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High Court Not Yet an Armageddon

Antonin Scalia's death has made many conservatives fearful of what would happen if a Democratic president were to appoint the next justice to take his place on the Supreme Court. But several cases decided by the high court this week suggest that even if a Barack Obama (or Hillary Clinton) appointee had been in place, the ultimate result would not have been much different -- and those cases included such divisive issues as affirmative action, immigration and warrantless searches. This doesn't suggest that the current ideological split on the court is meaningless; it is significant. But the ability of the high court to ignore precedents or legislative dictates is still limited, and Armageddon is not quite around the corner.

On affirmative action, those of us who believe in strict colorblind equal opportunity had a minor setback, but one that would not have been reversed even if Justice Scalia were still on the court. The case, Fisher v. University of Texas, involved a white woman who was denied admission to the university. In 1997, the Texas Legislature passed a bill to guarantee automatic admission to the state university system to any Texas resident who graduates in the top 10 percent of his or her class. The legislation was passed with a Republican-dominated state Senate and signed by then-Republican Gov. George W. Bush in an attempt to increase minority representation in the elite university system by ensuring that students who attend high schools composed predominately of minorities have an equal chance of admission with those who attend predominantly white schools.

The effort came after a 5th U.S. Circuit Court of Appeals decision in 1996, Hopwood v. Texas, knocked down a race-based preference system that awarded extra points toward admission to minority group members. Abigail Fisher's claim challenged not the 10 percent plan directly but changes made to the plan by the university when it decided that the program hadn't achieved a "critical mass" of diverse students and adopted a "holistic" approach to include other factors -- for example, consideration of race, socio-economic status, language spoken at home and whether a student is from a single-parent family -- as part of a student's overall eligibility.

Justice Anthony Kennedy wrote the majority opinion that UT's program meets the strict scrutiny required whenever government takes race into account in setting admission policies. This was, regrettably, the first time Kennedy voted to uphold race as a factor in college admissions. But unless Kennedy had joined Justice Samuel Alito -- who wrote a stirring dissent -- the likelihood is that another liberal on the court would simply have deadlocked the decision 4-4 (Justice Elena Kagan recused herself because she had been an Obama administration solicitor general arguing for upholding the program in an amicus brief earlier), thus allowing the appeals court decision in favor of the university to stand. As it is, the decision still leaves open other challenges to less carefully crafted race-based programs in college admissions.

In other decisions, a divided 4-4 court punted on the issue of President Barack Obama's overreach on immigration, letting stand a lower court's decision to halt the administration's plans to defer deportation and grant work permits to some 5 million immigrants who are here illegally. Another conservative on the court might have allowed a majority to tackle the important issue of presidential authority, but even without the extra vote, the Obama plan did not survive.

So, too, the divided court managed to hand down decisions on other controversial matters that should give some hope to conservatives that all is not lost. In Utah v. Strieff, the high court upheld the admission of evidence collected in what might otherwise have been an illegal police stop. Four justices, including liberal Justice Stephen Breyer, sided with Justice Clarence Thomas in deciding that "attenuating circumstances," namely an outstanding warrant for the subject's arrest, allowed the police to search the suspect and that the evidence -- methamphetamine and drug paraphernalia -- could be used in his prosecution despite the so-called exclusionary rule, which disallows evidence collected improperly.

The court also dealt with cases involving the Hobbs Act and the Racketeer Influenced and Corrupt Organizations Act, both of which give broad powers to government to prosecute crimes impeding domestic or foreign commerce. The court also struck down Obama Department of Labor regulations that attempted to significantly broaden overtime requirements in the automobile dealership industry from what is mandated in the law. In each of these cases, conservatives and liberals were able to come together, albeit with some punting to the lower courts to decide substantive matters that a more conservative court might have settled. The result was less than perfect, but not quite the abyss many conservatives fear.

The Greatness of America

I'm not usually one for tearjerkers, but this week I watched one that I think every American could benefit from seeing. "McFarland, USA" may not have been a big hit at the box office when it was released in 2015, despite having Kevin Costner in the starring role, but it deserves a wider audience now that it is available through Apple, Amazon and other streaming providers.

