Center for Equal Opportunity

The nation’s only conservative think tank devoted to issues of race and ethnicity.

Thu07272017

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Twelve Observations on the Police and Race

1. There’s really little to say about the Dallas shootings. They were horrific and inexcusable.

2. Does Black Lives Matter bear some of the blame for them? The argument would be that, by relentlessly vilifying the police and shrilly insisting that they are targeting black men, it encourages counter-assassinations. But, as Kevin Williamson points out, there’s a big jump from even overheated rhetoric to an action like the Dallas snipers. Yes, it shows that words matter, and those elements of BLM that have used irresponsible words should take a hard look in the mirror. And BLM’s supporters should ask whether they are really comfortable in supporting an organization that contains such elements.

3. There’s more to say about Louisiana and Minnesota.

4. But the first thing to say about both is that we don’t have all the facts.  Remember Ferguson, all right: It turned out that the police officer there acted entirely reasonably. It may turn out that way in these two cases as well. The Minnesota governor was wrong to prejudge the matter.

5. After all, we already know that the Minnesota case did not involve an “unarmed black man,” and it may turn out that the Louisiana case didn’t either (certainly the video suggests that the police at least thought that the black man there was armed, and maybe he was).  When the police are dealing with armed suspects, the equation obviously changes.

6. The Louisiana man, who was much loved by his family but also had a long criminal record, certainly appeared to be resisting arrest; whether it was reasonable for the police to conclude that he posed a serious enough threat to warrant being shot is, as I said, a question we can’t yet answer. 

7. We don’t know what actions the Minnesota man took that might have provoked a shooting (by a Hispanic policeman, incidentally); we have only the statements by his girlfriend that he did nothing provocative. Our heart has to go out to her, as it does to the family of the Louisiana man, but again we have to await more facts on what precisely the police were reacting to.

8. Even if it turns out that in one or the other case the police acted unreasonably, it’s a big jump from that to a conclusion that the police acted unreasonably because of race. It’s still wrong and still a tragedy, but it might not be a racially tragic wrong.

9. And even if it turns out that in one or the other case the police acted unreasonably because of race, it’s a big jump from that to a conclusion that the police commonly act unreasonably and that they commonly act unreasonably because of race. President Obama’s suggestion to the contrary last week from Poland was unpersuasive and unhelpful. Each case provides some evidence, surely, but each is only one encounter among thousands of police encounters every week. Even the very liberal Chronicle of Higher Education acknowledges that the research in this area is inconclusive.

10. More nonblacks, after all, are shot by the police, some reasonably and some unreasonably.

11. Assuming that some (disproportionate, because of their race) number of African Americans are shot unreasonably by the police, what do we do about it?  I’m open to the possibility of better training and better community relations, and quicker and sterner measures against bad actors; but bear in mind that less aggressive policing will hurt only law-abiding people (especially those African Americans who — disproportionately —  live in high-crime areas), and hiring by the numbers will only result in less qualified policemen, which is also not in the interests of the community, whatever its color.

12. The police should not profile on the basis of race, in their shooting or anything else that they do but, as I noted in this Senate testimony, the degree to which they do so has been greatly exaggerated. What’s more, the unpleasant fact is that the reason for this profiling is that a disproportionate amount of crime is committed by African Americans, a problem that is, in turn, rooted in inner-city culture (particularly the breakdown of the black family). This doesn’t excuse profiling, but it does help explain it, and so long as this problem persists then so will some amount of profiling.  Those who want to eliminate racial disparities in this country have to get serious about most important racial disparity of all, namely that more than seven out of ten African Americans now are born out of wedlock.

Justice Ginsburg on Future Racial-Preference Challenges – In an interview in which she opined on much that a sitting justice has no business opining on, Justice Ginsburg had this to say about a topic in the Center for Equal Opportunity’s neck-of-the-woods:  “[Ginsburg] said court majorities this term moved to shut down tactics used by opponents of abortion and of affirmative action in higher education in two major cases.  Ginsburg said she doesn’t expect to see any more such cases after the court upheld the use of race in college admissions in Texas and struck down Texas abortion-clinic regulations that the state said were needed to protect patients.” 

