bills.  

We have pointed out that Obama administration legislation like the Dodd-Frank bill and Obamacare contained, in addition to their other problems, unconstitutional racial preference provisions, and we have worked with Congress to get rid of federal contracting preferences based on race.  Every day, we check the Federal Register for what the Obama administration is up to in our areas, and have filed dozens of comments and written dozens of articles where we have found problems—which is just about every week. 

And all that is just at the federal level:  We keep busy at the state and local level, too. For example, we frequently weigh in against racial contracting preferences there as well. 

And, in the court of public opinion, we tirelessly write columns, blog, and speak, not only on television and radio, but on university campuses across the country.

The success we’ve recently had before the Supreme Court is nothing new for CEO. From its founding in 1995, CEO has helped to drastically change the political and legal landscape on:

  • Racial preferences in education, contracting, and employment;
  • The detrimental effects of bilingual education;
  • The rise of multiculturalism in our schools and other institutions; and
  • The importance of assimilation and the impact of immigration on our society.

But with liberals in charge of the White House and most universities, we need your support now more than ever. The Obama administration will continue to be disastrous for Americans like you and me without CEO around to challenge them on civil rights issues. That’s why your support right now is so crucial. 

But we need your help to do all this. And we need your help to continue to fight back against the politically correct race profiteers like Al Sharpton, Jesse Jackson and their pals in the media.  

We understand money is tight right now for many Americans. Just like many families, CEO runs a very tight budget--and we too have taken a big hit by this economy. Unfortunately, in tough times, one of the first cutbacks families make are donations to charitable causes. 

CEO has led the nationwide fight against racial preferences -- so-called “affirmative action.” We’ve persuaded more than 200 schools to open up their minority-only scholarships to people of all colors. We’ve exposed racial preferences in admissions with hard-hitting studies at over 60 colleges and universities. And we’ve had success after success in all three branches of government. 

Will you help by sending a generous donation of $50, $100, $250, $500, or $1000 today? Any donation will be a big help at this critical time.  As always, 100% of your donation is tax-deductible to the fullest extent of the law.

I truly appreciate all you’ve done for us in the past.  I hope to hear from you again very soon.


Linda Chavez

A Legacy of Racial Grievance

Another shooting has taken place in Ferguson, Missouri -- and this time, two police officers were the victims. The violence should not come as a surprise, given the ugly tone set by the nation's top law enforcement officer, Attorney General Eric Holder.

The most divisive attorney general since Richard Nixon's John Mitchell, Holder has fanned the flames of racial grievance for much of his tenure. In his early days in office, he called America "a nation of cowards" on racial issues. Last week, his target was the Ferguson Police Department. Holder promised, "We are prepared to use all the power that we have ... to ensure that the situation changes there." No, he didn't intend for someone to try to kill two police officers by shooting them in the face. But by portraying the police department as racist to the core, he contributed to the culture of vengeance that led to the shooting.

There is no doubt that the Ferguson Police Department has major problems and needs reform. As the 105-page Justice Department report issued last week documents, city officials have seen the police department largely as a cash cow: "The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved."

The main sources of those revenues are criminal and civil fines. The policy encourages police to make more traffic stops, conduct more searches, issue more tickets and make more arrests and the courts to issue more warrants and fines to drive up revenues. It's a lousy policy -- but one not unique to Ferguson. If the Justice Department were truly serious about changing the abuses more broadly, it would have conducted a larger study that looked at similar patterns in other localities -- including largely white tourist towns, where traffic tickets are often a huge source of revenue.

But Holder isn't interested in the insatiable appetite of government for more revenues. He came to Ferguson in search of racism -- and of course, he found it. It was predestined from the moment President Barack Obama announced he was sending Holder to Ferguson to investigate the shooting of Michael Brown last August.

