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Thu12082016

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Ten Non-Legal Thoughts

I’m just a poor but reasonably honest civil-rights lawyer, not a political expert or psychologist, but I did have a few thoughts on the post-election fallout that I’m observing:

  1. No one can deny that there is racism in America’s past, and no one can deny that there are still racists. But the problem with the Left is that it willfully exaggerates the amount of racism that still exists — such as when it tells Americans about the racism in their past to the exclusion of everything else, and especially everything positive. That is, its problem is obsession with race and exaggerating racism. But my sense is that we are at a point where a critical mass of Americans is telling the Left, “Enough.”
  2. Jonah Goldberg nailed it recently when he wrote about the incompatibility of race-obsession with reason. Alas, the Left has long been race-obsessed, and so our campuses have come to share that obsession. Don’t believe me? Pick up any issue, any issue, of the Chronicle of Higher Education, or visit Insider Higher Ed on any day, any day. Again, my sense is also that the Left has, with Black Lives Matter and the various campus pubic wars, finally jumped the shark. It has dwindling credibility, and the election results underscore that.
  3. I should note here that you also have to wonder about the good faith of the other side, given the Left’s agenda. The premise of a racist society is helpful to everything in that agenda, and essential to much of it. Thus, the hard Left’s agenda now includes both “diversity” uber alles and reparations; we may be stuck with some form of the diversity shibboleth, but reparations are a political nonstarter — indeed, political kryptonite, and rightly so — that are conceivable only if one believes the worst about this country.
  4. Likewise, one wonders if race relations are actually exceptionally bad right now, or if it is just more fashionable now to say they are bad. The media have no interest in telling the truth on this, because bad news sells. And, again, the Left has its own reasons for wanting race relations to be bad and to be perceived as being bad. I admit that one feels a little silly saying that race relations really are pretty good, looking out at urban riots and campus protests, but in fact they are, if one has any sense of historical perspective at all.
  5. Not that there isn’t unfinished business. But the glass is more than half full — more than three-quarters full — and conservatives want to identify the problems and fix them. The Left is more interested in talking about them forever. Practical solutions are not really what it is after. Indeed, the Left doesn’t want to acknowledge that there can even be solutions, short of the wholesale destruction of current American society.
  6. So part of what’s going on here is ideological. Getting people to believe that there is widespread, intractable racism helps advance the Left’s agenda. And part is psychological. The Left is filled with Atticus Finch wannabes. They want to be the good guy (or gal!) in a drama that has already ended, so they end up being melodramatic. They want to talk about problems forever, rather than solve them. They want to feel sorry for people.
  7. One of the uglier aspects of the Left is its desire to denigrate the accomplishments of the successful. “You didn’t build that!” That’s because undercutting accomplishment is the flipside of making excuses for the dysfunctional, who have to be excused if we are to feel so good about helping them. In both cases, it’s all about removing personal accountability so that the state has more power. Study hard, work hard, and above all quit having children out of wedlock: Are you crazy? No, the solution is more government that I can help run!
  8. Another point related to that is this: It is better to underestimate than overestimate the amount of racism in society and, especially, the degree to which it may deny one opportunities. Racism should not be ignored or excused, but it’s worse for individuals to give up before trying, or to blame the system for what are more likely to be their own failures. Again, if you like personal accountability, you don’t want to worry overmuch about how your best efforts may be thwarted; if you want to excuse those who aren’t trying, then it’s helpful to pretend that their efforts would likely be futile anyhow.
  9. Ask yourself: Is a backward-looking, blame-assigning mindset better for black progress and interracial cooperation than forward-looking, forgiving one? Sure, there is racism, but it’s a bad idea to oversell the amount of it, not only because it discourages hard work, but because it is divisive.
  10. In the end, it’s not that complicated: People should not be treated differently because of their skin color (by governments, private entities, or individuals), and it’s a bad idea to have children out of wedlock. Imagine a country where that was what the elites told us — without exaggerating the amount of racism or obsessing about race. Imagine a country where we celebrated how open all the doors are. We can do that, too, you know. When it comes to race relations, a period of benign neglect is long overdue.

Trump's Picks

Like many conservative never-Trumpers, I have decided to take a wait-and-see attitude on the president-elect -- and so far, I'd give him mixed reviews.

Donald Trump has made some good Cabinet appointments. Betsy DeVos is an education reformer who will do well at the Department of Education. Rep. Tom Price as secretary of health and human services starts the job with a sound background in medicine and public policy, and he may actually have some ideas on how to provide health care to those who have trouble affording it while not destroying the world's best medical care system in the process. Similarly, Elaine Chao has credentials as an experienced agency head, having served George W. Bush for eight years as labor secretary, and as deputy secretary in the Department of Transportation, where she will now have the top job.

