Center for Equal Opportunity

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The World Is Watching

I take no glee in the appointment of a special counsel to investigate whether the Trump campaign had ties to Russia -- and I say that as a consistent critic of Donald Trump's from the day he announced his quest for the presidency. I have watched too many of these investigations, of both Democrats and Republicans, go bad. Whitewater, which started out as an inquiry into whether the Clintons had received improper financial favors in a land deal, morphed into inquiries into the president's sexual behavior with Paula Jones and Monica Lewinsky, which resulted in the impeachment of Bill Clinton, though he was not convicted. The Iran-Contra affair began as an inquiry into whether Oliver North, a mid level National Security Council staffer in the Reagan White House, had facilitated arms sales to the Iranians as part of an effort to release American hostages and then used funds from the sale to finance the anti-communist guerrillas fighting in Nicaragua; it ended with indictments of officials who had little or nothing to do with the scheme and the overturning of North's convictions because he had been given immunity by Congress to testify on the issue.

Who knows how Russiagate will turn out? No one. But it will damage this White House, impede the president's agenda and sully everyone it touches. The only hope is that the investigation can be concluded quickly, but that hope is slender. This is a complex investigation -- perhaps the most complex we've ever seen -- because of the man at the center of the inquiry. Donald Trump's empire is built on secrecy, properties, assets and partnerships shielded in layers of limited liability corporations whose finances are likely to be anything but transparent, even if we had Trump's tax records (which special counsel Robert Mueller may subpoena). The best forensic accountants will have trouble following the money trail, even if some paths lead to Russian oligarchs and financial institutions.

I remain skeptical that the financial ties between Russian actors and Trump that might well exist would be evidence that the president was colluding with Russia in disrupting the election. My guess is that Trump often needed to be bailed out of bad financial decisions and that the Russians were there to help over the years. Like the gambler who borrows from shady characters to pay his gambling debts, Trump may have taken the money, no questions asked. As for those around Trump, the evidence may be more compelling. But again, who knows? We'll see -- eventually.

The best thing Trump could do would be to cooperate and be quiet. He probably won't do either. He's already tweeted out that the whole thing is a witch hunt and said he is the most persecuted president in history. Trump is his own worst enemy, and those who want to protect him do him no favors by not telling him so loud and clear. Someone needs to take away his Twitter account and cut the cord on cable news. The president needs an extreme makeover, a special handler who is with him 24/7, someone who can say: "You're not a victim. You're the president of the United States. Now act like it, sir!"

If something doesn't change quickly, this presidency is over -- if not in fact, in effect. Trump is imploding. His own party is getting sick of his drama and ineffectiveness. He will remain commander in chief (which is worrisome, given his erratic, irrational behavior), but he cannot be a leader for his party, much less the country, if he doesn't stop doing what he's been doing all his life -- whatever he feels like, no matter how inappropriate.

It is deeply worrying that all of this is happening on the eve of the president's trip to the Middle East and Europe. He will do irreparable damage if he behaves as he has to date. The whole world is watching -- our friends, as well as our enemies. We are facing the most dangerous time in America since the end of the Cold War, and we are doing so without a real leader.

Shut Up and Govern

The comparisons between the investigation into Russia's nefarious involvement in the 2016 presidential election and Watergate aren't perfect, but there are important lessons Republicans can learn from the latter. We don't yet know whether anyone in the Trump campaign, knowingly or unknowingly, assisted the Russians in their effort to disrupt the democratic process, but we do know that President Donald Trump is obsessed with stopping a thorough investigation into the matter. His latest ham-fisted effort was to fire FBI Director James Comey a week after Comey testified on the matter.

Trump apparently thought Comey's firing would be greeted with applause from both sides of the political aisle. He was disastrously wrong. Whether his actions were motivated by an intent to cover up wrongdoing or simply to get an unflattering story about his campaign off the front pages, we don't yet know. But even the more generous interpretation should set off alarms in GOP circles. The road to Watergate started with a presidential preoccupation with bad news coverage and ended up with obstruction of justice.
Reports of what went on in the West Wing the week prior to Comey's firing are deeply disturbing. According to dozens of White House staff members and associates of the president who had contact with him during the week, President Trump could not let go of his anger over the Russia investigation. In a week that might be seen as one of his best -- the House passed an unlikely health care overhaul that he supported, his first major legislative achievement -- the president was yelling at the television, calling friends to vent his anger and generally fuming over Comey's testimony on Russian efforts to sway the election. He tweeted that the "Trump-Russia collusion story is a total hoax" the night before firing Comey. The picture is of a man unhinged, willing to take reckless action -- and, most importantly, with no one around him who could dissuade him from his most destructive impulses.

