Race-Baiting Scalia (For Doing His Job)

Ignore them, Nino.

Ignore them, Nino.

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.

Here’s what Scalia really said:

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.

Now look…

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.


68 thoughts on “Race-Baiting Scalia (For Doing His Job)

  1. Not that this is overwhelmingly relevant, but I’m always defending Scalia in law school. I always think he’s right (except in Lawrence v. Texas), whatever that says about me. I was going to write on a black student’s facebook post that when he said that this was racist, he was being stupid. But then I remembered I’m in law school, and that just could lead to a whole host of problems that I just don’t have time for during finals.

    I will say this: when it comes to charges of racism, I like the eyeball or the alphabet test. If you said the same distinguishing remarks in regards to blue eyed people versus brown eyed people, would it be eyeist? If not, the statement also isn’t racist. Similarly, if you made the same distinguishing marks vis-a-vis people whose last names start in the first half of the alphabet over people’s who start in the second, would that be discriminatory? If not, it’s not racist.

    For instance, maybe blue eyed people who get into Texas without the minimum requirements aren’t benefiting by going to the University of Texas. Obviously not eyeist. Thus, also not racist. Not that this ever helps because almost every liberal there seems completely married to the false narrative that Scalia is racist and homophobic. (I see no evidence of either, personally).

    • I was going to write on a black student’s facebook post that when he said that this was racist, he was being stupid. But then I remembered I’m in law school, and that just could lead to a whole host of problems that I just don’t have time for during finals.

      That saddens me more than you can know.
      It is suppression of speech.

      We will have to disagree on Scalia being homophobic, and I see plenty of evidence of either racism or willful blindness to history that’s indistinguishable from it, but we should be able to debate that openly, with reason and logical arguments, for they exist on both sides here.

      • Saying something that someone says is stupid doesn’t eliminate that person’s freedom of speech. And if there are reasonable, logical arguments that Scalia himself is a racist or homophobic, I’m more than willing to listen to them.

        • Except that wasn’t the claim. It was that what he said was racist, and it was not by any fair or reasonable interpretation. There is no evidence Scalia is racist, except to those who believe denying special privileges to minorities is racist. Please don’t make that argument here: yes, yes, everybody knows that people and especially the press have the right to say destructive, irresponsible, dishonest and stupid things. They still shouldn’t say those things, and the harm people and institutions when they do.

      • Why would him saying that be suppression of speech? The guy saying “this is racist” is engaging in free speech, and so is Valentino when he tells him he’s a stupid idiot. Free speech; either we all have it, or we don’t.

    • Jack, I was at a top ten law school twenty years later, and not much had changed. I had a black student say once in a group that he thought they were there “to soak up all the C’s.” [For those of you fortunate enough to not attend law school, a C is about the lowest grade you can get.]

      Scalia is correct. There were a few students who went to my school and struggled that could have gone to a lower ranked (but still excellent) law school and done very well. And maybe there were some students who were struggling at Harvard and Yale who would have done just fine at my school. It’s a legitimate point. And not at all racist.

  2. The Left will jump at any chance to castigate Scalia, no matter how flimsy the basis. This case bore their hallmark; the race card, wild, emotional statements and as immediately as possible, before any refutation with facts can be presented. Hit and run politics. Far be it from them to look at the original context and draft a considered response, yea or nay. In fact, they wouldn’t have dared do so anyway. By presenting a thoughtful criticism of affirmative action, Scalia had gored one of their sacred political cows. He HAD to be portrayed as a racist and in virulent terms.

    • The Left will jump at any chance to castigate Scalia, no matter how flimsy the basis. This case bore their hallmark; the race card, wild, emotional statements and as immediately as possible, before any refutation with facts can be presented. Hit and run politics.

      Concur. It is getting all too usual to make mountains out of molehills, take things out of context, or otherwise distort – which means the genuine nasty stuff gets through, any critique seen as just more of the same nonsense.

      Far be it from them to look at the original context and draft a considered response, yea or nay.

      I’ve tried to remedy that, but then, I’m not on “The Left” anyway. Though many here would disagree with that, I think yourself amongst them.

