Doug Bandow
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.
JWR contributor Doug Bandow is a senior fellow at the Cato Institute.
Comment by clicking here.
07/02/02: Teetering on the Democratic edge
06/25/02: Judicial litmus tests
06/18/02: Killer teeth?
06/11/02: Europeans defending whom?
05/24/02: Threatening pharmaceutical innovation
05/14/02: The war crimes fantasy
05/07/02: Paying a high price for befriending Saudi princes
04/30/02: The price of postal monopoly
04/23/02: The war on charity
04/16/02: The forgotten human right
03/27/02: Cuba's struggle to be free
03/20/02: How to defeat Cuban communism
03/12/02: Junk science, redux
03/06/02: Axis of hubris
02/27/02: Washington-style campaign reform: incumbent protection
02/20/02: The grand Enron morality play
02/12/02: Rebuilding what?
02/05/02: Succumbing to the terrorist temptation
01/29/02: Democrats for what?
01/22/02: The Iraqi question
01/14/02: Profiling frequent flyers
01/08/02: Trade, not aid
01/02/02: Treason by any other name
12/26/01: Preserving freedom in an unfree world
12/17/01: Dealing with terrorism's aftermath
12/10/01: Emerging friendships?
12/04/01: Uncle Sam: Insurer of last resort
11/28/01: Expanding the circle of trade
11/20/01: Free to be stupid
11/13/01: The meaning of compassion
11/07/01: Patriotic scoundrels
10/30/01: The coming postal raid
10/16/01: First, do no harm
10/12/01: Good news from a suffering land
10/04/01: Defending whom?
09/25/01: The wrong solution to the wrong problem
09/21/01: The price of terrorism
08/28/01: Uncle Sam's retirement scam
08/21/01: Canberra's quaint naivete
08/14/01: Uncle Sam's false fuel economy
08/08/01: The Clinton administration in drag
07/31/01: The high cost of government
07/24/01: Kill the campaign reform illusion
07/17/01: Do as I say, not as I do
07/11/01: Lawyers at play
07/05/01: Western blundering, Macedonian disaster
06/26/01: How best to honor Bill Clinton?
06/19/01: A maturing Europe?
06/15/01: Tell Beijing to mind its own business
06/06/01: Ukraine's boiling cauldron
05/31/01: Protecting privacy from Uncle Sam
05/22/01: America's Balkan quagmire
05/09/01: The Taiwanese flash point
05/01/01: Globalization serves the world's poor
04/24/01: Who's cheating whom?
04/10/01: The NCAA scam
04/03/01: Balkan stupidities
03/27/01: McCain doesn't want a 'risk for our country'
03/20/01: Dubious Korean alliances
03/06/01: Coercive patriotism
02/27/01: Bombing without end
02/20/01: A dose of misplaced outrage
02/13/01: Psst: Tax cuts for taxpayers. Pass-it-on
02/06/01: Bridging the unbridgeable gap
01/23/01: Left-wing demagoguery
01/16/01: The drug war problem
01/10/01: Politics and trade
01/03/01: Hope for liberty?
12/27/00: The debris of war
12/19/00: What's the rule of law for?
12/15/00: Ending silicone breast implant saga
12/05/00: Election may yield victor, but there are no winners
11/21/00: A Bush presidential mandate?
11/07/00: Exprienced Gore? Yeah, right
11/01/00: Interventionist follies
10/17/00: America's brightening prospects in Ukraine
10/11/00: GOP budget scandals
10/03/00: How a pharmaceutical 'crisis' was created
09/27/00: Clinton's empathy has helped nobody
09/13/00: AlGore's risky budget policies
09/05/00: Military readiness and Korean commitments
08/29/00: Let sleeping hypocrites lie
08/21/00: Targeting a journalistic pariah
08/15/00: European garrison for Kosovo?
08/08/00: Journalistic cleansing at the Boston Globe
08/04/00: Junk science on trial
06/22/00: Eternal vigilance is the price of liberty
06/15/00: The end of U.N. peacekeeping
06/07/00: The Clinton regulatory miasma
06/01/00: Administration stupidity, congressional cowardice
05/25/00: The silence of the international community
05/18/00: Protecting the next generation
05/11/00: Freer trade with China will advance human rights
05/04/00: How not to save the Constitution
04/28/00: American tripwire in Korea long ago disappeared: Why are we still involved?
04/18/00: Clinton administration believes the IRS is too gentle, wants more auditors