Mike Pompeo and Jeff Sessions are both clearly prepared for their jobs -- as CIA director and attorney general, respectively -- though the latter's hard-line stance against both legal and illegal immigration is worrisome. Trump's pick for Defense, James Mattis, a retired general who led U.S. efforts in the Middle East as Central Command chief from 2010 to 2013, has drawn praise even from Democrats.

But Trump's choices for Commerce and Treasury are a bit puzzling. Wilbur Ross, his nominee for secretary of commerce, is part of Trump's elite New York billionaires crowd, but he's also a Democrat and protectionist, and at 79, he hardly seems likely to be able to change his tune much. Steve Mnuchin, Trump's pick for treasury secretary, is also an odd one. Trump railed against Wall Street and hedge funds in particular, yet Mnuchin is a veteran of both, having founded his own hedge fund after leaving Goldman Sachs, where he worked for 17 years. What both men have in common is that they are Trump supporters and have lived and worked in the circles Trump is most comfortable in for years.

Too bad the president-elect hasn't occupied himself solely with picking people for his Cabinet and other top posts during the past three weeks. Conservatives might have had their quibbles, and liberals would have had the usual heartburn, but he would have played out the role of his many predecessors properly. Instead, he's taken to Twitter to suggest that flag burners should have their citizenship revoked or be jailed and accused millions of undocumented immigrants of voting in the election. Of course, he did this a lot during the campaign and still won, which seems to be his rationale for continuing to do it. He's also fulfilled one of his campaign promises, to keep several hundred jobs in Indiana at a Carrier plant that was scheduled to move some of its operations to Mexico. He'll be given plaudits by his supporters for this.

But the question remains, Is this what a president should be doing? Meanwhile, he apparently is skipping many of his daily national security briefings and keeps picking up the phone to talk to foreign leaders without any preparation or background to keep him from sticking his foot in his mouth. A call from Pakistani Prime Minister Muhammad Nawaz Sharif to Trump has raised eyebrows. Our relationship with Pakistan is fraught, given the role some believe that Pakistani intelligence has played in fostering terrorism, so Trump's effusive praise for Sharif and the country may prove premature. "Your country is amazing, with tremendous opportunities," Trump said, according to the Pakistani government. "Pakistanis are one of the most intelligent people. I am ready and willing to play any role that you want me to play to address and find solutions to the outstanding problems."

Maybe Donald Trump will grow in the role, learning when not to say anything and, more importantly, learning how to listen to people who actually know what they are talking about. Maybe he'll finally give up his Twitter account, start reading briefing papers and learn something about complex issues he's not been interested in before. Or maybe he will just keep picking good people and let them do the job of running the government. We just don't know yet. We've never had anyone like him in the Oval Office before. The American people placed a big bet. The wheel is still turning, and no one knows where the ball will eventually land.

Do You Really Think That?

Some questions for the Left, especially the campus Left:

Do you really think it is a good thing for race relations on campus and elsewhere for Americans to be obsessed with race?

Do you really think that it’s a good thing for race relations if every white student thinks of himself (or herself!) as beholden to any nonwhite student he meets — beholden in the sense that he must check his privilege and walk on eggshells?

Do you really think it is a good thing for race relations if every nonwhite person focuses on past injustices to people who may have shared his nonwhite background and is alert to any “microaggression” by whites?

Do you really think it is a good thing for race relations if we obsess over historical wrongs, including what is now considered politically incorrect behavior by otherwise heroic individuals in our nation’s past?

Do you really think that all this is a better way forward than acknowledging the past but not obsessing over it, and focusing instead on treating one another as individuals and Americans rather than as, first and foremost, members of this or that aggrieved group?

Do you really think, in particular, that the attention of African Americans is best focused on misnamed buildings and not on the fact that 71 percent of African Americans are now being born out of wedlock?

Do you really think that a backward-looking, blame-assigning mindset is better for black progress and interracial cooperation than a forward-looking, forgiving one?

Well, do you?  Really?

*          *          *

Relatedly, there was a lot of breast-beating last week about an incident in which a graduate student was accused of plagiarism because she used the word “hence,” leading to the claim that this was obviously a racist “microaggression” of the sort that is widespread in the sacred groves of academe. 

But, as I wrote:

[I]t is a big leap from what happened here to this kind of broad generalization. I think it was wrong for the teacher to make this accusation in front of the entire class, but it may or may not have been race-driven.
Consider: When I was in seventh grade, my class had an English assignment where we were asked to write good "topic sentences" for (unseen but imagined) paragraphs. Afterwards, the teacher took me aside — the right way to do it — and suggested that I must have copied my sentences from someplace; she didn't think I could have come up with them on my own. I assured her I hadn't copied them, and thanked her for the compliment. She was white, and so am I.