Perhaps the greatest irony of the Justice Department's investigation is that it cleared the Ferguson police officer who shot Brown, Darren Wilson, of any wrongdoing in Brown's death. Obama, Holder and many of the liberal media were quick to suspect that Wilson, who is white, shot Brown because he was black. For months after the shooting, protesters around the country adopted the mantra "hands up, don't shoot" to describe Brown's actions before he was fatally shot by Wilson. Now the Justice Department's investigation has concluded that nothing of the sort happened.

According to all available forensic evidence and credible witnesses, Brown attacked the police officer and was in the process of charging toward him when Wilson fired the fatal shots.

Racism wasn't responsible for Michael Brown's death. Brown's own behavior precipitated his unfortunate end.

Blaming racism for every statistical disparity that exists between whites and blacks -- from education to income and poverty to crime -- gets us no further in solving the problems that exist for many black Americans. Nor does it get us closer to wiping out the racial prejudices that do, unfortunately, still exist among a minority of the American population. But those prejudices -- examples of which were found by the Justice Department among police officers in Ferguson -- are not unique to whites. In every study of racial attitudes among Americans, whites are no likelier to harbor prejudices against people of other races than are blacks, Hispanics or Asians.

Eric Holder will leave office as early as next week if the Senate confirms Loretta Lynch to be his successor. It will be none too soon. A man who could have done much to improve race relations will instead leave behind a sorry legacy of inflaming racial tensions when the nation most needed a healer.

Comforting the Enemy

Democrats are playing a dangerous game with Israel by snubbing the prime minister of America's staunchest Middle East ally. Four Democratic senators, as well as almost two-dozen House members, have already announced that they will not attend Benjamin Netanyahu's speech to a joint session of Congress on March 3. By doing so, they may curry favor with the White House, but they risk sending a dangerous message to Israel's enemies -- especially Iran.

As recently as November, Iran's Supreme Leader, Ayatollah Ali Khamenei, warned that the only "cure" for Israel is to "be annihilated." Is it any wonder that Netanyahu considers a nuclear-armed Iran an existential threat to Israel's very existence?

Israel is the only nation in the world that, from its inception, has been constantly threatened with extinction. Its Arab neighbors have fought repeated wars to destroy the Jewish state. Terrorist organizations have periodically slaughtered Israelis -- aiming their attacks at innocent civilians, even school children. Last year alone, Hamas fired more than 4,000 rockets into Israel from Gaza. Only Israel's superior Iron Dome defense system prevented the rockets from killing hundreds if not thousands of Israelis who were Hamas' intended victims.

So why on earth have Democrats chosen to pick this fight? And make no mistake: It is a handful of Democrats who have turned Netanyahu's speech into a partisan issue.

The White House has from the beginning treated the Netanyahu speech as if it were a sneak attack by an adversary. But Netanyahu seems to have a better understanding of the American concept of the constitutional separation of powers than the president does.

The Speaker of the House can invite whom he chooses to address Congress. And if the president was miffed at the selection of Netanyahu, he could have chosen to voice his objection privately. Instead, he picked a public fight and asked members of his party to choose partisan sides.

Netanyahu recognizes that Congress has a role to play in approving a nuclear agreement with Iran, as the president does not. He will tell Congress why he believes an agreement with Iran that does not eliminate the rogue nation's ability to build nuclear weapons is bad for Israel -- and for the world. And, no doubt, he will encourage Congress to try to stop a bad deal from being implemented.

If some Democrats in Congress want to rubber stamp whatever deal the administration strikes with Iran, they are free to do so. But shouldn't they at least listen to contrary arguments from one of America's most steadfast allies? And shouldn't they be as eager as Republicans to demand a vote on the issue?

The White House has upped the ante in its feud with Netanyahu by sending national security adviser Susan Rice out to warn that the prime minister's speech is "destructive of the fabric of the relationship" between the U.S. and Israel. And Secretary of State John Kerry looked ridiculous this week noting that Netanyahu's support of the invasion of Iraq in 2003 showed that "his judgment (about Iran's nuclear program) might not be correct," because Kerry himself voted to authorize the invasion while in the Senate.

