Overt Racism In The U.S. Supreme Court-- Well, Sure... Scalia

Wednesday the Supreme Court heard oral arguments in Fisher v. the University of Texas at Austin, a case challenging the right of state universities to use race-based affirmative action in their admissions policies. The most right-wing of the Justices, Antonin Scalia-- who will be 80 in March and has increasingly been having episodes of senility-- launched into a racist rant that was more in line with certain thinking back in the 1930s when he was growing up. "There are those who contend," he asserted, "that it does not benefit African­ Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a slower-­track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas... [but from] lesser schools where they do not feel that they're being pushed ahead in classes that are­­ too fast for them." Later he added that "I'm just not impressed by the fact that ­­ that the University of Texas may have fewer [minority students] Maybe it ought to have fewer."

2015? Hello?

Donna Edwards, a brilliant congresswoman running for the open Senate seat in Maryland-- if she wins, she will be the first African-American senator from that state-- responded to Scalia's bizarre and offensive statement with a letter directly to him. She invited him to join her in a tour of Historically Black Colleges and Universities in Maryland. She told her constituents that "Today’s remarks by Justice Scalia were offensive, completely unacceptable, and have no place in our legal discourse. It is shocking that such abhorrent comments about African Americans were made by a U.S. Supreme Court justice. I would like to give Justice Scalia the benefit of the doubt that he spoke out of naiveté, and that is why I invited him to tour Historically Black Colleges and Universities. Last year I traveled to each HBCU in Maryland, seeing firsthand the incredible scientific work being done there by students and faculty. I hope Justice Scalia will accept my invitation and I look forward to our tour in the near future.”

Below is the fill text of the letter she sent Scalia. If you'd like to help her grassroots Senate campaign, please consider making a contribution here.

Justice Antonin Gregory Scalia
Supreme Court of the United States

One First Street, NE

Washington, DC 20543

Dear Justice Scalia,

I am writing to you regarding the remarks you made earlier today while hearing the Fisher v. University of Texas at Austin case. You are reported to have said that “most of the black scientists in this country do not come from the most advanced schools” and benefited from a “slower track.” To say that I am greatly disappointed in your uninformed comments is a gross understatement. I found them offensive, completely unacceptable, and believe they have no place in our legal discourse.

As someone who toured Maryland’s Historically Black Colleges and Universities (HBCU) in March 2014, I invite you to accompany me to Bowie State University, Coppin State University, Morgan State University, and the University of Maryland-Eastern Shore. Seeing their facilities in the Science, Technology, Engineering, and Mathematics (STEM) fields and talking with their leaders, faculty, and students first-hand, I know you will gain insight and see how they are producing highly qualified graduates needed to help maintain America’s national security and technological competitiveness in an ever-changing 21st Century economy.

For example, Dr. David Wilson is the 12th president of Morgan State University and has more than 30 years of experience in higher education administration. Dr. Wilson holds four academic degrees: a B.S. in political science and an M.S. in education from Tuskegee University; an Ed.M. in educational planning and administration from Harvard University and an Ed.D. in administration, planning, and social policy, also from Harvard. He came to Morgan State from the University of Wisconsin, where he was chancellor of both University of Wisconsin Colleges and the University of Wisconsin–Extension.

Morgan State’s many recent highlights include procurement of the university’s largest-ever research contract, a $28.5-million, five-year contract from NASA; inclusion of Morgan State as one of the recipients of a $129-million energy innovation research grant to Pennsylvania State University; the launch of an aggressive initiative to maintain excellence in customer service and improve the information technology infrastructure on campus; new construction on campus valued at $234 million; signing of articulation agreements with several two-year colleges, bringing Morgan State bachelor’s degrees to their campuses; approval of Morgan State’s first off campus baccalaureate program by the State of Maryland; establishment of Morgan State’s first online degree program; a significant expansion of study abroad opportunities for Morgan State students and the continuation of Morgan State’s tradition of producing Fulbright Scholars.

I look forward to hearing back from you shortly.

Sincerely,

Donna F. Edwards

Coming up at the Supreme Court: "The Revenge of the Conservatives"?

They're ba-a-ack!

by Ken

Are you ready for it, constitutional-law fans? Yes, it's Ian Millhiser's fall preview. "Next Monday," ThinkProgress's legal maven noted in his post this morning ("Everything You Need To Know About The Big Supreme Court Cases The Justices Will Hear This Term"),

the Supreme Court will gavel in its newest term and the justices will take the bench for the first time since last June, when the conservative Roberts Court handed down a string of uncharacteristically liberal decisions. This term, however, liberals will need to swim upstream, with the justices poised to consider a number of issues — unions, voting rights, race, and abortion — where the members of the Court’s conservative bloc have not often show a penchant of heterodoxy.

The latter link is to a July post of Ian's called, ominously, "Coming Next: The Revenge Of The Supreme Court’s Conservatives," in which he ventured that "it is unlikely that liberals will feel the same way about the next Supreme Court term as they do about this recently completed one." He reminded us of his basic argument about last term, which left liberals "feeling pretty good": that "many of these outcomes most likely stem from conservative overreach -- litigants looking to disrupt progressive legislation brought long shot cases because they were encouraged by the Roberts Court’s record of conservatism and decided to 'press their luck.' "

Based on the cases the Court has already accepted for this term, and rumblings about other prospects, Ian doesn't see that happening again. In fact, trying to match the issues at hand with the Court's recent record, he's not optimistic at all.

For Ian's full thinking, check out the post. Here are the issues he's looking at:

• "Defunding Unions"

The issue is so-called "right to work" laws, under siege nationwide. But the case, Friedrichs v. California Teachers Association, deals not with them as such but as the workaround unions have used: "fair share" or "agency" fees, by which all those who benefit from unions' collective bargaining can be made to pay a share for the costs of it, whether they're union members are not, preventing them from getting a totally free ride on the dues payers' backs.

many Court-watchers believed that the justices would declare right-to-work laws mandatory in public sector unions in 2014’s Harris v. Quinn. At oral argument in that case, however, Justice Antonin Scalia expressed concerns that the plaintiffs’ legal theory, which seeks to subject workplace bargaining to First Amendment scrutiny, could create serious problems for government managers. In the end, Harris wound up imposing a right-to-work regime on home health care workers, but it left the rest of the public sector workforce unscathed.