Anyway, maybe the professor here was doing some ethnic profiling, but maybe not. The race-obsessiveness in higher education, and eagerness to play the race card, is ridiculous.

I added:

Criticizing race-obsessiveness (including racial preferences) and criticizing those who play the race card is not the same thing as being race-obsessed or playing the race card, duh.

Also relatedly:  It’s no secret that, when it comes to constitutional rights, our college and university campuses are anything but safe zones.  For a comprehensive overview of this unfortunate phenomenon, with chapter and verse legally, take a look at Hans Bader’s recent piece here.  And George Leef’s recent Forbes column focuses on the particular issue of college officials versus free speech in one recently filed case.

*          *          *

I spoke in Chicago last week at Northwestern University law school about various voting-rights issues, especially the disenfranchisement of felons.  I mean, what better time to talk about voting issues than the week before an election, and what better place to talk about voter fraud and the like than Chicago?

In defending felon disenfranchisement, I made my usual argument that, if you’re not willing to follow the law yourself, you can’t claim are right to make the law for everyone else, which is what you do when you vote.  I noted that we don’t let everyone vote—not children, not noncitizens, not the mentally incompetent, and not people who have committed serious crimes against their fellow citizens.  The common denominator is that we have certain minimum, objective standards of responsibility, trustworthiness, and commitment to our laws that must be met before we allow people to participate in the solemn enterprise of self-government. 

Felons can be given back the right to vote, but they must show they have turned over a new leaf first.  That only makes sense, in light of the unfortunate fact that most people who walk out of prison will be walking back in.

Anyway, I felt like my comments were warmly received.  On the other hand, maybe everyone was just in a good mood since, the night before, the Chicago Cubs had won the World Series for the first time in 108 years.

2015-2016 CEO Activities Report

In addition to our speaking on campuses and other venues, media outreach, and general research and writing (in National Review Online, Commentary Magazine, The New York Times, and other magazines, newspapers, and publications), here are just a few highlights of CEO’s work this past year.  We continue to give unmatched bang for the buck. 

 
Fisher v. University of Texas –This case challenging racial preferences in student admissions relied on a legal theory we developed, and before the case’s first trip to the Supreme Court we joined and helped write an amicus brief with the court of appeals, were the first to flag for conservative media the opposing Obama administration brief there, and participated in a moot court for Abigail Fisher’s counsel.  We joined Supreme Court amicus briefs (at the cert stage and on the merits, highlighting CEO’s studies), helped coordinate other amicus briefs, advised Ms. Fisher’s counsel, and did extensive speaking, writing, and media “truth squad” work.  After the Court’s initial positive ruling, we filed dozens of FOIA requests to determine if universities were meeting the criteria set out in Justice Kennedy's opinion (they weren’t). Then, when a lower court panel issued an opinion inconsistent with Justice Kennedy’s opinion, we helped write and joined an amicus brief urging the full appellate court to rehear the case.  The Supreme Court granted review again at our urging, and again we filed a merits brief, advised counsel, and were constantly active in all media before and after the case was heard, through the day the decision was announced.
 
The decision that the Supreme Court handed down was ultimately a disappointment, but Justice Kennedy’s decision contained many hedges and limitations, and it did not overrule earlier decisions by the Court limiting racial preferences.  The bottom line is that the Court’s decision leaves plenty of room for future challenges to racial preference policies at other institutions—and at UT itself for that matter. It’s interesting that, in the run-up to the decision, there was much discussion among liberals that maybe indeed there are better approaches to student admissions than UT’s. We’ll make sure that those discussions continue, prodded along by lawsuits that CEO is supporting and FOIA requests that we will file to ensure that all of Justice Kennedy’s hoops have been jumped through.  And we are already in touch with state legislators about the possibility of legislation banning racial preferences which, the Court has explicitly upheld (as we had urged it to). Mr. Clegg explained to the media—and to college officials at a conference this fall sponsored by Inside Higher Ed—that CEO will be watching universities to ensure they follow the law. We are in touch with allies at NAS and elsewhere about FOIA requests, and with ACTA about its role here.
 
Other Court Cases – We worked with Pacific Legal Foundation regarding its recent cert petition in a case challenging racial preferences in employment, and in a number of federal appellate cases involving racial preferences in government contracting. We are also now working on a wide variety of cases involving the defense of voter ID requirements, where we argue in particular to limit the use of the disparate-impact approach, and in two Supreme Court cases now pending that involve redistricting issues, where we seek to minimize the use of race.  In all these cases we have joined and help write amicus briefs with our allies.
 
