affirmative action

Recent polls show the support for SCOTUS nominee Sonya Sotomayor is rather soft, with a small plurality supporting her confirmation.

I suspect that much of the general public became aware of the Ricci v. DeStefano decision, and favored the plantiffs, who prevailed before the Supreme Court.

Hopefully the early, over-the-top rhetoric from Rush and Newt doesn't deter Republican senators from doing a thorough job of ascertaining Judge Sotomayor's attitudes as related to multiculturalism, the second amendment, and judicial activism.

The public will accept the Republicans doing a "teach-in" on the role of the Supreme Court. And while it may be impossible to stall this nominee given the present margin of Senate control, we absolutely need to set a marker for any future nominee and meekly saluting him or her won;t do. 

Yesterday's decision by the Supreme Court to reverse Sonia Sotomayor's ruling on the New Haven firefighters case was undoubtedly a blow (albeit, not fatal) to the woman who aspires to sit on the nations' highest court. The Philadelphia Inquirer offers this viewpoint:

“Yesterday's ruling that white New Haven firefighters were unfairly denied promotions because of their race became an instant talking point for foes of Sotomayor.  "She was among three appellate judges who had rejected the white firefighters' claim of discrimination.  "Conservatives argued that the appellate decision showed her to be a judicial activist who allows biases - particularly her backing of affirmative action policies - to taint her judgment.”

As the article goes on to state, this ruling does not seem to be the death knell for Sotomayor, however the ruling puts a spotlight on one of politics' dirty secrets: Race. Even while Barack Obama and his family occupy the White House, the politics of race has become a double edged sword for the administration.

During his presidential campaign, critics were silenced by the accusation, or fear of the accusation, of being a racist, even as Obama used his background numerous times to debunk claims that he was “not black enough” from minority voters. Often, Republicans, long saddled with the racist label, were stunned into silence by the often vicious attacks from the left. 

Another example of racial politics occured during the press conference to announce Judge Sotomayor's nomination to the Supreme Court. While there have been calls from such organizations as the National Council of La Raza to focus on Sotomayor's judicial record, the White House chose to attempt to batter the public with feelings of guilt. There was:

“...the Inspiring Icon of the White House narrative, the Latina born in the Bronx, raised by her widowed mom who sacrificed everything for her daughter. With smarts and guts, Sotomayor graduated from Yale Law School, only to have her impeccable qualifications questioned by a prospective employer who'd been conditioned by race-based government policy to wonder if she'd made it that far only because of her Hispanic heritage.

"She's rightfully a beacon of hope to every Latina mother and daughter, from the Bronx to Chicago's Little Village and on to East L.A. The girls in the neighborhoods can see Sotomayor and aspire to greatness.

"But the other side of the story also speaks to racism. Not the knuckle-dragging kind shrieked by ignorant barbarians. That's easy to condemn, whether the knuckles are white, black or brown.

"Yet there is another kind. The media don't recognize it as racism and instead lard it with virtue, calling it by its Orwellian name: affirmative action. Yet many know it by what it is: government-backed racial preference.”

As an African American mom twenty plus years Sotomayor's junior, I lack the richness of her experiences, but not my own. Few people of color, or even those without a substantial income, do not have some type of compelling story. Poverty transcends race and background and many share a kinship born of struggle. However, that does not mean that special treatment or quotas are in order. Independent Columnist Michael Gaynor sums up this point well.

“It has been reported often that Judge Sotomayor graduated from Princeton College summa cum laude and was an editor of the Yale Law Journal, each a very impressive accomplishment, if achieved on the basis of merit.   "But, when Judge Sotomayor called herself 'the perfect affirmative action baby' and claimed inability to define merit, what was she really saying about her fitness to be a Supreme Court Justice?  "Did she mean that she was graded and judged less demandingly at Princeton and Yale and that was a good thing that paved her path to America's highest court?  "Is she 'perfect' for the position, or necessarily not up to par?  "Personally, I prefer to choose professionals, such as surgeons and dentists, based solely on merit.  "Likewise, I think that race-based grading and affirmative action Supreme Court Justices appointments are counterproductive indulgences better avoided.”

The inherent racism in the whole approach of the administration regarding nominations and attempts to silence critics have actually done more harm to minorities in general... Read more here.

I'm not so concerned about whether or not the Right or the Left win on their issues; I'm concerned about proper Constitutional interpretation, judicial activism and the "presumption of liberty" vs. the "presumption of Constitutionality" when it comes to judicial review. So, from a liberty-minded perspective, here are some serious questions that should be asked of the SCOTUS nominee that replaces David Souter. (Thanks to my co-worker, Joe Henchman, for help on these.)