The movie, based on actual events that took place in the California city that gives it its name, tells the story of a down-and-out coach who finds himself stuck in a farmworker community in California's San Joaquin Valley, coaching Mexican-American kids who are mostly filling time in school between their shifts picking crops. Coach White -- yes, he happens to be white, but it's his real-life name, as well -- doesn't want to be where he is, but he has no choice. He's been fired from every previous job. His family, a blond wife and two lovely daughters, finds the place alien, from the next-door neighbor who raises chickens in her backyard to the lowriders who parade through the downtown streets in their classic cars after dark. An early scene shows the family exiting a taqueria, where they've unsuccessfully tried to order hamburgers, and then encountering a group of lowriders who have just pulled up. The coach rushes his wife and daughters to the family station wagon and peels out of the parking lot to gales of laughter from the presumed gangbangers.

Much of the movie is about exploding stereotypes -- didactic, to be sure, but entertaining in a way that is neither heavy-handed nor filled with the finger-pointing that often accompanies such efforts. The boys in the film -- seven featured characters -- have difficult lives. But they are not victims, and they do not sit around blaming others or feeling sorry for themselves. They get up every morning at dawn and head to the fields to help their families pick crops. Then they run to McFarland High School to attend class. Then it's back to the fields to finish their jobs. It is while driving outside town that Coach White -- after seeing Thomas Valles running across fields at breakneck speed on his way to work -- comes up with the idea to form a cross-country team of runners for the school.

As I watched the story unfold, I was reminded of my tenure as chair of the National Commission on Migrant Education. From 1989 to 1992, I and my fellow commissioners, which included four members of Congress, held hearings across the country in communities like McFarland. The stories we heard were often heartbreaking, but they were also inspiring. I have never encountered a community with the work ethic of farmworkers. These are people who perform work none of the rest of us can imagine, in conditions that we could not endure.

At one point in the movie, Coach White accompanies his runners to the fields to put in a day's work after one of the families decides they can't let their three sons participate on the team because practices after school and on the weekends are cutting into the family's income. White ends up lying facedown in a cabbage field while one of his students massages his aching back, reassuring the coach that the body takes a while to get used to stoop labor. White's experience that day teaches him that there is nothing these kids can't accomplish.

But the film is about more than the resilience of one group of kids; it's about a whole group of people who are hidden from most of us yet touch our lives every day. If you eat vegetables or fruit, if you consume poultry, beef, pork, eggs or milk, chances are that your food reached your table thanks to a worker like the boys in the film. And chances are it was either an immigrant or a child of an immigrant who was doing the work. Indeed, more than 1 in 4 of those workers today are undocumented immigrants.

With talk of deporting immigrants who are here illegally and shutting our borders dominating the presidential election, I wonder: Who exactly do the supporters of those positions think would take these jobs in a "Make America Great Again" society? The actual boys who were the basis of the story "McFarland, USA" are all grown up now. Most of them finished college -- thanks to running scholarships -- and are teachers or administrators, and there's even a police officer among them. This is America's real greatness, a ladder of opportunity for all.

Why Not Just “American American”?

We are supposed to be excited because the Congress has passed, and President Obama has just signed into law, a bill that will get rid of “insulting” words like “Oriental” and “Negro,” changing them to more enlightened terms like “Asian American” and “African American.” 

But wouldn’t it have been better if all references to race has just be taken out of the U.S. Code altogether, since the reason they’re in there these days is principally to advance race-based preferences and decision-making by the federal government?

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The Chronicle of Higher Education — which, like it or not is the periodical of record for college and university issues — recently had a long article about a program designed to increase opportunities for students interested in earning a Ph.D.  The problem was that it made it sound like this program was open only to “underrepresented minority” students (i.e., blacks, Latinos, and Native Americans). 

Now, the Center for Equal Opportunity has long objected to such programs, and has successfully challenged them, so naturally this did not set well with us.  But when we contacted the executive director of the program … well, you can read the rest in my published response to the Chronicle of Higher Education here (which was given the title, “Worth Noting That Program for Riskiest Students Is Open to All Races”):

One might get the impression from your article, 2 Colleges Build Better ‘Bridge’ to Ph.D.s for Minority Students(The Chronicle, May 27), that the program discussed is open only to underrepresented minority students, but it is important for readers to know that this is not the case. According to the program’s executive director: “All students can apply. All races/ethnicities are represented in the program.”