Federal Register – We review this every day and file formal comments, often several times a week, on proposed rules and regulations.  We have succeeded in removing racially preferential language in a wide variety of programs.  
 
Lawmaking (With and Without Congress) – Consistent with our nonprofit status, we continue to play a key role in publicizing objectionable legislation (in particular, post–Shelby County voting bills)—and, relatedly and more and more frequently, executive branch efforts to “legislate” without Congress.  For example, we are currently working with other conservative groups to oppose the administration’s efforts to declare that Native Hawaiians are an Indian tribe; we have earlier (including through formal comments) pointed out the unconstitutionality of this measure, and that the reason the administration is pursuing this is because of Congress’s refusal to pass legislation in this area.  We are also opposing an administration proposal to expand the federal government’s use of racial classifications in its programs.  At both the federal and state level, we have been extremely active this year in explaining to the public why the automatic re-enfranchisement of felons is a bad idea, and why racial disparities do not prove racial discrimination in areas like law enforcement and school discipline.
 
Contracting – We have sent memoranda to a wide variety of local governments—and been in touch with local officials—warning them not to use racial preferences; as noted above, we are also involved as amici in litigation, and have advised other potential litigants; and we are working with Hill staff to commission a GAO study on the (legally dubious) use of such preferences.
 
Coordination and ClearinghouseFinally, the Center for Equal Opportunity plays an important role in disseminating information on our issues to other conservative groups (for that matter, we also serve as an “early warning system” for conservatives on nonracial issues, like sexual-assault and free-speech issues on campus and sexual identity/bathroom access).   For instance, it began and continues to co-host (with the Heritage Foundation) a monthly Civil Rights Working Group lunch attended by like-minded organizations, congressional staff, and other government officials.  Mr. Clegg draws up the meeting’s agenda and leads the discussion.  He also leads the discussion of equal protection issues at the Heritage Foundation’s semiannual Legal Strategy Forum, and advises individuals and organizations that have run afoul of politically correct (and racially discriminatory) policies.  Equally valuable is Mr. Clegg’s work over the years on the Executive Committee of the Federalist Society’s civil rights practice group; both he and Ms. Chavez speak frequently to Federalist Society student and lawyer chapters. Ms. Chavez is chairing the committee on “Race and Sex” in the Federalist Society’s new Law & Innovation project; Mr. Clegg is also on the committee. 

 

Early Voting Is a Bad Idea

If ever there was an argument against early voting, which has become used by most states in recent years, it is what has happened over the past week of this presidential election. With days to go before Election Day, we've learned that the FBI is investigating a trove of emails, ostensibly from Hillary Clinton, on a computer operated by disgraced former Rep. Anthony Weiner, who also happens to be the estranged husband of Clinton's closest aide, Huma Abedin. We've also learned of new evidence that Donald Trump abused tax laws in the early 1990s by taking personal deductions for losses of other people's money while not also declaring as income the forgiveness of his loans and that his campaign may have been in direct communication with Russian operatives throughout the course of the campaign. We don't know whether any of these allegations will prove that either candidate violated the law, but even if it turns out they do, many will have already voted without the information to make an informed choice.

Modern democratic elections have traditionally been a snapshot in time of the electorate's preferences. In 1845, Congress passed legislation mandating that presidential electors be chosen on the Tuesday after the first Monday in November, fulfilling the constitutional dictate that "Congress may determine the Time of (choosing) the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." At the time, of course, the states themselves determined how the electors would be chosen, by popular vote or by the legislature of the state, with only the apportionment of votes set out in the Constitution: one elector for each senator and representative in the state. We've come a long way since then -- and not necessarily for the better.

The political parties in each state actually choose the slate of electors by rules and procedures they establish. When voters cast their ballots, they are stating a preference for a candidate, but they are actually choosing a slate of electors pledged to the candidate by state law or by party rules, with winner-take-all votes except in Nebraska and Maine. Some states provide penalties against electors who do not cast their votes as indicated by the popular vote, although the Supreme Court has never ruled on whether those laws and penalties are constitutional.

These provisions were put in place to ensure a republican form of government, not a direct democracy. But the trend in recent years has moved away from the Founding Fathers' original vision, allowing all citizens to vote -- women as well as men, the indigent as well as property holders, the illiterate and non-English-speaking, and, most importantly, former slaves and their descendants. All states now provide for direct election of electors by popular vote, and most states now allow for early voting, either in person or by mail. Voting occurs as early as 50 days before Election Day. What this means is that each election is like voting on a moving picture. If you vote early in the reel, you may not know that your candidate turns out to be a villain.

