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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.

No to “Racial Impact Statements”

The Federalist Society blogsite has an interesting post by James Scanlan on proposed legislation in New Jersey that would require racial and ethnic impact statements for any legislative measure that affects pretrial detention, sentencing, probation, or parole policies. Mr. Scanlan notes that racial-impact-statement laws have already, alas, been enacted in Connecticut, Iowa, and Oregon and that similar legislation has recently been introduced in Arkansas, Florida, Mississippi, and Wisconsin; and, what’s more, frequently the legislation addresses not just post-arrest and conviction policies, but what is made criminal in the first place.

Mr. Scanlan does a wonderful job of pointing out how this law is methodologically flawed and practically unworkable, and I’d like to elaborate briefly on why the whole approach is bad policy and probably unconstitutional as well.

There are, for starters, no laws that don’t have a disparate impact on some racial or ethnic group — tax laws, antitrust laws, environmental laws, criminal laws, you name it. In the criminal context, this is because human beings don’t commit crimes in the same exact proportion that their particular racial or ethnic group is to the general population, and indeed those proportions change over time.

And what is the government supposed to do with this information, anyway? What it should do, of course, is ignore it: Criminal laws should be written without regard to race, and let the chips fall where they may. It is disturbing to contemplate a legislature carefully crafting a law with an eye on racial and ethnic outcomes; such race-based decisionmaking is precisely what the Constitution enjoins, and its presence will only encourage lawsuits.

But obviously there is an expectation here that the disparities will be addressed and, in some way, diminished. There are two ways that this might be done, both bad.

The first is not to make some type of behavior illegal that should be illegal because it is dangerous or in some other way bad for the community. This will be unfortunate for the public generally, and especially for those who live in the area where the activity is going on — most often, poor urban areas with high crime rates. But as is often the case, the Left appears more concerned with the race of the perpetrator than it is with the race of his or her victims, even though they are usually the same.

The second way to deal with a predicted disparity is to tweak the law so that more white (or, likely, Asian American) people are arrested, too. That’s probably not what the ACLU has in mind, but one could see an effort to bundle together two bills so that there is racial “balance”: the original one that had a disparate impact on blacks, say, and a second one written not because it is really needed but so that it has a disparate impact on whites. So, for example, a bill that increased penalties for some of the types of street crime that happen in poor, inner-city neighborhoods would be combined with a bill that increased penalties for some types of white-collar crime.

The next white-collar criminal prosecuted under that law would then have a ready-made challenge, namely that the law being applied to him was passed with racially discriminatory intent. That’s unconstitutional.

According to the crime statistics amassed by the FBI for 2015, it is an unfortunate, and politically incorrect, fact that African Americans commit crimes at a greater rate than other racial and ethnic groups including Asian Americans, whites, and Hispanics. But the reason for this is that too many African Americans grow up in homes without a father and live in broken and dysfunctional communities; and those problems will not be solved, and indeed will be exacerbated, by the Left’s ignoring and excusing this reality and instead insisting that any disparity is due to “institutional racism” in our criminal justice system.

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Don’t Be Defensive about Opposing “Diversity” Discrimination – There was an article in the Washington Post Friday about the Trump administration ending an Obama-era grant program that would encourage local districts to devise ways to increase “diversity” in their schools. The administration was at pains to say that this was about the wise use of tax dollars, and says nothing about the administration’s interest in diversity. Secretary of Education Betsy DeVos was even quoted as saying that she believes socioeconomic and racial diversity is “a real benefit in schools.”

The educational benefits of racial diversity in public schools — learning more and better because the kid sitting next to you has this color rather than that color — is disputed, and of course the question is whether those disputed and marginal benefits justify local governments classifying and differentiating among children on the basis of race in order to achieve politically correct bean-counting results, and whether the federal government of all things ought to be encouraging local schools to engage in such race-based decisionmaking. The answer is no, and it is doubtful that the Education Department has constitutional or even statutory authority to do so.

So, to the extent that the program involved racial diversity-mongering, I’m glad that the program is being ended, but unhappy that the Trump administration is so defensive about it. It shouldn’t be.

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“Vet Hiring Preference Hinders Police Diversity” – Yes, that’s the complaint in this USA Today article: There are too many white males applying to work for the Boston Police Department who get a hiring preference because of the fact that they served in the military. This is making it harder for the police chief there to hire more blacks and Latinos, and so he is attempting “to circumvent the state’s pro-veteran hiring preferences.”

