Harvard actively and obviously discriminates against Asians. To get admitted, Asians need an SAT score 140 points higher than whites and 450 points higher than blacks.
Harvard’s justification for this discrimination is almost as painful as the discrimination itself. Harvard says that the Asian applicants have poor personalities.
The way Harvard evaluates an applicant’s personality is not with any standardized test, but with an in-person interview by a bureaucrat – where it just so happens that the bureaucrat can take note of the applicant’s skin color
Asian applicants sued. The suit was in Boston before a federal judge appointed by President Obama. The judge sided with Harvard.
The judge said it was unsurprising that Asian applicants have poor personalities because, after all, their focus on academics probably gave them little spare time to become personable. She didn’t explain why her academics-at-the-expense-of-personality theory apparently did not apply to the few black and white applicants who have test scores as good as the Asians. Maybe she thinks blacks and whites can do it all – get great grades and have a great personality too – but, alas, for some weird genetic reason, Asians cannot.
The court of appeals in Boston upheld the judge. The Asians have now appealed to the Supreme Court.
Under Supreme Court procedure, it takes the vote of four of the nine Justices to hear a case. The Court rejects the great majority of cases that are brought to them.
The Court has a lot of leeway in timing. One way to buy time is to ask the Justice Department for their views on the matter. The Justice Department will then duly weigh in with a brief. This procedural wrinkle consumes months.
The Court has done that in the Harvard case. Everyone knows the views of President Biden’s Justice Department on the matter; they want the Court to affirm the lower court decisions upholding the discrimination. So why bother to ask them for their views?
Here’s what I think is happening. There were four justices who wanted to hear the case in order to reverse the lower courts. But only four. If there were five or more, then they would have simply taken the case and reversed the lower courts.
But four is sufficient to take the case, you might say. Yes, but four is not sufficient to reverse the case. That takes a majority, five.
The four were faced with a strategic problem. If they voted to take the case, then they were setting up yet another discrimination case that would come out the wrong way – upholding the discrimination. To avoid that disastrous outcome, the four who want to reverse the lower courts decided to delay matters by asking for the views of the Justice Department.
There are six conservatives and three liberals in today’s court. Be assured that the three liberals are prepared to vote as a block (they always do in political cases) to uphold the lower court decisions allowing discrimination against Asians. That means two of the six conservatives are prepared to side with the liberals.
One defector is probably Chief Justice John Roberts. Yes, the same Chief Justice who eloquently rejected reverse discrimination in a case years ago where he stated, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But that was then and this is now. Roberts as Chief Justice is now obsessed with maintaining the status and legitimacy of the Court. He dodges the hard issues, always looking for compromise and consensus. He’s keenly aware of the Democrats’ threat to pack the Court with more Democrats if the Court gets too uppity.
In the Harvard case, Roberts can tell himself that reverse discrimination is a matter for political wrangling, not legal determination. I think he’s wrong but not unreasonable in that position. The political system can indeed tackle this issue, as they have in California where a state initiative years ago outlawed racial discrimination and the people of California soundly defeated a move last fall to reinstate it. (Query: Why aren’t there such initiatives in other states?)
Brett Kavanaugh will be the other defecting conservative. Kavanaugh, like Roberts, has an eye here toward things other than the facts and law before him. In Kavanaugh’s case, his eye is toward his personal image.
Kavanaugh has always been a political animal, and became even more so from suffering a horrific smear in his confirmation hearing. Lying, cheating Democrats such as Michael Avenatti accused Kavanaugh of being a rapist. This was back when Avanatti was a Dem darling and not a prison inmate serving time for extortion.
An experience like that leaves a scar of one kind or another. I assumed Kavanaugh’s scar would harden his conservative convictions. I assumed he would never be caught dead siding with the Democrats who tried to destroy his career, family and life.
But I was wrong. The first hint was when Kavanaugh hired 100% women for his first Supreme Court law clerks. In doing so, he can’t seriously contend that all the most qualified applicants just happened not to be men.
And he doesn’t contend that. He announced beforehand that none of them would be men.
Kavanaugh must see Harvard’s overt discrimination against Asians as quite natural. It’s the diverse thing to do. It’s the virtuous thing to do. It’s the strategic thing to do. Harvard discriminates against Asians to prove to the world they’re not racist against blacks, and Kavanaugh discriminates against men to prove to Democrats he’s not a rapist of women.
As if Democrats care. Democrats don’t care if a person is a rapist. What they care about is whether a person is a Republican. If he is, then “rapist” is like “racist.” It’s not a serious accusation, but merely an epithet with which to smear them.
Predictably, Kavanaugh got little mileage out of his pandering stunt. The left promptly managed to insult both the sincerity of Kavanaugh and the legal acumen of the women he hired by asserting that they all “looked like models.” Apparently, proving one’s wokeness by hiring women doesn’t count unless they’re ugly.
In any event, the end result will be that three liberal Justices and two semi-conservative justices will uphold discrimination for reasons that have little relation to facts, law or policy, and everything to do with politics, public relations and misguided efforts at burnishing the woke credentials of institutions and individuals.
It’s worth noting that these considerations of Roberts and Kavanaugh are the same kind of extra-judicial sentiments that allowed Jim Crow laws to survive and thrive for generations. Good judges don’t get distracted by such things. They just apply the law to the facts. Period.
The losers in this will be Asian students and, eventually, everyone who thinks the content of one’s character is more important than the color of his skin.
A final note: There has never been an Asian on the Supreme Court.
Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.
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