Bench Memos

Law & the Courts

The Washington Post Publishes the Worst Analysis Yet of Neil Gorsuch’s Confirmation Fight

The prize for the worst analysis to date about the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court should be awarded to Professor Richard Hasen of the University of California–Irvine Law School. Professor Hasen’s evolution from a serious legal scholar to a partisan mudslinger is now sadly complete.

That is the only conclusion to be drawn from his April 2 Washington Post editorial, “Neil Gorsuch got where he is because of a form of affirmative action.” In it, Hasen calls Judge Gorsuch “an affirmative action baby” who did not “get where he is today solely based on his merits.” According to Hasen, Judge Gorsuch’s remarkable career is a product of Justice White’s affinity for law clerks from his home state, Justice Kennedy’s charity, political connections, and wealthy clients. To call Hasen’s charges unfounded would be more charitable than his baseless speculation deserves. But Judge Gorsuch’s sterling achievements and well-earned success at every stage of his career need no defense from me or any impartial observer.

What does merit a response is Hasen’s attempt to use his baseless speculation about Judge Gorsuch as a launching pad for a defense of affirmative action. Remarkably, Hasen’s convoluted argument makes one of the best cases against race-based preferences anyone has seen in a very long time. Hasen’s thesis is that simply by knowing the circumstances of Judge Gorsuch’s life — being a Coloradan, having a politically active mother, and representing powerful clients — one can label him an “affirmative action baby.” But these kinds of assumptions are of course what make racial preferences so pernicious. In Hasen’s view, for example, every African-American graduate from an Ivy League school is presumptively an “affirmative action baby” who did not gain admission on merit. As Hasen says: “There are often more qualified people than there are positions.” So, in his eyes, race must have played a role. Quite accidentally, then, Hasen proves Justice Clarence Thomas’s point: “These programs stamp minorities with a badge of inferiority,” and in so doing, “undermine the moral basis of the equal protection principle.”

Furthermore, Hasen’s attempt to defend his position on originalist grounds is even more nonsensical. Serious jurists and scholars — originalists and non-originalists alike — have, and are engaged in, a thoughtful debate about whether, and to what extent, the 14th Amendment, as originally understood, allows the use of racial preferences in government programs. Hasen’s breezy assertion that “an honest originalist probably would conclude that affirmative action is consistent with the original meaning of the 14th Amendment’s Equal Protection Clause, as the Congress that passed the 14th Amendment also passed race-conscious affirmative action legislation,” only proves that he is neither honest nor an originalist. There is far more to the issue than that — and Hasen knows it.

Hasen then claims that it is “a deep conservatism” that led Chief Justice Roberts and Justice Alito “to vote to oppose race-based affirmative action, even though they are not originalists.” But Hasen appears to have bypassed a far more obvious reason: respect for judicial precedent. Justice Harlan’s dissent in Plessy v. Ferguson and the Court’s decision in Brown vs. Board of Education have far more in common with those who oppose race-based affirmative action than they do with those who subscribe to the amorphous “diversity” rationale. In fact, Chief Justice Roberts’s statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” is reminiscent of what the plaintiffs told the Supreme Court in Brown: “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Is this what Hasen means by “deep conservatism”?

Indeed, it is striking that Professor Hasen doesn’t even try to defend the diversity rationale — the only rationale the Supreme Court has ever accepted for using racial preferences in education. Instead, he contends that race-based preferences should extend to African Americans because many of their “ancestors were slaves in the United States” and because they “are still working to overcome more than a century of discrimination once slavery ended.”

Well, as an initial matter, his candor is welcome and instructive. It is important that the Supreme Court understand that, deep down, ardent supporters of affirmative action don’t believe in the diversity rationale — it merely a means to an end for them. The Court should therefore view diversity-rationale arguments with deep skepticism.

More fundamentally, do Hasen and other progressives genuinely believe that slavery is a defense for how affirmative action is used today? Do they care that Ivy League schools are using it as cover to engage in systematic discrimination against Asian Americans — as Students for Fair Admissions has alleged in its ongoing lawsuit against Harvard? After all, Asian Americans, as Hasen puts it, also “have faced their own struggles, with many of them or their ancestors fleeing poverty or oppression.” Does it bother Hasen and the admissions administrators at dozens of elite universities that colleges are granting racial preferences mostly to affluent minorities from well-connected families instead of minorities from challenging social-economic circumstances? These are the applicants who need the “helping hand” that Hasen claims racial preferences deliver? There are many other issues that raise additional doubts about whether modern racial-preferences can withstand scrutiny even for those jurists and academics who accept them as constitutional under some circumstances. But why let nuance get in the way of an outburst against an honorable man.

Most disappointing of all, Hasen saves his worst criticism of Judge Gorsuch for last, claiming that his failure to “meet with three senators who are all women of color” adds to the “fears” about his approach “on issues of race.”

So, it has come to this.

No presumption of good faith. No offer of proof for such a serious accusation — even though they are only three of approximately 20 senators with whom Judge Gorsuch has not met. For the progressive academic, correlation is causation, and we are all guilty of racial insensitivity unless we can prove ourselves innocent.

But is Hasen willing to live by his own test? Who are the senators that Justices Kagan and Sotomayor failed to meet with? What if they were all Christian or white? Did they miss any Jewish ones? Should we make the same disreputable assumptions about them that Hasen is so eager to make about Judge Gorsuch? Of course not.

In the end, this scurrilous weaponizing of race as a debater’s tool just proves that the diversity project is a failure. After more than 40 years of experimentation with racial classifications and preferences as a means to promote reconciliation, we have less understanding and more division. We have an increased desire to make everything in life about the few things that separate us instead of the many that unite us. We’re going backwards.

Someone has a problem with race. But it is not Neil Gorsuch.

Edward Blum, a visiting fellow at the American Enterprise Institute, is the president of the Project on Fair Representation.


The Latest