The most striking thing about William D. Cohan’s revisionist, guilt-implying new book on the Duke lacrosse rape fraud is what’s not in it. The best-selling, highly successful author’s 621-page The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities adds not a single piece of significant new evidence to that which convinced then–North Carolina attorney general Roy Cooper and virtually all other serious analysts by mid-2007 that the lacrosse players were innocent of any sexual assault on anyone. Unless, that is, one sees as new evidence Cohan’s own stunningly credulous […]
The Supreme Court made clear last month that it would keep affirmative action racial preferences on the front burner of the national conversation for at least the next year. This autumn, the Court will review a federal appeals court’s 8-7 decision striking down a 2006 Michigan voter initiative that banned racial preferences in state university admissions. Meanwhile, the justices are drafting their opinions in a reverse-discrimination lawsuit by a disappointed white applicant to the University of Texas that was argued last October. That decision, the first major constitutional challenge to racial preferences since 2003, is expected by June 28.
With four ardent conservative opponents of racial preferences likely to be joined by Justice Anthony Kennedy–who has never upheld a racial preference–the Court seems likely to strike down the Texas program but not likely to outlaw racial preferences entirely. The Court also seems likely to reverse the federal appeals court decision in Michigan and uphold the state’s 2006 initiative banning racial preferences in state programs. (The issue there is not whether it’s unconstitutional for universities to use racial preferences excessively, but whether it’s unconstitutional for voters to prohibit them entirely.)
The big question, however, is whether the Court will rule so narrowly that its decisions will have little impact outside Texas and Michigan, or will, for the first time, impose serious restrictions on the very large racial preferences that are routine at almost all of the nation’s selective universities. Will these cases mean a dramatic overhaul, and shrinkage, of race-based affirmative action as we know it?
The Voting Rights Act of 1965 “was one of the great moments in the history of American democracy” and “the death knell of the Jim Crow South.” Over the years, however, it has been twisted into an engine of racial rigging and polarization. This has been accomplished by misguided judges, unwise and self-serving congressional Republicans (as well as Democrats), and liberal ideologues in civil rights groups and the Civil Rights Division of the Department of Justice. Indeed, those forces have transformed the Voting Rights Act into “a brake on true racial progress today.”
That is the essence of the story told by Abigail Thernstom in her meticulously researched and forcefully argued book. President Obama’s success in winning white votes has completed the proof that the white racism which the sixty-four-year-old law was designed to combat has become a marginal factor in American politics. And the Voting Rights Act, which has come to be little more than a racial gerrymandering machine, has become “a barrier to greater integration” of our politics. Yes, we still have glaring racial inequalities rooted in our history of slavery and racism. About this there can be no doubt. But “the caste system that originally justified taking race into account in structuring elections is gone,” Thernstrom concludes, and “further progress demands that we now cease to take race into account.”
Over fifteen years ago a young legislative aide at the CIA got the agency director to recommend him for a clerkship with a distinguished federal judge. He got the job. About eight years ago the judge had enough of judging and went to the former CIA director for help landing an ambassadorship in Latin America. He got Uruguay.
The CIA director is now president of the United States. The legislative aide, William Barr, is now George Bush’s attorney general. And the former judge, Malcolm Wilkey, his ambassadorship behind him, is now working for his former law clerk, as "special counsel" conducting the politically sensitive investigation into the House Bank.
When Barr announced Wilkey’s appointment on March 20, the media took at face value Barr’s suggestion that his purpose was to ensure impartiality and independence from political pressure. They should have been more skeptical. And when the House bowed to Wilkey’s reckless rhetoric and his sweeping subpoena for the bank’s records, including 505 current and former members’ checks, the media figured the subpoena must be OK. It wasn’t.
To the contrary, it was an act of gross prosecutorial overreaching, an affront to the constitutional status of the House and the privacy of hundreds of individuals – no less so for the fact that the courts upheld it in light of the House’s craven capitulation. Wilkey’s subpoena was only the latest episode in the Justice Department’s aggressive pursuit of the case, which looks not only like a waste of law enforcement resources, but like opportunistic exploitation of the affair for political gain as well.
An activist jurisprudence, one which anchors the Constitution only in the consciences of jurists, is a chameleon jurisprudence, changing color and form in each era.
The Constitution… is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made… the people will have ceased to be their own rulers.
The Court… has improperly set itself up as… a super-legislature … reading into the Constitution words and implications which are not there, and which were never intended to be there… We want a Supreme Court which will do justice under the Constitution – not over it.
SOUNDS LIKE Ed Meese, doesn’t it? Well, the first quotation is the attorney general’s. But the second comes from Thomas Jefferson, the third from Abraham Lincoln, and the fourth from Franklin D. Roosevelt. When Meese assails government by judiciary, he is in good company.
Meese has denounced major Supreme Court rulings of the past 60 years and called for judges to look to "the original meaning of constitutional provisions" as "the only reliable guide for judgment." No attorney general in the past four decades has set out so deliberately to reduce the power of the judiciary or to screen the ideological credentials of new appointees.
After a rash of headline-grabbing but soon forgotten appeals to the nation’s conscience, like the occupation of Alcatraz Island in 1969-1970 and the Wounded Knee uprising in 1973, the leaders of America’s impoverished and neglected Indian tribes have turned to a less spectacular but more productive way of improving their meagre lot: smart lawyers. Landowners and local governments throughout the United States find themselves outflanked by Indian lawyers demanding that ancient wrongs be righted and brandishing a potent arsenal of federal court precedents. Indian claims for land and water rights, which seemed grandiose and quixotic when first asserted a few years ago, now after a series of preliminary Indian court victories pose real threats to the owners of huge tracts of land. An Indian land claim hanging over the state of Maine is of such immense proportions that perhaps only the balm of millions of federal dollarsómaybe hundreds of millionsócan prevent severe economic dislocation. President Carter last month appointed William B. Gunter, a longtime friend who recently retired from the Georgia Supreme Court, as his special representative in an attempt to avoid litigation by an out-of-court settement or congressional legislation to resolve the dispute.