That’s as it should be, and kudos to those running the program for recognizing this. It’s fine to provide special programs tailored to “diamonds in the rough.” But diamonds come in all colors, and there is no persuasive reason to limit these programs to “the riskiest students” who are black, brown, or red but to exclude those who are white or yellow.

The reasons given in the article that might be cited in favor of this kind of limitation — e.g., only some groups are afflicted by “stereotype threat” — are likely to be aggravated if students of particular colors are singled out as particularly in need of special help. Fairness aside, if a program were not just racially preferential but in fact racially exclusive, then it is almost certainly illegal under the Supreme Court’s decisions.

Oh, and the fact that, as the article notes, schools are under pressure from crybully students to set and meet racial quotas is no excuse to engage in racial discrimination — as a matter of law or policy or morality.

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There’s another article in the Chronicle of Higher Education about an “unsparing report” at Yale released last month on the school’s failure to have a politically correct racial, ethnic, and gender mix in its faculty. 

A non-Yale expert is quoted as saying that the findings are consistent with what “she sees across higher education.”  The solution?  “Every college, she said, should collect hiring and retention data down to the departmental level, and hold people accountable for a lack of progress” (my italics).

And we know that that means, don’t we, comrades? 

Certainly the authors of the Yale report do:  “The report makes 19 recommendations, including setting numerical goals for hiring” (again, my italics;  see recommendation #2 on page 5 of the report itself, here).

I’ve said it before and I’ll say it again:  Not only is hiring by the numbers unfair and divisive, and not only is it bad for students and the university not to hire the most qualified individuals to teach and do research there, but it is illegal

The words “law” and “legal” each appear exactly once in the report, by the way (in a reference to “law students” and in a historical discussion of “legal mandates” during the late 1960s and early 1970s), and there is no citation at all of the relevant federal law prohibiting hiring discrimination.  So apparently this little problem was just ignored. 

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Finally, the U.S. Equal Employment Opportunity Commission recently had a meeting with witnesses on promoting “diversity” in the tech industry.  The focus in this area has been on increasing the number of some minority groups (especially African Americans and Latinos), since there are thought to be too high a percentage of whites and, in particular, other minority groups (i.e., Asian Americans); the number of women relative to men is also thought to be too low. 

The EEOC also said that it would accept public comments on the issue, and here’s what the Center for Equal Opportunity sent in:

The Center for Equal Opportunity respectfully submits these three links, which we think are relevant to this meeting:

The bottom line is simple:  Companies in any industry should recruit, hire, and promote the best qualified individuals, without regard to race, ethnicity, or sex, and without a desire to achieve a predetermined racial, ethnic, and gender mix.

Does Trump Really Want to be the President?

Does Donald Trump want to be president? It's a serious question. Yes, he wants to win more votes than anyone else. He wants the biggest bully pulpit available -- one aptly named, in his case. He wants power over others' lives. He wants to give orders and command troops. But does he want to govern? And does he have any idea what that even means? The evidence suggests he doesn't.

Over the past two weeks, Trump has behaved like a man on a mission to derail his own nomination. He has said so many offensive things over the course of his campaign it's numbing. But Trump crossed the Rubicon when he invoked ethnicity as a disqualification for a federal judge trying a case in which he and his now defunct Trump University are defendants.

"He's a Mexican. We're building a wall between here and Mexico," Trump railed to CNN's Jake Tapper in reference to American-born U.S. District Judge Gonzalo Curiel. Trump didn't just say it once; he repeated it several times during the interview. Nor was the Tapper interview the first time Trump raised the judge's ethnicity as a disqualification. Trump has made the same point repeatedly at campaign rallies, going back to February, when he referred to Curiel as "Spanish."
Pushed by the Republican Party's leadership, the campaign issued a statement on the controversy earlier this week, which blamed everyone but Trump for "misconstruing" his statements. How exactly does one misconstrue "He's a Mexican (and) we're building a wall between here and Mexico"? As House Speaker Paul Ryan said, it's "the textbook definition of a racist comment." Unfortunately, it wasn't enough to get Ryan to retract his endorsement.

But give it time; Trump still has five weeks before he actually becomes the nominee. What could he do between now and then? Lots.

