E.J. Dionne writes this morning that “Samuel Alito, a baseball fan, has established himself as the Babe Ruth of evasion.” Columnists, like everyone else, are allowed to call ’em as they see ’em, although I think Judge Alito’s testimony was consistently down the middle of any reasonably defined strike zone. And the Democrats, equally consistently, whiffed, resulting in an easy no-hitter for the judge.
But forget Judge Alito for a moment (but just for a moment). If you want to see Babe Ruth-sized talent — and not at “evasion” but outright misrepresentation — you need look no further than the defenders of affirmative action. I have already noted here too many times to cite the oddity of liberals claiming that “affirmative action” is not discriminatory while at the same time arguing that a ban on state-sanctioned racial discrimination, i.e., distributing burdens and benefits based on race, would eliminate all affirmative action. See the debate over the Michigan Civil Rights Initiative.
Returning now to Judge Alito, and baseball, Curt Levey, general counsel of the Committee for Justice, points out a mighty home run of misrepresentation in the recent testimony of Ted Shaw, president of the NAACP Legal Defense and Education Fund.
During his testimony today against Judge Alito, Ted Shaw … brought up yet another baseball analogy — this one a quote about Hank Aaron and affirmative action that is attributed to Judge Alito. Actually, the quote is from the Reagan administration’s Supreme Court brief in Wygant v. Jackson Board of Education (1986), a brief that Samuel Alito helped write while working in the solicitor general’s office. The brief, which opposed a layoff system favoring minority teachers, argued that “Henry Aaron would not be regarded as the all-time home run king, and he would not have been a model for youth, if the fences had been moved in whenever he came to the plate.” Shaw took issue with the analogy, saying it “reflects a fundamental misunderstanding about affirmative action.” “It’s not about asking that the fences be moved in. It’s about asking about an opportunity to take the field,” he said.
Levey, who as many of you will recall was actively and prominently involved in the Gratz and Grutter cases, reminds Shaw, who has presumably forgotten, that he actively defended Michigan’s race-based admissions program under which
minority applicants received a 20-point bonus, the equivalent of a full grade point. By comparison, applicants could receive one point for an outstanding essay and five points for the highest level of personal achievement. The racial preferences in UM Law School’s admissions system were equally massive, though less transparent. In both cases, black, Hispanic, and Native American applicants with B-averages were treated as equal to white and Asian applicants with A-averages. Now, if that’s not moving the fences in, what is?
Cass Sunstein, a University of Chicago law professor, has noted that Alito follows the law when it’s clear, but he almost always tilts toward his conservative predilections when the law is less settled.
Let me respond in the vernacular of a former New Yorker: You got a problem with that?! Unless E.J. Dionne believes that conservatives should not be allowed to be on the Supreme Court, then what more could you expect from a judge who has “conservative predilections”?
John writes: “I have already noted here too many times to cite the oddity of liberals claiming that “affirmative action” is not discriminatory while at the same time arguing that a ban on state-sanctioned racial discrimination, i.e., distributing burdens and benefits based on race, would eliminate all affirmative action. See the debate over the Michigan Civil Rights Initiative.”
BRAVO! The same thing occurred in the 1996 debate over Prop 209, the California Civil Rights Initiative. It beautifully exposed the dishonesty of the pretense by supporters of affirmative action that it was not discriminatory.
Curt Levey cited a delightful baseball analogy to racial preference in the government’s Wygant brief. After noting the racial preferences rejected by SCOTUS in the Gratz case, Levey adds that “The racial preferences in UM Law School’s admissions system were equally massive, though less transparent.”
Actually, the law school preferences permitted in Grutter were far greater than the undergraduate preferences banned in Gratz, since admission to the law school was far more selective. The degree of preference in each case strikes home when you compare the probabilities of admission for racially preferred and unpreferred applicants with similar academic credentials.
For the undergraduate college, see
http://www.debatingracialpreference.org/GRATZ-Probabilities.htm
For the law school, see
http://www.debatingracialpreference.org/GRUTTER-Rates.htm
Curtis Crawford writes:
>>>”It beautifully exposed the dishonesty of the pretense by supporters of affirmative action that it was not discriminatory.”
Don’t stop there, Curtis. As a supporter of Affirmative Action I also claim that American Society is discriminatory, and will continue to be whether Affirmative Action exists or not.
–Cobra
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