[NOTE: I have expanded this discussion in the post immediately above, “More Advice For Joe Biden”]
The Wall Street Journal’s Capital Journal Newsletter noted on August 10 that former Vice President Joe Biden is presumably “still mulling whether to run for president” in 2020, “but among the potential 2020 Democratic candidates, he’s already carved out a unique space as one of the most frequent and public backers of key moderate Democrats in the Trump era.”
While many would-be candidates “have made a leftward shift,” the Newsletter noted, “Mr. Biden … injected himself into the midterm debate in large part by stumping or releasing robocalls for candidates who are a far cry from liberal firebrands.” His endorsements, in short, seem to telegraph that “he’s seeking to champion a more middle-of-the-road approach to governing than the others, who are positioning for what is expected to be a crowded, progressive Democratic field.”
Perhaps alone among today’s prominent Democrats, Mr. Biden could make such an appeal without having to change his entire tune. A few weeks after President Trump was elected, for example, Mr. Biden distanced himself from the “deplorables” mantra emanating from The Resistance by telling a Los Angeles Times interviewer that Trump voters are “all the people I grew up with. They’re their kids. And they’re not racist. They’re not sexist. But we didn’t talk to them.”
But if Biden decides to talk to them in 2020, what will he, what should he, say?
It’s been a long time since I attempted to proffer any advice to a Democratic candidate, but as it happens I do have some advice for Mr. Biden: Channel Hubert Humphrey!
Imagine the novelty — no, the shock, the consternation, at a world turned upside down — if a leading 2020 Democratic presidential candidate endorsed and and repeated what Hubert Humphrey and other liberal Democrats of his generation repeatedly asserted — that all Americans should be treated “without regard to race, creed, or color”!
Consider the following few examples of Sen. Humphrey’s remarks over the spring and summer of 1964 when he was floor leader for the passage of what became the Civil Rights Act of 1964:
- “The meaning of racial or religious discrimination is perfectly clear. . . . [I]t means a distinction in treatment given to different individuals because of their different race, religion, or national origin.” [110 Cong.Rec. 5423 (1964). Emphasis added]
- “The answer to this question [what was meant by ‘discrimination’] is that if race is not a factor, we do not have to worry about discrimination because of race.” [110 Cong.Rec. 5864, anticipating by over forty years Chief Justice Roberts in Parents Involved v. Seattle School District (2007): “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”]
- “If we started to treat Americans as Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green ones, yellow ones, or white ones, but as Americans . . . , we would not need to worry about discrimination.” [110 Cong.Rec. 5866]
- Re the bill leading to quotas and racial balancing: “That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and national origin are not to be used as the basis for hiring and firing.” [110 Cong.Rec. 6549]
- “The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group, and any person, whether or not a member of any minority group, would be permitted to file a complaint of discriminatory employment practices. [110 Cong.Rec. 11848. Emphasis added]
- And perhaps most famously: “It the Senator can find in Title VII … any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another, because it is not in there.” [110 Cong.Rec. 7420].
- Title VII would not allow establishment of systems or procedures “to maintain racial balance.” [110 Cong.Rec.11848]
The record is filled with such quotes. Thus Senator and future presidential candidate Edmund Muskie asserted that the “torrent of words . . . cannot obscure this basic, simple truth: every American citizen has the right to equal treatment — not favored treatment, not complete individual equality — just equal treatment…. Not equal pay. Not ‘racial balance.’ Only equal opportunity.” [110 Cong. Rec. 12614, 12617]
And Senator Harrison Williams: “Some people charge that H.R. 7152 favors the Negro at the expense of the white majority. But how can the language of equality favor one race or one religion over another? Equality can have only one meaning, and that meaning is self-evident to reasonable men. Those who say that equality means favoritism do violence to common sense. [110 Cong. Rec. 8921. Emphasis added]
Significantly, the consensus on the meaning of “discrimination” was largely bipartisan. Indeed, the bill — opposed by Southern Democrats and some conservative Republicans — would not have passed without the support of leading Republicans. Thus Senator Saltonstall, chairman of the Republican Conference that drafted a leading amendment, asserted that the bill “provides no preferential treatment for any group of citizens. In fact, it specifically prohibits such treatment.” [110 Cong.Rec. 12691. Emphasis added]
A major interpretive memo on the bill written by bipartisan legislative captains (Joseph Clark, Dem, Pa. and Clifford Case, Rep., NJ) stated unequivocally that the bill would not lead to demands for racial balance. “On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual.” [110 Cong.Rec. 7213]
Indeed, as Justice Rehnquist stated in his dissent in United Steelworkers v. Weber (1979), “Not once during the 83 days of debate in the Senate did a speaker, proponent or opponent, suggest that the bill would allow employers voluntarily to prefer racial minorities over white persons. In light of Title VII’s flat prohibition on discrimination ‘against any individual . . . because of such individual’s race,’ such a contention would have been, in any event, too preposterous to warrant response.”
That may seem harsh, but University of Chicago law professor Philip Kurland, one of the most respected Constitutional scholars of his generation, wrote to University of Virginia Prof. Henry Abraham that Rehnquist’s Weber dissent “is simply unanswerable in terms of statutory construction and congressional intent.” (Letter, July 7, 1979, quoted by Abraham here)
In fact, in his Weber dissent Justice Rehnquist quoted a staged colloquy between two Republican opponents of the bill to make that point. “Both men expressed dismay [JSR: actually, feigned dismay] that Title VII would prohibit preferential hiring of ‘members of a minority race in order to enhance their opportunity’”:
Mr. CURTIS. Is it not the opinion of the Senator that any individuals who provide jobs for a class of people who have perhaps not had sufficient opportunity for jobs should be commended, rather than outlawed?