Well, there you go. Either this article makes you throw your newspaper across the room in disgust or it doesn’t.

It’s hard for me to believe that it is irrational or unfair to give a preference to veterans when hiring police officers. But whether it is a good idea or a bad idea should not hinge on their skin color.

Trump Moves Mexico Left

The United States has benefited for more than 160 years from having a friendly neighbor to its south, Mexico. But that may be about to change. This week, Secretary of State Rex Tillerson and Secretary of Homeland Security John Kelly visited Mexico to begin talks on renegotiating the North American Free Trade Agreement and on President Donald Trump's aggressive new immigration enforcement orders. But Mexico is in no mood to play nice.

Mexico is still smarting from candidate Trump's canards about Mexican immigrants, accusing Mexico of "not sending their best. ... They're bringing drugs. They're bringing crime. They're rapists." It has only gotten worse since President Trump took office. He continues to claim that Mexico will pay for the wall he intends to build on the border -- which estimates now predict will cost more than $20 billion. And the plan to step up deportations of undocumented immigrants falls most heavily on Mexicans, who account for about half of the undocumented population in the U.S., some 5.5 million people. But perhaps the biggest insult of all is the administration's plan to dump non-Mexican deportees across the border in Mexico.

For nearly a decade now, the majority of those crossing illegally into the United States on our southern border are not Mexicans but Guatemalans, Hondurans, Salvadorans and others for whom Mexico is simply their transit point. Mexico is under no obligation to accept these non-Mexican deportees from the U.S. any more than Canada would be. And the Mexican president and foreign minister have made abundantly clear that Mexico, no less than the United States, is a sovereign country. But the administration hopes to bully Mexico into acceding to its demands by withholding aid and restricting trade.

A new immigration order signed by Kelly this week directed his undersecretary for management to "identify all sources of direct or indirect federal aid and assistance, excluding intelligence activities, from every departmental component to the Government of Mexico on an annual basis, for the last five fiscal years, and quantify such aid or assistance." The unambiguous threat is that if Mexico doesn't play ball, the aid will be jeopardized. But most of the aid to Mexico is given not out of the goodness of American hearts but to further U.S. interests, most notably in law enforcement and narcotics control. Do we really want to weaken Mexico's ability to fight drug cartels? Those cartels exist largely because of the insatiable demands of U.S. customers who consume the opioids, cocaine, methamphetamine and marijuana that come from or through Mexico. And the money and weapons that sustain the cartels come primarily from our side of the border.

Nor, despite President Trump's rhetoric, is trade with Mexico a one-way street. Mexico is our third-largest trading partner. We import more from Mexico than we export to Mexico, but Mexicans still bought $237 billion worth of goods and services from the U.S. in 2015. If the administration were to start to turn the screws on Mexico by imposing tariffs, Mexico would have the ability to do the same to U.S. goods, as well as sell products it now sells to us to other customers in Asia and elsewhere. Who would end up paying? American consumers, farmers and manufacturers, who would either pay more for goods they purchase or have fewer customers for their own products.

Perhaps the most dangerous part of Trump's bellicose rhetoric and actions is that they have revived the anti-American sentiment that once dominated Mexican politics. It took more than a century for most Mexicans to put aside the humiliating defeat of the Mexican-American War in 1848. Mexico lost almost half its territory in that war, which Abraham Lincoln called immoral and Gen. Ulysses S. Grant referred to as "one of the most unjust ever waged by a stronger against a weaker nation."

If the administration isn't careful, Mexico may lurch dramatically left in the next elections. Mexico City Mayor Andres Manuel Lopez Obrador, who has twice run for president of Mexico, leads some recent polls in the race to succeed the term-limited current president, Enrique Pena Nieto, in 2018. A socialist leading Mexico wouldn't be good for Mexicans or for Americans.

If President Trump thinks he has problems with Mexico now, just wait until he sees what his policies bring in the future.

The Great American Divide

If you keep your eyes focused on Washington, D.C., you might think the great divide in America is partisan. I admit: I'm often guilty of doing just that, even though I live 1,500 miles outside the Beltway. But the more disturbing divide that is ripping the nation apart is a cultural one, complicated by economics and education.