ONE: Currently, the Supreme Court takes less than 100 cases per year, leaving many important legal questions undecided. Would you be in favor of increasing your caseload so that many Constitutional disputes can be resolved?

TWO: In the University of Michigan affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger, it was ruled that while racial quotas could not be set, race could still be used as a factor in admissions. Then-Justice Sandra Day O’Connor said that affirmative action may not be needed in the near future. Do you think it is appropriate for the Court to determine when a policy is no longer necessary?

THREE: The issues of property rights and eminent domain have been somewhat resolved in recent times. Do you believe that Kelo v. New London was decided correctly?

FOUR: The Second Amendment has also been a topic that the Court has recently taken up. Do you believe that District of Columbia v. Heller was decided correctly?

FIVE: There is always debate over the balance between government power and individual rights. When it comes to state laws that allegedly violate individual rights, to what extent should the Court give deference to that state law?

SIX: Since the 1938 decision in United States v. Caroline Products Co., the Court has only enforced equal protection in three specific categories: enumerated rights, protection for minorities and protections in the political process. Is it proper for equal protection to be limited to these categories, and if so, are these categories permanent?

SEVEN: When it comes to Constitutional interpretation, the Court has seemed to adopt “tiers of scrutiny” in various First Amendment, equal protection and other contexts: strict scrutiny, rational scrutiny, intermediate scrutiny, etc. Is it proper for the Court to have different levels of scrutiny for different cases? If so, why?

EIGHT: The federal government influences state policy in many ways by attaching conditions to federal funding. Is there a point at which a condition would be unconstitutional, even though acceptance of funding is at the state's discretion?

Barack Obama may have thrown the controversial Reverend Wright under the proverbial bus, but Wright’s message still resonates in his comments. In the upcoming issue of Essence Magazine, Barack Obama was asked about race in America, and his reply seems somewhat different than what we have heard in the past:

“I don’t believe it is possible to transcend race in this country. Race is a factor in this society. The legacy of Jim Crow and slavery has not gone away. It is not an accident that African-Americans experience high crime rates, are poor, and have less wealth. It is a direct result of our racial history.”

Certainly the legacy of our nations racial division has not gone away, but does that mean it will continue to plague our nation? It is because of this lingering legacy that the House of Representatives deemed it necessary to officially apologize for the actions of our ancestors, in the process reminding African Americans of their victim status. When Obama speaks of high crime rates in the African American community being a result of our racial history, this also reminds African Americans of their victim status, with the exception that those crimes are committed by their own community.

When Obama spoke back in March on race he told Americans “But I have asserted a firm conviction — a conviction rooted in my faith in God and my faith in the American people — that working together we can move beyond some of our old racial wounds, and that in fact we have no choice if we are to continue on the path of a more perfect union.”

Presumably his faith in the American people has since floundered, as he now does not foresee our country healing those racial wounds. Obama continues to see a country divided on race while denying that it is our efforts to transcend race which continue to make race a factor. Issues such as affirmative action, only enhance the racial division in our country by declaring to minorities they are somehow inferior and in need of additional assistance in order to succeed.

If we are to ever transcend race we must do so by first looking past race. Efforts should not be made to improve poverty in the African American community, nor the Hispanic community, as Americans we should all be one community. Those efforts should instead focus on improving poverty, where ever it may lie. Similarly with crime, efforts should be made to reduce crime nationwide, not specifically in communities of color.

Unlike Senator Obama, the ills of this world such as poverty, crime, and disease, are color blind. Only when we as a people disregard skin color as an issue, will we truly be able to transcend race. It appears Senator Obama is not ready to do that.

Crossposted at Constitutionally Right

Once again, Barack Obama is trying to defend himself against attacks that don't exist. Many, including myself, documented this back in late June. Yes, Barack, we know that you don't look "like all those other presidents on the dollar bills," but you're trying to play both sides of the race card. Chales Hurt of the New York Post put it best today:

This racial calumny is completely unfair, diminishes his own campaign, and certainly is the worst possible way to win over those blue-collar white Democrats in Ohio and Pennsylvania who picked Hillary Rodham Clinton over him in the primary. Barack Obama should ... quit this whining and fantasizing about Republicans making fun of him because he doesn't look like George Washington.

