Dick Durbin: Selectively Blind

I was struck by what was surely an unintentional, though revealing, slip by Sen. Dick Durbin yesterday in the following passage in his extensive remarks denouncing Judge Alito. [Note: the preceding link probably won’t work, as the Library of Congress does not retain search results. To find Sen. Durbin’s remarks, go to the Congressional Record online, which can be found here, select “browse daily issues” for Jan. 25; select the “executive session” for the morning; search for “Durbin,” and you’ll find these remarks on p. S52.] Here’s the passage from Durbin’s remarks:

An African American, charged with murder, facing the possibility of the death penalty, argues on appeal that his verdict was unfair because the prosecutor went out of his way to exclude every African American from the jury so that it was an all-White jury judging a Black man. He presented his evidence that in three other murder trials, one involving an African American, the other two White defendants, the prosecutor had done the same thing–kept the Blacks off the jury systematically. The Third Circuit Court on which Judge Alito served said that defendant was right; that is not something we accept in America; we are going to send this case back to be retried by a jury of this defendant’s peers. They saw the importance of a justice system that is blind to race. [Emphasis added]

Before considering Durbin’s remarkable, and inconsistent, support for a system of any kind “that is blind to race,” let us pause for a moment to consider this victimized, anonymous “African American,” about whom James Taranto of OpinionJournal has provided some valuable information taken from the majority opinion in the case to which Sen. Durbin refers, Riley v. Taylor:

After a five and one-half day trial, a jury convicted Riley of two counts of first degree murder (felony murder and intentional murder), second degree conspiracy, possession of a deadly weapon during the commission of a felony and robbery in the first degree. The convictions arose out of a liquor store robbery by Riley and co-defendants, Tyrone Baxter … and Michael Williams … . During the robbery, the liquor store owner resisted and hit Riley with a bottle of wine. Riley shot the owner twice, killing him.

The State’s case was largely based on Baxter’s and Williams’s testimony. After the jury found Riley guilty, it heard evidence on whether he should be sentenced to death or life imprisonment. The jury unanimously recommended death, and the state trial court sentenced Riley to be hung [sic].

Taranto then added:

Two judges of the Third U.S. Circuit Court of Appeals, over Alito’s dissent, overturned Riley’s conviction. Riley was retried and convicted again.

Mr. Riley would hardly seem to be a good example of the poor, innocent victims of the “crushing hand of fate” (the refrain in Durbin’s remarks) regarding whom Judge Alito is so uncaring.

But, moving on to what I find even more interesting than Sen. Durbin’s crocodile tears (though that comparison seems unkind to crocodiles) for the insensitive unfairness of Judge Alito’s treatment of Mr. Riley, I find it remarkable that Sen. Durbin can say, in public and with a straight face, that he supports “a judicial system” — or any system, for that matter — “that is blind to race.” Doesn’t he know — in fact, isn’t his voice prominent in the chorus that always shouts — that colorblindness is racism?

If someone can show me a racial quota or racial preference or any race-conscious program that is alleged to benefit minorities that Sen. Durbin opposes, I will give him or her a free subscription to DISCRIMINATIONS (or twenty-five cents in coin). He was, to pick just one recent example, one of the dozen or so Democratic signatories of a brief supporting the University of Michigan’s 20-point automatic bonus points for minority applicants (out of a total of 150 to guarantee admission), which was about as far from a “race blind system” as one could find and was too much even for the Supreme Court, which approved the Michigan law school’s “diversity” program that differed from the rejected undergraduate program mainly in its successful obfuscation of what it was doing. The brief from Durbin and his Democratic buddies defended the notion that

race or national origin could be used in making admissions decisions… even though the effect might be to deny admission to some students who did not receive a competitive ‘plus’ based on race or ethnicity.

In fact, I will even give that same subscription/$.25 prize to anyone who is willing to affirm here, in a comment, and sign his or her name to the affirmation, that he or she actually believes that Sen. Durbin himself believes what he said regarding “the importance of a justice system that is blind to race.” Before assuming that Durbin must at least himself believe what he said and rushing to claim this valuable prize, be aware that before awarding it I will require some evidence that Sen. Durbin supports the recent decision of the Michigan Supreme Court to require colorblind jury selection and thus bar the racial balancing of juries in Michigan to promote “diversity.” Discussing that decision here, I quoted Judge Marilyn Kelly, one of the two Democratic appointees on the Michigan Supreme Court who voted against the new rule, who said it

does not further the end of eradicating discrimination from our civic institutions and does not prevent the undermining of public confidence in the fairness of our system of justice.

… and I concluded:

Well, no. It merely eradicates discrimination from jury selection, but by reinforcing the idea that justice is blind (which includes colorblind) I suspect it in fact does enhance public confidence in the fairness of the system of justice. Too bad Democrats no longer understand that.

In the unlikely event that Sen. Durbin meant what he said about “the importance of a justice system that is blind to race,” he would of necessity disagree with Judge Kelly and the other Democratic opponents of the new race-blind rule for Michgan juries, and agree with the Republican judges who made up the majority in support of the rule.

How likely is that?