  3. Conceded that “it is Scalia’s job—his job!—to raise novel questions and arguments before the lawyers representing the parties. ”

    But not when they are irrelevant to the case at hand.

    It’s true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.

    Neither Fisher nor Blum mentioned those 42 applicants in interviews. Nor did they acknowledge the 168 black and Latino students with grades as good as or better than Fisher’s who were also denied entry into the university that year.


    I happen to agree that “affirmative action” is an evil, and that while it was arguably a necessary evil at one time, it’s past its “use by” date, at least unless used in homeopathic amounts.

    I don’t think this case is an appropriate vehicle for getting rid of it though. There’s no evidence that if the plaintiff was of a “favored minority” that she would have been admitted, and much evidence against that proposition.

    Moreover, the particular “holistic policy” used by the University, while not as open to external scrutiny as it might be – and thus open to cronyism, nepotism etc – does not on the face of it appear to use race as a significant factor, more of a seasoning. A homeopathic amount as I wrote before. That’s based on the results, objective tests, of this very subjective (by its very nature) process. Not only not “manifestly unreasonable”, it doesn’t seem from the actual numbers to be unreasonable at all.

    • It’s really the previous case, though. Texas was spared an outright ban on its policy if it got its act together and came up with a less constitutionally offensive policy. It didn’t. That’s why this is likely to be the final round-up for a policy that should have died two decades ago at least.

    • I’m not sure what seasoning means, but if a better qualified white student gets dinged because she’s the wrong color, that’s discrimination. The 42 that were white are irrelevant to the lawsuit. Universities can be arbitrary; they just can’t be racist.

  4. Absolutely insane. I cannot believe the gall of Scalia! For him to say such outrageous nonsense! Was he not considering the fact that people would know what he said?! Appalling. How could a solid and established member of the Supreme Court not only offend sensibilities but offend our higher intellects?!

    I don’t care if he was only quoting an interested party! What he said was ludicrous. He should know better. Not as a Justice but as a grown man. How can anyone even imply the University of Texas is an ‘advanced’ school? Tommy rot.

  5. “I knew, no matter what Justice Scalia really said, that he was talking about some blacks, not all blacks.”

    Foul. Perhaps that is what he meant, but you are violating one of your own rules here Jack. Scalia is one of the most respected lawyers in the world and is no stranger to oral advocacy. Do not hold him to a lesser standard than you would a politician. If anything, a Supreme Court Justice should be held to a higher one as their words eventually can become law. Politicians, on the other hand, rank one step above con-artists on the likeability/believability scale.

    As I am reminded here constantly, words matter. Scalia messed up today. And before people jump all over me, I agree that no one should be admitted to a school if they can’t make the grade, but that goes for anybody. Race, gender, religion, or whether daddy sent in a large donation are immaterial to that analysis. But that isn’t what Scalia said — and the arguments that he cherry-picked from the numerous briefs filed in this case speaks volumes.

    • Beth, you’re just not thinking. By definiation, he’s talking about blacks dmitted under affirmative action standards. Yes, he’s talking about all THOSE blacks, arguable, because all THOSE blacks, arguably, are getting into schools that they wouldn’t on their credentials. ALL those blacks may well be better off in lesser schools. Blacks who get admitted regardless of their race? Not in the conversation. You can’t intentionally interpret words to be inappropriate to the topic at hand, especially when the speakers are lawyers. every single person in the court knew exactly what blacks Scalia meant—the ones the case holding will effect. That’s what the discussion is about. Not a single word of the decision, wherever it goes, will effect blacks whose skills would get them admitted, and by definition, they would NOT be better served in a less advanced institution. Scalia wasn’t talking about those blacks…obviously. He also was asking the brief’s question, not his own, and made THAT clear as well. And it should have been obvious to you. That’s not even a good “gotcha.”

      No foul in any way.

      • I’m happy about dmitted. It should be the go to word for all university admissions of students who are not suited to the rigor of the university.
        ie. He was dmitted to ______, you know, because
        a. his dad is a big contributor to the school.
        b. he can really play ball.
        c. he’s affirmative action.