So it's no surprise that Barack Obama has publicly stated his opposition to Arizona Proposition 104, the Arizona Civil Rights Inititiave. (See my previous post on Ending Racial Preferences This November.) Ward Connerly of the American Civil Rights Institute has been sponsoring similar campaigns for initiatives in Colorado and Nebraska. They have been successful in California and Michigan, but came under fire in Missouri this year. Connerly responds to Obama's opposition in the National Review today:

What he fails to say is that it is not only “communities of color” that experience hardships and difficulties. Nor does he say how, as president, he can achieve his stated goal of uniting the American people while asking those not “of color” to look the other way when discriminated against. If Obama is truly concerned about divisiveness, why didn’t he speak out when his foot soldiers at ACORN were taking pride in blocking our petition circulators from gathering signatures in Missouri? Their despicable tactics of harassment give new meaning to the term “divisive.”

In a response to my previous post, Jeff Roberts wanted to see Obama take a position on this. Jon Sandor lamented that McCain probably woulnd't take a position. Not to fear! John McCain has come out in support of this initiative, and should go to Nebraska, Colorado and Missouri to support their causes.

When building a farm team, it's not only important to identify potential leaders; it's important to identify issues that can create sustainable majorites in critical states. This issue, along with bread-and-butter economic issues at the local and state level, have to be well-analyzed. And making the presidential candidates take positions on these issues that have a more direct impact with folks on Main Street, instead of focusing solely on national issues, is important to do.

Thoughts?

Ballot Initiative Alert from AZ, CO, and NE:

Three states have certified inititiaves for the November 4th ballot that would ban racial preferences and ethnic discrimination. Arizona, Colorado, and Nebraska have "Civil Rights Initiatives" on the ballot that would end preferential treatment based on race for public employment, public education, and public contracting. Predictably, lawsuits have been filed by affirmative action proponents to keep these measures off the ballot.

The American Civil Rights Institute, founded by Ward Connerly and Dusty Rhodes, have sponsored and helped set up these statewide campaigns in Arizona, Colorado, and Nebraska. They have been similarly successful in California, where it passed with 54% of the vote in 1996, and Michigan, where it passed with 58% of the vote in 2006.

Visit this blog which promotes Super Tuesday for Civil Rights.

A Wall Street Journal op-ed from late April by Harry Stein makes an interesting point:

"Though the racial-preference ballot measures are officially nonpartisan, they stand to make a dramatic impact on the fall campaign. With the question of racial preferences effectively nationalized by its presence on multiple state ballots, neither party's presidential candidate will be able to evade the issue. While this might pose a dilemma for Mr. McCain -- who, like most Republicans, has long shied away from the topic and might worry about jeopardizing Hispanic support -- it could be catastrophic for Mr. Obama. As Mr. Connerly says, 'This is a guy who's tried awfully hard for a long time not to appear what he is -- just another left-winger who supports preferences.'"

I'm not sure that Stein's electoral analysis works. Did the marriage amendments and ballot initiatives create increased social-conservative turnout in certain states in the past to help presidential and statewide congressional candidates? Sure. I'm not so sure that the civil rights initiatives will do the same, because it will probably galvanize both sides of the affirmative action crowd equally. But if Stein's analysis is correct, helping to compete in a swing state like Colorado and securing a traditionally red state like Nebraska where Obama is playing small-ball for it's divided electoral votes.

In response to the multiple posts on racism and Jesse Helms: ending racial preferences is something that could be a galavinizing issue for right the next generation of both "Spring-Aheads" and "Fall-Backers", as described by John Zogby. I believe that the next generation of "super-voters" of all ethnicities, both over- and under-represented, will want to move beyond affirmative action.

Public institutions of higher education have been the focus, but the initiatives go in the right direction by targeting public employment and contracting. When it comes to education, socioeconomically-based preference programs might be the answer. Even some African-Americans are starting to support the end of racial preference programs, like Professor Stephen Carter of Yale, who said the following in a NTY op-ed on Sunday:

"University affirmative action programs, whatever their benefits, are no remedy for the problems of the black poor. Perhaps this is why Barack Obama has questioned publicly whether his children should benefit from them and also why leading voices on the black left — Cornel West comes to mind — have proposed that college admissions programs give preferential consideration based on economic class."

BOTTOM LINE: Support the Civil Rights Initiatives in AZ, CO, and NE. And start thinking about how the next conservative movement can create a broad coalition that moves beyond race.

- MM

As I make my first splash into The Next Right, I'm very excited that there are a group of people willing to discuss and debate what's next for the conservative movement. I first became interested after reading a May 9 David Brooks op-ed in the NYT, where he says it is "necessary but insufficient" for the right "to talk about individual freedom" alone.