I grew up in a working-class family with a father who had a ninth-grade education and was often unemployed, and a mother who worked in restaurants and retail. I escaped that world thanks to education -- in part funded by federal grants, loans and work-study jobs. But many of my extended family members did not. When I read about the opioid epidemic, the chronically unemployed, and the explosion in disability programs and food stamps, I recognize the stories because I've seen them play out personally. I've lost in-laws and relatives to drug overdoses and alcohol abuse. Some of my family members live hand to mouth, dependent on disability payments, Medicaid and food stamps. I look at them and say, "There but for the grace of God." But I also wonder why things are so different from when I was growing up in conditions that could have led to the same outcome.

Some 15 million people in the U.S. receive disability payments. A new analysis of Social Security Administration data by the Washington Post reveals that in some of the 136 counties with the highest rates of disability use across the country, almost all of them rural with a white majority, more than 1 in 6 working-age adults receive federal disability payments. Once on disability, the Post points out, recipients rarely get off the program. By and large, these are not individuals who fell off a roof and broke their back or lost limbs in an industrial accident. They suffer from back pain or diabetes or emphysema or liver cirrhosis or some other lifestyle-induced ailment that makes full-time work difficult. But, perhaps more importantly, they live in communities where job opportunities are few, especially for those who don't have a college education.

But disability programs are just a fraction of the government's assistance programs. A 2015 study by the U.S. Census Bureau showed that 52.2 million people, or roughly 1 in 5 Americans, received help in 2012 (the last year for which comprehensive statistics are available) from one of six means-tested programs. And, of course, this doesn't count Social Security or Medicare, which pays out to individuals on average far more over their lifetimes than they contributed in taxes. We have become a nation that is increasingly dependent on government assistance, and it is having a profound effect on our lives and our politics.

When I read these statistics, I can't help but wonder what would have happened if I were growing up now in the same circumstances I experienced as a child. I would have had better health care -- I never went to a dentist until I was 21 and didn't receive any immunizations until fourth grade, and only then because the new school I attended that year (my sixth one) wouldn't allow me to enroll without them. But if my father were living today, he might well have been prescribed opioids for his chronic pain from injuries sustained in a wartime plane crash. He was an intermittent alcoholic, so I hate to think how that would have turned out. And so might my mother, who spent six months in a body cast after a devastating car accident and yet had to wear high heels to work afterward, despite the pain from a large screw that held her ankle together.

Would they have quit their jobs and gone on disability? And would they have even stayed together? I knew only a couple of kids from what we called "broken homes" in those days, but my parents' relationship was tumultuous at best and might have dissolved if the social pressure to stay together were as weak as it is now. We might also have been tempted to live in subsidized housing. Instead, we lived in cheap apartments, and the rent was partially covered by my father's handyman work. We may have had to share bathrooms with other families and move frequently, but we always lived among self-reliant working people. No one stayed home drinking and smoking and watching TV all day.

The world I came from and the one I live in now are separated by a deep chasm. Unfortunately, those stuck on the wrong side of that divide can't see how they will ever leap over, and many on the successful side don't even know the other world exists. Until we figure out how to bridge that gap, we will remain a divided country.

The White House Bubble

Donald Trump is back on the campaign trail. The White House may be in chaos; Congress may be struggling to deliver on a promised rewrite of Obamacare; our NATO allies may be wondering whether they can still count on the U.S. to defend them; the Russians may be so emboldened they've parked a spy ship off Connecticut and sent their warplanes to buzz U.S. destroyers in the Black Sea; but President Trump is heading for a pep rally in Florida this weekend. Will it work? Does it matter?

The biggest temptation in any White House is to lock yourself in a protective bubble. I've been there. I've seen it happen. If you're a senior staffer, as I was in the Reagan White House, you drive through the White House gates shortly after dawn and don't leave until well after sunset, sometimes late at night. You don't go out for meetings. People come to you, mostly those who already support your mission or want favors you're in a position to grant. You eat most of your meals in the West Wing basement mess, where you're treated like royalty. If you must venture out, a chauffeured car drives you.

If you're the president, it's even worse. You don't even go home to sleep in your own bed. The voices you hear all day come from people who largely agree with you and whose job they believe is to protect -- and please -- you. But if you're President Trump, apparently, you spend a lot of time watching cable news. And what you see there is one criticism after another, a view that doesn't jibe with what everyone around you is saying or what you want to believe about your own power, effectiveness and popularity. Is that why President Trump wants to return to the campaign trail? Does he want to be greeted by adoring crowds as he was during the election cycle? If so, he'll be going from one bubble to another, and he still can't escape the turmoil he's wrought in not just Washington but the world.