The administration is charting a perilous course here. If Israel is pushed into a corner, it will -- and has every right to -- take action to prevent Iran from developing a nuclear weapon. Reports that Saudi Arabia has secretly agreed to allow Israel to use Saudi airspace if Israel decides to try to take out Iran's nuclear sites make a military option more likely.

Israel is not the enemy. Iran -- especially a nuclear-armed Iran -- is. Yet President Obama seems willing to abandon an ally in hopes of appeasing an enemy. And unfortunately, by boycotting the Netanyahu speech, some Democrats will give aid and comfort to that same enemy. In the end, it will be the United States, as well as Israel, that suffers.

Education and Ferguson

The Center for Equal Opportunity recently sent this letter to the District of Columbia’s attorney general, Karl Racine:

Dear Attorney General Racine,

We are writing with regard to this news story, which says that [a District of Columbia councilmember] and the American Civil Liberties Union have asked you to consider the legality of a proposed new high school’s gender exclusivity.

We respectfully request that, at the same time, you also consider the legality of the racial exclusivity of such programs.  We don’t know if the new high school is supposed to be limited to people of certain races, but obviously if it were this would be contrary to decisions like Brown v. Board of Education (1954) and its companion case, involving District of Columbia schools, Bolling v. Sharpe (1954). 

This particular program aside, we also question the racial focus of the District’s whole “Empowering Men of Color Initiative.”  We are sure that the initiative will have many worthwhile programs, but we do not think that, as a matter of law or policy, they should be limited only to individuals of particular races and ethnicities.  Why should two boys, who might not only live in the same neighborhood but might even have the same mother, be treated differently because one had a father of one color and the other a father of a different color?  Certainly this would be unfair, and it is also in our view clearly illegal.  There is no “compelling” interest that the courts have recognized in this area, and such an categorical rule is in any event not “narrowly tailored.”

All this said, we know that the descriptions of programs by public officials as reported in news stories are not always accurate.  We hope that the programs here will, in fact, be open to individuals of all racial and ethnic groups, even if it is expected that most of those eligible will, for socioeconomic and other reasons, be more likely to belong to some groups than others.

Thank you very much in advance for your consideration of our concerns.  We look forward to your reply.

*          *          *

Speaking of education,  I enjoyed this article on National Review Online about the No Child Left Behind reauthorization currently pending in Congress, and was particularly happy to see this: “[Education Secretary Arne] Duncan’s wish list has included race-based performance targets. . . . The Student Success Act [the Republican No Child Left Behind reform currently before the House] would end the ability of Duncan, and of his successor, to engage in such shenanigans.”

I would add only that, while I do not doubt that Secretary Duncan would like to make things worse, No Child Left Behind has always included an unfortunate racial focus (see my discussion here), and it would be great if Congress removed it altogether.

*          *          *

And one other education note:  Gail Heriot and Peter Kirsanow — the two conservatives on the U.S. Commission for Civil Rights, with whom the Center for Equal Opportunity does a lot of work — have written a fine letter urging Congress not to grant the Obama administration’s requested 31 percent increase in the budget for the Department of Education’s Office for Civil Rights. The two commissioners document “a disturbing pattern of disregard for the rule of law at OCR,” all in the service of fashionable political correctness, of course.  Congress should listen.

*          *          *

Finally, I ought to say something about the reports issued last week by the U.S. Department of Justice regarding the recent unpleasantly in Ferguson, Missouri.  As for the first report, it was gratifying that even Eric Holder had to concede that the evidence is lacking for the “Hands Up!  Don’t Shoot!” mantra we’ve been hearing for the past several months. 

The report about the Ferguson police department itself, however, is less fact-based, alas.  As one of co-contributors warned on National Review Online, the Justice Department made dubious use of the “disparate impact” approach to civil-rights enforcement in its report (see especially pages 63-70).  That approach equates statistical imbalances with proof of discrimination, and it is the biggest problem with the report.