A little bit about myself: I'm born and raised Alaskan of Korean descent. After graduating from a mucky-muck liberal school in Massachusetts, I've worked in the policy, campaign, corporate, and public relations worlds. I have a high affinity for resource and environmental policy, all things Web2.0 (and Campaign 2.0), and communicating complicated science and economic policy to broader audiences.

But one of my greatest passions is the issue of race, which also leads to issues of immigration, assimilation, affirmative actions, social justice, etc. It irks me that the elitist liberal media has annointed Barack Obama as a "post-racial" candidate. (By the way, I have no idea what the working definition of "post-racial" is; when the media gets into the meta-sociological, it always turns out to be a disaster.)

I believe that The Right has a interesting opportunity to capture the sentiments of those who want to move beyond race, into a near color-blind society, by using conservative principles of old. I tell everybody that one of the top reasons I am a registered Republican is the fact that The Left is interested in what I can contribute as a Korean-American or Asian-American; The Right is simply interested in what I can contribute as an American.

Getting to this concept that "Americanism" is about belief in a set of principles, and not a loyalty to past blood, or past grievances, is something that I touch on in an op-ed that I penned about five years ago when the Supreme Court came out with their contradictory decisions on the Michigan affirmative action cases, which I've posted below. I look forward to more opportunities to talk about this and other issues.

On Monday, the Supreme Court upheld the University of Michigan Law School's affirmative action program due to its compelling interest for getting a "critical mass" of underrepresented minorities. Simultaneously, they struck down the undergraduate process, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to all underrepresented minorities. Many arguments have been tossed around from proponents and opponents of affirmative action. As an opponent, I believe there is a better alternative to racial preferences: socioeconomic affirmative action.

Educational disadvantage today is more clearly a product of economic status, not race. Race-based affirmative action came about because many colleges purposely refused African-Americans.

Racial preferences were intended to be a temporary solution. Now, people are no longer disadvantaged because of direct racial discrimination. Rather, many students carry the burden of having parents with low incomes who cannot afford test preparation books, private college admissions counselors or tuition for upper-level private schools.

Having universities admit people based on their success in spite of their circumstances brings in students of all economic backgrounds to receive the opportunity of a college education, making for a less restrictive system.

I believe socioeconomic affirmative action would be constitutionally preferable to racial preferences. The Michigan law school contends that a "critical mass" of underrepresented minorities is necessary to obtain educational benefits that flow from a diverse student body. But they never explained why a significant number of students from one minority group are needed in order to achieve a "critical mass" over individuals from another minority group.

Chief Justice William Rehnquist stated it "would amount to outright racial balancing, which is patently unconstitutional." Therefore, the "critical mass" argument is a constitutional slippery slope that could lead to free rein on use of race in admissions. Justice Sandra Day O'Connor stated that they expect the law school "to terminate its race-conscious admissions program as soon as practicable ... [and] the use of racial preferences will no longer be necessary."

Because we live in a free-market society, there will always be a wide range of income distribution. At that point, a better method of admitting students is by looking at the amount of success students have garnered within the limited resources they possess. This is a much better indicator of achievement than any constitutionally questionable race-based system.

Exposure to different social classes is just as, if not more important, than exposure to different races in America. I believe socioeconomic affirmative action plans can still bring in many different ethnicities.

But more importantly, race-based admissions bring with them an embedded psychological racism. In a world where direct racial discrimination almost no longer exists, there are not only white students who, without notice, unfortunately look at minority students making the assumption that they were admitted only because of racial preferences. Many individuals within underrepresented minorities also think that they were admitted into a certain college not because of their laurels but because of the use of their race as a "crutch" on which to climb the academic latter, a type of self-racism.

Helping different social classes receive the same educational opportunities can be a way to achieve societal maturity. Universities already have mechanisms to make socioeconomic affirmative action work, such as financial aid programs for those who are accepted and do not have the resources to pay full tuition fees. To get rid of this psychological or self-racism, socioeconomic affirmative action can raise the level of respect people have for each other's success in spite of their circumstances.

Ultimately, socioeconomic affirmative action programs are a more balanced and constitutional method of guaranteeing students of all backgrounds the opportunity to achieve as much as they possibly can.

As a student with Korean heritage, I am proud to represent my minority group and believe in the importance of diversity. But as an American citizen, I also believe in the true egalitarian view that everybody must be given the opportunity to achieve their American dream. Socioeconomic affirmative action programs can give many disadvantaged students that chance.