Watching this White House is surreal. The level of incompetence is unlike any I've witnessed in 40-plus years in politics, and that includes watching the White House during Watergate and the early days of the Carter administration, when a bunch of inexperienced 30-somethings were in charge in the West Wing. The federal courts have slapped down an ill-conceived and poorly drafted Trump executive order on immigration and refugee resettlement. The Republicans in the Senate have forced out a Cabinet nominee. Leaks have revealed extensive contacts between Russian intelligence agents and members of the Trump campaign and transition team and driven the president to push out his own national security adviser. The president himself has insulted allies, including the president of Mexico and the prime minister of Australia, and, after North Korea launched an intermediate-range missile, stood next to the prime minister of Japan at a hastily called news conference like a bit player in t!
he unfolding drama.

When the president speaks, it is clear to anyone who knows policy that his depth of knowledge is a millimeter thin. When he should be talking about issues, he reverts to talking up his election victory -- which he incessantly misstates as the biggest since Ronald Reagan's second one. Whether it's his Electoral College margin, his inaugural crowds or his hands, the president is obsessed with size. Everything about Donald Trump must be bigger, better, smarter, stronger than anything that has come before him, regardless of the facts. Any reporting to the contrary is "fake news."

President Trump will celebrate the culmination of his first month in office in a few days. In normal times, this would have been his honeymoon -- but he's turned it into a messy separation from his allies in Congress, our friends around the world and much of the American public, not to mention a divorce from the truth. The answer isn't to succumb to the siren song of his adoring crowds; it's to break out of the bubble and face the mistakes he and his team have made -- and fix them.

Hyperpartisanship Is Hurting the Country

Hyperpartisanship is destroying American politics. The announcement this week that Democrats will filibuster Supreme Court nominee Judge Neil Gorsuch -- who is eminently qualified -- puts them on a dangerous collision course that jeopardizes the confirmation process itself. Similarly, Republicans' willingness to pass a major overhaul of the health care system without a single Democrat vote follows in the disgraceful path set when President Obama shoved the Affordable Care Act down the country's throat without a single Republican vote. As of this writing, it is unclear whether there are even enough Republican votes in the House to pass health reform, despite their 44-seat majority, but the point remains: In an already polarized country, partisans on both sides of the aisle are doing more harm than good.

The same applies to Congress's oversight responsibility. The week began with testimony before the House Permanent Select Committee on Intelligence by FBI Director James Comey and National Security Agency Director Adm. Michael Rogers. The testimony was the first open hearing on the government's investigation into meddling by the Russians in last year's election. But instead of focusing on something Republicans and Democrats -- indeed, all Americans -- should be deeply concerned with, the hearings turned into a referendum on whether President Trump was truthful when he tweeted almost three weeks ago that former President Obama was secretly spying on him just before the election.

Republicans spent much of their precious time in the hearings making the case that Russia's involvement in the election was not nearly as important as who leaked information regarding that involvement. The chief objects of Republican wrath were suspected Obama appointees. Republicans seemed especially exercised about individuals whose leaks revealed disgraced former Trump national security adviser Michael Flynn's contacts with the Russian ambassador to the U.S. I, for one, will shed no crocodile tears over Flynn's firing. The man lied to the vice president and, it turns out, was also a paid foreign agent of the Islamist government of Turkey's President Recyip Erdogan at the same time he was serving as candidate Trump's top security adviser.

Democrats' behavior was little better during the hearings. Their main focus was on whether President Trump lied in his ridiculous early-morning tweets accusing President Obama of spying on him. The tweets were fact-free; no one, including the president, has produced evidence otherwise. But Democrats -- and the country -- would be better off focusing on Russian meddling, not refuting baseless claims. Exactly how do you prove something didn't happen anyway? The outcome of the hearing was simply a hardening of views among partisans. We are no closer to understanding how extensive the Russians' involvement was, what exactly it consisted of and how they managed to carry it out, including who might have assisted them wittingly or unwittingly.