The biggest question in Friedrichs, in other words, is whether the Court’s relatively modest holding in Harris is a sign that at least one of the Court’s conservatives does not want to go as far as the Friedrichs plaintiffs wish to take them, or whether these justices simply decided that it would be best to make a radical shift in America’s labor and First Amendment law incrementally through several decisions. In any event, it appears that the best hope of many unionized workers is Justice Scalia. That’s never a happy position for a worker to find themselves in.

• "Free House Seats For White People"

The case is Evenwel v. Abbott, "which seeks to shift congressional representation away from communities with large numbers of immigrants." You'll recall that the allotment of congressional districts to the states is based, per the 14th Amendment, not on the number of eligible voters but on "the whole number of persons in each state." But that doesn't necessarily mean, this suit argues, that the congressional districts should be divvied up based on the same consideration.

So Texas, which has a significant number of largely Latino non-citizens, receives extra representation in the House for these non-citizens, even though they cannot vote.

When Texas drew its district lines, it complied with one person, one vote by drawing districts that had roughly equal population — even though this meant that some of those districts (typically, the ones with fewer non-citizens) have more voters than others. The plaintiffs in Evenwel want the Supreme Court to require states to draw districts with equal numbers of voters, instead of residents — so non-citizens will no longer count for purposes determining district populations. As a practical matter, this would shift representation away from Democratic-leaning communities with large numbers of Latinos to other communities that are more likely to support Republicans.

If the Evenwel plaintiffs prevail, in other words, Texas will continue to get extra seats in Congress for its large non-citizen population, but white Republicans will play a disproportionate role in selecting who occupies those seats.

Ian points out, though, that this case may not be quite so ominous. Unlike most cases that the High Court accepts based on a minimum of four votes in favor of acceptance, "this case came up through the Court’s mandatory jurisdiction, meaning that the Court had to at least give it cursory review. The fact that Evenwel will instead receive a full hearing, however, is not necessarily a sign that a significant faction within the Court is eager to use this case to shift power towards white voters."

• "Affirmative Action"

"One of the biggest surprises of Chief Justice John Roberts’ tenure," Ian writes, "is that the Court he leads has not struck down affirmative action on his watch." And the case is one that's well-known both to the justices and to Supreme Court groupies, Fisher v. University of Texas." When it first came before the Supremes, the general assumption was that the end was near for affirmative action.

Instead, the Court’s first Fisher opinion reemphasized [Justice Anthony] Kennedy’s concern [voiced in his 2003 dissent in Grutter v. Bollinger, in which the Court upheld limited affirmative action] that racial affirmative action programs are subject to the highest level of constitutional scrutiny, and returned the case to the conservative United States Court of Appeals for the Fifth Circuit to reconsider Texas’s program.

A year later, the Texas admissions program dodged another bullet when it was upheld again by a divided Fifth Circuit panel.

Now, however, the Fisher case is before the justices again. The question this time around is whether one or more members of the Court’s conservative bloc flinched the first time because they have a lasting concern about striking down this particular program, or whether they simply expected the Fifth Circuit to do so for them. If the later is true, expect them to take matters into their own hands.

Since Grutter was decided, Ian notes, Justice Sandra Day O'Connor, who wrote the decision, has been replaced by the knee-jerk far-right-wing Sammy "The Hammer" Alito. Couple that with "Slow Anthony" Kennedy"s on-the-record problems with affirmative action, and it looks like this could be it.

• "The End of Roe?"

Looming over the entire term are at least two major reproductive health cases that the justices are very likely to agree to hear, even though they have not yet done so. The first case asks whether states can enact sweeping restrictions on abortion so long as they dress them up as sham health laws that appear, on the surface, to do something to protect women’s health. The second is a follow up to Hobby Lobby which asks whether religious objectors can refuse to comply with rules promoting birth control access that literally requires them to do nothing more than fill out a form asking for an exemption from the law.

Both of these cases are discussed at greater length, in addition to another major reproductive rights case that the Court could potentially agree to hear, at this link.

Again, you'll have a better idea of what you'll find at the link of you know the title of the post Ian is directing us to here: "How The Supreme Court Could Destroy Reproductive Rights In One Term."

Getting the picture? It could be a rough ride, this Supreme Court term.

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Your Supreme Court at work and play -- as same-sex marriage slips through the portals of privilege

-- from NYTimes.com's "Afternoon Update"

"Today's Supreme Court decision is a victory for all Americans, and brings our nation one step closer to the promise of equality and justice for all. The DOMA decision ensures that married gay and lesbian couples are recognized by the federal government, and that their families receive equal treatment in the eyes of the law. There should be no more discrimination based on where you're from, what you look like, or who you love. Today's DOMA decision is a historic step in the fight for equality. The federal government must ensure that no one is degraded or demeaned by the law, and that all couples receive the legal recognition and respect that they deserve."

-- Florida Rep. Alan Grayson, in a statement today

"Today's rulings are a major step forward for the country, but for Floridians they fall short of justice and are more than anything a call to action. For those of us who live in states like Florida where our marriages are still not recognized, today's decisions are a reminder that we cannot wait for justice to be handed to us, we are going to have to get engaged and fight. . . .

"While Florida couples who marry elsewhere will receive some federal benefits, unfortunately many federal protections related to marriage are based solely on whether the marriage is recognized by the state in which the couple lives. Today our rights as Americans are not based on our shared citizenship, but upon our geographic location. . . ."

-- Equality Florida Executive Director Nadine Smith, in
a statement today (Nadine issued a video "call to action")

by Ken

A historic day, yes, but when you break it down, and fit together the pieces of the other decisions the Supreme Court has announced in its end-of-term festivities, it's all recognizably our hard-right-wing Roberts Court at work, dragging the law back into the Dickensian heyday of the Industrial Revolution, if not the glory days of the Spanish Inquisition.

Earlier today Howie wrote about yesterday's ghastly Supreme Court voting-rights debacle at the Supreme Court's end-of-term festivities, and homed in on the five bozos I described on Tuesday as far-right-wing-stooge (FRWS) justices -- and specifically how they slithered their way onto the High Court, with often-inconsequential opposition. Crikey, these are life forms that have no business sitting on any bench that isn't bolted down in a park.