Comey's firing will not end the Russia investigation. I would argue that it may well invigorate it. And given the president's mindset and personality, we can expect him to ramp up his efforts to shut it down unless members of his own party intervene directly and forcefully. The congressional committees investigating Russian intervention need more resources, as may the FBI. But those resources haven't been forthcoming, because the GOP leadership isn't all that eager to find answers.

Trump has succeeded in corrupting much of the Republican Party. Many Republicans seem afraid of Trump and Trump's base -- though given Trump's plummeting approval ratings, it's unclear why. The window is closing for Republicans to step up. If they won't do it publicly (only a small handful have criticized the Comey firing openly), they need to do so in direct confrontation with the president.

Members of Congress from the president's own party need to tell the president unequivocally that he needs to shut up about the Russia investigation. No more tweets. No more midnight calls to old friends. No more ranting and raving to staff. No more yelling at the TV. No more interjecting the subject into other discussions. No more campaign rallies to stoke grievances about news media coverage. He needs to express confidence in the processes of our criminal justice system to get the investigation right. He needs to express confidence in the coequal branches of government to engage in their proper investigatory roles and get to the truth.

If Republicans won't stop the president from the path he's on, he will not only destroy his own presidency but also bring the party down around him. No one in Donald Trump's world has ever said no to him. Clearly, no one on his staff is willing to do so. The American people will get their chance in 2020 -- if he lasts that long and is still interested in the job, which is a whole lot harder and less rewarding than he anticipated. In the meantime, congressional Republican leaders need to march down Pennsylvania Avenue to deliver this message: No more lies, no more conspiracy theories, no more rabble-rousing. Keep your eye focused on governing, and forget vendettas. Respect the separation of powers, or pay the consequences when Congress finally has had enough.

Stop the Balkanization

Last fall I wrote about some disturbing changes that the Obama administration wanted to make in the data gathered for the Census. A short 30-day window was given for public comments, but thankfully the Trump administration seems to have misgivings about the proposed changes. And so it has asked for more public comments (via the White House website no less), and extended the deadline to the end of this month.

Mike Gonzalez of the Heritage Foundation has done yeoman’s work on this matter. I quoted his “Issue Brief” last fall: “The two most significant proposals [are] 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.” In the introductory part of the formal comment he has now submitted, he explains:

The proposals would affect our nation adversely in at least three ways: (1) adding one more ethnic group [i.e., MENA] would further sub-divide America along ethnic lines and take another step to transform the U.S. into what the Founders never intended, a nation of groups; (2) creating a Hispanic race would deepen these fractures and threaten to make them permanent; and (3) dangling purported advantages such as congressional redistricting would further help perpetuate divisions within the country by giving people an incentive to identify themselves as a member of a subnational group and a disincentive to build inter-ethnic coalitions.

The Center for Equal Opportunity has endorsed Mike’s comment, adding:

[I]n addition to the problems associated with congressional redistricting, the balkanization and encouragement of race-based decisionmaking inherent in the Census proposal [are] also bad with regard to the Voting Rights Act generally, and with respect to broadened “affirmative action” (i.e., preferential treatment on the basis of race), race-based student assignments at the K-12 level, and the “disparate impact” approach to civil-rights enforcement.

Comments are due by April 30, which is a Sunday, so better to send them in by the preceding Friday, April 28. I would encourage interested individuals and groups to go to this link , click on “Comment Now!” in the right-hand column, endorse Mr. Gonzalez’s comment, and make whatever additional points they’d like.

By the way, I’ve noted before that Mike and I recorded a Federalist Society teleforum/podcast on this issue, which you can listen to here.

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Racial Preferences and the Department of Education – Some folks on the Left seem to think it is outrageous that the new acting head of the Department of Education’s Office for Civil Rights has criticized the use of racial preferences by universities, a.k.a. affirmative action.  But what would be outrageous would be if the Trump administration were to put someone into this job who did notcriticize such preferences. 

Yes, the Supreme Court has, alas, for now ruled that such discrimination is permissible in limited circumstances, but the head of OCR should be someone who will indeed insist that this discrimination be limited, and who will work with the Justice Department for the eventual ban — by the Court or by the political branches — on politically correct racial discrimination in public and other taxpayer-supported universities. 

