12.16.2015 1

Donald Trump is dead wrong about Antonin Scalia


By Robert Romano

“I thought it was very tough to the African-American community, actually… I don’t like what he said. I heard him, I was like, ‘Let me read it again’ because I actually saw it in print, and I’m going — I read a lot of stuff — and I’m going, ‘Whoa!’”

That was Republican presidential candidate Donald Trump’s reaction on CNN’s State of the Union to an exchange between Associate Justice Antonin Scalia and Gregor Garre, a counsel for the University of Texas at Austin in oral arguments in the Supreme Court case on affirmative action, Fisher v. University of Texas at Austin.

Here is the full exchange between Scalia and Garre with complete context from the court’s Dec. 9 transcript:

JUSTICE SCALIA: There are ­­ there are those who contend that it does not benefit African­Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­advanced school, a less ­­ a slower­track school where they do well. One of ­­ one of the briefs pointed out that ­­ that most of the most of the black scientists in this country don’t come from schools like the University of Texas.

GARRE: So this Court —

JUSTICE SCALIA: They come from lesser schools where they do not feel that they’re ­­that they’re being pushed ahead in ­­ in classes that are too ­­ too fast for them.

GARRE: This Court —

JUSTICE SCALIA: I’m just not impressed by the fact that ­­ that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some — you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And ­­ and I ­­ I don’t think it ­­ it ­­ it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible. I just don’t think —

GARRE: This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case, a case that our opponents haven’t asked this Court to overrule. If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they ­­ they fare better. And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. I think what experience shows, at Texas, California, and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America. Thank you, Your Honors.

You will note that, right off the bat, Scalia is referring to one of briefs that was filed in the case, and questioning whether the University of Texas’ admissions policy does more harm than good.

Specifically, Scalia was focused on an amicus friend of the court brief filed by Richard Sander, a UCLA law professor and economist who co-authored a 2012 book with Stuart Taylor, Jr., Mismatch:  How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It. The Sander brief makes much the same case and focuses on the outcomes of the racial preferences used by the university.

The Sander-Taylor book received wide praise from writers of outlets as diverse as the New York Times, National Review, Creators Syndicate, the New Republic, and the Daily Beast. Were Sander and Taylor racist? What about those who showered their book at the time with critical acclaim as thoughtful and compelling?

As Garre noted in response to Scalia, the argument put forth by Sander is an argument the Supreme Court had considered before in the 2003 iteration of the Fisher case. In other words, it is nothing new, but nobody then was trying to suggest the court was racist for considering it. And nobody should be now.

How else is the court supposed to decide these cases on their merits than to consider the merits of the programs such as racial preferences under constitutional scrutiny? Are questions forbidden?

Consider these stories from institutions and even the Senate Minority Leader that take precisely that tact: “Scalia Comments Shine Light on U.S. Institutional Racism” from Newsweek or “Harry Reid, John Lewis assail ‘racist’ Scalia comments” from CNN.

Even dare to question the effectiveness of affirmative action programs and you are now dubbed a racist by the political and media culture. This is a dangerous trend that just 12 years ago in the first Fisher case might have been unthinkable.

Trump more than anybody in the current presidential race should be aware of the dangers of taking comments, such as Scalia’s, out of context.

Asking whether affirmative action programs do more harm than good in a case on the constitutionality of an affirmative action program, and referring to an amicus brief filed in that case asking that very question hardly deserves the moniker of racist.

And while Trump did not call Scalia a racist, he piled on at a point in time where prominent media outlets were by taking Scalia’s quote out of context and inferring that he was making some sort of eugenicist argument when the argument was about a specific study on the academic performance of those who participate in affirmative action programs at top-tier universities versus other institutions. Those nuances actually matter to the case, and justices need to be free to ask those questions, and presidents need to be able to make those same distinctions when selecting nominees to serve on the bench. Finally, our political culture needs to be able to examine that issue in a level-headed way.

Would Trump nominate a justice like Scalia to the bench? Just this past week, Trump was praising justices such as Scalia and Clarence Thomas. Yet it is this sort of simply responding-to-the-news-cycle, shallow analysis that forces many to question whether Trump will properly vet judicial nominees who are supposed to view issues with a lens toward meting out justice, not playing to the crowd.

Trump should know better. Particularly since what he just did is a perfect example of political correctness, ironic to say the least since it is something he has notably taken a stance against in his campaign.

Robert Romano is the senior editor of Americans for Limited Government.

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