I would never say that I could have predicted how the major decisions would come down. The way I argue it is that once they do, we can usually see the theatrical hand orchestrating it all. So, for example, on Monday we got the seemingly moderate decision on affirmative action -- "moderate" in that contrary to the expectation of many of us, the majority didn't shitcan affirmative action altogether. Justice Scalia left no doubt that he would have been happy to do so, and my assumption is that there would have been four votes to do so. I'm guessing, though, that try as FRWS justices might, they couldn't get a fifth vote for that. What we got instead was a seeming "unity" ruling, a 7-1 remand, sending the case back to the lower court for a closer look, to make absolutely sure that there wasn't any unallowable racial-preference funny business going on. Naturally, those judges have been put on alert to look really, really hard -- would anyone care to bet what they're going to find?

The message was pretty clear to the state of Texas, which immediately announced that for the next election it's putting into effect the election revamp it passed in 2011 designed to screw voters the right-wing establishment doesn't like out of their right to vote. Let's assume that the Supremes' FRWS Five aren't total morons (I'm not entirely sure in a couple of cases, but let's give them all the benefit of the doubt), and know that for all the right-wing screeching about "voter fraud," there has been no indication of any such thing happening, whereas dating back at least to the stolen presidential election of 2000, Republicans have been devoting more and more resources and time to election-stealing, and seizing control of the voter rolls has been a principal tool. Most of its strategies to date have been anywhere from probably to flagrantly illegal, but look here now, we control the law!

Which is where Justice Scalia's ruling in Arizona v. Inter Tribal Council of Arizona takes a turn for the comical. The issue, you'll recall was the illegality, according to the 7-1 majority, of Arizona adding a requirement while using a federal form. Uh-uh, said our Nino, you can't do that. And "if a reader of the Scalia opinion stopped at the top of page 13," wrote ScotusBlog's Lyle Denniston, "the impression would be very clear that Congress had won hands down in the field of regulating federal elections."

But from that point on, there is abundant encouragement for what is essentially a states' rights argument: that is, that the states have very wide authority to define who gets to vote, in both state and federal elections.

On the particular point at issue in this case -- Arizona's requirement of proof of citizenship before one may register to vote or actually vote -- the Scalia opinion said that a state was free to ask the federal government for permission to add that requirement. And, Scalia said, if that doesn't work — either because the federal agency that would deal with such a request is either not functioning or says no -- then a state would be free to go to court and make an argument that it has a constitutional right to insist on proof of citizenship as an absolute qualification for voting, in all elections.

The opinion seemed to leave little doubt that, if Arizona or another state went to court to try to establish such a constitutional power, it might well get a very sympathetic hearing, because that part of the Scalia opinion laid a very heavy stress on the power of states under the Constitution to decide who gets to vote.

And again, since Justice Nino isn't a moron, he surely knows full well that the agency to which Arizona would make this request is completely crippled by virtue of having no members, thanks to the Republican philosophy of non-governing: blind obstruction. So Arizona would get no answer to such a request, would go back to court, and . . . well, you get the idea. Ha ha ha!

What's more, in the process we get to see Justice Nino being, it appears, unpredictable. Mmm, no, that's just an illusion. But I think a not entirely accidental one. The FRWS Five seem to have become a lot more sensitive to the optics of their shredding of the Constitution and constitutional precedent, which for a number of frightening years has been unapologetic. Note, for example, that in the voting-rights decision, Chief Justice Roberts essentially blamed Congress for screwing up, failing to come up with constitutionally acceptable criteria for subjecting states and localities to Justice Dept. scrutiny of their voting procedures. Of course in the decades that the Voting Rights Act has been in force, and in all the times it has been reauthorized by Congress, nobody ever told them that the existing criteria were unconstitutional. (To which I assume the Chief would answer, "Well, nobody asked me!") And once again, the Chief, not being a moron, knows full well that at present there isn't the slightest possibility that Congress could rise to the occasion, because the House is effectively controlled by the kind of people who love the idea of being able to exclude people they don't like from the voting rolls.

Once again, the message to the states is: Discriminate, baby, we've got your back!

Note too how the voting-rights case, Shelby County v. Holder, was neatly sandwiched between the "moderate" non-eradication of affirmative action and today's decisions in the two same-sex-marriage cases. I am prepared to give the Court credit for coming right out and declaring Section 3 of DOMA unconstituional. That's the one that has prevented any federal agency from extending any marital benefits to same-sex couples, and it was nice to have a relatively unequivocal declaration that this is an unconstitutional form of discrimination.

That was all that was needed to decide the case, and traditionally the Supreme Court doesn't rule any more broadly than is needed to decide a case. Of course this is a tradition that the Roberts Court has regularly trashed, since going beyond what's needed to decide a case has been one of its favorite hobbies. In fact, the opportunity to do so has frequently seemed part of its reason for taking certain cases. In this case, though, it means that while the federal government is going to have a hard time going foward treating parties to a same-sex marriage differently from parties to an opposite-sex one, it doesn't mean that same-sex couples have been found to have any inherent right to the institution of marriage. If they're legally married, the ruling says, they have to be treated the same as any other couple that's legally married. In addition, neither the case nor the ruling required the justices to deal with the right of states to refuse to recognize other states' same-sex marriages -- that's protected in Section 2 of DOMA, which hasn't yet been touched.

But even in the matter of the DOMA rejection, as those NYT article blurbs up top suggest, the Court has more than anything followed the trend taking hold in the country. Remember that when same-sex marriage was finally authorized in New York State, a lot of important support, financial and otherwise came from Republican businesspersons. The business community has indeed been grasping that homophobia is increasingly "bad for business." It makes it harder to recruit qualified LGBT candidates, and it makes it hard to sell to LGBT consumers and straight consumers who understand the issue at stake. Go back to Rep. Alan Grayson's statement at the top of the post: "Today's Supreme Court decision is a victory for all Americans." There's someone who gets it, and getting this has been spreading to more and more of the country's mainstream.

So again, give the Supremes credit, but not that much. And in the Prop 8 decision, while the result will be to reinstate the District Court ruling that Prop 8 is just plain unconstitutional (and not merely at odds with the California state constitution, as the Ninth Circuit Court of Appeals had argued, since it took away a right -- one that had been established by the courts -- for no reason except to discriminate against LGBT folk), and same-sex marriage is clearly going to be legal in California again, but the ruling is unlikely to have any impact outside California. It's conceivable that the District Court ruling could be cited in other jurisdictions, but federal District Court rulings have no automatic application anywhere else.

And so the Roberts Court may have bent a little in its mission to uphold the rights of the privileged and white, but it didn't really bend all that much. It certainly didn't break.