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Hans Bader, a senior attorney at the Competitive Enterprise Institute and an invaluable ally of the Center for Equal Opportunity, posted this week an excellent article that praises some recent work by CEO:

Legal Reformers Call for Repeal of Race-Based School Discipline Guidance

Two legal foundations are calling for an end to federal pressure on school districts to adopt racial quotas in suspensions. And rightly so: It is wrong for an agency to pressure regulated entities to adopt racial quotas, or make race-based decisions, even if the pressure does not inexorably lead to a quota.  (See Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998)). I earlier discussed at length how Obama-era rules, issued without notice and comment in 2014, pressured school districts to adopt racial quotas in suspensions, which violated the Constitution; misinterpreted Title VI of the Civil Rights Act; and ignored judicially-recognized limits on disparate-impact liability.

On March 29, Roger Clegg, president and general counsel of the Center for Equal Opportunity, sent an email to the Justice Department asking the Trump administration to withdraw these rules, which are contained in the Obama administration’s January 8, 2014 letter to America’s schools, known as the “Dear Colleague letter: Racial Disparities In The Administration Of School Discipline.” Clegg urged “the withdrawal of the January 8, 2014 ‘Dear Colleague’ letter,” which was issued by the Obama Justice Department’s Civil Rights Division and the Education Department’s Office for Civil Rights. He called this letter “unsound as a matter of both law and policy,” citing “a variety of sources that have criticized the letter, again from both policy and legal perspectives.” Clegg is a former Deputy Assistant Attorney General in the Civil Rights Division, where he served from 1987-1991.

On April 3, the veteran constitutional lawyer who heads the Mountain States Legal Foundation, William Perry Pendley, sent a letter requesting the rules’ repeal. …

Pendley cited the harm caused by the Obama administration’s pressure in places such as Oklahoma City, where the school district entered into a settlement with the Obama administration designed to lower minority suspension rates. The resulting curbs on suspensions have apparently resulted in more fighting and classroom disorder. Quoting The Wall Street Journal, Pendley noted that a teacher in Oklahoma City said that referrals to the principal’s office “‘would not require suspension unless there was blood.’”

The accompanying April 4 press release from Mountain States Legal Foundation notes:…

Jason Riley, in an op-ed entitled, “An Obama Decree Continues to Make Public Schools Lawless,” Wall Street Journal, March 22, 2017, at A19, questions why, two months into the Trump administration, the “Dear Colleague” letter is still official policy.  Referencing a newly released study (“School Discipline Reform and Disorder:  Evidence from New York City Public schools, 2012-2016,” by Max Eden, Manhattan Institute, March 14, 2017), he notes that more than half of the nation’s 50 largest school districts have reduced suspensions “to the dismay of those on the front lines.”…

Unlike some other civil rights statutes, Title VI does not itself ban “disparate impact,” as the Supreme Court made clear in its 2001 decision in Alexander v. Sandoval. The Obama administration argues that even if the Title VI statute itself does not reach disparate impact, regulations under it can and do (an idea that the Supreme Court characterized as “strange” in footnote 6 of its Sandoval ruling).  But even if Title VI disparate-impact regulations were generally valid, they would be subordinate to, and could not override, the Title VI statute itself, which bans racial quotas, as does the Constitution’s equal-protection guarantees.  (See, e.g., People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997) (striking down as unconstitutional a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” because that constituted a forbidden racial quota)).
Even if disparate-impact liability applied under Title VI, the Obama-era guidance fails to take into account non-racial factors (such as poverty and coming from a single-parent household) in determining whether a meaningful disparity exists to begin with, as courts require (and as I previously explained.)

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I should also note that Jason Riley, quoted above, is on the Center for Equal Opportunity’s board of directors.

Some Good News

I can report some good news this week. Last Friday, when President Trump signed the big appropriations bill keeping the federal government open, he included a presidential signing statement. Here’s the last sentence:

“My Administration shall treat provisions that allocate benefits on the basis of race, ethnicity, and gender … in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution’s Fifth Amendment.”

The ellipsis is a list of examples of the federal programs the president has in mind, including minority contracting and subcontracting; preferred treatment for Native Americans, Native Hawaiians, and Native Alaskans; women in the workforce; and historically black colleges and universities.

Now, of course the key will be what this administration decides is the scope of the Constitution’s equal protection guarantee when it comes to politically correct discrimination on the basis of race, ethnicity, and sex. But it’s heartening that the issue has at least been flagged. And likely it was flagged by the Justice Department — and the bigger its role in this area, under the leadership of Jeff Sessions and the other solid appointments being made there, the better.

The people in the Rust Belt and elsewhere who voted for Donald Trump will be betrayed if, when the jobs, contracts, and other opportunities start coming back, they are told that the federal government plays favorites on the basis of skin color, national origin, and sex in allocating them.

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Speaking of the Rust Belt –  Last week I participated in a Federalist Society teleforum/podcast that featured J.D. Vance, author of the bestselling book Hillbilly Elegy:  A Memoir of a Family and Culture in Crisis.  My appearance runs from the 0:30:00 to the 0:40:18 mark.