Here are some additional thoughts on my quick reading:

1.  Using the disparate-impact approach is bad, and it is misleading not to control for the obvious variables:  Naturally there will be more blacks stopped, proportionately, if the black population tends to be younger and poorer than the white population, to say nothing of the relative likelihood of law-breaking activity among different demographic groups.  Yet there is no acknowledgment of this in the report.

2.  The picture the report paints of how the police and court system works in Ferguson is, no doubt, not a pretty one.  But it will be interesting to see what Ferguson's response is, because there is no effort at all in the report to give both sides.

3.  You have to wonder about how much evidentiary value "racist" emails cited in the report should have.  And it’s not even clear if these emails were actually sent by policemen rather than simply received by them.

4.  The Justice Department treats police departments the way it thinks police departments treat African Americans.  That is, it's looking very hard to confirm its own stereotypes, and the result will be continuing mistrust.

5. It is not a good idea for anyone involved to encourage young poor black males to view the police as illegitimate and racist.  That is, it will make the job of the police harder, and it will not improve the life-chances for young poor black males.

6.  Is fixing traffic tickets really an unconstitutional outrage (part of the Justice Department’s report)?

7.  The report also encouraged more diversity-hiring in the police department.  But there was no mention of the legal constraints on race-based hiring.

8.  All this said, the most important part of the report, going forward, is the last section on reforms, and it could be worse, at least if Ferguson pushes back a bit.

Fisher Is Back!

Supporters of the Center for Equal Opportunity know that we are playing an important role in trying to end racial preferences in university admissions across the country, and have been especially active in Abigail Fisher’s lawsuit against the University of Texas.  Well, a cert petition has now been filed on behalf of Ms. Fisher by her lawyers with the Supreme Court, asking that review be granted of the latest court of appeals decision against her.

Recall that the last time around, the Supreme Court reversed the Fifth Circuit’s similar ruling; Justice Kennedy’s decision said that the court of appeals had not been strict enough in the scrutiny that it applied to the university’s use of racial preferences in admissions. This month’s petition argues that the Fifth Circuit still hasn’t gotten it right and that, indeed, its latest decision is inconsistent with what Justice Kennedy demanded.

Stay tuned.

*          *          *

Of course, the New York Times’s Linda Greenhouse had to weigh in immediately, defending the use of racial preferences in university admissions.  Here’s my posted response:

The thesis of [Ms. Greenhouse’s] long essay is that the Court should allow universities to continue to engage in racial discrimination, and yet there is not one word explaining why this discrimination is justified. The only justification cited by the university here is that there are "educational benefits" from student body "diversity." What this boils down to is a claim that African American students and Latino students will say things (in or out of class) that would otherwise never have occurred to white and Asian Americans students. The "educational benefits" from these random statements are so "compelling" that they overwhelm the many, undeniable, and heavy costs of racial discrimination -- the unfairness and divisiveness, the resentment and stigmatization, the mismatching that hurts the students who receive the preferential treatment, the lowering of academic standards that inevitably results when less-qualified students are admitted, and getting schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic. It's not worth it.

And, a bit earlier, another New York Times columnist, Charles Blow, had written a column on racial and gender disparities in the STEM area, raising similar issues.  Here’s my posted response to that:

It does not follow from Mr. Blow's column that our efforts to attract students into the STEM area should be made with an eye on race, ethnicity, and sex. If there are promising students of any background, they should all be equally encouraged to pursue that promise. But, alas, many people draw the politically correct conclusion that what's needed is some kind of "affirmative action" in the STEM area — which is unfair to those who aren't preferred, and counterproductive (because of "mismatch") for those who are. More here.

*          *          *

On this front, there was an interesting article in the Los Angeles Times over the weekend about discrimination against Asian Americans in university admissions. Many of those being discriminated against don’t like it — go figure.

And Richard Kahlenberg makes some good points in this piece posted by The Chronicle of Higher Education. There have been recent revelations about the University of Texas’s less-than-transparent admissions process, and Mr. Kahlenberg explains how helping less-qualified, well-off applicants get into the University of Texas is part-and-parcel of the way its racial preferences work, too. Kahlenberg concludes that, in both instances, UT’s president demands, “Give me discretion and ‘trust me’ to do what’s best. But given his record of using discretion for those who least need it, why should we?”