After months of promising to self-fund his campaign, Trump has now admitted he doesn't intend to do so. He met with top GOP fundraisers this week, but he's downplayed what it will take to run a viable campaign, which suggests he knows he can't possibly raise the money he needs. This has to strike fear in the hearts of those who want to maintain control of the House and Senate, including Ryan and Senate Majority Leader Mitch McConnell, who would lose their jobs if control were to revert to the Democrats.

Trump won't put his business interests on hold while he runs for president. The Trump University lawsuit is a case in point, but not the only one. Later this month, Trump will leave the U.S. to go to Scotland and Ireland -- not to burnish his micro-thin foreign policy credentials but to visit his golf courses. When exactly does he intend to give up running his businesses? Running for president is a full-time job, but Trump certainly doesn't show any sign of putting in long days and nights hitting the briefing books, attending county fairs and reaching out to people beyond his base. He manages to sleep in Trump Tower most nights, finding traditional campaigning incompatible with his creature comforts.

He has no adequate campaign staff or get-out-the-vote operation in place. He hired lobbyist and GOP veteran Paul Manafort, but he seems to have put Manafort on ice. When someone in the campaign had the good sense to send out a memo to tell Trump surrogates to avoid questions on the Trump U suit, The Donald got on the phone to call whoever wrote the memo an idiot and then instructed the surrogates to triple down on the insults directed at Curiel.

Trump's biggest danger is his own mouth. He's managed to insult women, blacks, Hispanics, Muslims and the disabled, along with anyone and everyone he sees as not a fan. That points to his greatest vulnerability: his thin skin. It doesn't take much to get him to say something offensive. He's attacked the chairwoman of the Republican Governors Association, the speaker of the House, every one of his primary opponents (some, but not all, of whom have groveled at his feet nonetheless) and most of the U.S.' allies, along with the usual targets of Republican ire, the media.

Ryan, McConnell and Republicans like them are holding their breath. But Trump may well be goading them into denying him the nomination for a job he never really wanted in the first place. From Trump's point of view, he might be better off being able to claim the system was rigged against him than he would be having to face a humiliating defeat. Worse yet, he may be imagining what life might actually be like if he ended up having to do the job of president of the United States.

Identity Politics: Part Two

My column last week about identity politics in the U.S. caused quite a stir. I received requests for television and radio interviews stretching all the way to Russia. For those who missed it, my thesis was that this year's election is stirring up racial and ethnic animosity on both sides of the partisan divide. Hillary Clinton has remarked that Republican government officials' acts are reminiscent of Jim Crow, while Donald Trump is warning whites that Mexicans and others are stealing their jobs and bringing crime to their neighborhoods. It's a nasty formula to divide Americans, not unite them.

But how is this different from the ethnic appeals that have been a part of American elections going back to the 19th century? It is no secret that the New York City Democratic machine in the 19th and early 20th centuries used political patronage to give jobs, rent money and give other support to immigrants, ensuring that their votes would keep the machine in power for decades. But Republicans, too, made direct appeals to voters based on their ethnic backgrounds. Some 80 percent of Germans in St. Louis, Missouri voted for Abraham Lincoln in 1860, in part because of his renunciation of the anti-immigrant Know-Nothings of the era. And more recently, President Richard M. Nixon led a well-orchestrated effort to appeal to Mexican-American voters in 1972, which paid off handsomely when he won about a third of the votes of traditionally Democratic voters.

But today's identity politics are different. They are not made on the basis of positive appeals to voters based on economic self-interest or shared values. It is one thing to say to black voters, "Vote Democratic because we promise a wider range of social programs that will help your communities," and quite another to say, "Vote Democratic because the other side will take away your rights as American citizens." The latter is based entirely on fear and plants the seed of racial mistrust.

And it's the same when Trump plays the Mexican card to appeal to white working-class voters. He could have made the case that wages are stagnating among lower middle-class voters, and could have even argued that immigrants have contributed to the problem. (For the record, most studies show no such correlation, but a few economists argue that low-skilled immigrant workers depress wages for those at the bottom of the income scale, most of whom are immigrants who arrived earlier.)