There are large differences in philosophy and policy between Democrats and Republicans. Those differences are important, and national elections reflect voters' preferences. But barring a major landslide, which the last election certainly was not, enacting laws requires negotiations and, yes, compromise. The pendulum rarely shifts dramatically in a single election. And prudence suggests that's a good thing. From 1960 to 1980, the country shifted mostly left, with the exception of the Nixon years, which were a mixed bag. President Nixon gave the country racial quotas, the Environmental Protection Agency, and wage and price controls -- hardly a far-right agenda. From 1980 to 2012, the country moved to the center-right, including during the Clinton years. Congress passed, and President Clinton signed, both welfare reform and the Religious Freedom Restoration Act during his tenure.

But things shifted dramatically during the Obama years. It wasn't just that policy veered sharply left but that Democrats and Republicans in Congress quit seeking compromise on highly divisive issues. Even when a few Democrat and Republican senators tried to forge bipartisan legislation on contentious issues like immigration, the hyperpartisans in their respective parties sunk the bills.

What began under Obama has now metastasized under Trump. If this keeps up, we can look to four years of stalemate or, perhaps worse, legislation so out of step with a mostly centrist country that it will be rebuked by whoever succeeds Trump in office. Neither party benefits long term in that scenario. Worse, Americans lose -- big league, as the president likes to say.

CEO to Cities: Don’t Do It!

The Center for Equal Opportunity has been particularly active in recent months with its ongoing project of warning state and local governments (especially cities and counties) not to start down the road of awarding government contracts with an eye on race, ethnicity, and sex.  Here’s the sort of memorandum (citations and links omitted) we send to the relevant officials, most recently in Georgia, North Carolina, Florida, and Virginia:

We are writing with regard to a recent news story, which was brought to our attention this week and which discusses the City’s minority contracting efforts.

We urge the City to be race-neutral in this program.  We also urge the City to continue to resist calls that it “initiate a disparity study.”  Not only will such a study be very expensive, but the only reason to undertake it would be to try to justify legally something that the City should not want to do, and indeed it would probably not offer a sufficient legal justification anyway.   What’s more, disparity studies are frequently revealed to be defective, and even fraudulent.   When this happens, the city’s (and taxpayers’) money has been wasted, and of course then the study is of no legal or policy use either. 

To elaborate:  The City can undertake race-neutral measures to ensure that the bidding process is fair and open without a disparity study.   It can, that is, 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.   A disparity study is needed, supposedly, if the City wants to have a legal justification for non-neutral measures. 

But the City should not want to engage in such preferential treatment on the basis of race, ethnicity, and sex, even if it had a legal justification for it, since such discrimination is unfair and divisive; it breeds corruption; and it costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder.  What’s more, it is very doubtful that, in 2017, a disparity study would justify preferential policies, since there will always be nonpreferential ways to remedy any disparities that are found. 

The attached document [a redacted version of a memorandum we sent to another city in nearby state that was considering this issue] contains additional discussion of, especially, the relevant legal points.  See also this model brief our organization has prepared and posted for those wishing to challenge preferential contracting programs.

Thank you very much for your attention to our concerns.

We’re happy to say that we’ve met with significant success in firing such warning shots.

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“Trumplash”? — Suppose someone had told you that the United States would have a president who, in the same week, would nominate the stellar conservative Neil Gorsuch to the Supreme Court and say that there's moral equivalence between our country and state killers like Vladimir Putin.  I fear we’re going to have to get used to this discombobulation.   Call it “Trumplash” (Trump + whiplash).

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Speaking Truth to Power — The Left loves the phrase “speaking truth to power” and claims it every time some disgruntled professor writes a letter to the editor criticizing, well, anyone. So of course the acting attorney general, Sally Yates, was celebrated when she refused to defend a presidential executive order she didn’t like and as a result was then fired by President Trump.

Of course, her refusal was completely costless — indeed, it was a great career move. She had only a day or two left at her job anyway, and her early exit ensured that she would be forever loved by everyone who would ever be in a position to help her in the future.

A really brave person would be willing to criticize the president when he could actually withhold something from you that you wanted. For most lawyers, and nearly all judges, that something would be an appointment to the Supreme Court. Does anyone think it beyond the pale that President Trump might change his mind about a Supreme Court nominee who did something to displease him?

Disgruntled professors and Sally Yates cannot hold a candle to Neil Gorsuch.

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The Amazing Justice Sotomayor — Speaking of Supreme Court justices, Sonia Sotomayor recently spoke at the University of Michigan, and was asked by a moderator “what a university will need to look like in the years ahead to be inclusive and innovative.”  "It's going to look a lot like Michigan," she said to applause, "but with even greater diversity." 