*          *          *

Finally, this also out of Texas:  One of the issues explored at oral argument last month in Texas Department of Housing and Community Affairs v. the Inclusive Communities Project was whether the defendant in the case could really be said to have done anything that actually had a “disparate impact” on racial minorities. Chief Justice Roberts grilled Solicitor General Verrilli on this point, and never did get a satisfactory answer.

Here’s the issue: The plaintiff in the case is a liberal organization that wants to promote racial integration, and it is unhappy that the Texas state agency there doesn’t distribute tax credits in a way that encourages low-income housing to be built in white areas. But mightn’t poor minorities prefer to have low-income housing built close to where they already live rather than far away?

It’s interesting, then, that this month an op-ed was published by the chairman of another Texas organization, who appears to be just as committed to helping racial minorities as the plaintiff, but complains that what’s needed is more low-income housing in minority areas, not less.

So Chief Roberts’s concern — which I had also raised prior to the oral argument, by the way — is vindicated.

Conservative Solutions

Now that Republicans have walked back from the brink on funding for the Department of Homeland Security, it's time to figure out whether there is any way forward on the immigration reform. I've spent the past few weeks talking -- and listening -- to conservatives on the issue, and I've actually become more hopeful, but I don't expect it will be easy. Nor do I expect it will happen soon.

The major obstacle to immigration reform as far as the GOP is concerned is President Obama. They just do not trust him to enforce the law -- any law -- if he happens to disagree with it. When Obama decided to take executive action to give temporary legal status and work permits to four million illegal immigrants, he ruined any chance that compromise could be found while he is in office.

But there will be a new president in two years, and Republicans must begin to lay the groundwork if compromise is to be found. If they stay opposed to any reform and continue to talk about illegal immigrants as if they were criminal invaders, as many hardliners do now, the chances of winning the White House will diminish significantly. Hispanics and Asians fled the Republican Party in 2012, and they will again if the rhetoric doesn't change.

However, it's also important for those of us who favor reform to understand the concerns and frustrations of conservatives on this issue. That's why I've been reaching out to my fellow conservatives to hear what worries them most about immigration.

First, conservatives believe strongly in the rule of law. As far as they are concerned, all 11 million illegal immigrants now in the U.S. are lawbreakers and must be punished. The idea of "amnesty" doesn't sit well.

But the question becomes: How do we resolve the fate of the 11 million? Few conservatives want to round up 11 million men, women and children, especially those who work, pay taxes and contribute to the economies of their local communities. So what do we do? Are we observing the rule of law better by ignoring it or selectively enforcing it, as we do now?

As a nation, unless we are ready to contemplate the economic and human costs of identifying, apprehending, detaining and ultimately evicting the 3.5 percent of the U.S. population that is illegally present, we are going to have to figure out a way to grant some sort of legal status to at least a portion of this population.

For conservatives, this will mean coming up with criteria that meet the standard that those who have broken the law pay some price for doing so. Whatever restitution illegal immigrants ultimately are forced to make, the "punishment" should fit the "crime."

Illegally entering the United States by evading the border patrol or crossing at an improper entry point is indeed a crime -- but the crime is a misdemeanor, punishable by a $250 fine and no more than six months of incarceration, and that only after being found guilty beyond a reasonable doubt. But about 40 percent of the 11 million unauthorized immigrants actually entered legally and overstayed their visas. This is a civil infraction, not a criminal one, though it can result in deportation or voluntary removal.

President George W. Bush's plan to deal with the population of unauthorized immigrants -- which Democrats ultimately derailed in the Senate -- would have had them pay fines and back taxes (if owed, though most illegal immigrants pay taxes already) and pass a background check that proved they had not committed crimes in the U.S. or in their home country. It was never an amnesty, as critics charged, but a sensible plan that meted out a proportionate penalty for violating immigration laws.