But that isn't the route Trump chose. Instead he blamed Mexicans: "When Mexico sends its people, they're not sending their best," he said. "They're sending people that have lots of problems...They're bringing drugs. They're bringing crime. They're rapists." He has consistently tried to provoke fear among whites that Mexicans are going to steal their jobs, rape their daughters and even rob and kill them, frequently asking families who have experienced crimes at the hands of illegal immigrants to join him onstage.

This is about as ugly as it gets in politics, and yet Trump has largely been given a pass by the media and his fellow Republicans. It is unimaginable that a candidate could say similar things about blacks or Jews, for example, and get away with it. But Trump hasn't had to stir similar resentment toward those groups. Some of Trump's followers among the white identity movement have done it for him, launching anti-Semitic attacks on Jews who say a critical word about Trump, and making up a fantastically wrong statistic on the number of whites who are victims of crimes committed by blacks, which Trump retweeted.

If the 2016 election turns on racial and ethnic identity, we are headed for dark times in America. Since our founding, America has represented the best hopes of mankind to build a nation not on the ties of blood and soil, but on the principles of liberty and freedom for all.

Americans don't share a common racial, religious or ethnic history, but we are one people because we choose to be. If that comity breaks down and we retreat to our tribal roots, it will be the end of the great American Experiment. It's time for those who believe in one nation, indivisible, to speak out and tell the politicians on both sides of the aisle that we reject identity politics, no matter what partisan flavor they take.

Judges and Ethnicity, Donald and Diversity

Yes, it’s a really bad idea to suggest that the way a judge does his job is inevitably determined by his skin color or national origin.  I’m just surprised that people who have long urged that judicial appointments should be made with “diversity” in mind have so quickly come around to this view ….

Shame on the Washington Post  -- The Washington Post had an editorial criticizing the lawsuit filed recently by Republican leaders of the state legislature against Virginia governor Terry McAuliffe’s recent executive order that restores the right to vote to all felons, no matter their crime.

Let’s start with the most important point: It is ugly and irresponsible for the Post to begin its editorial by saying that the Republican lawsuit is “the latest in a series of GOP measures meant to dilute and minimize the electoral clout of African Americans in the commonwealth.” There is no evidence — and none is cited — that Republicans are acting with racist intent here, and shame on the Post for making this baseless and libelous accusation.

At the end of the editorial, the Post says that disenfranchising felons “serves no social purpose,” but this is false, too. If you aren’t willing to follow the law, then you can’t demand the right to make the laws for everyone else. We have certain minimum, objective standards of responsibility and commitment to our laws that we demand of people before allowing them to participate in the solemn enterprise of self-government, and some people don’t meet those standards: children, noncitizens, the mentally incompetent, and people who have committed serious crimes against their fellow citizens.

In the middle, the editorial misstates the history of Virginia’s disenfranchisement law:  While just after Reconstruction the law was indeed tweaked in a way aimed at the newly freed slaves, the law now on the books has no racial animus, and indeed Virginia disenfranchised felons before the Civil War, when blacks were not allowed to vote anyway.  The editorial also ignores the fact that the Republican lawsuit’s interpretation of the state constitution was shared by, for example, the administration of a recent Democratic governor and many others, as Hans von Spakovsky and I discussed recently here. And the editorial uses the hackneyed and — as I discuss here — misleading cliche that felons no longer in prison should be able to vote because they have “paid their debt to society.”

The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison. After all, the unfortunate truth is that most people who walk out of prison will be walking back in.

But let me end where I began:  While wrongheaded, it’s not irresponsible for the Post to think that felons should be able to vote.  But it is irresponsible for it to say that those who disagree with it on this point can only be motivated by a racist desire to keep black people from voting.

The Shampoo Police -- George Leef writes here about a state-law challenge to a Tennessee licensing regulation that is keeping a woman from working as a shampooer (shampooist?) in a hair salon.  The usual insanity, but it brings to mind this question:  As the federal executive and judiciary get worse, is it time for conservatives and libertarians to start focusing more on what can be accomplished in state courts using state laws and constitutions?

Children Teaching Children – My published comment on a Chronicle of Higher Education articleregarding student demands that there be fewer courses about “dead white dudes” and more courses about what the students think is important: 

“I am in my sixties now, and I have to say that my first reaction on reading a story like this is the same as my first reaction when I read stories like this fifty years ago: Why do 18 year olds think they are qualified to dictate what they need to study? If their parents were making such demands, I would be more sympathetic.”