That’s amazing.  The Center for Equal Opportunity fights for the principle of racial and ethnic nondiscrimination in university admissions:  Admit the best qualified, without regard to skin color or what country someone’s ancestors came from.  And we frequently hear the bogus and opposing claim that public universities should “look like the state” — that is, that there should be some sort of quota to ensure that the percentage of each racial and ethnic group in the school approximate the percentage of that group in the state’s general population.  There’s no plausible legal, moral, or policy justification for such a quota, but we’ve gotten used to hearing it.  Yet here is Justice Sotomayor doubling down:  Apparently she thinks that some groups, presumably racial and ethnic minorities, should be overrepresented at public universities.  As I said:  amazing. 

But wait, there’s more:  "When you look at the number of African-Americans at the University of Michigan — um, there's a real problem," she said. "And why is diversity important? ... For me, the answer is quite simple: It's because until we reach that equality in education, we can't reach equality in the larger society. It starts here and it ends here." 

What is she talking about?  She seems to be saying that, only by having quotas in higher education, can we magically end racial disparities everywhere in society.  Sorry, Justice Sotomayor, but it doesn’t work that way.  In fact, you have it backwards:  The reason that some groups don’t do as well, statistically, in competitive admissions is because some groups are held back, disproportionately, by cultural failures that begin long before college age.  I’m talking, in particular, about out-of-wedlock birthrates and the belief that academic excellence is “acting white.”

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Recommended Reading — Finally, let me put in a plug for a new book by Stuart Taylor, Jr. (a frequent CEO ally in our opposition to racial preferences in university admissions) and Professor KC Johnson, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.  The book was recently discussed by the authors on this Federalist Society podcast (I make an appearance at the 48:10–50:35 mark).

No Free Lunch in the Health Care System

The health care reform bill that has now passed two committee hurdles in the House still faces an uphill battle to become law. Many tea party Republicans have already said they won't vote for a bill they call Obamacare Lite, and it is likely that very few, if any, Democrats will cross over to support the GOP bill on the floor. But President Donald Trump says he will do what it takes to get the legislation passed, though it is unclear exactly what that means. The biggest problem, however, is not Republicans breaking ranks but the fact that despite Obamacare's many flaws, Americans now feel entitled to guaranteed health insurance but don't necessarily want to pay for it. Something has to give.

Anyone who believed that we could expand health care coverage to more people, insist that those with pre-existing conditions be covered, mandate that more procedures be paid for by insurance and impose one-size-fits-all policies for the young and healthy and for the elderly and sick and not see premiums explode doesn't understand basic economics. Insurance, by its nature, is about shared risk. When a driver goes to buy auto insurance, his driving record, age, sex, type of vehicle and location are all factors in determining his premium. A 16-year-old boy with a new BMW living in New York City is going to pay higher premiums than a 40-year-old woman living in Sioux City who drives a Volvo and has never had a speeding ticket. What's more, the premiums also depend on what kind of coverage you want. Do you want to be covered for damage to the vehicle or just liability in case you or someone else gets hurt in an accident? And what deductibles are you willing to absorb? No auto insurance policy I know of offers maintenance as part of the package, either; you pay out of pocket for oil changes, brakes, tires, tuneups, etc. The same theories apply to homeowners insurance. You pick how much coverage you want and what deductibles you are willing to pay, and your premiums are based on these factors, as well as where you happen to live.

But Americans have gotten used to the idea that health insurance should operate differently than all other forms of pooled-risk insurance. Going back to World War II, when unions successfully sold the idea that employers should pay for health insurance to circumvent wage-price controls in effect during the war, which limited their ability to bargain for higher wages, most Americans started receiving insurance through their employers. They also got this benefit tax-free. This third-party payment disrupted the feedback loop that is necessary for markets to operate efficiently. We haven't had a free market system in health care ever since -- and Obamacare made it much worse.

Some of what the House Republicans' plan attempts to do is to restore at least some free market opportunities to the system. If the plan were to be successful, over time, this might have some effect on driving down the price of health care. By giving people a choice about what kind of insurance they wish to buy -- including catastrophic plans for the young and healthy, which make the most sense for this cohort -- and including stiff penalties for purchasing insurance if an individual has allowed previous coverage to lapse, the House bill reintroduces some market discipline.