I don't suppose this is terribly diplomatic, but then, it's aimed at people who have never had any impulse toward diplomacy in dealing with us. Like Michele "Mighty Mouth" Bachmann, who sent out a tweet saying, "No man, not even a Supreme Court, can undo what a holy God has instituted."


MEANWHILE, NOTHING CAN SHAKE JUSTICE NINO FROM
HIS DIVINELY ORDAINED MISSION TO HATE THE HOMOS

JUNE 26, 2013

SCALIA ARRESTED TRYING TO BURN DOWN SUPREME COURT

POSTED BY ANDY BOROWITZ

WASHINGTON (The Borowitz Report) -- In a shocking end to an illustrious legal career, police arrested Justice Antonin Scalia today as he attempted to set the Supreme Court building ablaze.

Justice Scalia, who had seemed calm and composed during the announcement of two major rulings this morning, was spotted by police minutes later outside the building, carrying a book of matches and a gallon of kerosene.

After police nabbed Justice Scalia and placed him in handcuffs, the [Justice] appeared "at peace and resigned to his fate," a police spokesman said.

"He went quietly," the spokesman said. "He just muttered something like, 'I don't want to live in a world like this.' "

Back at the Supreme Court, Justice Scalia's colleagues said they hoped he would get the help he needed, except for Justice Clarence Thomas, who said nothing.

VISIT THE STAND-ALONE SUNDAY CLASSICS WITH KEN

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So you think it's a piece of cake being a far-right-wing-stooge Supreme Court justice?

by Ken

Actually, I suppose by and large it is pretty easy being a FRWS Supreme Court justice -- under normal circumstances, anyway. You show up when they tell you, and decide which of the cases on offer you want to have the Court take on in the next term, and then you have to listen to a certain amount of yammering about the cases chosen for this term and even ask some questions just to show how sharp and engaged you are (unless you're Justice Thomas, of course), and eventually you may get stuck writing the opinion, but then, isn't that what you have clerks for?

All the while you know, and we know, that if they's just put in some sort of simple electronic-voting system, then as soon as the docket is assembled you could register your votes and get in some good fishing or maybe napping time.

Which is what made today's minimal news-making day such an interesting one. (For a quick summary, see Rachel Weiner's washingtonpost.com "What happened in the Supreme Court today.") Everybody is waiting for the rulings on the term's Big Cases, and in fairness there's no reason to be surprised that we're still waiting. Didn't we all expect that they were going to be saved for the bitter end?

Actually, the Big Nine did produce a ruling of sorts on one of the marquee items: the University of Texas affirmative action case. And what they ruled is that they weren't going to rule, really. Instead the case was sent back to the lower court for a closer and more critical look. As ScotusBlog's "Plain English" specialist Amy Howe explains:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs. In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.” Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.” The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

The vote was 7-1, with the seven affirmative votes all over the place (Justices Scalia and Thomas, for example, made clear that if anybody had asked, they would gladly have axed affirmative action altogether), and only Justice Ginsburg saying, in so many words, "Bullshit!"

Of course the notion that this Court couldn't overturn its previous ruling just 'cause nobody asked seems precarious. Doesn't the Roberts Court specialize in doing just that, even shopping for cases that offer opportunities to undo previous holdings it doesn't like? The difference seems to be that the affirmative-action situation was just too contentious, and no majority could be assembled for more definitive action. Meanwhile, though, it looks like the affirmative-action haters are going to get their way. Judges all over the country, including those of the federal appeals courts that feed cases to the Supreme Court, should have a good idea of their marching orders here, and presumably many more lawsuits like Fisher will be encouraged. (In any case, the Court has already agreed to take on the situation at the University of Michigan next term.)

AND THOSE OTHER RULINGS? THE ONES MOST OF
US WON'T EVEN BOTHER TO TRY TO PUZZLE OUT

To illustrate the importance of the "throw-away" rulings, the ones nobody pays much attention to, and the ones in which the Supreme Court goofuses do an important part of their dirty work, here's ThinkProgress's Ian Millhiser's quick take on a bundle of three of today's decisions (links onsite):

Supreme Court Ruled In Favor Of America’s Top Corporate Lobbying Group In 13 of 16 Cases This Term

By Ian Millhiser on Jun 24, 2013 at 4:30 pm

Earlier today, the Supreme Court handed three big victories to big corporations seeking immunity from the law, and equally substantial defeats to American workers and consumers. In a pair of workplace civil rights decisions, the Court made it easier for many bosses to get away with sexual or racial harassment, and it eased the path for many companies that retaliate against workers who claim they are victims of discrimination. Additionally, the Court held a generic drug manufacturer whose product allegedly caused burns over half a patient’s body immune from a lawsuit that would have compensated this victim for her injuries. Notably, the U.S. Chamber of Commerce, the nation’s top business advocacy group, filed briefs on the victorious side in each of these cases.

Indeed, after today, the Chamber’s record before the Roberts Court is 13 wins and just 3 loses this term. This marks a sharp increase in the Chamber’s win rate even as compared to prior terms before the conservative Roberts Court. A Constitutional Accountability Center study of the Chamber’s record before the justices from last month found that the Chamber won 69 percent of its cases before the Roberts Court. That’s in contrast to a 56 percent win rate in front of the quite conservative, but comparatively more moderate, Rehnquist Court.

Notably the Court deferred so completely to the Chamber today that it adopted a harsh rule limiting sexual and racial harassment claims even though the attorney arguing that case on behalf of the defendant — a former Solicitor General under George W. Bush — would not endorse the rule himself while he was arguing the case. So the five conservative justices sided with the Chamber even though no party before the Court agreed with the Chamber’s position.

SOMETIMES THE JOB OF AN FRWS JUSTICE GETS HARDER

In addition to handing down today's five rulings, the Court today announced nine new cases it has agreed to hear in the next term, the one that's getting the most attention being National Labor Relations Board v. Noel Canning, the case in which the lower court invalidated selected recess appointments made by President Obama.

You might think this would be a snooze for the FRWS justices. Screw Obama! The problem is that the Supreme Court hasn't yet been quite reduced to the status of bottom-feeding newspaper thumb-suckers like George Will and Chucky Krauthammer, who get to yammer on about wild expansion of executive powers when the executive in question is a non-right-winger, even when it's as milquetoast a moderate as Obama, but never utter a peep when a gang of rampaging executive sociopaths like the Bush regimistas do their best to create an executive-branch dictatorship. No, the High Court's rulings have to stand for regimes of all political stripes. So what'a a determined FRWS justice to do faced with such a dilemma?