So, what are the “tactics” of racial-preference opponents that she thinks the court has “shut down” — bringing lawsuits against schools that are engaging in such discrimination?  It’s risible to suggest these policies should be meekly accepted, or that the Court’s decisions have drawn such clear lines on what is and is not acceptable that future litigation is pointless.  And I would note that in the five instances in which the Court as heard such challenges, a majority ruled in the plaintiffs’ favor three times (Bakke, Gratz, and Fisher I).  In the other two instances (Grutter and Fisher II), the plaintiff lost by one vote.

Islam Needs a Reformation

Islamic terrorism has become the single biggest threat to stability in the world. Attacks killing many hundreds have occurred over the past 18 months in Bangladesh, Turkey, Iraq, Afghanistan, Pakistan, Libya, Egypt, Kenya, Burkina Faso, Cameroon, Nigeria, Saudi Arabia, Belgium, France, the United States and elsewhere. But fighting this threat will require more than drone attacks to take out leaders of groups such as the Islamic State -- or even full-scale assaults to recapture territory claimed by the terrorists, as we did recently in Iraq.

As the terrorist killings in San Bernardino, Orlando and Paris prove, Islamists' poison can reach into the very heart of the West to infect those born and raised in nations that value freedom, promoting attacks on their fellow countrymen and neighbors. What is to be done?

Military action is clearly part of the solution where Islamic terrorists control actual territory from which to launch further attacks, but it is insufficient to root out the threat. President Barack Obama has dangerously refused to acknowledge that a radical, fundamentalist interpretation of Islam drives the terrorists.

Indeed, fundamentalist Islam is gaining adherents throughout the world, and autocratic regimes in Iran and the Persian Gulf States already enforce it throughout their populations. If we are to be successful in the fight against Islamic terrorism, we must look to the Muslim world itself for a Reformation.

Unfortunately, there are few bright lights in that firmament. The two major sects of Islam, Sunni and Shiite, have both spawned terrorist movements; and whatever their differences, they share a common enemy in modernism and Western values. And in both, the denigration and subjugation of women plays a fundamental role. But there are glimmers of hope, one of which will be on display in Paris on July 9.

As I have for the past few years, I will be emceeing an event that brings together tens of thousands of opponents of the Iranian regime, in addition to representatives from around the world who oppose Islamic fundamentalism. Addressing the group will be a broad range of dignitaries from various nations, including a bipartisan group of Americans composed of, among others, former governors, Cabinet members, ambassadors and White House officials.

This year's event marks the anniversary of the U.S.-Iran nuclear arms deal, which has strengthened the Iranian regime by infusing much-needed cash into the hands of the ruling mullahs. Iran continues to be a major state sponsor of terrorism, as well as ruthlessly suppressing freedom for its own populace. The chief opposition to the regime is the National Council of Resistance of Iran, whose president-elect, Maryam Rajavi, is an outspoken critic of fundamentalism and the convener of the Paris conference.

"A political, religious and cultural antidote is required to uproot this cancerous tumor permanently," Rajavi said last year in front of the House Foreign Affairs Subcommittee on Terrorism, Nonproliferation and Trade. "In absence of an alternative interpretation of Islam ... extremist ringleaders will portray the war against fundamentalism as a fight against Islam itself. By doing so, they will then create the most important source of nourishment for this ominous phenomenon."

In Paris this weekend, Muslims -- as well as Christians, Jews and others -- will stand up for the belief that freedom of religious practice is fundamental to reform.

"We reject compulsory religion and any form of compulsion in religion," Rajavi has said. She has spoken out against mandatory veiling laws and against the mistreatment of women and denial of their rights in the name of Islam.

