Presumably hoping its work won't be noticed, on Friday, July 1, 2011, the last workday before the long, somnolent Fourth of July weekend, the Sixth Circuit Court of Appeals delivered a 2-1 decision, BAMN v. University Of Michigan [PDF] overturning the 2006 landslide victory of Ward Connerly's Proposal 2—the Michigan Civil Rights Initiative (MCRI), which banned governmental "preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin".
So what the radical group By Any Means Necessary (or BAMN, as it likes to call itself to emphasize the threat of violence implicit in the last four words of its name—see it in riotous action in this 2005 video) couldn't achieve through intimidation, it was just handed by two Democratic-appointed federal judges: thwarting the democratic will of the people of Michigan.
Of course, the judges have also handed the GOP a killer issue to defeat Obama in 2012—if the Stupid Party has the courage to use it.
Just as in New Haven in the Ricci case, where the politicians tried to change Fire Department promotion rules after the test was given, the Sixth Circuit panel says that playing by the rules for amending the state constitution isn't allowed when nonwhites don't win.
Q. What was the crime of the majority of Michigan voters that required this drastic judicial intervention?
A. Being a majority!
In the majority opinion issued last Friday, Judge R. Guy Cole, who is black, opined that this exercise in majority rule by citizens in favor of equal protection of the laws "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities"!
(By the way, despite all the talk about how privileged white males are, none of the three judges on the panel was a white male. The other two judges are white females. Come to think of it, the President isn't a white male either.)
The two judges in the majority of the panel did not follow the most relevant precedent. In 1997, the liberal Ninth Circuit upheld California's nearly identical Proposition 209 initiative, which was chaired by Connerly and authored by Glynn Custred and Thomas Wood.
So what was Judge Cole's rationale for disenfranchising the 2,141,010 Michigan citizens who voted for Connerly's initiative?
You see, because it was so hard for Connerly's movement to amend the state's constitution, that means it would be equally hard for nonwhites to change it back. And, when it comes to something as sacred as protecting Affirmative Action, we simply can't afford luxuries like equal protection of the laws. We gotta do what we gotta do to keep quotas going.
Can anyone imagine Judge Cole following his own logic in the opposite circumstances? If BAMN had somehow earned 58 percent of Michigan's voters to go for a hypothetical initiative changing the state constitution to legalize racial preferences explicitly, would Cole have ruled that white males are unconstitutionally burdened by how hard it is to organize and pass a statewide initiative?
Of course not!
This coalition of BAMN thugs and legislating judges—reminiscent of the teaming-up of ACORN, James Johnson, George W. Bush, and Angelo Mozilo to destroy mortgage credit standards, precipitating the Minority Mortgage Meltdown and the Diversity Recession—represent what the late Sam Francis memorably called "anarcho-tyranny."
And Anarcho side got pretty blatant in Michigan. This December 14, 2005 video shows BAMN was trying to terrify the Michigan Board of State Canvassers into keeping Connerly's MCRI off the 2006 ballot. The clip ends with BAMN's chairwoman Shanta Driver [Email her] congratulating her goon squad on their behavior.
Driver was one of the winning lawyers on Friday.
Nevertheless, despite BAMN's attempts at intimidation, the voters of Michigan outlawed governmental racial and gender discrimination in the state by a 58-42 margin. And the Republican Connerly's victory was one of the rare bright moments for the GOP on a day when Democrats prevailed around the country in an anti-Bush landslide.
Indeed, Connerly's victory was a defeat for a glamorous young Illinois Senator named Barack Obama, who had recorded a radio ad against Connerly's subversive initiative for equal protection of the laws.
But, needless to say, the Bush-McCain GOP failed to follow up this opening. And Republicans paid the price in 2008, when Obama, running on a bogus image as a "racial transcender" that implied to some naïve white people that he would work for an end to the era of Affirmative Action, coasted to the White House.
Connerly's triumphant 2006 campaign was managed by Jennifer Gratz. She was already in the history books as the pyrrhic victor in the Supreme Court's inane 2003 Gratz and Grutter decisions.
In a 5-4 vote, Sandra Day O'Connor wrote a concurrence in Gratz for the liberal majority chastising the University of Michigan for using a simple point system in its racial quotas, which kept Gratz out as an undergraduate. But, crucially, O'Connor upheld the University of Michigan Law School's fuzzy "holistic" admissions process, which had (equally unfairly) denied a place to plaintiff Barbara Grutter.