Like I said, sometimes the job of being a no-brainer justice isn't as easy as it looks.

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"Why America Still Needs Affirmative Action" (John Cassidy)

"The University of Texas's admission policies have enabled it to increase diversity. '[T]his is what the policy was intended to do,' says John Cassidy, 'and that's why the Roberts Court might well strike it down.' "


"Having lived in the United States for almost thirty years, I am always amazed that Americans persist in believing that this is a land of unparalleled opportunity and social mobility."

-- John Cassidy, in a newyorker.com blogpost,
"Why America Still Needs Affirmative Action"

by Ken

It appears that affirmative action is safe for this week. But as John Cassidy makes clear at the outset of this post, he is only too well aware that by next week its likely to be dead or at least severely restricted, when the Supreme Court announces its decision in Fisher v. University of Texas. None of which alters his opinion that "America still needs affirmative action" -- though as we'll see he isn't necessarily thinking of affirmative action as we have normally understood it.

"Set aside, for a moment," Cassidy says, "the explosive issue of black or brown versus white, which underpins much of the discussion about affirmative action.

There are compelling reasons to make it easier for young people of all races from disadvantaged backgrounds to attend college. The University of Texas program at the center of this case did just that. Far from being ruled illegal, it should be embraced and promoted as a practical, merit-based model for other states to copy. Unfortunately, that seems unlikely.

As suggested in the quote above, Cassidy has a lot of trouble with the idea of the U.S. as "a land of unparalleled opportunity and social mobility.

A bit suspect to begin with, the Horatio Alger story has been transformed, over the decades, into a chronic mental block. To well-educated youngsters from affluent backgrounds who know how to work the system, and even to well-educated immigrants such as myself, this is indeed a land of great opportunity. But for all too many working-class Americans -- and a lot of them aren't members of minority groups -- U.S. society is less of a launchpad than a glue trap. With their feet stuck to the ground, they have little prospect of ascending very far.

And over the decades that he has been arguing the point with American friends and colleagues, growing numbers of studies have arrived to back him up (as in the conservative Brookings Institution report "Mobility Impairede").

"In a merit-based system," Cassidy writes, "family ties shouldn't matter very much."

But compared to people in places like Canada and Scandinavia, Americans tend to follow the earnings paths of their parents. On close inspection, the vast majority of highly successful Americans -- Bill Gates, Mark Zuckerberg, and Barack Obama among them -- turn out to be the progeny of highly educated professionals. For folks who start out in the cellar of U.S. society, even climbing up to the parlor level is quite a feat, and one that, these days, often demands a college education.

At the heart of the University of Texas situation is a system that, since 1997, has guaranteed admission to state-funded colleges to those who finish in the top 10 percent of their high school class,

thus providing a route to college for talented students who live in all sorts of neighborhoods. Everybody knows that schools in poor areas tend to be worse than their counterparts in rich areas, and that, in general, their students get lower test scores. Here was a way to address that reality, while, at the same time, rewarding merit, ambition, and hard work. The resulting surge in enrollments has caused some problems for colleges such as the University of Texas at Austin, but nobody doubts it has increased the geographic and social diversity of the student body.

In addition, for students who didn't finish in the top 10 percent, Texas public colleges were allowed "to consider race -- among many other factors, such as socioeconomic background, work experience, and extracurriculars." And the two aproaches together enabled the University of Texas to increase racial diversity. "[T]his is what the policy was intended to do, and that's why the Roberts Court might well strike it down."

Under the Supreme Court's 2003 Gruter v. Bollinger ruling, written by Sandra Day O'Connor, schools were already enjoined from considering race in a more than limited way. In the University of Texas case, white plaintiff Abigail Fisher is arguing that in being turned down by U.T. she was discriminated against on racial grounds in violation of the 14th Amendment's "equal protection" provision.

"If the Court rules in Fisher's favor," Cassidy writes, "it could well upend the program guaranteeing places to the top ten per cent of high school students along with proscribing the use of race as a factor in admissions to public colleges across the country."

Should that happen, it may make sense for supporters of affirmative action to focus more heavily on broader concerns about social mobility. You don't have to live in the United States for long to realize that racial discrimination and racial segregation are still the daily reality facing all too many Americans; and, to combat them, I'm all for using traditional arguments wherever possible. But where the forces of conservatism have the upper hand, such as in the Supreme Court, it's also worth making the case for policies designed to improve the life prospects of all Americans, regardless of race, and to prevent U.S. society from turning into a rigid class system of the sort once associated with Latin America and “old” Europe.

Given the high degree of correlation between socioeconomic status and race, minorities of all types would be among the main beneficiaries of policies aimed at increasing social mobility, but that, to some extent, would be beside the point. The motivating force wouldn't be righting the wrongs of slavery, or constructing an impregnable Democratic majority in the electorate. It would be a desire to make real the vision of a society in which rewards are based on effort and talent, rather than family connections. And that, surely, should be something that even some conservatives could sign onto.

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We can assume affirmative action is toast. The question: What will this High Court take with it?

That was 2003. The days of "moderation" are over.

The Supreme Court said Tuesday it will reconsider whether affirmative action may be considered when public universities choose which students to admit, revisiting a 2003 decision that allows race as a factor in admission decisions.

The court will hear a white student's claims that the University of Texas's race-conscious admission policy cost her a spot in the freshman class. The justices will hear the case in the term that begins in October, making it likely that affirmative action will be an issue in the fall elections.

-- from the Washington Post's Robert Barnes's "Supreme Court agrees to reconsider use of race in college admission decisions"

by Ken

It takes four Supreme Court justices, you'll recall, to accept a case for review, and if anyone can think of any reason why four justices would have agreed to take this case other than to throw dirt on the coffin of affirmative action, I'd love to hear it. As Robert Barnes explains

Opponents of affirmative action hope that the current court, more conservative than the one that made the 2003 decision, will rule out the use of race.

Justice Sandra Day O'Connor, who wrote the 5 to 4 decision in Grutter v. Bollinger , was replaced by Justice Samuel A. Alito Jr., who in past decisions has opposed the use of race in education decisions. And one of the court's liberals, Justice Elena Kagan, has recused herself from the Texas case, presumably because of her previous job as President Obama's solicitor general.