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Finally, the federal government last week came out with its latest numbers on out-of-wedlock birthrates, by race and ethnicity.  Nothing new or surprising, but disturbing and depressing nonetheless. 

The preliminary data for 2015 show 40.2 percent of all births were out of wedlock, and there are very big disparities among the different racial and ethnic groups.  Highest are non-Hispanic blacks at 70.4 percent, followed by American Indian/Alaska Native at 65.8 percent, and Hispanics at 52.9 percent.  A little better are non-Hispanic whites at 29.2 percent, with the lowest figures by Asian/Pacific Islanders at 16.4 percent.

That’s a big range — from 70.4 to 16.4 — and as noted before there is an obvious fit between how well a group is doing by any social indicator you like (education, crime, employment, poverty, you name it) and how many children are being born into two-parent families.

Identity Politics are Bad for Everyone

Identity politics have become an engrained part of our culture -- and one that threatens to tear us apart.  We no longer embrace the unum in our national motto-E Pluribus Unum, out of many, one-focusing almost entirely on the pluribus.  When Al Gore famously mistranslated the motto, we laughed it off as another of his gaffes on a par with claiming to have invented the internet. But his words may have been more prophetic than ignorant.

"We can build a collective civic space large enough for all our separate identities, that we can be e pluribus unum -- out of one, many," then Vice President Gore said in 1994. Today, it seems all are touting their separate identities to the exclusion of the many: blacks, Hispanics, Asians -- and yes, whites -- with members of each group blaming those of the others for whatever ill befalls them or what challenges they face.

This year's election has poured gasoline on the flames of racial and ethnic mistrust.  Hillary Clinton plays to her constituencies among minority voters and women, stirring fears that the Republican Party would turn back the clock to the Jim Crow era and deny equal pay for women. Donald Trump stokes resentment among whites that Mexicans and others are stealing their jobs and infesting their neighborhoods with crime.  Bernie Sanders plays a Marxist version of the divide and conquer game, using class as the dividing wall.

Each narrative diminishes the individual. We become nothing more than the color of our skin, our ancestry and our sex.  And even the latter is being sliced and diced into ever more exclusive identities based not on sex, but so-called gender: males, females, transgendered, cis-gendered, heterosexuals, gays, lesbians, bisexuals, questioning, etc. And the list will expand, no doubt, as some decide even species is a social construct.

But while it is easy enough to point to Black Lives Matter, feminists, gay rights activists or even the tiny Mexican irredentist movement as the source of the divisions, the infection has spread far beyond.  Sure, liberal college campuses are rife with such divisions, promoted in curricula and by radical faculty, but so, too, are Donald Trump rallies and the right-wing media.

This deeply troubles me, as someone who believed that the whole point of the Civil Rights movement and our anti-discrimination laws was to make such differences meaningless.  The point was to treat each person as an individual; to discriminate against no one on the basis of race, color, national origin, sex or religion, or to grant any special preference on those factors either.

When I was growing up in the 1950s, people frequently asked me, "What are you?"  I was puzzled by the question, but my parents taught me to say, "I'm an American."  My answer often provoked more questions, and it was clear that being American didn't satisfy my interlocutors.  People rarely ask me that directly today, preferring instead to make assumptions that I find amusing.

I get lumped in as "a minority," regularly referred to as "non-white," and assumed to be of Mexican immigrant roots.  When pushed, I smile and point out that the only true immigrants in my family came from Ireland, mostly in the mid-19th Century, that my other ancestors came from England and Spain and were settlers in what is now the United States in the early 17th and 18th Centuries.

When the show "Finding Your Roots" profiled me in 2012, they discovered that 97 percent of my DNA is European, 51 percent of it Northern European -- a fact that would probably shock those who've assumed otherwise, but which I consider utterly irrelevant to who I am: a writer, a mother, a wife and, yes, an American.

What has come to bother me about such questions and misconceptions is that whoever is doing the asking or categorizing isn't seeing me, but the box in which they think I fit.  Today's politics are making matters much worse.  It's "us" against "them," and it occurs on both sides of the aisle.  The left blames "white privilege," while the right proclaims "America first," but isn't keen on having immigrants join "We, the people."