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Another Quick Note –  A recent article from Inside Higher Ed reports, "Though 50 percent of Division I football players are black, only about 10 percent of coaches are, [former Obama secretary of education Arne] Duncan said."  My response:  For the bean-counters, that shows more "overrepresentation" of black players than "underrepresentation" of coaches, since the percentage of blacks in the general population is 13 percent. And if schools are likely to hire only male college graduates to be coaches, then I suspect there is no underrepresentation at all (the percentage of black men with college degrees is about half that of men in the general population).

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Magnetic Attraction – Here’s an excellent article by Myron Magnet how the civil-rights movement on the Left has degenerated to what it is today.   A sample excerpt:

That scavenging for grievances that [Thomas] Sowell foresaw reached its logical but risible conclusion in the campus discovery of “microaggressions,” racist words or acts so infinitesimal that only the offended minority can discern them, while the oblivious white offender, as Obama put it, must, because of his race, necessarily “lack appreciation of what it feels to be on the receiving end of that.” [Note that the Center for Equal Opportunity’s Althea Nagai has a recent article on miocroaggressions in Academic Questions that has drawn national attention.] …

Similarly, the Black Lives Matter movement — spawned on campuses and in rectories across the nation, and fertilized by George Soros’s money — has spread the falsehood that America’s cops are the shock troops of a fundamentally racist nation, which licenses, even silently encourages, them to kill blacks. The result: a spike in cop killings by deranged blacks; unrelenting U.S. Justice Department and mainstream media scrutiny of scores of police departments, resulting in police unwillingness to risk their careers by intervening to stop trouble before it starts; and a rise in murder and other violent crime in more than two dozen U.S. cities in the first half of 2016, on top of a 10.8 percent jump in murders nationwide in 2015. Big lies, as history shows, have big real-world consequences.

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Post Mortem – A recent Washington Post article reports on a new study purporting to find that African Americans are discriminated against when applying for teaching positions in Fairfax County, Virginia, public schools. 
My response:  The claim is that blacks were less likely to get hired “even though they had on average more advanced degrees and classroom experience.”  But what if the distribution of blacks is bunched up in the middle and whites are more likely to be found at the extremes — and Fairfax County (with one of the best schools systems in the country) is able to be choosey and hire only the at the highly-qualified extreme?  In that case, there may be no discrimination but still fewer blacks hired, even though on the average black applicant is better qualified than the average white applicant.

In all events, it’s hard to tell whether there is credible evidence of discrimination here or not, once you’ve controlled for all the variables.  But we do know that the same people who are very unhappy about race discrimination against black teachers are the same people who, at least implicitly, favor race discrimination in their favor.  The justification for such discrimination seems to be a version of the “role model” justification, which the Supreme Court rejected decades ago as a constitutional matter and would almost certainly fail under Title VII as well.  And if it’s so important for black kids to have black teachers, as the article suggests, then why is it a bad thing if the black teachers end up at the black schools, as the article also says?  In fact, maybe this means we should have all the black students in separate schools with black teachers, and all the white students in their own schools with white teachers.  Has that ever been tried in Virginia?  Oh, wait  ….

Two other thoughts:  (1) interesting that there’s no evidence of discrimination against other racial minorities; and (2) it’s conceded that other “crucial” factors (like interviews) were not considered in the study and that what was looked at (advanced degrees and teaching experience) don’t “necessarily signal that a teacher will be more effective”; and note that we have the ironic situation where the Left is extolling “hard” credentials and ignoring “soft” ones, which is exactly the opposite of what it does in college admissions.

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Finally, recall that I wrote last week about the Center for Equal Opportunity’s opposition to a bill in Nebraska that would automatically re-enfranchise felons.  I applauded the governor for vetoing that bill, and urged the state legislators to vote against overriding that veto.  I’m happy to report that this week the override attempt failed.

So I began this email with good news and ended it the same way.  I wish that were always the case!

No to a Deportation Force

President Donald Trump has been flip-flopping right and left recently -- much of it for the good. He's abandoned his promises to label China a currency manipulator, withdraw from NAFTA, repeal Obamacare and stay out of Syria. But he seems to be digging in on his pledge to create a deportation force to rid the country of people who are illegally here. A decision memo leaked this week to The Washington Post outlines the administration's plans to hire new Customs and Border Protection officers quickly by abandoning the usual safeguards, such as polygraphs and physical fitness tests, in some instances and deploying local police to enforce immigration laws through agreements with dozens of cooperative police departments. The memo also says that the Department of Homeland Security has found some 33,000 beds to supplement its detention facilities.