This year, more than 22 million people will have voted before actual Election Day, and many of them are operating on partial information on the state of the campaign and the candidates. There has never been an election in which so many late-breaking stories have had the potential to decide an election.

We have begun to treat Election Day like one of those never-ending department store sales. Show up whenever you want and you'll still get a deal. The idea seems to be that we make voting as easy as possible. Heaven forbid we make people actually treat the occasion like the privilege it is.

Election Day should be a solemn occasion. If it takes some sacrifice to vote -- for example, getting up early or standing in line awhile -- isn't it worth it to be able to determine the course of our own future? But most of all, shouldn't voting be a civic celebration, a time when we meet our neighbors and gather at the same place and same time as everyone else in the country to act on the same information available to all of us? Expanding the franchise shouldn't be about diluting the significance of voting in the name of convenience, but unfortunately, it has become so. I, for one, think we're worse off because of it.

Race Relations in the Trump Administration

Here are a few thoughts about race relations today, and the possibility of finding some common ground between Left and Right during the Trump administration.

The first thing to say about race relations in the United States today is that, if we take the long view and keep things in perspective, they are really not that bad.  No slaves, no Jim Crow, a current black president, a Martin Luther King Day federal holiday, and on and on. It may sound Pollyannaish to say so given the recent unrest on the streets and on campuses, but it’s true.

Another point to be kept in mind has to be stated delicately, but it does have to be stated:  Race relations is about African Americans. We wouldn’t be having a national conversation on race otherwise.

With all that in mind, let’s start out by asking the basic question, which is, “Where is it we want to end up?” That is, to figure out what we need to do, we have to ask what it is we would like our country to look like.

The answer is not that complicated. We’d like to have no institutionalized discrimination, of course; and as little individual discrimination as possible, too; and it would be a good thing, as well, if there were not dramatic racial disparities. More on how important the latter is in a moment.

So, how are we doing?

Well, the claims of the Left and Hillary Clinton recently to the contrary notwithstanding, we really don’t have any institutionalized discrimination – except, ironically and importantly, of the politically correct type. Indeed, our laws ban racial discrimination in just about every public transaction you can think of – employment, education, contracting, voting, you name it – with dubious exceptions for “affirmative action.”

As for individual discrimination, it is socially unacceptable to be a bigot, and there is less and less bigotry. There are certainly individual bigots – of all colors – and some of them are in positions of authority. There are bigoted policemen and bigoted employers. But they are outlaws, and outliers. The number-crunching has shown that there is no police war on young unarmed black men, most companies aggressively celebrate diversity, our most selective schools uniformly seek out “underrepresented” minorities, and so on.

The notion of “implicit bias” is, again contrary to the claims of the Left and Hillary Clinton, scientifically disputed and, in any event, unlikely to translate into systematic differences in actual treatment, which is as a general matter both consciously avoided and legally dangerous.

The problem, then, is racial disparities, in things like crime, employment, and education. So what is to blame for it, and what do we do about it?

Before answering this question, there is an important caveat: It is both unrealistic and dangerous to think we can eliminate all racial disparities. Different groups have different priorities and different interests. It’s also true that they bring with them different histories and cultures. And more on that now.

The possible reasons for racial disparities might be divided into these categories: ongoing discrimination, continuing effects of past discrimination, selection criteria that are not discriminatorily motivated but have racial effects (“disparate impact”) and disputed utility, and cultural variations.

It can’t really be disputed that all of these things exist to some degree, but there is a lot of disagreement about how much of each there is, both absolutely and in comparison to the others, and what to do about them.

But consider: Even as we struggle with deciding, as an empirical matter, how much of each there is, there ought to be plenty of common ground on what to do, and what not to do, about each.

For example, when it comes to ongoing discrimination, liberals and conservatives should both agree that enforcing existing laws against it should be a priority. And isn’t it clear that, in an increasingly multiracial and multiethnic society, all groups should be protected from discrimination?

When it comes to the continuing effects of past discrimination, we ought to be able to agree that those effects are diminishing with every tick of the clock. And can’t we agree that, in all events, it is a mistake to use race as a proxy for disadvantage since there are disadvantaged people of all colors – as well as advantaged people of all colors? President Obama himself said as much, when he noted that “white kids who have been disadvantaged and been brought up in poverty” would be more deserving of a leg up in university admissions than his own “pretty advantaged” daughters.

Conservatives believe that the costs of the “disparate impact” approach to civil-rights enforcement overwhelm any conceivable benefits. Liberals disagree, but they should concede –as Anthony Kennedy and the four liberal Supreme Court justices did in a pro-disparate-impact decision last year – that there need to be serious constraints on its use because of those costs.