But solving the fate of those already in the U.S. illegally doesn't deal with the bigger issue of how we stop future illegal immigration. And conservatives worry that any solution that allows people to stay here will only encourage more people to come illegally.

They're right -- up to a point. If we don't fix our immigration laws so that we can admit sufficient numbers of people to meet labor demands, we're likely to continue to have illegal immigration. Most conservatives are more open to reforming legal immigration through expanded guest worker programs and changes in the way we admit permanent legal residents. If the GOP is smart, they will tackle that problem first. But don't count on a significant overhaul happening until a new president takes office.

In the meantime, Republicans will increase their chances that the new Oval Office occupant is one of their own if they stop being obstructionist and start fashioning solutions.

Lemmings Over the Cliff

Republicans won big in November on the hopes that a GOP-led Congress could counterbalance President Obama's imperial presidency. But as the deadline approaches to fund the Department of Homeland Security (Feb. 27), it looks like Republicans would rather play chicken with Democrats than actually get something accomplished.

The House has passed a bill funding DHS that includes provisions to undo the president's actions on immigration. Even many of us who support comprehensive immigration reform, including giving some illegal immigrants the ability to earn legal status, have grave reservations about the president's approach. His decision to use executive action to circumvent Congress is a dangerous precedent -- but this is something the courts should decide. A suit filed by 26 states is before a district court in Texas at the moment, and a decision could be handed down any day.

But the bigger issue is whether a fight over what to do about 11 million illegal immigrants currently in the U.S. is worth risking national security for all the 320 million people who live here.

The threats to U.S. security are real -- and they don't come from people who simply want to work here doing jobs most Americans shun. Republicans have allowed themselves to walk into a trap, and they seem to have no idea how to extricate themselves.

Democrats may be the ones filibustering DHS funding, but don't count on the media or the public to blame them if DHS runs out of money at the end of the month. The fact is, most recent polls show that a majority of Americans back the president's policy to grant temporary relief from deportation to many illegal immigrants.

Americans favor the president's action by large margins according to most recent polls, from a low of 52 percent in a January poll by NBC News/Wall Street Journal to a high of 73 percent in a February poll taken by Public Religion Research Institute. More importantly, virtually all polling data show that most Americans believe Congress should enact comprehensive immigration reform that includes legalizing most of those illegally present in the U.S. who have been here for more than five years, have paid taxes and have been otherwise law abiding.

House Speaker John Boehner challenged his Senate counterparts to "get off their ass" and pass the House bill. But the alternative is for him to exercise some leadership on his side of the aisle. It's easy to get most Republicans to vote for a bill that bashes Obama, but what about offering real solutions to our immigration problem?

The fact is, the Senate passed bipartisan comprehensive immigration reform in 2013, but the House refused to do so. Republicans say they won't pass a comprehensive bill until the border is secured. But the best way to stop people from sneaking into the country illegally (or overstaying their visas) is to give them a path to come legally. It would be both more effective and cheaper to pass legal reform than to spend billions more on higher, longer fences and high-tech ways to deter would-be workers from crossing illegally.

Most Republicans would like to see this issue go away, but they are too timid to stand up to the Steve Kings and Marsha Blackburns of their party.  Blackburn sponsored the amendment to the DHS funding bill that would undo Obama's Deferred Action for Childhood Arrivals, which allowed those brought illegally to the U.S. as children to be exempt from deportation and allowed to work provided they meet certain qualifications, including completing high school and having a clean record.

Twenty-six Republicans voted against the amendment -- good for them. But it will take someone like Boehner to stand up and be counted on the issue. And so far, he's missing in action, willing to call names but not willing to pull his members out of the line of lemmings rushing over the cliff.

The current GOP path is the way to defeat. Americans didn't elect a Republican majority to give the hotheads in the party an avenue to put U.S. security at risk in order to punish children who were brought to America illegally by their parents. The sooner the leadership stands up to such blackmail the better for the party and the country.