        • You have to explain to me why it isn’t obvious that when a justice is discussing blacks in the context of affirmative action, he is only discussing blacks affected by affirmative action. Nino and I get it. why wouldn’t everybody, except those trying to race-bait? I see no more reason to assume his use of “blacks” refers to “blacks who don’t need affirmative action to get into elite colleges” than it refers to Greeks, Asians or marmosets.

    • Beth he was not giving a speech on the Senate Floor. As Jack noted in the main post he was a judge asking questions at argument. This is what judges do. Judges sometimes ask devil’s advocate questions to the lawyer of the side they agree with in order to make their opinions stronger. Scalia probably agrees with the premise but so what?

      Needless to say, if Breyer had asked the very same question — which is not beyond the realm of possibility — there would be no controversy.

      • Yep, I’m pretty familiar with what Judges do, and trust me, there were hundreds of arguments submitted (pro and con) on this issue. These were the ones he seized upon, and he spoke carelessly. Judges rarely throw out discussion points that they strongly disagree with in oral argument.

          • Oh please. Once in a while, Judges will throw out the opposing argument (especially if opposition counsel is incompetent), but it is usually done as a softball pitch so the lawyers can hit it out of the park. That isn’t what Scalia was doing here — and if you follow Scalia at all, you know that he rarely does that. He takes too much pride in his scholarship.

            • Oral argument is not a show like “Crossfire” where the questioners may want one side to look good at the expense of the other. Generally speaking the judge’s goal is to write a sound, intellectually rigorous opinion. This can involve hard questions to either or both sides.

        • Beth said, “I’m pretty familiar with what Judges do, and trust me,”

          “Trust me”, really Beth, WOW?!


          I didn’t know we had a SCOTUS Justice expert here sharing her vast knowledge of each of the SCOTUS Justices with us lowly ignorant citizens. How do you find the time to do all that SCOTUS research and still have time for family, friends, and sharing your vast SCOTUS knowledge in forums at he same time that you’re in the SCOTUS studying the justices?


          When I real a comment that has the words “trust me” in it, my BS detector goes into high gear.

          • Yes, God forbid that practicing litigators actually opine on a subject that they know. Do you also question your doctor on how surgery is performed, or a structural engineer when they comment on the soundness of a bridge?

            • Beth said, “Yes, God forbid that practicing litigators actually opine on a subject that they know. Do you also question your doctor on how surgery is performed, or a structural engineer when they comment on the soundness of a bridge?”

              With all due respect, you’ve completely missed my point and you’re clearly not an expert on SCOTUS Justices, or a Judge, and it unlikely that you’re an attorney. Share your opinion all you want but don’t give us this “trust me” nonsense without the expertise credentials to back it up.

            • Our disagreement on this issue aside, you DO get an amazing amount of crap here. Why is that, do you think? You’re not insulting; you’re a good sport; you give as good as you get, which is as it should be. I don’t understand it.

              • It’s simple. Most of your commentators are conservative, and probably most are male as well, but I think my ideology has the most to do with it. A lot of liberals have been driven away from this site. Truthfully, but for the fact I know you personally and I am interested in your point of view, I would have left long ago too. I let the abuse roll off of me (years of working in Big Law has made me thick-skinned) but I know several liberals who gave up on this site for a variety of reasons, including the personal attacks. That’s sad really, because we are left with viewer points of view. And when people aren’t challenged in their point of view (whether liberal or conservative), they begin to think that their opinions = truth.

                And thank you for saying that I am not mean, but I was insulting toward Alizia. I think she is a bit unhinged. But I shouldn’t have called her a robot. That was mean. I am better than that.

                • Beth,
                  Alizia earned it.

                  Honestly about the crap you or anyone gets on any forum, it’s usually because people have a tendency to focus on what they disagree with as oposed to what they agree with, just like I did in my post. It’s just kinda the way things are with online discussions. I “try” to balance it but I’m not any more successful than anyone else.

                • I replied. It was a novel. I deleted it. I’m going to abridge.