If ever a policy deserved reversing, this is it. But will Trump have the courage to change course? Immigration hard-liners in and out of the administration are counting on an anti-immigrant backlash to stiffen the president's resolve, but when the roundups start, a far different backlash is likely to occur. The majority of undocumented immigrants in the U.S. have lived among us for more than a decade, are in families that include American citizens, work at jobs that are vital to the economy, pay taxes and spend their incomes in communities, which depend on their contributions. The idea that we can round up 11 million people -- or even a fraction of that number -- without harming American citizens is a pipe dream.

Just ask the people of Utah. In his engaging new book, "There Goes the Neighborhood: How Communities Overcome Prejudice and Meet the Challenge of American Immigration," Ali Noorani describes what happened in that conservative state when some local immigration vigilantes tried to drive out undocumented immigrants from their community. Noorani, who heads the National Immigration Forum, quotes an article from the Deseret News on July 13, 2010: "An anonymous group says it quietly watched Hispanics in their neighborhoods, schools, churches and 'public welfare buildings' to compile a list of 1,300 people it says are illegal immigrants living in Utah. The group sent the list to law enforcement agencies and news media demanding that those named 'be deported immediately.'" But instead, the incident sparked the coming together of an unlikely coalition of ordinary citizens, business leaders, churches and law enforcement officials to push back against the vigilantes. What emerged was the "Utah Compact," which supports national immigration reform, urges law enforcement to concentrate on criminal violations and not enforce civil violations of immigration law, and supports free market principles that maximize individual freedom and opportunity.

Undocumented immigrants make up about 6 percent of the U.S. workforce. Deporting that many workers would deal a blow to the U.S. economy that could well send the country into recession. One of the great ironies of the Trump immigration policy is that it directly contradicts his promise to try to keep jobs in the United States. What happens when farmers can't find people to pick their crops? Or when small towns that depend on immigrants' spending power suddenly find apartments empty and stores without customers? And what about those American industries that have managed to keep jobs in auto parts, textiles and meat processing in the U.S. because of affordable immigrant labor? Take away the access to competitively priced labor and the jobs disappear -- or the American consumer gets stuck with the bill.

Noorani does a masterful job of describing how communities have learned to value the contribution of immigrants and to resist demands to round up undocumented immigrants and instead seek a real-world solution to the problem. A handful of zealots may think it's a great idea to stake out churches and schools to find "illegals," but most Americans aren't willing to see parents separated from their children, to lose co-workers and neighbors, or to pay the taxes necessary to house tens of thousands of people in detention facilities for the months or years it takes to deport them.

President Trump could do the country and himself a favor by saying "no" to a deportation force and concentrating instead on finding a way to fix our outdated immigration system. As Ali Noorani's book demonstrates loud and clear, how we treat the strangers among us says much about who we are as a nation and a people.

Health Care Promises Will Be Hard to Keep

President Donald Trump has achieved his first major legislative success this week with the passage of health care reform in the House. The bill faces an uncertain future in the Senate and is no one's idea of a perfect solution to repealing and replacing Obamacare. But it's a start. The biggest challenge to actually getting a law in place, however, may be the president, who keeps promising more than he can deliver. Like President Barack Obama's promise to Americans in 2010 -- "If you've got a doctor that you like, you will be able to keep your doctor" -- President Trump's assurance that coverage for pre-existing conditions in the GOP bill will ensure that no one gets knocked off the rolls is a bit of a stretch. Yes, pre-existing conditions will be eligible for coverage, but not necessarily at the same price those with current individual coverage now pay.

The laws of economics -- not necessarily the GOP -- are the problem. Republicans aren't being honest and upfront. They need to explain why no law could fix the current problems with Obamacare without allowing insurers to adjust premiums to recognize that some individuals are more expensive to insure than others. Will fewer people end up uninsured under the GOP proposal as it stands? Probably, though over time the hope is that as the insurance market adjusts, more options will be available for plans that cover at least costs for catastrophic events at a price individuals can afford.

Politicians don't want to admit that you can't cover everyone, including people who are very sick already, without the price of insurance going up for everyone. That was one of the major defects in Obamacare. Yes, the Democrats succeeded in mandating that individuals buy insurance and employers provide affordable options to full-time employees, which expanded coverage and mandated benefits, but it also caused insurers in many states to opt out of the market and made premiums rise faster for many people who were already covered. Without federal subsidies, the system collapses. Cynics believe that the Obama administration knew its program would fail but thought that would make it easier to convince the American people that the only solution would be a single-payer, government-funded health care system, which Democrats have been pushing for decades. But the public has been less enthusiastic.