In the 2003 decision, O'Connor said the University of Michigan's law school could consider race as part of a holistic evaluation of an applicant. O'Connor said government had a compelling interest in diversity, including seeking a “critical mass” of minority students.

No sir, our Sammy -- the man who thinks he did it all by his white-male self, pulled himself up by his heroic bootstraps -- had no interest in playing the role of Justice Sandy, preferring something more along the lines of the White-Meat Clarence Thomas, leaving Justice Sandy's frequent role as swing vote, by default, to the singularly ill-equipped "Slow Anthony" Kennedy, who's made a pretty complete botch of it. Not to mention that now the man running the show isn't that old crackpot "Wild Bill" Rehnquist but the incomparable "Smirkin' John" Roberts, who likes to dismantle the Constitution quietly but quickly and efficiently.

No, I think we can all guess pretty accurately why the Court has agreed to revisit the 2003 decision. Probably we can expect a ruling that will at first seem less sweeping than we expected, but when looked at more closely turns out to be not only more sweeping but sweeping in ways we hadn't anticipated. This Court, remember, doesn't sit around waiting for cases that allow it to do its constitutional rewrite; it goes out and shops for what it's looking for to accomplish what it's got on its mind. (The sly variation, of course, is to do some of the job in this ruling while inserting in it the groundwork for the decision it's really angling toward.)

There's a certain amount of irony in the fact that this latest blow for the bastion of white-male privilege will be struck on behalf of a white female.

Texas has a unique system. It provides admission for those in the top 10 percent of their Texas high schools. Abigail Noel Fisher of Sugar Land did not make that cut and was put into a pool of applicants in which race is considered along with other factors, such as community service, leadership qualities, test scores and work experience.

Fisher enrolled instead at Louisiana State University and is on track to graduate this spring.

Her lawyer, Bert Rein, has argued that the Texas system goes beyond what the court said was allowed because UT's race-neutral policy for the top 10 percent already brings in percentages of minority students “far beyond” the numbers at issue in Grutter.

The students automatically accepted under that program account for the vast majority of UT freshman classes, and Rein said 30 percent of the enrolling students are from underrepresented minorities.

But UT officials do not feel that is enough for a state in which -- in the near future -- there will be no majority race. In evaluating applicants who did not make the top 10 percent, the school decided after the Grutter decision to consider race along with the other factors.

A panel of the U.S. Court of Appeals for the 5th Circuit upheld the Texas plan, but a number of high-profile conservative judges from the circuit loudly objected and urged the high court to consider the case.

I wouldn't be surprised to learn that the irony was staged, or at least savored by the justices who have sworn undying fealty to the cause of white male supremacy. Just watch and see who the beneficiaries will be.

As we will learn in the ruling in this case, if there was ever any justification for affirmative action (which is likely to prove to have been dubious), there is certainly none now, when justice and fairness are equitably distributed to all Americans, and nobody needs any special protection except the one truly persecuted group: Christian white males. Oh yes, and of course the corporations under which they huddle for safety from those nonwhite and nonmale meanies who are trying to steal the very food out of their mouths. And as we know, corporations are people too.

THE BIG QUESTION, THEN, IS: WHAT'S THE
SECRET BONUS-SURPRISE GOING TO BE?

My guess it that along with affirmative action will go many other things that have been unconstitutionally kept out of the grasp of the white male minority. How about a quick overturn of Brown v. Board of Education? With an eloquent new ruling telling us that not only is "separate but equal" constitutionally hunky-dory, but really and truly, "equalish" is quite good enough.

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The Sotomayor nomination may be safe, but at what cost for future Supreme Court picks?

"There was something distasteful about Sotomayor’s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves."

-- Jeffrey Toobin, in his July 20 New Yorker "Comment"

on the Senate Judiciary Committee hearings

by Ken

I imagine a lot of folks on our side of the war for the soul of the federal judiciary are breathing easier after the Republicans on the Senate Judiciary Committee seem to have blown their wad in the hearings on Judge Sonia Sotomayor's nomination to the Supreme Court. They were so lame, it was hard to tell whether they were just going through the motions or are just, well, that lame.

After watching "Little Jeff" Sessions at work, though, I have to say I'm inclined more to the they're-just-that-lame theory. I think the Senate Republicans thought they were upgrading their attack-dog profile by slotting Little Jeff into the SJC ranking minority member slot vacated by the hated turncoat Arlen Specter. I don't doubt that Little Jeff has all the viciousness and hatred and ignorance necessary for a high-profile demagogue; he just doesn't appear to have any communications skills, which are traditionally highly prized in demagoguery. He seems to have more the cunning of Wile E. Coyote, watching his latest scheme for Road Runner neutralization blow up in his face. (I still say the R's should have Henry Gibson playing Little Jeff.)

In the larger scheme, though, I'm still thinking about the SJC hearings in the context of the point I tried to make this morning: that all these battles the R's are losing don't necessarily mean they're losing the war, taking the long view.

Really and truly, in the absence of something really damning, what were the chances the nomination was going to be shot down? I suppose there was always the possibility of a filibuster, but were the R's really prepared to face the electorate after doing that to a Hispanic woman of such impeccable legal credentials? Oh, they had their mini-gotchas, the "making policy" remark," and the "wise Latina" one, and then the Ricci case. But even master obfuscators would have had a tough time cashing in those meager chips.

Still, it seems to me dangerous to underestimate the amount of damage the "Just Say No"-ers inflicted, to be applied to the next Supreme Court nomination, which is once again much likelier to be one of the remaining moderates rather than one of the neanderthals being replaced, meaning that on our side we're going to be fighting just to hold our ground..

Now I hope no one was surprised by my reference to "one of the remaining moderates." Surely there isn't anyone who thinks there are any actual liberals among what is casually referred to in the Infotainment News Media as the Court's "liberal bloc"? Like who? These are fine, honest folk, who performed heroic service during the Dark Ages of the Bush regime, but they're not liberals.

Is there any way we can ever repay our debt to Justice John Paul Stevens? Remember, he was within months of his 81st birthday when Chimpy the Prez took the oath of office, and any hope that he might merely have to survive another four years was dashed in the 2004 election. It's possible that the justice, apparently in good physical and mental health, would have chosen to remain on the Court anyway, but the fact is, he was pretty much deprived of the option of retirement.