And, finally, there is also a growing recognition that cultural problems – and, in particular, out-of-wedlock birthrates – are an important underlying cause of many social disparities, both within and between different racial and ethnic groups. Conservatives like me may believe that this is the reason for the racial disparities that still so stubbornly exist, and liberals may deny that, but if we’re agreed that they are at least a significant problem, then shouldn’t we recognize that, talk about it, criticize it, and spend some time coming up with programs to discourage it – and avoiding policies that incentivize it?

We Need More Black Drug Dealers

According to this Washington Post article, black Maryland state legislators are “planning to propose emergency legislation to address the dearth of minority-owned businesses approved to grow medical marijuana in the state.” 

There’s a federal constitutional problem here, though: A predicate for racial preferences in government contracting is a demonstration that there has historically been discrimination in the industry involved. Medical marijuana was legalized in Maryland only a couple of years ago, so one wonders how much discrimination there has been, historically, in an industry that does not yet actually exist. 

But never mind all that.  “This is a good modern-day civil rights fight,” says Del. Cheryl D. Glenn (D., Baltimore) of the Legislative Black Caucus. 

Well, maybe not “good,” but certainly typical. 

DOJ Warns Landlords against Refusing to Rent to People with Criminal Records

This month the Justice Department filed a “Statement of Interest” in a housing case, warning landlords that refusing to rent units to people with criminal records can run afoul of the Fair Housing Act.  The reason?  Because such a refusal can have a “disparate impact” on the basis of race and ethnicity.

I believe this may be the first such filing by the Obama administration since, alas, the Supreme Court’s 5-4 ruling last year that disparate-impact claims may be brought under the FHA, but it is no surprise. The Court was warned, by my organization and others, that this was a logical consequence of interpreting the Act this way, and HUD guidance from earlier this year contained the same warning for landlords.  But Justice Kennedy disappointed us by voting with the four liberals.

It’s easy to come up with hypotheticals of silly rules landlords might have (refusing to rent to someone who ran a stop sign 50 years ago?), but of course the issue is: Who decides whether the rule make sense or not, the person who owns the building or a federal bureaucrat? And of course it makes no sense at all to say that silly rules are fine if they result in no racial or ethnic disproportion, but are of great interest to the federal government if they lead to such politically incorrect imbalances. 

Thanks a lot, Justice Kennedy.

Call Your Office, Michelle Alexander – So much for the war on drugs being a thinly disguised racist war on African Americans:  The gist of this front-page story in the New York Times is that the war on drugs is increasingly rural/white rather than urban/black.

The Balkanization Administration, Part II – This week the Center for Equal Opportunity filed a short comment, opposing the Obama administration’s proposal to ramp up the use of racial classifications by the federal government.  To give you the background, I’m going to reiterate an earlier summary of this bad proposal, and then present you with the comment itself:

If there’s one thing that this country needs more of, it’s racial division.  That, at least, seems to be the view of the Obama administration.

As Mike Gonzalez of the Heritage Foundation writes in this Issue Brief posted recently:

On the first day of Congress’s recess, the Obama Administration recommended the most sweeping changes to the nation’s official racial and ethnic categories in decades.  The two most significant proposals were creating a new ethno/racial group for people who originate from the Middle East and North Africa (MENA) and taking from those who identify as Hispanic the option to identify their race. The Office of Management and Budget (OMB) Notice asked for comments to be submitted within a month—the shortest window possible—for what it described as a “limited revision” of data collection practices.  Far from limited, the proposals would have long-term consequences for how one-fifth of all Americans are defined demographically and would create more societal conflict over racial preferences and political gerrymandering. The American people deserve more than a month to debate such significant changes, and Congress must weigh in.

Mr. Gonzalez concludes:

The OMB states that America’s increasing ethnic diversity requires more and more group classifications. An equally practical, and much preferred, policy response would work to smooth out these differences by promoting assimilation, which was the policy approach taken for the first two centuries of the Republic. That approach succeeded in achieving what was thought by many to be impossible: It created a cohesive American population out of many and vastly different peoples.

I should add that the administration has also recently announced that it is pushing ahead with its proposal to encourage the creation of a Native Hawaiian “Indian tribe,” despite Congress’s longstanding refusal to endorse this additional balkanization of our country. 
All this in addition to its usual support of racial and ethnic preferences of all kinds, its aggressive use of the “disparate impact” approach to civil-rights enforcement, and its encouragement of racial grievance hustlers in our inner cities.

I remain optimistic about America continuing its remarkable progress toward the realization of its E Pluribus Unum ideal, but increasingly that optimism is possible only if one takes the long view and ignores what’s going on during this administration. 

