Jewish World Review July 9, 2002 / 29 Tamuz, 5762
http://www.NewsAndOpinion.com | "A minority of mean-spirited politicians and demagogues" have redefined the meaning of civil rights, equality and dignity, warns Julian Bond, chair of the NAACP. The answer, he says, is to help the NAACP "with media, organizing, voter registration, litigation, mobilization and coalition building."
Of course, Bond is upset because his opponents believe civil rights mean the equality of all people before the law. Bond and his allies, in contrast, exploit persistent feelings of white guilt to maintain an expansive racial spoils system. Preferences, like so-called affirmative action, are designed to deliver educational opportunities, government contracts and choice jobs to members of particular groups, irrespective of their personal backgrounds, characteristics or qualifications. The abuse of such systems is evident in the court case Grutter v. Bollinger.
The University of Michigan Law School gives preferences to blacks, Hispanics and native Americans. To skirt Supreme Court skepticism of racial preferences, Michigan claims that it is acting not to remedy past discrimination, but to attract diverse perspectives to campus.
The system is as arbitrary as was Nazi Germany's odious Nuremburg laws, directed against Jews. For example, Michigan's classification of Hispanics and native Americans of mixed parentage is entirely arbitrary, depending upon which parent school officials count.
Blacks, in contrast, are made black by a drop of African blood, no matter how distant. Ignored completely are other underrepresented groups. Southern and Eastern Europeans and Filipinos, for instance. All have suffered varying levels of discrimination. All would bring a unique perspective to class.
The federal district court tossed out Michigan's scheme as an obvious violation of the Equal Protection Clause of the Constitution and the 1978 decision in University of California v. Bakke. The appellate court reversed it by a 5-4 vote during an expanded en banc hearing. The ruling, in conflict with those of other circuits, might end up in the Supreme Court.
Dissenting Circuit Judge Danny Boggs ably dissected the majority opinion. He concluded: "Michigan's plan does not seek diversity for education's sake. It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration."
It is discouraging enough that five appellate judges played fast and loose with the Constitution to impose their personal vision. Equally discouraging is the fact that Chief Judge Boyce Martin, who wrote the majority opinion, played fast and loose with the court's rules to taint the result.
In an unusual appendix to his dissent, Judge Boggs noted that appeals are normally heard by three judges; the nine-member panel "was not constituted in conformity with ... this court's rules, or any other rule." First, Chief Judge Martin did not tell the rest of the court for five months that counsel had petitioned for an en banc hearing. In the meantime, the chief judge added himself to the original panel of judges ... instead of using random assignment, as prescribed by the rules. Only after the retirement of two judges, and eight days before the scheduled court hearing, did he circulate the en banc petition.
The chief judge's deceptive machinations may have generated a panel more in line with his own views. Concluded Judge Boggs: "Under these circumstances, it is impossible to say what the result would have been had this case been handled in accordance with our long-established rules. The case might have been heard before a different panel, or before a different en banc court."
Liberal judges apparently hold court rules in the same contempt with which they treat the Constitution. The chief judge simply ignored Boggs's challenge. But joining Martin was Judge Karen Nelson Moore, who chided: "In publishing their 'Procedural Appendix,' I believe that Judge Boggs and those joining his opinion have done a grave harm not only to themselves, but to this court and even to the Nation as a whole."
Of course, a thief believes that exposing his activities will undercut general confidence in public safety. It is the victim's fault.
The only way to stop officials, such as Chief Judge Martin, from taking advantage of their positions of trust is to expose them.
For doing so, Judge Boggs deserves thanks, not censure. Civil rights, equality and dignity are vital concerns of a society that aspires to be good as well as free. But political activists and judges alike are working constantly to distort these concepts for their own ideological ends. Chair Julian Bond, Chief Judge Martin and others like them are pushing America ever further away from the ideal of a color-blind society.
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