(Ironically, the justice who probably helped install Chimpy as president precisely so she could retire, Sandra Day O'Connor, may have left with more regrets than she expected, as she watches the transformation wrought since her departure by the advent of the two new justices. Justice O'Connor was a bona fide conservative, but in case after case the XXXXXXs of the Roberts Court are going places she knows perfectly well they wouldn't, couldn't have gone with her still sitting.)

That said, it doesn't make Justice Stevens a "liberal." Justice William Brennan was a liberal. Justice Thurgood Marshall was a liberal. These folks, honorable justices all, are moderates.

And both the selection of Judge Sotomayor and the process by which she appears to be securing confirmation are stacking the deck even more against the appointment of a liberal judge to the Court at any time in the foreseeable future -- even if we had a president inclined to make such an appointment, which I'm sure not persuaded we do at the moment. I think "moderates" may be just fine for President Obama.

As a piece of political calculation, as I've already written, the Sotomayor selection was brilliant. It became apparent pretty quickly that it wasn' going to be necessary to read all of her huge number of judicial opinions to know that this was not a judge who had a secret "liberal streak" that had to be hidden. Now, Justice Sotomayor (to jump the gun a little) may yet surprise us; there's no such thing as dead certainty when it comes to Supreme Court justices, who -- once confirmed -- are about as beyond the reach of detractors as anybody in the workforce gets. But I think the R naysayers knew pretty quickly that they weren't dealing with a closet liberal. The judge's participation in the panel that ruled against firefighter Frank Ricci in the New Haven case may have been an undeserved gift for the R's, but surely none of them are so lame-brained as to believe they had found evidence of a disguise masking her "liberalism."

Does this mean that the next Court nominees will have to be as visibly moderate? Well, maybe even more so, since they aren't likely to have the secret weapons of Judge Sotomayor's gender and ethnicity.

And does this mean that those next nominees are going to have to maintain the fiction that the criterion for appeals-court judging is, plain and simple, applying the law?

Jeffrey Toobin expresses regret in his July 20 New Yorker "Comment" piece on last week's hearings:

In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.

For once that blowhard Sen. John Cornyn wasn't wrong when he said that Judge Sotomayor's answers explaining her judicial philosophy made her sound exactly like Chief Justice Roberts, who of course is even less a believer than Judge Sotomayor that the job consists of just-applying-the-law.

Oh, Toobin understands why nominees of all ideological persuasions have arrived at the practical wisdom that during the confirmation process you say nothing of substance, and especially nothing that can be used as ammunition against them. Nevertheless, he makes a great point: We have now more or less officially conceded that the subject of what judges actually do is too complicated to be discussed with, or even in front of, the American people.

And once again whole areas of public and legal policy have been declared off limits, not just as subjects of discussion, but perhaps also as areas of belief that can disqualify future Supreme Court (and lower federal court) nominees. There was, most notably, the grotesque spectacle of a vile toad like Little Jeff Sessions playing the race card, just the way Rush Limbaugh or Pat Buchanan would -- well, did. Toobin writes aptly:

There was something distasteful about Sotomayor’s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves. (One of the more cringe-worthy moments of the hearing was Sessions’s expression of incredulity that Sotomayor might disagree with another judge on her court even though he was also Puerto Rican.)

To focus on just one point, in the extreme case -- by which I mean the ignorant and rawly hate-filled mouthing off we heard from Buchanan, most notably in the infamous interview with Rachel Maddow. Buchanan, as I've pointed out, has managed to turn the very idea of affirmative action into something shameful and unworthy. As I wrote, "In the lunar landscape that is Pat Buchanan's brain, 'affirmative action' is nothing more than a piece of the massive plot -- watch out, the plotters are everywhere! -- to cheat white males, the very people who made America what it is, out of their rightful share of the pie, which is all of it."

As a result, there's hardly any point documenting what I assume are typically Buchananite misrepresentations of Judge Sotomayor's own relationship to affirmative action. After all, confronted with the issue of her outstanding academic record at Princeton, poor Pat actually blithered on about everybody knowing about Ivy Leaguers all getting those high grades. At that point, I find it unfathomable that whoever at MSNBC is responsible for signing his paychecks, or a flunky thereof, didn't simply walk onto the set gun in hand and put the pile of puke out of his misery. As it is, as I say there's no point going back to the judge's testimony, because she would have had no reason to speak of affirmative action with any measure of hostility or derision.

People like Rush and Pat have done everything they could to load the term just that way in the American imagination -- hey, them my-norities is gittin' special vantages! But by being afraid to answer them, again on the assumption that the American people are too stupid to understand the real issues, we have more or less allowed them to define those issues. It is, I tell you, one creepy experience to see and hear Rush Limbaugh announce that of course Judge Sotomayor is a racist. Your impulse is to say, "And you would know, huh, Rush?" But of course he wouldn't, or at least he wouldn't say, not publicly. When he's among his own kind, he can brag about his racism, but of course it isn't real racism that Judge Sotomayor was being accused of.

I was feeling pretty glum about this state of affairs when a colleague who has actual experience with affirmative action, and by experience I mean 25 years litigating affirmative-action cases, offered the first sense I've heard in, well, a while, on the subject.

I was going to cherry-pick a few paragraphs, but in the end I think I'm going to quote the whole piece, which isn't that long, with just a bit of highlighting of points so basic that we need to find a way to make them part of the national understanding.

Pat Buchanan Continues His Racist Attacks on Sotomayor

By Guy T. Saperstein, AlterNet. Posted July 17, 2009.

Yesterday, on MSNBC, Pat Buchanan attacked Sonia Sotomayor, specifically, and affirmative action, in general. Included in his attack were such claims as "this has been a country built basically by white folks," that Sotomayor was purely an affirmative-action candidate who lacks real credentials and his suggestion that we need more white, male Supreme Court nominees -- like Robert Bork -- despite the fact that 108 of the 110 Supreme Court justices in our nation's history have been white.

What opponents of affirmative action like Buchanan fail to grasp is that this country was built on affirmative action -- for white males -- and you don't have to go back to the Founding Fathers to see this in action.

If you go back to the 1950s, which Buchanan apparently wants to do, and look at the major private universities, you would find that 20 to 30 percent of the admissions were "legacies" -- people who got there not on merit but because they were the sons of alumni and donors. George W. Bush, of course, is the poster child for this generation of affirmative action babies.

I'd like to see Buchanan, or any conservative, defend Bush's admission to Yale on the basis of merit. And I'd like to stack up Bush's credentials next to Sotomayor's and ask which one was more deserving of admission to a major university, or the bench, or the presidency, or anything.

