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Year-End Thanks to the Senate

As we count our blessings at the end of the year, don’t forget to include thanks to Senator Mitch McConnell and the Senate Judiciary Committee for what they’ve done to keep the federal judiciary from getting any worse than it already is. It’s hard to win even good lawsuits with bad judges.

A few examples that have come across my desk just in the past week or so: George Leef has a fine column on how Grand Valley State University has been sued, rightly, for violating the free-speech rights of its students. Microsoft ought to be sued if it decides to tie the payment of bonuses to how well its managers hit their racial and gender quotas. The Texas State Bar has been sued, again rightly, for its use of such a quota on its board of directors. And here’s a compelling video that Pacific Legal Foundation has posted regarding its lawsuit against a Missouri public-school system for a racial quota that is keeping an African-American student out of a school he could attend if only he were some other race.

More Healing from Our President -- Late on Thursday last week, President Obama announced his appointment of Debo Adegbile to the U.S. Commission on Civil Rights. Mr. Adegbile, you may recall, was rejected by the Senate when he was nominated by the president to head the Justice Department’s civil-rights division, in large part because of his championing the cause of Mumia Abu-Jamal, a convicted cop killer who captured the radical-chic hearts of the hard Left. That was too much even for some Senate Democrats, and the nomination was also opposed by a number of law-enforcement organizations, as discussed in this Washington Times story.

Note also that, according to people I spoke with currently at the commission, the long tradition has been for outgoing presidents to leave to incoming presidents the appointments to vacancies occurring this late in the term.

So nice going, Mr. President: You’ve broken tradition and otherwise gone out of your way to make a divisive appointment on your way out the door — embarrassing members of your own party, sticking a thumb in the eye of congressional Republicans, and angering the police (at this time of all times) since, among other things, it will inevitably be read as signaling your administration’s solidarity with those who stand on the other side of the thin blue line.

Well, the only good that could come of this is that the new Congress and the new president might conclude that the time has come to end the U.S. Commission on Civil Rights. It has long outlived its need: When it was created, nearly 60 years ago, there were few civil-rights agencies in the government at any level, and the work it did in spotlighting and researching civil-rights issues was being done by no one else. Now there are a plethora of such agencies at every level, and there is, to put it mildly, no shortage of people who focus on civil-rights issues, in government, academia, think tanks, you name it.

Rooney Rule Rubbish -- There was a front-page story in the Washington Post last week, which pretends to be a news article but is really an editorial extolling an Oregon state law that requires state-funded schools to follow the National Football League’s “Rooney Rule,” which in turn requires at least one minority to be interviewed when there is a vacancy for a head coaching position. Putting aside my quaint notion that news stories should be unbiased, there are two problems with the Post article.

First, its endorsement of the law is based on the premise that something dramatic must be done to address the shortage of black football coaches. But the article cites no convincing evidence of such a shortage. It says that most football players are black, but that’s not the pool from which coaches are hired. It says that only 7 of 65 Power Five conference coaches are black, and only 14 of 128 major college coaches are black, but in both instances that works out to 11 percent. That, in turn, is not much out of line with the black percentage of the general population, which is 13 percent (and the Post acknowledges that a few years ago the percentage of major college black coaches was actually 18, which means they were then overrepresented). If you factor in the likelihood that most coaches will (a) have a college degree and (b) several years of experience and (c) be male, then I would be astonished if there is any underrepresentation at all.
Second, there is no mention of the fact that the Rooney Rule is illegal. Title VII of the 1964 Civil Rights Act prohibits racial discrimination in private and public employment, and in particular makes it illegal for an employer to “classify his . . . applicants for employment” in a way that discriminates 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.

Is That All Justice Sotomayor Wants? -- From a recent post at The Weekly Standard:

[Justice Sonia] Sotomayor, one of the Court’s more left-leaning as well as publicly gregarious members, answered questions from interviewer Bill Press and the audience during the course of more than an hour, speaking at length on her formative years in law, her judicial philosophy relative to the late Antonin Scalia and her more originalist contemporaries, and some specific matters of case law she has addressed as a justice during her tenure. One was affirmative action, which has come before the Supreme Court in such cases as Schuette v. Coalition to Defend Affirmative Action (2014) and the Fisher v. University of Texas decisions (2013, 2016).

“Do we still need it?” she asked of the general idea. “If we are committed to ensuring that as a society everyone is stepping outside of their sort of regular routine and stepping outside of what’s easy to do to create a more equal society, then we do need, if not affirmative action, we need that spirit that says we want to be more than we are. We want to be a country that stands as a beacon for every one of its citizens.”

The first of President Obama’s two appointees to the High Court, a summa cum laude graduate of Princeton University, has said she benefitted in part from affirmative action, as she reaffirmed Tuesday. But she also touted the merits of her academic and professional credentials; she’s been a federal judge since Bill Clinton first became president.

“I’m a person who very much doesn’t believe in the old Bakke type of affirmative action, of quotas and things like that,” she said, referencing the 1978 landmark Supreme Court case. “But I do believe that we have to be committed to ensuring that the processes we have in place to select are really selecting on the basis of potential and merit, and not on the basis that happens in many situations: of ingrained habits.”
Well, gee, I too would be happy if universities got rid of “quotas and things like that” and instead were “really selecting on the basis of potential and merit.” That’s not what universities are doing or are likely to do for so long as the Supreme Court allows them to engage in racial discrimination, but it’s very interesting that even the left-most person on the Court feels obliged to distance herself from what the Court is allowing and schools are doing.