                  To be frank, your poor treatment (which I make no bones about existing) has nothing to do with your vagina and everything to do with your politics, at least up to the point that your vagina starts influencing your politics. Ask Wyo and Charles about the influence their gender has on their treatment. That comment about your poor treatment having something to do with commentators maleness might fundamentally outline why you get blasted better than anything I could ever type.

                  But you’re right in that politics has a lot to do with it. I was looking through some old posts recently, dial the wayback machine to Paul Ryan’s marathon. And there were a whole lot more liberal voices back then. The thing is, there were different conservative voices too… They were replaced, and the progressives weren’t. This site trend right… I don’t think that’s really in contention. But I also think that Jack makes shots to the right far more than say… Huffpo shoots left. Are conservative voices more volatile? I don’t know. I don’t think so. That might be bias. But I’m pretty sure I don’t feel very welcome on left leaning comment sections when I poke my nose in. Do Left leaning commentators tend to be weenies? I think so. That might be bias. But the “safe spaces” movement didn’t come out of the right, and I find conservative sites are less likely to censor their comments.

                  I think especially in election years, and especially when things aren’t going very well for the country as a whole, things tend to become more polarized and vicious. It frustrates me because the extremes seem to be winning. The lines are being drawn and the wagons are being circled. Give it a year or two and maybe we’ll all be in our echo chambers, never directly talking to each other but more than willing to criticize what the other produces from afar. It’s why even though I can be an asshole, I still appreciate the dissenting voices.

                  • Ahhh. But here’s the thing. I try not to offend conservatives here. I’ve lapsed once in a while, I admit it, but — on the whole — I’m pretty nice to everybody. So why can’t the conservative voices do the same?

                    And I acknowledged above that this is more about ideology than gender — but go back and look at the some of the snarkier responses to me and a few other women here. The snark often includes a reference to gender. So “vagina” does have something to do with it.

                    I wish I had created an ambiguous name when I started.

                    I appreciated your last paragraph.

                    • “So why can’t the conservative voices do the same?”

                      Do you really think none of them are? I mean… I’m an asshole to everyone I disagree with, granted, and that’s not partisan or gendered (just ask the Christian fundamentalists). And yeah, there are definitely a couple of other “personalities” here. But by and large, the community as a whole? Maybe snarky, but not overly hostile. And truth be told… it’s still probably the most bi-partisan site I frequent, there’s bound to be disagreements. Bring your friends!

                    • HB, I think it is unusually bi-partisan, though that is more the fault of other blogs rather than the virtue of this one. Most other sites that have conservative and liberal commenters either turn every thread into name calling and talking points (Mediaite, Politico) or self segregate, with all the liberals commenting on some posts and and all the conservatives on others. One exception is Althouse, who moderates very hard. She’s a quirky left-moderate and also her opinions often defy ideological identification.

                      All I want is a smart, lively, open-minded, erudite, articulate, thoughtful community that is serious, has a sense of humor, doesn’t resort to cant and talking points and is capable of changing my mind and surprising me, while showing a genuine interest in ethics. That’s all.

                      And I think we have one. It could be improved, but it’s still evolving. Something’s working: the site’s traffic grew about 15% this year. I am told that EA really did help Sweet Briar college rally the troops to stay open: how many blogs have concrete impact like that, ever? Everyone here should take pride in what he or she has helped Ethics Alarms become.

                    • I always enjoy the discourse when Beth contributes just because of her humor and civility in the face of insults and snark. I have often thought about backing her up, but she rarely needs it. The broad brush strokes with which progressives and liberals are painted on this blog don’t apply to her, and I think the reason she gets so much crap is because that is frustrating to commenters who disagree with her.

                  • I actually go back over old posts and email commenters who have been gone for a while, ask what they are doing and invite them back. I can’t do anything else about the balance. Losing Barry/ Ampersand was too bad, and he and tgt together provided strong opinions from the left. I consider myself to be friends with most of the liberal voices here, past and present. Very little of the churn that I’m aware of is based on excessive abuse or politics—most is just based on changing priorities. I think Scott/Ablativemeatshield was responsible for the lion’s share of abuse against progressive female commentators. I gave him too long a leash, and that’s on me.