Unfortunately, this White House is not in a position to make a case to the American people because the president has been all over the place in the debate and, more importantly, seems not to understand the issue or policy specifics well. That leaves House Speaker Paul Ryan as the main advocate, but he comes across as too wonky and in the weeds to make the best case. We'll see which GOP senator emerges as the spokesperson on this issue, but most are wary of wading into the fray.

"Repeal and replace Obamacare" has been the mantra of the GOP for so long now -- since 2010 -- it's a bit surprising the party hasn't invested more time and energy in figuring out how to explain the issues to the American people in ways they can grasp quickly. It begins with admitting that any plan that expands coverage is likely to cost more, especially if young, healthy people can't be persuaded to buy in. It would also help if the party admitted that some health care costs should be borne by individuals out of pocket, just as we expect individuals to pay for routine maintenance on other insurable things, such as cars and homes, especially if they are able to afford it. People also need to understand that their behaviors affect their health, and bad eating habits, smoking, drinking and illicit drug use raise health risks and should raise premiums accordingly. Like cigarette taxes, an unhealthy lifestyle tax on premiums might even encourage individuals to change their patterns.

But elected officials need to make the case to their constituents why such changes are needed. Unfortunately, they won't. Instead, they'll make promises they can't possibly keep and wonder why voters no longer believe anything they say. "Yes, premiums will be coming down," President Trump said from the Rose Garden on Thursday. "Yes, deductibles will be coming down." And when they don't, the GOP in 2018 will be in the same place Democrats were in 2010, facing big losses in the midterm election.

Odds & Ends

Here’s a sample of what the Center for Equal Opportunity has been up to in recent weeks.

  • We have weighed in against racial preferences in government contracting with the following cities and counties:  Decatur, Illinois; Leon County, Florida; Guilford County, North Carolina; Asheville, North Carolina; and Fayetteville, North Carolina.  Here’s some typical language:

It's good to make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex.  But that means no preferences because of skin color, etc. either — whether it's labeled a "set-aside," a "quota," or a "goal," since they all end up amounting to the same thing. 

Such discrimination is unfair and divisive; it breeds corruption and otherwise costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder; and it's almost always illegal—indeed, unconstitutional—to boot (see 42 U.S.C. section 1981 and this model brief

Those who insist on engaging in such discrimination deserve to be sued, and they will lose.

  • We weren’t delighted with all aspects of the Supreme Court’s recent decision in Bethune-Hill v. Virginia State Board of Elections, in which the Center for Equal Opportunity joined and helped write an amicus brief.  But there does seem to be progress against the use of race in redistricting, whichever party is using it and whatever its motives.  So for that we can be thankful.  And here’s hoping that Justice Gorsuch will accelerate that progress.
  • In an earlier email, I mentioned that soon after she was sworn in, the Center for Equal Opportunity sent a letter to Secretary of Education Betsy DeVos about some of our policy concerns. 

From the other side of the aisle, the liberal Leadership Conference on Civil Rights has now also sent her a letter, in which among other things it complains about when students are “suspended and arrested for school-related incidents for infractions as minor as disrespect or defiance of authority.” 

That’s great timing, given the appalling events at Middlebury College recently when Charles Murray visited there.  And, really, the “defiance of authority” is no big deal in school?  Sheesh. 

That letter is also ironic in that it urges Secretary DeVos to allow “interest groups on all sides of an issue to weigh in before developing policy guidance and be fully committed to the transparent operation of the office” — ironic, that is, in light of the fact that these same groups endorsed all the Obama-era “Dear Colleague” letters (on “disparate impact” and school discipline, the use of racial preferences at all levels of education, transgender bathroom policy, etc.) that were issued without any opportunity for notice and comment.

  • I should note that we met recently with the new chair of the Equal Employment Opportunity Commission, and plan to have meetings with other Trump administration civil-rights officials as they take office.
  • The Center for Equal Opportunity is, of course, a longtime opponent of the use of racial preferences in university admissions.  In that regard, we would like to put this essay by Professor Peter Schuck on our supporters’ reading lists.
  • Here are a couple of Federalist Society telefora/podcasts in which I participated: 

The first one, here, features a discussion by Judge J. Harvie Wilkinson of his recently published memoir.  Judge Wilkinson and I were comrades-in-arms at the Justice Department during the Reagan administration, especially on civil-rights issues (in fact, I ended up occupying the office, literally, he left in the Civil Rights Division when he was appointed to the judiciary).  You can hear me come in at the 0:56:15 mark.