Mr. COTTON. Indeed it is.” [110 Cong.Rec.13086]
This staged exchange was intended to embarrass liberals who supported preferential treatment, since both the conservative Republicans and Southern Democrats who opposed the bill never abandoned their prediction that the bill, despite the assurances of Senators Humphrey et al., would not only allow but inexorably lead to and be used to justify preferential treatment based on race.
Thus the bill’s critics — many of whom were outspoken segregationists — were more prescient about its effects than Senator Humphrey and his fellow supporters on both sides of the aisle.
In fact, the entire defense of the legality of racial preferences requires embracing arguments that former liberals detested. “Anyone who defends racial preferences today,” as I wrote here and here, “must reject Justice John Marshall Harlan’s stirring comment in Plessy that ‘our Constitution is colorblind.’ One of the oddest, saddest things about contemporary liberalism is that it has rejected the colorblind principle of its radical progenitors and stands on the shoulders, and repeats the arguments, of dead racists.”
Of course not all liberals abandoned their former principles. In 1974, for example, four years before Bakke, Justice William O. Douglas, perhaps the most liberal justice to serve on the Supreme Court, wrote in his DeFunis v. Odegard dissent (the majority held the case moot): “There is no constitutional right for any race to be preferred…. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.” [Emphasis added]
Similarly, consider the magnificent California Supreme Court opinion in Bakke by Justice Stanley Mosk, described in the San Francisco Chronicle as “the last of the New Deal liberals in California public life.” As a Los Angeles County judge he struck down whites-only real estate clauses. As state attorney general he threatened to block a PGA tournament if blacks were barred from taking part. “Arguably, no jurist in American history,” the SF Chronicle article concluded, “has been a stronger champion of civil rights.”
In the California Supreme Court’s 6-1 opinion holding that the UC Davis medical school’s racial preference program was unconstitutional, Justice Mosk wrote, presciently:
The divisive effect of such preferences needs no explication and raises serious doubts whether the advantages obtained by the few preferred are worth the inevitable cost to racial harmony. The overemphasis upon race as a criterion will undoubtedly be counterproductive: rewards and penalties, achievements and failures, are likely to be considered in a racial context through the school years and beyond. Pragmatic problems are certain to arise in identifying groups which should be preferred or in specifying their numbers, and preferences once established will be difficult to alter or abolish; human nature suggests a preferred minority will be no more willing than others to relinquish an advantage once it is bestowed. Perhaps most important, the principle that the Constitution sanctions racial discrimination against a race — any race — is a dangerous concept fraught with potential for misuse in situations which involve far less laudable objectives than are manifest in the present case….
To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.
If in Bakke the Supreme Court had followed the lead of liberal Justices Douglas and Mosk, the country would have been spared the last 40 years of conflict and contention over racial spoils.
Now let us return to what Mr. Biden should say to the Trump voters he “grew up with,” and others, if he wishes to distinguish himself from the herd of Democratic “progressives,” all of whom support racial preferences. Clearly, if he chose to reaffirm the traditional principle holding that all Americans should be treated “without regard to race, creed, or color,” he would be in the company of an impressive panoply of liberal heroes:
- Hubert Humphrey: “The meaning of racial or religious discrimination is perfectly clear. . . . [I]t means a distinction in treatment given to different individuals because of their different race, religion, or national origin.” The proposed and later passed Civil Rights Bill would prohibit procedures to produce or maintain ”racial balance” and also“would prohibit preferential treatment for any particular group,”
- Justice William O. Douglas: Every American, of whatever race, has “a constitutional right to have his application considered on its individual merits in a racially neutral manner.”
- California Supreme Court Justice Stanley Mosk: To allow preferential treatment based on race would be “the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone.”
It should not require great courage to reaffirm the “without regard” principle. After all, survey data has shown consistently and conclusively that substantial majorities of Americans support it. For example, in 2009 the Pew Research Center found that “just 31% agreed that ‘we should make every effort to improve the position of blacks and minorities, even if it means giving them preferential treatment.’ More than twice as many (65%) disagreed with this statement. That balance of opinion has fluctuated only modestly through the 22-year history of the values survey. ”
To pick just one more example (of many available), in 2013 Gallup found that “Two-thirds of Americans believe college applicants should be admitted solely based on merit, even if that results in few minorities being admitted, while 28% believe an applicant’s racial and ethnic background should be taken into account to promote diversity on college campuses.” A substantial majority of Hispanics, 59%, opposed racial preferences, as did even a plurality of blacks, 48% to 44%.
So I repeat my advice to Joe Biden: Run, Joe, run! And channel Hubert Humphrey!
I have to confess, however, that if I were a Democratic candidate I’m not sure I would have the courage to follow my own advice since the modern Democratic party, its activist base, and its money men have abandoned the “without regard” principle lock, stock, and barrel. I don’t know of a single Democrat holding or seeking national office, i.e., House/Senate members or candidates or presidential candidates, or even high state office, who are willing to oppose preferential treatment based on race. Mr. Biden no doubt remembers the “Lieberman lurch,” when, in order to be placed on the presidential ticket with Al Gore, Sen. Joe Lieberman had to humiliate himself and kowtow to Maxine Waters and friends by renouncing his own history of opposition to race preferences.
Nor do I mean to suggest that this fearful flight from colorblindness is limited to Democrats. I once proposed affirming the “without regard” principle to the more conservative of two candidates competing for a high state office in Virginia, and he flatly refused, pointing to the pillorying he would be exposing himself to by the mainstream press and various interest groups.
So, Joe, I wish you would do what I say — hell, you might even win by doing so! — even if in your shoes I might not have the courage to follow my own advice.
Alas, subsequent comments by Biden have forced me to retract my hope for Biden. See Say It Ain’t So, Joe.