            • I hear that you’re a Lawyer but that doesn’t change my “trust me” point.

              In my humble non-lawyer opinion; no one, especially a lawyer, should ever use “trust me” as a persuasive point in what could otherwise be an intelligent argument – it’s insulting and disabling language and it diminishes the overall argument. Simply put; if you actually have to tell someone to trust you on a topic, you’re directly implying that that person is not intelligent enough to understand what you are saying; you’re indirectly calling that person an idiot. Now there may not be a lot of people that can put that together, but most people will instinctively know there’s something wrong when they hear the words “trust me”; maybe they’ll nod their head, but their instincts are telling them to run for the hills.

              Be really honest with yourself Beth, would you ever use “trust me” in front of a jury to support your closing arguments; if you would, I wouldn’t want you to represent me.

              That’s my complete thought on the phrase “trust me”, open discussion on the topic is welcome.

        • Unequivocally false. I’ve attended and participated in many, many, many oral arguments in a variety of jurisdictions and Judges ROUTINELY throw out discussion points they strongly disagree with. ROUTINELY. Some judges are known to question contrary to their initial leaning because they want to test any soft spots in their analysis.

          • So your anecdotal evidence is different from my anecdotal evidence. That must make me false. Of course. My bad.

            In my experience, Judges (for the most part) knew how they were going to rule or which way they were leaning before oral argument. Indeed, that is why there is a lot of strategy involved re “drawing the right Judge.” There are exceptions. This is not the case with Scalia. He is not by any means a swing voter, especially on issues like this.

            • You’re not going to do that to me. Your statement was as follows:

              Judges rarely throw out discussion points that they strongly disagree with in oral argument.

              Now, if you said, in my experience judges rarely throw out discussion points that they strongly disagree with in oral argument, I might wonder where you practice, but I can’t question your experience. Books written on oral argument often caution against drawing a conclusion from a judge’s questioning, warning that it is common for them to play devil’s advocate to test their own opinions.

              To say, without qualification, that judges rarely do that, is wrong.

  6. A Modest Proposal: If statistical diversity in the student body and faculty and administration is a demand of these ad hoc student groups roaming around campuses, why shouldn’t that also be beneficial for college sports teams? For example, why should there ever be more than one African-American player on a basketball court for a team at any one time if African Americans comprise twenty percent of the U.S. population? Why more than two or three African-Americans on a football field for one team? Why isn’t diversity beneficial for track teams? Why isn’t this demand being made?

    Affirmative Action should be ruled unconstitutional because it’s cruel and unusual punishment. I can’t imagine being thrown onto an Ivy League campus unless I was a valedictorian (at a good high school or prep school that only had one valedictorian) and was otherwise a whiz at taking tests and memorizing data and reading voluminously. And also incredibly competitive, ambitious and essentially cut throat in almost all things.

    I assume the same to be true for places like the University of Virginia or Michigan or Texas (but I’ll give our resident A&M alum the benefit of the doubt on that) or the various University of California campuses.

    In any event, great post. Glad you took this on, Jack.

  7. In my humble opinion; to paint a person, any person, as a racist when racism is not factually supported is slander or libel (depending on the method of delivering the defamation), it’s immoral, and it reflects the most appalling and deeply rooted character flaw that any person can have, moral bankruptcy.

    As I understand it, the race baiting that is routinely trotted out and plastered in our faces fits the definitions of slander or libel, it’s intentional defamation of character and these immoral people need to be lined up at the doors of our court houses and sued – one after other! The constitution gives individuals the right of freedom of speech, it does not give them constitutional immunity for intentionally trying to destroy someone’s life or intentionally trying to manipulate others using slander, these people need to be taught in a VERY public way that there can be consequences to intentional defamation of character.

    Until there is a very prominent United States citizen that sues the pants of of one of these slanderous race baiters, nothing will change and it will only get worse. I’m damned sick and tired of this kind of intentional slander, it needs to stop.