Unfortunately, the Obama administration not only does not support the efforts of Rajavi and her group but also has opposed them at every opportunity. But equal rights for women and freedom of conscience for religious practice are the best way to combat radical Islamic fundamentalism. We can continue to fight the Islamic State group, al-Qaida, Boko Haram and other fundamentalist groups on the battlefield and from the air. We can capture or kill their leaders and their foot soldiers. But until we battle the ideology that has spread around the world, we will not succeed. And the most effective way to do that is to work with those, like Rajavi, who have been doing it for decades. If she is not afraid to name the danger for what it is, why should we hesitate to say that Islamic fundamentalism is a threat to us all?

The Greatness of America

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

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

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

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

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

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

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

Draft Democratic Platform

The draft Democratic platform that has just been released is about what you would expect on civil-rights issues, especially in the criminal-justice area.  The draft language condemns our nation’s “institutional and systemic racism” and our “mass incarceration,” and it affirms that “black lives matter.”  Felons should be allowed to vote, and our marijuana laws have an “unacceptable disparate impact” on African Americans.  There’s also plenty on LGBT rights, where “there is still much work to be done.” 

Speaking of “Black Lives Matter” –  This USA Today op-ed explains how Black Lives Matter and anti-Israel Palestinian protestors are sharing notes — and this is supposed to make us more sympathetic to both of these groups.  Somehow, that was not my reaction.

The ‘Wise Latina’ Dissents – And speaking of criminal-justice issues:  I thought I should note  Justice Sotomayor’s controversial dissent in a recent drug search case. A sample passage, citing the usual suspects:

[I]t is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

More “White Privilege” – Campus social justice warriors are always complaining about “white privilege.” I wonder if they’ll say anything about this development:  Fox News reports, “Al Qaeda urges lone wolves to target whites, to avoid ‘hate crime’ label.” 

And just to be safe, I think they should focus on Episcopalian golfers.

The Problem with Diversity Training – The Washington Post reports:  “In the cover story of the latest issue of the Harvard Business Review, sociologists from Harvard University and Tel Aviv University explore the counterintuitive idea that some of the most common tools for improving diversity — one of which is mandatory training — are not just ineffective. They could be detrimental to improving the number of women and minorities in the managerial ranks.” 

The story elaborates on this and explains that it’s not just mandatory training but “other tactics often aimed at helping with diversity — such as skill tests to help prevent bias in the hiring process or grievance systems where employees can log complaints — [that can lead to] declines in the number of women and minorities in the companies’ workforces over time.” 

Seems that those mandatory diversity sessions make people grumpy, and managers “don’t like being told whom they want to hire, so they often distribute tests selectively, … while grievance systems can make managers feel threatened and retaliate.” 

Conversely, “In addition to voluntary training programs, [the] research found that college recruitment aimed at women and minorities, as well as the addition of mentorship programs, diversity task forces and diversity managers, all led to improved diversity among managers over time. Creating a diversity task force within a company, for example, led to a 30 percent increase in Asian men and a 23 percent increase in black women over five years.” 

If you don’t like reading the Washington Post, you can read the Fox News version of the story here.

So, am I happy that even Harvard and the mainstream media are willing to concede the abuses and shortcomings that politically correct bean-counting has caused?  Sure, but my happiness is tempered by two interrelated things.  First, there is no mention of the fact that there are legal prohibitions on race-and sex-based hiring; and, second, it’s accepted that companies should be striving to achieve “diversity” rather than just hiring and promoting the best qualified people.

Clinton–McAuliffe Coordination on Felon Voting? – Sure looks like it, according to this Washington Examiner article, which begins:

New Clinton campaign emails show that there was communication with top ally and Virginia Gov. Terry McAuliffe on his plan to let 206,000 felons vote in the fall election, a move GOP officials said was aimed at guaranteeing Hillary Clinton the purple state.

My friend Hans von Spakovsky notes that the emails reveal that the governor was working with progressive groups, who are his political allies, instead of with state election officials, who were surprised by his action. That is, he was acting not like a government official but more in the mode of a campaign consultant for the Democratic party.

Hans and I, by the way, wrote a column on Governor McAuliffe’s felon reenfrachisement action right after he took it.