So here’s the brief comment on the Obama administration proposal that we filed this week:

The proposal (specifically, adding “MENA” as a racial category and effectively making “Hispanic” an exclusive racial/ethnic identifier) is a bad idea. 

There are costs whenever the government uses racial and ethnic classifications.  [See this testimony before the U.S. Commission on Civil Rights:  http://www.ceousa.org/attachments/article/1048/CleggStatementMay2002.pdf .]  The data collected can be misused — the notice, indeed, contemplates that the data here will facilitate the use of “affirmative action” (that is, racial preferences) and “reviewing … redistricting plans” (that is, mandating racial gerrymandering) — and the very process of collecting the data and requiring Americans to identify themselves along racial and ethnic lines is divisive. 

What’s more, any benefits of such data collection are dubious when the categories used are artificial and heterogeneous, as “Hispanic” and “MENA” are.  [This point, among many other excellent points, is made by Peter Kirsanow of the U.S. Commission on Civil Rights here:  http://www.newamericancivilrightsproject.org/wp-content/uploads/2014/03/OMB20MENA20racial20classification20comment.10.12.2016.pdf .] If the costs are serious and undeniable, and the benefits are few and marginal, then it makes no sense to go down this road.

In all events, a big step like this away from the principle of E pluribus unum should be undertaken only through Congress.  [Once again, this point among other excellent points is found in the discussion here:  http://thf-reports.s3.amazonaws.com/2016/IB4614.pdf .] 

The federal government itself should not be putting people into racial boxes, nor encouraging other people to do so or to think of their fellow citizens in these terms, nor encouraging individuals themselves to identify as something other than simply “American.” 

We need less identity politics, not more.

I also discussed the proposal last week on this Federalist Society teleforum (it lasts about an hour; I come in at the 10:20 mark).

Some Thoughts on the Election

Wow:  What a difference a few days makes! 

Just within the last week or two we were being told that it was a virtual certainty that Hillary Clinton would be our next president, that is was likely as well that the Democrats would win the Senate, and that perhaps the Republicans would lose the House, too.  And under President Clinton, especially if she had a Democratic Senate, the Supreme Court would have its most extreme liberal majority in since the 1960s.

Only none of that happened.

Here are some thoughts as we go forward:

First, you could make a good argument that, of all the realistic possibilities on election night, the outcome we got was the one that conservatives could have most hoped for in the federal government. 

Held the House, check.  Held the Senate, check.  Held the Supreme Court, check.  Kept Hillary Clinton out of the White House, check.  And, with regard to the latter, the razor-thin, not-even-a-plurality victory for this nonconservative Republican is just right.

Oh, and it was a great night for conservatives at the state-government level, too.

Second, for domestic social and economic policy, President Trump needs to make good appointments, but conservatives can breathe a sigh of relief with him and the new Congress.  There’s no doubt that, on most issues, President Trump will be much sounder than President Clinton.  What’s more, the president lacks the unilateral power on domestic issues that he has in dealing with foreign countries, and so we have a conservative House and Senate to keep the keel even. 

It’s foreign policy that is the immediate “job one” for conservatives — that is, it is foreign policy where conservatives need most to reach out right away to the new president.

Third, we will see furious (in both senses of the word) activity by the Obama administration and its bureaucrats over the next two-and-a-half-months.  It’s good that President Obama has been civil and gracious in the election’s aftermath, but that will go only so far. 

His administration will now work 24/7 in its waning days to finalize bad regulations, distribute legally dubious regulatory “guidance,” file ridiculous lawsuits, and then set fire to the White House while President Trump is being sworn into office. 

Get ready.

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And, after Inauguration Day, what about race relations, which is the Center for Equal Opportunity’s focus?

CEO will be doing all it can to make sure that President Trump makes good appointments, and that his appointees are well briefed on the key issues.

It’s far from a given that the new administration and the new Congress will share CEO’s agenda of colorblind equal opportunity.  Despite his anti–political correctness reputation, Mr. Trump was on record during this campaign as saying that he is “fine with affirmative action,” and he criticized Justice Scalia for raising the “mismatch” point at oral argument in the Fisher v. University of Texas II case.  And Republicans in Congress have generally been timid on our issues as well.

What’s more, President Trump may be tempted to curry favor with the media and to avoid provoking the protestors by being less aggressive than he ought to be on issues like racial preferences and the “disparate impact” approach to civil-rights enforcement.

This, in our view, would be not just a mistake but a betrayal.  The people who voted to make American great again do not want politically correct racial preferences to be invoked when they apply for a job or their children apply for college.  (Politically correct discrimination frequently targets Asians as well, of course, and sometimes Latinos.)  When jobs start returning to the Rust Belt, Trump voters don’t want to be treated unfavorably because their skin color happens to be white.  Nor, for that matter, do those who voted for someone else.