    Just because we the people have the right to do and say whatever we want, does not make what we do and say right.

    Any Questions

  8. 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.”

    I agree!

  9. We need to focus on preparation from pre-school through high school. There should be mandatory pre-school education. It should be rigorous and prepare every student for kindergarten. There should be mandatory tutoring for all struggling students from grade school through high school. Instead of excessive testing, focus on ensuring all students learn the subject matter. Vocational education should be provided for all interested students, after mastering a general education track.

    There should be uniforms in ALL US public grade schools. There should be a national curriculum and one set of approved text books. There should be free breakfast, lunch, and a snack for all students. We waste tons of food. Feed the kids with a rotating nutritious menu, as in France. There should be a mandatory ethics and values class each year from kindergarten through high school. Too many children today do not learn ethics or values at home. I loathe for the state to parent, but the reality of widespread sociopathology makes it essential. If I had my way, extracurricular activities would be limited to non-school hours and sports participation would be separated from school. Alas, a pipe dream. Mandate physical education for all students. Whatever happened to President Kennedy’s physical education initiative? Bring it back. These kids are woefully out of shape. Eliminate property tax funding for public schools. I advocate federal funding through the states. Allocate an equal amount for all students. Finally, recruit teachers from the top 10% of college graduates. They should be experts in their subject. The End.

    • I’m choosing to only address a couple of points.

      glencora63 said, “There should be a mandatory ethics and values class each year from kindergarten through high school”

      It’s not that I disagree with the concept of teaching ethics and values but what you just wrote is a tall, Tall, TALL, TALL order in a free society. Exactly who defines the base criteria of said ethics and values courses taught to every child in the USA? Would it be to your liking that unknown people in a cubicle somewhere in the confines of the United States develop the base criteria of the ethics and values course you propose, what about putting one of your fellow bloggers in charge of controlling the standards, maybe Alizia Tyler, texagg04, Michael Ejercito, Tim LeVier, or ResurrectedToday? Who makes sure that these basic ethics and values standards are taught properly? Heck, maybe we should just put our children in education camps for the first 18 years of their life to make absolutely sure they conform to government standards?

      Do you understand that there can be real problems with an idea like this?

      glencora63 said, “Eliminate property tax funding for public schools. I advocate federal funding through the states. Allocate an equal amount for all students. “

      With all due respect; allocating “equal amount for all students” does not reflect the reality of such things. First you must define what you personally mean by “equal”, do you actually me the exact same dollars amount allocated for educating each and every student across the United States? Consider the cost of living in various areas of the United States; it simply does not cost the same amount of money to educate a student in Buffalo County, South Dakota as it does in Loudoun County, VA. How willing are you to dive into total government control of the cost of living across the country, in other words, the government actually controls all aspects of the economy?

  10. How long before ‘racist’ loses all meaning? Racist at one time was narrowly defined: You had to believe that there was a difference between races, and you had to rank those races based on those traits. Heck, even by the historic definition of racism, there is racism that wasn’t discriminatory… Black people are more likely to have sickle cell anemia, and black people have a higher proportion of top tier runners. But now… It’s racist every time you mention race, it’s racist if it has racial connotations, it’s racist when we talk about religion, and it’s racist to say that people who get into premium schools based on the color of their skin as opposed to their ability to learn, probably shouldn’t be there.

    How long before we just stop caring? If everything is racist, and there isn’t a delineation in the term, who cares? You’re a racist! Ok, what’s your point? This is a direct result of progressives being too lazy or stupid to articulate their message, and instead falling back on tried and true methods of shaming and silencing people, never once stopping to realize that by lumping in “Microagressions” (TYSRL) with bonafide black-hating racists, all the while turning a blind eye to racism exhibited by blacks, that eventually the term would lose all meaning and ability to function. This is the paradigm that allowed Trump. “Trump’s a racist!” followed by “Well, according to you, we all are… And I know I’m really not, so he probably isn’t either.” Progressive lies have caught up to them, to the detriment of everyone. Their credibility only exists within their own enclaves.

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