Center for Equal Opportunity

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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.

Cabinet Nominees in for Rude Awakening

President-elect Donald Trump is filling his Cabinet with lions of industry and finance, not surprising for a businessman, and the left has predictably focused on the various conflicts of interest that might arise for his nominees. But the likelihood is that most will make it through confirmation, perhaps with a few bumps -- and that is where the real challenge lies. The problems won't end even if each of these men (and his business picks are mostly men, an exception being Linda McMahon, who received a sub-Cabinet nomination) is willing to be scrupulous in avoiding conflicts of interest. They still face enormous challenges once they take office because they have never worked in government.

As someone who has spent most of her career outside government but has also headed a small federal agency and had two stints working in the White House, I can tell you that the federal government is a world unto itself. The normal relationships between employer and employees don't exist. As the head of a department or agency, you pick very few of your own employees, and you have little or no authority to get rid of those employees you inherit. Worst of all, you can't reward outstanding service (except with very modest bonuses, which pale in comparison with those in the business world). There is no such thing as pay for performance, which is the rule in business. Nor is it even possible to promote the best hires, except within the constraints of federal civil service rules, and you can't move employees around easily from one job to another.

The word bureaucracy became a synonym for inefficiency and burdensome rules for a reason. Working within the bureaucracy requires a talent and patience that few CEOs, in my experience, possess. I have served on corporate boards for more than 25 years and worked closely with CEOs and others in the executive suite. What I've seen tells me that the businesspeople in the Cabinet are in for a rude awakening.

In the business world, competition is stiff. There's no such thing as lifetime employment for the top jobs. If you do your job well, you can expect to advance, and you can expect to be rewarded handsomely. Employees receive a base salary and, in many cases, bonuses and stock or stock options -- but all are tied to performance. Companies establish compensation programs that look at both individual and company performance. Though various administrations have tried to mimic private-sector practices by setting up performance reviews, the processes bear little in common.

A company sets its budget for the year and then evaluates whether the employee met his or her target. Even those whose jobs don't directly affect revenues or profits, say the general counsel or the head of human resources, usually receive a portion of their bonus based on overall company performance. If the company does well, makes more money and, in public companies, sees its stock price go up, executives receive rewards. In government, Congress appropriates the money to fund departments and agencies, and the Office of Personnel Management sets wages on a set scale that evaluates job titles and responsibilities. There is very limited flexibility within the government system.

One of the biggest difficulties the new Cabinet members will encounter is in picking their own team. Traditionally, the president appoints sub-Cabinet officials, sometimes with little input from the department secretary. And so it goes, down the line, with assistant secretaries unable to choose their direct reports, which is the prerogative of the transition office in the early days and of White House presidential personnel later on. Cabinet officials in the Trump administration may have more latitude than previous agency heads did because the campaign did not have the legions of volunteers and donors expecting political appointments. But even if the new secretaries can pick more of their own people, the total number of political appointments throughout government is tiny -- some 4,000 jobs out of a civilian federal workforce of 1.4 million.

The greatest culture shock for these new Cabinet members who've never worked in government, however, will be how little authority they have to make major changes in their departments. Divisions within agencies often operate as fiefdoms, with their own ties to Congress and appropriations staffers who fund their work. Reorganizing is difficult and painful. Worst of all, firing anyone in the federal government, even for cause, is a tedious process for which few have the stomach. And forget about getting rid of someone without an ironclad show of gross incompetence or malfeasance. Donald Trump's famous "you're fired" won't be heard often after he takes over in January.

2015-2016 CEO Activities Report

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

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

 

Hope for the Dreamers

If there has been one issue on which President-elect Donald Trump has been loud and clear, it is his desire to end illegal immigration and deport immigrants here illegally. Every time he has seemed to soften his stance, his most outspoken supporters have jumped in to make sure he clarifies that he has no intention of modifying that position. So what will happen with Trump's latest indication that he will "work something out" for those 750,000 young people who were brought here illegally by their parents when they were children and were granted temporary legal status by executive action during the Obama years?

"On a humanitarian basis, it's a very tough situation," he told Time in an article for the edition in which he was named the magazine's person of the year. "We're going to work something out that's going to make people happy and proud. But that's a very tough situation," he said. I hope this signals a new approach.

One thing Trump could do is support legislation that would grant relief to these so-called dreamers, named for the original, GOP-sponsored legislation that would have granted legal status to those whose parents brought them here when they were younger than 15, who have stayed in school and who have committed no crimes since. Sen. Lindsey Graham, R-S.C., Sen. Jeff Flake, R-Ariz., and others are working to put together a version of the former DREAM Act that will be introduced in the new Congress. If Trump were to throw his weight behind this bill, it would go a long way to ensuring its passage. And doing so wouldn't require him to break his promise to rescind the executive actions he intends to abrogate as his first order of business after the inauguration. He could make the revocation of the executive order contingent on the passage of legislation so that dreamers wouldn't be left in limbo.

For those critics who say that this would be just another amnesty, I'd say we shouldn't -- to use an apt metaphor -- throw the baby out with the bathwater in this instance. Yes, the rule of law is important, and some form of penalty is due for those who broke the law knowingly, which is why any legislation that supports legal status for undocumented immigrants must include fines or other measures to ensure that individuals don't get off without some consequences. But with the dreamers, we're talking about children who, in most cases, had no say in whether they crossed the border. I know some of these people, and their stories are heartbreaking.

I met a woman named Ana shortly after I moved to Colorado. I needed help unloading boxes because my husband had broken his foot just before we moved and I was also taking care of my 90-year-old mother. I placed an ad for temporary help, received lots of replies and set up times for applicants to come to my house. After more than a half-dozen people failed to show up, most without even bothering to call, Ana came to the house on time and started helping. I didn't know her legal status, because the job was temporary and nonrecurring and didn't meet the threshold requiring paperwork to find out. She spoke perfect English and talked about her desire to go to college and about her family back in Arizona. It was only when I asked her why she had moved to Colorado that I learned her story.

Ana's parents brought her to the United States from Mexico when she was 2 years old. The parents ultimately received permanent legal status and applied for hers, as well, but the old Immigration and Naturalization Service lost the paperwork, a phenomenon I've encountered many times. The parents didn't bother to file again, and their lives in the U.S. went along happily. Both parents worked and eventually bought a home. Ana's siblings were born here, and Ana attended high school. The whole time, Ana assumed that she had the same legal right to be here as her parents and siblings. But after graduation, she discovered she couldn't get a Social Security card, which she needed to get work, because she lacked legal status. When Arizona passed a referendum making it exceedingly difficult for those who lack legal status to obtain jobs, get driver's licenses or even rent homes, she decided she had to move.

Arizona's loss was Colorado's gain. Ana applied for the Deferred Action for Childhood Arrivals program and compiled hundreds of pages of records showing she had paid taxes, had a clean criminal record and was an upstanding member of her community. But she and some 750,000 others could be sent back to countries they've never known unless Trump delivers on this new glimmer of hope he's offered. Trump prides himself in standing up for the little guy; let's hope he follows through on standing up for young people whose fates are in his hands.

Race Relations in the Trump Administration

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

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

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

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

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

So, how are we doing?

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

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

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

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

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

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

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

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

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

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

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

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

Ten Non-Legal Thoughts

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

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

Do You Really Think That?

Some questions for the Left, especially the campus Left:

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

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

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

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

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

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

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

Well, do you?  Really?

*          *          *

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

But, as I wrote:

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

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

I added:

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

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

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

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

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

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

Trump's Picks

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

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

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

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

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

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

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

Early Voting Is a Bad Idea

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

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

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

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

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

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

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