However, as I predicted in January 2003, months before O'Connor wrote her mindless opinion, she was just following the lead of the Bush Administration. To quote me:
"Bush's speech was a nudge-nudge-wink-wink to Justice Sandra Day O'Connor to play Lewis Powell's role in Bakke: craft a seeming compromise that will throw a rhetorical bone to anti-quota voters deliver red meat to the racial preference industry. The Diversitycrats will be allowed to carry on - just in a more surreptitious manner that won't be as obvious to their victims.".
The back story here: the Administration's Solicitor General, Ted Olson, had crafted a strong argument against racial quotas, overt or covert. But Bush's long-time retainer Alberto Gonzales persuaded his boss to let him emasculate Olson's briefs.
Why would Gonzales be in favor of de facto quotas that give special benefits to Spanish-surnamed people? It is a puzzlement …
Powell's Bakke opinion was read by admissions departments as mandating that they stop using the word "quotas" and start using the word "goals", but otherwise continue business as usual. O'Connor's Grutter decision meant that public universities couldn't use simple point systems to discriminate against white and Asian applicants—they had to use more opaque methods, which would make it too confusing for any outsider to figure out what they were up to.
This endorsement of "holistic" admissions has encouraged the proliferation of "Me Essays" on college applications. Nonwhites are encouraged to make clear to the admissions staff just how Racially Correct they are.
You might think that the Connerly-Gratz victory in Michigan, especially in an otherwise disastrous year for Republicans, would have sent a message to the floundering Bush Administration. Instead, in 2007, Gonzales, now "the first Hispanic Attorney General", sued the Fire Department of New York—the same department that sacrificed 343 men on 9/11—for racial discrimination.
The only evidence Gonzales presented was that blacks and Latinos did worse on the department's hiring test, an objective, blind-graded exam of the ability to absorb obviously work-related knowledge, such as chain saw safety manuals. But this evidence of "disparate impact" was enough to persuade Judge Nicholas G. Garaufis, a Clinton appointee, to throw out the test and order the FDNY to hire largely at random. (And Garaufis issued his Vulcan Society opinion after the Supreme Court's Ricci decision castigating New Haven for discriminating against white firemen.)
As you may have noticed, Justice O'Connor's call for "holistic" admissions putting a thumb on the scale for the "diverse" obviously creates disparate treatment by race. So, why is tenuous disparate impact discrimination on the FDNY bad, but direct disparate treatment discrimination at the University of Michigan good?
Don't be silly! The purpose of discrimination law is to legalize discrimination against "the majority".
But, as I asked last week, aren't we all supposed to be celebrating the fact that there will eventually be no more majority in America? There are already no majorities in numerous states.
This paradox has got me to wondering: what euphemism for legally disprivileged whites will become fashionable in judicial opinions as whites lose majority status? For some reason, judges don't seem to like referring to the losers from racial preferences as "white". Maybe they'll start calling whites "the legacy majority"!
The good news: the newly-elected Republican attorney general in Michigan, Bill Scheutte, is showing some spine. He immediately announced he would appeal to the entire Sixth Circuit, and that preferences will continue to be banned while the appeal is ongoing. Scheutte said:
"MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law. … Entrance to our great universities must be based upon merit, and I will continue the fight for equality, fairness and rule of law."
Wow! The voters elected Michigan's attorney general. And, unlike Bush's attorney general, he's now returning the favor by standing up for the majority's interests.
This fundamental concept of representative democracy doesn't seem so hard to grasp. But Republican politicians are typically terrified of doing anything for their own supporters, lest they be tarred as "racist".
Still, it behooves the Republicans to find some issues to run on in 2012 that are broadly appealing to the majority of voters—such as, say, not legalizing discriminating against the majority of voters.
And BAMN's court triumph can also be useful to Republicans in reminding voters of the importance of the President's power to appoint judges. By the end of a second Obama term in early 2017, the five Republican-appointed justices on the Supreme Court who voted for Frank Ricci will be, on average, 72 years old—if they all live that long. If just one of them drops dead, Democratic-appointed justices will be a majority.
I realize that high-priced Republican superstrategists like Karl Rove and whatever-his-name-was who ran John McCain's campaign into the ground in 2008 have been saying for years that the surefire way to garner a majority at the polls is to sacrifice the interests of the majority to minorities.
But that didn't work.
Maybe it's time to try my wacky idea that the way to win the majority of voters is to be on the side of the majority of voters—what VDARE.com insists on calling "The Sailer Strategy".
It's so crazy it might just succeed!
[Steve Sailer (email him) is movie critic for The American Conservative. His website www.iSteve.blogspot.com features his daily blog. His new book, AMERICA'S HALF-BLOOD PRINCE: BARACK OBAMA'S "STORY OF RACE AND INHERITANCE", is available here.]