The Left now plays the race card automatically in its politics:  You are told that how you vote is supposed to be all about your racial identity.  It would be a travesty if conservatives accept this, and a tragedy if the alt-Right succeeded in playing the same game with white voters (Mr. Trump’s announcement this week that Steve Bannon will a senior advisor is not reassuring on this point).

Left and Right should mutually disarm by burning the race card. In our increasingly multi-ethnic and multiracial nation, the only workable approach to race is E pluribus unum.  We are all Americans. 

And that message cannot be fairly described as divisive, and it should be appealing to the conservative base.  It is, in other words, both philosophically principled and politically saleable.

The Center for Equal Opportunity will be working hard for this in the new administration and the new Congress.  And we are glad that we can, after this election, have some hope of success when we make our arguments in the judicial branch as well, from the Supreme Court on down. 

We hope we can count on your support.

The Party of Trump or Ryan?

In a little more than a week, the Republican Party will undergo a major realignment. Either it will become the party of Trumpism, with or without Donald Trump in the White House, or it will become the party of House Speaker Paul Ryan and other economic and foreign policy conservatives. The wheels were set in motion for this realignment in 2010, when local tea party groups emerged as a loose coalition of anti-establishment Republicans.

Though the different factions of the tea party differed in their focus on major issues from state to state, they had a few elements in common. Tea partyers were as suspicious of big business as they were of big government. They were uneasy with the demographic changes taking place in the country and feared that multiculturalism and multilingualism would fundamentally change the nature of what it means to be American. They were older, likelier to be on Social Security and Medicare, and therefore suspicious of broad entitlement reform. And because they prided themselves as a bottom-up movement, many in the tea party rejected the leadership of the Republican Party and the agenda that had defined the GOP for a generation or more.

Populism became the face of this new brand of Republicanism, and it was ripe for someone like Donald Trump to capture. Paul Ryan, on the other hand, emerged from the deep roots of traditional Reagan conservatism. Those in the Ryan wing of the party were the inheritors of not only Ronald Reagan but also Jack Kemp, a former quarterback elected as a congressman from New York who became George H.W. Bush's HUD secretary and then the 1996 Republican vice presidential nominee. Reagan and Kemp were optimistic men who sought to broaden the GOP's appeal beyond the base.

Ryan's supporters come from the business community, large and small, and suburbia. They want lower taxes and less government regulation and see the private economy as the country's main engine of growth. His supporters are champions of free markets and free trade, viewing both as the path to prosperity for all Americans. They see immigrants as a resource for the future and believe that no matter where they come from, people seeking to immigrate to America will follow in the footsteps of all previous groups by learning English, moving up the economic ladder and becoming a part of the great melting pot.

But there are temperamental differences between the two faces of the Republican Party, as well. The Trump wing is motivated by anger and resentment. Its members believe they've been cheated in the new economy, with rewards going only to whom they deem as the elites -- those with college educations and advanced degrees, who they think look down on them. And they aren't entirely wrong about the latter.

Whereas the Trump supporters are angry, the Ryan wing of the party is cerebral, maybe too much so. Speaker Ryan told members of his party in December: "If we want to do what we believe in, then we need a mandate from the people. And if we want a mandate, then we need to offer ideas." He laid out those ideas over the summer in his "Better Way" plan, which included tax reform, a balanced budget, health care reform, improved national security and the elimination of poverty. As comprehensive and impressive as the Ryan agenda is, it lacks the emotional appeal of "Make America Great Again" or "Build a Wall," something to rev up audiences and rally around.

If the GOP were to become the party of Trump, I believe that it would wither and die. Demographics alone would doom it, and not just because whites are shrinking as a proportion of the population. Any party hoping for majority status has to appeal to college graduates and women, at a minimum.

But the Ryan wing of the party faces challenges, as well. It's got to convince the Trump supporters that free trade benefits all Americans, especially working-class Americans, whose dollars go much further because of access to more affordable goods. It needs to convince those voters that newcomers aren't just cheap labor, that they fill important niches in the economy that keep jobs in the U.S., benefiting everyone. And it has to come up with an emotional appeal that has thus far been lacking in its wonkish agenda.

If Hillary Clinton wins the presidency, opposition to her big-government programs, tax increases, court nominees and nanny-state proposals will undoubtedly unite Republicans temporarily. But the party will still have to put together a winning coalition of voters if it is ever to win the White House -- which will require much fence-mending and outreach to those turned off by the 2016 presidential race.