The second one, here, is about a case whether it can be argued that there is an illegal “disparate impact” on the basis of age when companies focus there interviewing for certain jobs on college campuses.  Sheesh (again).  I come in on this one at the 0:42:40 mark, making the point that the time is long past due to get rid of the disparate-impact approach to civil-rights enforcement altogether — and that the executive branch can do this unilaterally with respect to many regulations, and that Congress should clarify and/or change the relevant statutes.

  • Here’s my response to a recent article in Corporate Counsel magazine:

Re “Diversity Discourse” (April 2017):  It’s amazing that in this entire article there is not one single word about the legal issues that might arise from a company pressuring its outside counsel to make staffing decisions based on race, ethnicity, and sex, nor is there one single word in the entire article about what justification there is — as a matter of law or policy — to justify such race-, ethnicity-, and sex-based staffing.  Just amazing.
Legal departments and law firms really ought to follow the law, and it violates Title VII of the 1964 Civil Rights Act and 42 U.S.C. section 1981 to engage in workplace discrimination on the basis of race, ethnicity, and sex (see here and here, appendix B).  Even if it weren’t illegal, it is wrong to treat its lawyers differently because of their skin color or what country their ancestors came from or what kind of reproductive organs they have.

Corporate Counsel should have at least mentioned these issues rather than run a totally one-sided puff piece.   Your readers deserve better.

I also emailed the general counsel of one of the companies featured in the article, making similar points.

  • Here’s my short response to another recent article about racial preferences in university admissions:

There’s nothing wrong with trying to have intellectual diversity, so long as you don’t lower standards very much to achieve it. But you shouldn’t use skin color as a proxy for intellectual diversity; what’s more, the proponents of racial preferences are perfectly happy to lower standards quite a bit in order to achieve skin-color diversity.

  • One last thought:  There was a letter to the editor of the New York Times this week about how much more effective historically black colleges have been at actually graduating black undergraduates.  The author attributed this all to how “welcoming” and “supportive” the schools are, compared with nonblack colleges. 

But I think a better explanation is because black schools do not give black applicants preferences in admission on the basis of race — and so there is no “mismatch” problem there.

The President Needs to Focus

Donald Trump wants to have it both ways: He has had the most successful first 100 days as president in the history of the republic (or at least since FDR, depending on which day he makes the claim); or the 100-day standard is more media-concocted fake news, and we shouldn't even be looking at it.

In fact, the 100-day test is mostly meaningless, but that doesn't mean that we don't have some sense at this point about the way President Trump governs, and on that score, the results are decidedly mixed.

Trump made a ridiculous number of specific promises during the campaign about what he'd do on "Day One," most of which didn't happen -- thankfully. He didn't withdraw from the North American Free Trade Agreement (though he has given notice that he wants to renegotiate the terms of the 23-year-old treaty). He didn't label China a currency manipulator -- and given his need for China's help in reining in Kim Jong Un, he's not likely to anytime soon. He also promised to repeal every one of Barack Obama's executive orders, repeal Obamacare and start building the wall on our southern border. He's repealed some Obama-era regulations, but many are still in place, and he's still working on health care and the wall. President Trump has already admitted health care is a lot more complicated than he imagined, and even hard-line Republicans show little appetite for building a wall that could cost upward of $20 billion.

So how should we score Trump's record? I'd give him a gentleman's C for effort but a D-minus overall. He's thrown a lot of balls up in the air, but some have come back to smash the administration in the face. His executive orders for a travel ban from certain countries were not only poorly written (especially the first attempt) but also will never survive the bigoted remarks made by the president and some of his surrogates in the campaign. No matter what words Trump puts into the executive order, everyone -- including the judges who must weigh whether the orders violate the constitutional prohibition against religious tests -- know that the intent was to ban Muslims, because he said so repeatedly.

But the bigger problem is that the president has tried to do too much, with too little focus and with inexperienced and, in some cases, insufficient staff. Watching this administration is like trying to keep your eyes on the dime hidden beneath the walnut shell as the manipulator moves it around the table faster than you can follow. From one day to the next, you never know what the administration's priorities are and what will occupy its time in the coming weeks. First, it's a travel ban; then it's health care; then it's trade, energy and tax reform. And that isn't even counting defense objectives or foreign policy, which aren't necessarily under the president's total control, given that characters such as Bashar Assad and Kim Jong Un are in the mix.

I'd like to give the president credit for bombing ISIS in Afghanistan and sending cruise missiles to a Syrian base used to launch chemical attacks on innocent civilians, but I'd feel better if I thought this were part of some grand strategy meant to demonstrate U.S. strength, resolve and commitment to leadership in the world. Maybe it is, but the president's own words suggest he wants America less involved in the world and more focused on what goes on at home. Frankly, we just don't know what he believes, beyond the anodyne "Make America Great Again" slogans. He's asked for a massive buildup in our defenses -- a good thing, in my opinion -- but we have no clear sense of how and when he'll use force. He can't simply make it up as he goes along, though that seems to be what he's done so far.