The House bill is by no means perfect, but it is at least a beginning. Would some people end up paying more for their insurance under this plan? Yes, but the choice would be theirs. Others could find cheaper plans that better suit their needs; they want to be covered if they get cancer or some other life-threatening disease or have an accident but are willing to pay out of pocket for routine visits for a common cold. And it is only fair that older Americans -- who consume far costlier treatments -- pay more for their premiums, as should smokers, heavy drinkers and overweight people.

The working poor and those below the poverty line will need subsidies. But the GOP plan would provide those, in the form of tax credits for the former and Medicaid for the latter. The challenge for the president and the GOP leaders in Congress will be to explain to Americans -- many of whom have become increasingly insistent on benefits but don't want to pay for them -- that there are no free lunches, not even in health care.

Put Aside Petty Grievances, Mr. President

At no point in my life have I ever felt as alienated from politics as I do now. Three weeks into the Trump administration, I find much to agree with -- proposed tax cuts, deregulation, good Cabinet choices -- but even more that makes me uncomfortable, indeed fearful. Despite the apocalyptic rhetoric of the election, the United States is in relatively good shape. We have an economy that is growing, albeit sluggishly; a crime rate that is historically low, though it has ticked up over the past year or so; the strongest military in the world and perhaps the most experienced, if overtasked, service members in our history; and the most educated population we've ever had.

With one party in control of the executive and legislative branches of government, the nation is poised to make progress on several vexing problems, including reforming health care and improving our immigration system. But much of my optimism that it is possible to get important things done is tempered by a White House that seems more interested in settling scores than in moving forward to improve the lives of all who live here.

In a span of a few days, President Donald Trump nominated a Supreme Court justice of stellar caliber, U.S. Circuit Judge Neil Gorsuch, and then undid the goodwill generated by his action by launching a broadside against the American judicial system. When a judge in Seattle issued a temporary restraining order against the president's temporary ban on people entering the U.S. from seven majority-Muslim countries, Trump referred to the judge as a "so-called judge" and then set the stage to blame the judge for future terror attacks. "If something happens blame him and court system. People pouring in. Bad!" Trump tweeted.

Trump's tirades didn't stop there but continued next against the 9th U.S. Circuit Court of Appeals, which heard a government request to stay the lower court order. Demeaning both his own Justice Department lawyers and the plaintiffs' attorneys, he described the arguments before the appellate court as "disgraceful." He told a group of sheriffs and police chiefs: "I think it's sad. I think it's a sad day. I think our security is at risk today." The appellate court issued a ruling Thursday, upholding the lower court's restraining order, a defeat for the government and Trump.

It is impossible to brush aside Trump's impulsive behavior. It undermines the very agenda that he hopes to accomplish. The fight to confirm Gorsuch was never going to be easy. Democrats are still smarting from the refusal of the GOP-controlled Senate to give Merrick Garland, President Barack Obama's Supreme Court nominee, a hearing to fill the seat of deceased Justice Antonin Scalia. The Senate is closely divided in partisan terms, with 52 Republicans, 46 Democrats and two independents who caucus with the Democrats. That means that to avoid a filibuster, either some Democrats must support Gorsuch or Republicans must suspend Senate rules to allow a simple majority vote for confirmation. Trump has urged the Republicans to do the latter -- to exercise the "nuclear option," as it is often referred to -- but that would do lasting damage to the process going forward, further polarizing an already deeply divided body.

One wonders why there is no one in President Trump's circle who can stand up to him and say, "Your behavior is threatening your legacy and the stability of our system." I will give the president the benefit of the doubt that he wants to make things better for Americans. But he can't do so with threats and bullying. Insulting those who disagree with him won't persuade them. Ignoring administrative procedures and the traditional vetting process won't improve the quality of his directives. Watching cable TV for hours, as he has admitted to doing, won't inform him about complicated issues, nor will excluding from national security meetings some of the very people on whom he should be relying for advice. Surrounding himself with yes men and yes women who tell him what he wants to hear will eventually undo him. He needs open, honest debate from people who actually understand policy and government to present him with the best options. Getting things done quickly isn't so important as getting them done well and properly.

I want the Trump administration to succeed. But I fear that the president is laying the groundwork for his own destruction. It's not too late to get on track, but if things don't change soon, it will be. And only Donald Trump can save himself -- by putting aside petty grievances.