Sen. Biden parrots the party line that there’s plenty of discrimination today, it’s just “very, very sophisticated” compared to the old days, and adds that Title VII of the Civil Rights Act was written to get at it. Well, of course, when Title VII was first passed, in 1964, the discrimination wasn’t so subtle. And the happy truth that the civil-rights bar won’t face is that, compared to 1964, there really isn’t very much discrimination, and it is now socially and legally unacceptable. Sure, some still exists, and always will in non-police-states, but the only institutionalized, nonaberrational discrimination these days is politically correct “diversity”-mongering.

The dispute between judges in cases like the ones that Sen. Biden brought up is how to devise some procedural rules that sift the meritorious cases that deserve to go to a jury from the nonmeritorious ones that don’t. There can be legitimate differences of opinion here, and just because Judge Alito draws the line differently than Sen. Biden would doesn’t make the former anti-civil rights or pro-discrimination. And it clear, incidentially, that Justice O’Connor would draw the line closer to where Judge Alito would than where Sen. Biden would.