Until we get back to at least striving to become the one out of many that we once aspired to, we are likely to see greater animosity and divisions among the 320 million people who call America home. This is bad for individuals and even worse for our nation.

Trump Treads on the Constitution

Hillary Clinton had a bad week. A scathing report from the State Department's inspector general on Clinton's use of a private email server for government business would have ignited more of a media firestorm than it did had Donald Trump not done what he does best: sucked up all the oxygen with his outrageous behavior.

For those Republicans who do not understand why some of us refuse to fall in line and back the presumptive nominee, this week offered a primer. It is not just that Trump is ignorant about both foreign and domestic policy or that he often makes crude, bigoted and sexist comments. It isn't just that we disagree with him about this or that specific proposal, from the wall he'd build on our southern border (which Mexico would pay for!) to the tariffs he'd slap on foreign-made goods. It isn't even about his narcissistic personality, volatility and inconsistency.

What troubles me most -- and makes it impossible for me to vote for Trump -- is his fundamental and dangerous disregard for the Constitution of the United States, especially the separation of powers outlined among the executive, legislative and judicial branches.

Trump isn't the first to tread on separation of powers. If there is one lasting legacy of Barack Obama's eight years in office, it will be the erosion of the separation of powers between two of the three branches of government. Obama has ignored Congress when it suited him, taken executive action to give legal status to undocumented immigrants and ignored drug laws, and he even rewrote his signature legislative accomplishment, the Affordable Care Act, after he signed it. But even Obama has stopped short of attempting to usurp the judiciary.

Yes, Obama unwisely lectured the Supreme Court justices for their ruling in Citizens United, which upheld the First Amendment right of corporations and unions to spend unlimited amounts from their general treasury funds on independent political speech. But Obama's intemperate remarks pale in comparison with Trump's attack on a sitting federal judge presiding over a fraud suit in which Trump is a defendant.

U.S. District Judge Gonzalo Curiel is presiding over two class action suits against Trump University alleging the now-defunct institution defrauded students who paid up to $35,000 for classes that did not deliver what was promised. (The attorney general of New York filed a similar suit in 2013 against the Trump entity for $40 million, alleging illegal business practices and false claims. That case, too, is pending.)

But this week, Trump launched a vendetta to try to intimidate Curiel. He described the judge as a "hater of Donald Trump," with no evidence, as is Trump's wont. He called the Indiana-born judge his favorite epithet, "Mexican." And then he did something quite frightening. He said: "They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace, OK? But we'll come back in November. Wouldn't that be wild if I'm president and I come back to do a civil case? Where everybody likes it. OK. This is called life, folks." Never mind Trump's usual inarticulateness; this is a threat.

Curiel has stood up to bullying before. A Mexican cartel reportedly targeted Curiel for assassination because the then-assistant U.S. attorney for the Southern District of California prosecuted drug traffickers along the Mexican border. But even a Mexican cartel is no match for a future president of the United States in seeking revenge.

There is a reason our Founding Fathers established lifetime tenure for federal judges in the Constitution. Only with a truly independent judiciary, one not subject to the taunts and threats of whoever occupies the presidency, can the important balance among the branches of government be maintained. But Trump seems not to understand this, any more than he understands that he cannot as commander in chief give an unlawful order to torture prisoners or kill family members of terrorists as an act of revenge. Nor can he ignore the First Amendment protections of a free press by threatening to change libel laws so that he can punish anyone who criticizes him or impose a religious test on people who want to come here.

Our system allows voters to elect as president anyone they choose, within quite limited parameters. The person must be a natural-born citizen who has attained 35 years of age and resided in the U.S. for at least 14 years. And Donald Trump may well become the next president. But if he does, I believe he will pose a grave threat to our constitutional republic. It is bad enough that a man of Trump's low character may occupy the Oval Office. It is worse that if he does, voters will have put him there.

Sorry, No Blacks Allowed

That was the reason given by a St. Louis-area public school system for refusing to allow a black student to attend a school that he would have been allowed to go to had he been any other color. This discrimination was justified by a desire to achieve the right racial mix in public schools. So there you have it: Politically correct diversity trumps individual rights and educational opportunity.  Read all about it here.

