Thursday, July 31, 2008

Yes, liberals are that stupid

In perusing the Bench Memos blog at National Review Online today, I read Matthew Frank's post about Obama's days as a lecturer at University of Chicago law school. Without weighing in on the "title inflation" that led a non-tenured lecturer with no scholarly responsibilities to be called "Professor Obama," what struck me about the post was the part on Obama's final exam questions, and specifically (quoting from Mr. Franck's blog post):

"In 2003, Obama asked his students to answer whether an equal protection challenge could be brought against an initiative that required a state to be color-blind in public education, hiring, and contracts. I began to wonder whether this was a trick question. There are lively debates about whether the equal protection clause requires a state to be color-blind. But I haven't encountered any serious arguments anywhere that the clause might forbid a state to be color-blind. Or maybe I just don't get out enough and run with the big dogs of constitutional theory."

So I wrote the following email back to Mr. Franck, taking me down memory lane, and which I thought I'd memorialize here for posterity (and my loyal 10 readers) :

This is to Matthew Franck, in response to his “Prof. Tribe’s Pupil” post at 07/31 12:21 p.m., and specifically the assertions: “But I haven't encountered any serious arguments anywhere that the [Equal Protection] clause might forbid a state to be color-blind. Or maybe I just don't get out enough and run with the big dogs of constitutional theory.”

Yes, Matthew, you don’t get out enough. The equal protection argument is based on a line of U.S. Supreme Court cases striking down certain “political structures” that the court thought hindered the ability of minorities to get the government to give them special favors and goodies. The cases started, so far as I can tell, with Hunter v. Erickson, 393 U.S. 385 (1969), continued with Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) and culminated in Romer v. Evans, 517 U.S. 620 (1996).

Recall the political scene in the mid-‘90s. Ward Connerly was busy getting anti-race preference measures on the ballots of several western states. Libs opposed them at all costs and measures, including thinking up truly bizarre arguments that such anti-race preference propositions were unconstitutional violations of the Equal Protection clause by imposing unequal “political structures.” At least in liberal circles, these arguments were thought persuasive. They all got a big collective kick in the balls by Judge O’Scannlain in Coalition for Economic Equality [a dysphemism if there ever was one] v. Wilson, 122 F.3d 692 (1997). Judge O’Scannlain’s opinion upheld California’s Proposition 209, which quite plainly and simply banned all race preferences in public employment, education and contracting. Some money quotes:

“Proposition 209 amends the California Constitution simply to prohibit state discrimination against or preferential treatment to any person on account of race or gender. Plaintiffs charge that this ban on unequal treatment denies members of certain races and one gender equal protection of the laws. If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.” Id. at 702.

“That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.” Id. at 708 (italics in original).

“When the people enact a law that says race somehow matters, they must come forward with a compelling state interest to back it up. Plaintiffs would have us also require the people to come forward with a compelling state interest to justify a state law that says that race cannot matter in public contracting, employment, and education. Plaintiffs' counsel went even one step further at oral argument. He urged that ‘[t]he people of the State of California are not entitled to make a judgment as to whether compelling state interests have been vindicated. That is for the courts.’ Au contraire! That most certainly is for the people of California to decide, not the courts. Our authority in this area is limited to deciding whether the interests proffered by the people are sufficient to justify a law that classifies among individuals. If the federal courts were to decide what the interests of the people are in the first place, judicial power would trump self-government as the general rule of our constitutional democracy.” Id. at 708-709.

You’ll have to read Judge O’Scannlain’s opinion to try to figure out the Equal Protection argument the plaintiffs were making. I suppose if you were a student of Obama’s and you could craft a coherent argument, you’d get an A. If you tried, but failed, you’d get an A -. If you answered “no” and took Judge O’Scannlain’s view, that merely stating the proposition is enough to refute it, you’d probably fail.

A full disclosure note: I was in law school at Notre Dame when Judge O’Scannlain’s opinion came out. One of my classmates was Judge O’Scannlain’s son, Kevin O’Scannlain