As is often the case with topics here, I heard about the uproar over Justice Antonin Scalia’s controversial question during oral argument on the latest challenge to affirmative action accidentally, when a Facebook friend re-posted a furious message from his friend calling Scalia a moron and a racist. Even reading a second hand account of what somebody read that Scalia said (the transcript hadn’t been released, but never mind: that was enough for my friend’s African-American friend to call a Supreme Court Justice a racist and for my friend, who is a liberal-minded professor, to endorse it), I could tell that the attack was unfair and worse, outright race-baiting.
What Scalia was alleged to have asked a lawyer was whether affirmative action actually hurt blacks by putting them in “more advanced” institutions, that they “don’t belong” in elite schools. I knew, no matter what Justice Scalia really said, that he was talking about some blacks, not all blacks. That’s obvious: if an African American student can be admitted to an elite school without the “thumb on the scale” of affirmative action, obviously he or she is qualified and belongs there. But more importantly, I knew from personal experience that being admitted to a top school when the student’s credentials wouldn’t normally warrant it could be disastrous.
I worked in the administration of Georgetown Law Center in the late seventies and early eighties, as the school was trying to increase its percentage of black students. I was involved in the process sometimes, and was stunned by its unfortunate revelations: for example, some of the black students we accepted from elite colleges lacked basic reading, writing and critical thinking skills. I remember one Yale grad in particular who could not write a comprehensible sentence.
Georgetown Law set up a special class for these minority students (and a couple of white “legacy” admits who were sons of wealthy alums, one of which I had specifically told his father could not possibly graduate, based on his college grades and test scores.) Then the school was sued by one of the affirmative action students, who claimed that making him take the remedial class was demeaning and racist. Of course he would have been better off in a less demanding law school. Affirmative action did none of these students any favors. In my opinion then and now, their welfare, confidence and self-esteem was sacrificed so Georgetown could look progressive, and to the dubious objective of diversity for diversity’s sake.
It wasn’t just my Facebook friend’s friend that was bashing Scalia as a racist. It was much of the news media. “Justice Scalia Suggests Blacks Belong at ‘Slower’ Colleges” reported Mother Jones. “Scalia: Maybe black students belong at ‘less-advanced’ schools” reported The Hill. MSNBC’s slur was Justice Antonin Scalia floats ‘lesser schools’ for black students. A New York Times editorial—the paper has, it appears, lost its mind– said that Scalia raised an “offensive premise which has not gotten such a full airing at the Supreme Court since the 1950s.” The New York’s Daily News headlined“SUPREME DOPE” over a photo of Nino.
How many readers of the Times and Daily News will bother to read the transcript? Almost none, of course. These and many more were pure, race-baiting, personal attacks on a progressive boogeyman that exposed the critics’ lack of ethics, familiarity with the Supreme Court and/or reading comprehension. The objective was also transparent. Affirmative action is finally going down (we can expect a heart-rending dissent having nothing to do with law from Justice Sotomayor), the news media fears, as it should have long before. It is state sanctioned racial discrimination, but progressives in and out of the news rooms want to frame what will be a constitutional result as a racist one.
All the better to increase racial divisions before the election.
There are those who contend that it does not benefit African-Americans to get them into the University of Texas [ the defendant in the case] where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them. I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.
1. He said “some contend.” In oral argument, the justices pepper lawyers with all manner of challenging hypotheticals and counter arguments to see how the advocates answer. Sometimes the justices are playing devil’s advocate, sometimes they are posing provocative questions posed by others. I wouldn’t be surprised if Scalia agreed with “some”—I do; I think it’s obvious—but there is no way to tell from this statement.
2. He is quoting a brief, submitted to the court. Many amicus briefs were put forward in this case, and it is Scalia’s job—his job!—to raise novel questions and arguments before the lawyers representing the parties. Calling him a racist for repeating the argument of an interested party whose position may raise legitimate issues is intellectually disgraceful. This is the Supreme Court, and the oral argument stage: there should be no such thing as a politically incorrect argument, even if this was Scalia’s contention, and it wasn’t. He was accurately citing a brief filed by two members of the U.S. Civil Rights Commission
3. Maybe the University of Texas ought to have fewer black students is not a racist comment in any way. Maybe, Scalia is suggesting, based on data presented in the brief, only African American whose records suggest they can thrive at Texas should be admitted there. First of all, he said maybe, which means, explain why that’s wrong. I’ve been in oral arguments (not in the Supreme Court), and when a judge says “maybe,” that’s an invitation to prove him wrong, not a statement of personal belief. Second, I can say with 100% certainty that Georgetown Law Center when I was privy to the ugly sausage-making of admissions should have had fewer black students, or at least different ones, because some that the school did have couldn’t do the work. That’s a fact. I know that many progressives think facts are racist, but they are not.
4. Scalia’s question came in response to a lawyer for the University of Texas who argued that ending affirmative action would lead to a decrease in black students. Coming back with the argument that this is not a per se bad thing is classic legal debate. People who don’t understand what oral argument is should not presume to criticize it.
Oh, but the race-baiting gets even worse. Naturally the White House made an ass of itself via Paid Ass Josh Earnest, who said, fatuously, “I think the comments articulated by Justice Scalia represent quite a different view than the priorities and values that President Obama has spent his career talking about.” Oh? How, exactly? Quotes please. Then Earnest said that Obama’s own education refutes Scalia. Outrageous, despicable, race-baiting crap, to be blunt. Scalia never said nor meant that ALL blacks would be overwhelmed at an elite school, or that no black was qualified to attend one. Obama—even if one accepts the premise that he did well at his schools, for which we have no evidence—proves nothing.
Earnest’s illogical attack was Boston Creme Pie compared to Harry Reid, who said on the floor of the Senate,
“These ideas that he pronounced yesterday are racist in application, if not intent. I don’t know about his intent, but it is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench on the nation’s highest court. His endorsement of racist theories has frightening ramifications, not the least of which is to undermine the academic achievements of Americans, African-Americans especially.”
They are not racist ideas, and all Democrats on the planet should hang their heads that this despicable, ethically bankrupt hack politician has was a leader of their party for a second, much less decades.What Scalia was discussing is an automatic result of any process in which something other than color blind evidence of skill, achievement and ability is subordinated to race.
Richard Stander and Stuart Taylor made the observation years ago in their book “Mismatch,” as well as in their piece for The Atlantic, that many black students who could succeed at less demanding schools are set up to fail so white liberals can feel better about themselves. I heard their point echo today in the argument of a CNN contributor extolling “diversity.” Diversity is using black students to enhance the experience of white ones, and if the result is a less successful experience for a black student who belongs at a state school rather than Yale, well, too bad, I guess.
“Mismatch” described a cascade effect: black students who would be successful at a state school end up in an Ivy League school, and students who would do well at a small local college ends up at the state school, while those who would thrive at a community college flunk out of the local college that admitted them to be more “diverse,” multiplying failure down the line. It’s racist to mention this phenomenon?
It’s racist not to.
Ethics Verdict: this was a slanderous, ideological race-mugging of a Supreme Court justice for exploring a difficult issue the way it is supposed to be explored—without partisan censorship.