More on Race-Based Decision-Making in Education: 

There have been a couple of newspaper pieces in the last week that make the (dubious) case for hiring fewer white teachers:  “Black teachers steer black students to gifted programs” in USA Today, as well as “We need a diverse teaching force” in the Washington Post.  But, just as it is wrong to deny a black student a spot at a school because of his race, so it is wrong to hire teachers with an eye on race. 

The USA Today article says that a new study show that black teachers are more likely to recommend black students for gifted programs than white teachers are.  But of course the possibility is not considered that perhaps it is black teachers who are biased in favor of black students, not white teachers who are biased against them.  In any event, it would not make sense to solve any bias problem by giving less-qualified teachers of one race a preference over more-qualified teachers of another race (that point, which is not only true as a matter of policy but mandatory as a matter of law, goes to the Washington Post piece, too).  The better solution is to demand that all teachers avoid bias and train them to do so.

A Short Bathroom Break: 

As a public service, the Center for Equal Opportunity prints here the relevant text of Title IX of the 1972 Education Amendments of 1972: 

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ….” 

So the question to bear in mind as you read various news stories these days is whether, if it is permissible to have male and female restrooms (as all agree that it is), the quoted language means — and was meant in 1972 to mean —  that is illegal to define male and female in biological terms.


According to this news story from the Washington Times, Susan Rice, President Obama’s National Security Adviser, gave a commencement speech last week in which she said “there are too many white people in key government posts, endangering national security because they think alike.” 

Well!  I’m prepared to believe that it is a good thing to have different perspectives, backgrounds, and experiences available among our decision-makers and analysts, but there are two obvious problems with looking at this issue the way that Susan Rice does — and these problems have nothing to do with her race or sex, since there is little doubt her view is shared by her current boss (President Obama, who is not female) and her long-time ally (Secretary Clinton, who is not black). 

First, it makes no sense to use skin color as a proxy for a person’s perspective, background, or experience:  Most whites are not rich Ivy Leaguers, and many nonwhites are.  Second, it is very dangerous to lower qualifications in national security positions in order to achieve a predetermined racial and ethnic mix.

No matter.  To quote a news story in the Washington Post, the administration is considering the adoption of some version of “the Rooney Rule” at the Pentagon with regard to “minority candidates for prestigious jobs, such as aide-de-camp and military assistant.” 

The Post article rightly notes that there may be legal problems with this, though.  Here’s my comment on a recent USA Today column, “3 Ways the NFL Can Boost Minority Coaches”:

Most of what the op-ed argues for is the application and expansion of the “Rooney Rule,” which requires that at least one minority be interviewed whenever there is a vacancy in a particular position.  But there’s a big problem with the Rooney Rule:  It’s illegal.

Title VII of the 1964 Civil Rights Act prohibits racial discrimination in private employment. The statute covers hiring, of course, and also makes it illegal for an employer to “classify his . . . applicants for employment” in a way that denies equal treatment on the basis of race.

It might be objected that there’s no harm here, since it’s only requiring an additional interview. But suppose the shoe were on the other foot, and the requirement was that at least one white candidate always be interviewed. Would that fly?

And there will be harm. Suppose that a team normally narrows the field to four candidates and then interviews them. If it keeps this rule, then if you’re white candidate number four, you’re out of luck, because now you have to make way for the minority interviewee. Suppose the team decides to interview a fifth candidate instead. Well, the minority coach who was the tenth choice now leapfrogs over white candidates six, seven, eight, and nine — all out of luck because they are the wrong color. And, of course, if the minority candidate is hired, then one of the white finalists — the one who would have gotten the job otherwise — is out of luck, too.

No Rest — Not Even on Mother’s Day — for Social Justice Warriors: 

Even the President’s annual Mother’s Day proclamation has to be used to advance the cause of political correctness.  From the first paragraph:  “Regardless of sexual orientation, gender identity, or marital status, mothers have always moved our Nation forward and remained steadfast in their pursuit of a better and brighter future for their children.”  From the second paragraph:  “For generations, mothers have led the charge toward a freer, more inclusive country -- embracing the task of ensuring our Nation upholds its highest ideals so that they, and America's daughters, know the same opportunities as America's fathers and sons.”  And then in the third paragraph there’s a tendentious reference to the dubious “gender pay gap.”