The white-male affirmative action that bozos like Bush benefited from and want to protect was a monopoly of opportunities; monopolies work to undermine healthy competition and produce bad results.

The affirmative action that emerged from the 1960s civil rights movement was an effort not only to promote diversity of people and opportunities, but to democratize opportunities so that white-male hierarchies did not automatically get all the perks. This has been healthy for America, not only because society has become more diverse, but also because it now is less likely that the truly unqualified -- the frat boys like GWB with no academic credentials and problems with excessive alcohol consumption [but a connected family] -- are not automatically passed on to graduate schools, and then on to unsuccessful business careers, not to mention catastrophic political careers.

I prosecuted employment discrimination class actions for 25 years, in the process forcing many major corporations to hire and promote women, minorities, older people and the disabled. In every single case I had, when the case was over and the workforce was integrated, no matter how bitter the litigation had been, the companies would confide in me that their workforces after "affirmative action" were stronger, more competitive, more productive.

Affirmative action has been good for American business and good for America. Indeed, corporate America, which has seen the benefits of fair-employment practices firsthand, long ago abandoned opposition to it. Too bad racists like Buchanan have failed to pay attention to what really has happened in the American workforce, and in America, over the past 40 years.

Guy T. Saperstein is a past president of the Sierra Club Foundation; previously, he was one of the National Law Journal’s "100 Most Influential Lawyers in America."

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Well, what do you suppose Pat Buchanan would have to say to get his sorry ass fired by MSNBC?

by Ken

We need to talk about the latest installment in Rachel Maddow's ongoing exploration of the ever-stranger connections emanating from the now-infamous C Street "church" of the Famlly, along with the ranking guide into the Family sanctum, Jeff Sharlet (whom she now has to apologize to profusely for dragging him away from his hoped-for vacation, as the story just won't stop metastasizing).

We'll get to that, but first I guess we really need to talk about another segment on Rachel's show last night: Pat Buchanan's appalling attempt to defend his column attacking Judge Sonia Sotomayor, whom he has taken to ridiculing as "an affirmative-action judge." Of course, to appreciate the full measure of viciousness intended, you have to understand that in the lunar landscape that is Pat Buchanan's brain, "affirmative action" is nothing more than a piece of the massive plot -- watch out, the plotters are everywhere! -- to cheat white males, the very people who made America what it is, out of their rightful share of the pie, which is all of it.

(And he is only too happy to rattle off the list of names of the white male victims, even if he can't pronounce the name of the sainted Frank Ricci -- I guess those Irishmen have trouble with Eye-talian names), and it seemed to me that a woman slipped onto the list of white males. Let's not even get into the questions of whether a program of systematic discrimination can actually be conducted against a nation's power elite, or whether a class of victims whose names can be recited in one breath by the craziest of crazy old coots really qualifies as, for want of a better term, a "class action.")

Rachel is taking some heat for her remarkable efforts at maintaining her poise, and even I sometimes wished at times that she would "lose it." But of course if she'd done that, she would have handed the even to Pat, who may be an old coot now but who has been fighting these fights for a lot of decades now, and knows that as soon as you reduce the opposition to enraged spluttering, you've won.

Anyway, Heather over at Crooks and LIars had the patience to do a point-by-point summation with commentary of this sad and sordid interview. I was in no condition to observe the spectacle closely enough to do so even if I had been inclined. I hadn't planned to watch it, and wish I'd stuck to my (sensible) original intention. It drove me storming around my apartment in -- what else? -- a spluttering rage.

Here's Heather's account:

During what was at times a bit of a heated exchange, but way too chummy in general -- given the type of browbeating Pat Buchanan actually deserves for his continued racist remarks on MSNBC -- Rachel Maddow ends up telling Pat Buchanan to quit living in the 1950s, and that he's fanning the flames of racial hatred with his rhetoric. Before that, she gives him ample opportunity to put on full display, again, just how horribly he thinks the poor, downtrodden white man is being treated in America.

Some of Pat’s "finer" moments during the interview.

-- Comparing Sonia Sotomayor to Harriet Miers.

-- Calling her a purely affirmative action candidate by the President and completely dismissing her academic accomplishments.

-- Saying that “white folks” built this country.

-- Calling Bork and Scalia “real scholars” and "tremendous minds" and saying Sotomayor hasn’t risen to their level.

-- Saying the only reason she was appointed to the bench was because of affirmative action.

-- Complaining about Sotomayor getting a chance to go to the best schools and knocking out someone who might have gotten better grades than her. When has Pat Buchanan ever complained about the likes of George Bush and other legacy children being allowed into the best schools because of who their parents are, and knocking other kids out? I would guess he has not. I’ve certainly never heard him bring it up. Rachel should have called him on that one if he'd let her get a word in to do it.

When asked if she got the grades she did in college because of affirmative action, saying that in the Ivy League schools, half the kids graduate cum laude now. Really? So they're raising students' grade point averages in college now and no one told the rest of us about it? Then retreating to saying he bet he graduated higher in his high school class than she did, and going so far as to say he probably did better than she did in college as well, but he doesn't think he's qualified to be on the Supreme Court.

So being a judge for seventeen years doesn't count for anything in Pat's world. And Pat says he did better than she did in school, without backing that up with any specifics. If anyone knows just what his grade point averages were in high school and college, I'd like to find out.

He compared the track team at the Olympics potentially being all black or a hockey team being all white to the racial make up of the Supreme Court. Yeah, that's exactly the same thing, Pat. He seems to have forgotten that there was a time not all that long ago that blacks in America were not even allowed to play on the same team as white people.

And he refused to say there is anything wrong with the fact that the Supreme Court has been made up almost entirely of white men for all these years and might benefit from other races being represented. He dodged back opining over the firemen they trotted out there as a political game at the hearing rather than answer the question.

I really don't understand why Rachel felt the need to bring him on if she was going to let him lie and talk over her for the better part of the interview. She's just not aggressive enough to deal with the likes of this bully, and he knows it. MSNBC has allowed Buchanan to become a racist sideshow on their network. As Media Matters has wondered: What would Pat Buchanan have to say to get himself fired from MSNBC?

Now that, Heather, is a splendid question. What would Pat Buchanan have to say to get himself fired from MSNBC?

For the record, MediaMatters' Jamison Foser didn't write the piece to which she directs us in response to last night's Rachel Maddow appearance. He wrote it on June 8.

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