Perhaps the most troublesome parts of the president's rocky start, however, have been matters of incompetency and mismanagement. In electing a billionaire businessman, most Americans believed they were getting someone who knew how to get things done.

But the White House is a mess of dysfunctional infighting among individuals who, in some important instances, have no experience in the fields they oversee. The president picked some (though by no means all) impressive Cabinet members, but the administration has been painfully slow in filling thousands of political jobs at the agency level where things actually get done.

If the president wants a better grade by the end of his first year, he could start by picking two or three priorities, and then focus all his and the administration's attention on getting them done. Health care and taxes are clearly the top two. Frankly, if he accomplished either one this year, he'd make the honor roll. But like a kid with ADHD, Donald Trump seems incapable of setting priorities and sticking to them, and until he does, he'll struggle in his role.

End of Filibuster Not Good for Either Party

Back when I was a young staffer in the House of Representatives, we viewed the Senate with some disdain. Senators -- and more so their staffs -- were imperious. They viewed themselves as being in the higher chamber and employed arcane rules, most notoriously the filibuster, to block actions they didn't like. But I've learned a thing or two in the more than 40 years since I left my job on the House Judiciary Committee, and I've changed my mind about those Senate rules. Sometimes we need a brake, judiciously applied, to give politicians and the country the time to come together.

I was still in high school when Democrats filibustered the 1964 Civil Rights Act for 60 days, but I remember it as an ugly affair that nonetheless couldn't stop the U.S. Senate from doing what was right. In the end, the Senate mustered the votes of two-thirds of the chamber to move the landmark bill forward, but not before Sens. Robert Byrd, Strom Thurmond, Sam Ervin, Richard Russell and William Fulbright (some of whom later became liberal icons for other reasons) talked around the clock to try to kill the legislation.

As grueling as the process was, it forced debate -- and, yes, that dirty word compromise -- to enact legislation that dramatically altered the course of the country. Had liberal Democrats and Republicans who favored civil rights forced through a bill on 51 votes, the nation might never have fully embraced the changes enacted. The Supreme Court had outlawed segregation in schools in 1954, but the pace of change took decades to accomplish, in part because nine justices, even though girded by the Constitution, couldn't force the social change required. With 71 elected senators embracing the new law, the people had an easier time accepting the historic legislation. Sen. Everett Dirksen -- a Republican who helped secure passage, with larger numbers of his fellow Republicans than Democrats voting in favor -- said it best during the debate: "Stronger than all the armies is an idea whose time has come."

Much has changed since that historic day, not least of all the willingness of partisans on opposite sides to work together. The Senate changed its rule in 1975, lowering to 60 the number of votes needed to end a filibuster. On Thursday, the GOP-controlled Senate changed the rules once again -- this time disallowing a filibuster on Supreme Court nominees altogether, following the precedent set when the Democrats were in control and blocked filibusters for lower-court nominees. I am happy that the eminently qualified Neil Gorsuch will become a Supreme Court justice because of the change, but I'm troubled about what the rule change means for the future of politics in America.

Already we've seen Democrats pass the biggest piece of social legislation in 50 years on a simple party-line vote, the Affordable Care Act, by manipulating the rules that allow certain kinds of legislation to be exempt from filibuster. We're likely to see the same maneuvers if and when the GOP gets its act together to "repeal and replace" Obamacare. And of course, the Democrats' putting in place the rule allowing lower-court judges to be confirmed with less than a supermajority when the Senate was in Democratic hands means the federal courts have already become highly politicized and promise to be more so going forward. This is not a good thing, no matter which party is in control.

Ours has been a remarkably stable democracy, with control of Congress and the White House shifting back and forth election to election but the judiciary less susceptible to such swings. That was how our Founding Fathers intended it; why else make federal judges lifetime appointees? Presidents have wide latitude in making such appointments, and there's no question that judicial philosophy plays a role in whom a president chooses. But in the past, the tempering force of the old Senate rules meant few presidents risked putting forth a nominee who was outside the mainstream. President Donald Trump's nomination of Neil Gorsuch was in that tradition; Gorsuch is a mainstream judge. But Democrats, angry with Trump on a host of issues, chose to dig in their heels -- and Senate Republicans followed the Democrats' example by blowing up the remnants of the old rules.

Political majorities don't last forever, and I'm betting those on both sides of the aisle will have ample opportunity in the future to rue the day they started down this path. I'm welcoming Justice Gorsuch but saying a sorry farewell to a tradition that has helped forge consensus at difficult times.