Justice Clarence Thomas’s Silver Anniversary – Clarence Thomas is marking his twenty-fifth anniversary as a Supreme Court justice, and to celebrate the occasion the Federalist Society sponsored a podcast with some of his former law clerks and C. Boyden Gray, who was White House counsel at the time of Justice Thomas’s nomination.  You can listen to it here (I phone in with a question about how the justice chooses his law clerks, by the way). 

Does Trump Really Want to be the President?

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

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

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

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

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

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

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

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

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

Celebrating America on July Fourth

July Fourth is traditionally a day to celebrate not only America's founding but also the exceptional nature of our great country. Coming this year in the middle of one of the nastiest presidential campaigns in recent memory, it would certainly be refreshing to hear from candidates on American exceptionalism, but somehow I doubt that either Hillary Clinton or Donald Trump is up to the task. They should take a lesson from one of our greatest presidents, Abraham Lincoln, who, even before he became president, understood that we are a unique people, unlike any other in human history.

We think of the 2016 campaign as one of the most contentious ever, but the 1858 campaign for U.S. senator from Illinois makes the current presidential campaign look like a schoolyard tug of war. At the time, senators were elected not in a popular vote as they are today but by the legislatures of their respective states. Nonetheless, Stephen Douglas, the incumbent Democratic senator, and Republican Abraham Lincoln, a former one-term representative from Illinois, appealed directly to the people in the course of the campaign through a series of debates, which became known as the Lincoln-Douglas debates. Lincoln lost his bid to become senator when the Republican Party failed to gain control of the Illinois Legislature, but the debates formed the basis of Lincoln's national reputation and set the stage for the 1860 presidential race, which was the most consequential in our nation's history.

The issue of slavery was very much the focal point of the debates in 1858. The immediate issue was not the abolition of slavery or the emancipation of slaves -- something that would come later and take the Civil War to accomplish -- but whether slavery could be expanded into the new western territories of Nebraska and Kansas. Over and over again, through the course of the debates, Lincoln returned to what he saw as America's founding principles, the adherence to which binds Americans more strongly than any ties of blood or soil.

Before the formal debates between Lincoln and Douglas began in August, both men gave speeches to respective audiences shortly after the Independence Day holiday. In Lincoln's speech in Chicago, he noted that the Fourth of July celebrations popular at the time had become almost a form of hero worship.

"We run our memory back over the pages of history for about 82 years and we discover ... a race of men living in that day whom we claim as our fathers and grandfathers," he said. "But after we have done all this, we have not yet reached the whole," he added. And it is what Lincoln said next that should be repeated for today's voters:

"There is something else connected with it. We have, besides these men -- descended by blood from our ancestors -- among us perhaps half our people who are not descendants at all of these men. They are men who have come from Europe -- German, Irish, French and Scandinavian -- men that have come from Europe themselves or whose ancestors have come hither and settled here, finding themselves our equals in all things."

In Lincoln's view, what made Americans American was that they could find these words written in the Declaration of Independence: "We hold these Truths to be self-evident, that all Men are created equal." Americans read that, "and then they feel that that moral sentiment taught in that day evidences their relation to (the Founding Fathers), that it is the father of all moral principle in them and that they have a right to claim it as though they were blood of the blood and flesh of the flesh of the men who wrote that declaration, and so they are."

Unfortunately, we are in danger of losing that principled definition of what it means to be American. The left encourages immigrants to hold on to their past, not adopting a new American identity but retaining their native language and allegiances. The right frets that today's immigrants cannot or will not become Americans as previous waves did. Neither is right.

A much smaller portion of America's population now than in Lincoln's day can claim to be descended from that first group of Americans who broke with King George III. Nor do most immigrants come from Europe now. But all of us, no matter where our ancestors came from or how recently they came, are still bound by the principles of our founding. It is adherence to that American creed that we should celebrate this July Fourth -- and we should insist that those who want to lead us pledge allegiance to it.

Judges and Ethnicity, Donald and Diversity

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

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

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

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

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

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

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

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

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

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

*             *             *

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

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

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

High Court Not Yet an Armageddon

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

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

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

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

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

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

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

Trump Treads on the Constitution

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

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

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

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

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

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

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

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

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

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