October 10, 2012

Down the affirmative action rabbit hole at the Supreme Court

From the justices' questions to the U. of Texas's lawyer (Mr. Garre) defending the University of Texas's racial/ethnic preference systems. It gets pretty comic.

(By the way, a couple of days ago the humor/satire site Fark linked to my annotation of a Wall Street Journal article on the the latest kindergarten contortions in New York City. It got 200+ comments on Fark, which get progressively better as more readers start to wrap their heads around it. But, if Fark is looking for humor in the news, they should check out this cross-examination of an affirmative action defender by the Supreme Court's Murderer's Row:]

CHIEF JUSTICE ROBERTS: Counsel, before -- I 
need to figure out exactly what these numbers mean. 
Should someone who is one-quarter Hispanic check the 
Hispanic box or some different box?

 MR. GARRE: Your Honor, there is a 
multiracial box. Students check boxes based on their 
own determination. This is true under the Common 
Application -­

person who is one-quarter percent Hispanic, his own 
determination, would be I'm one-quarter percent 

 MR. GARRE: Then they would check that box, 
Your Honor, as is true -­

CHIEF JUSTICE ROBERTS: They would check 
that box. What about one-eighth?

[How about one-thirtysecond American Indian?]

 MR. GARRE: Your Honor, that was -- they 
would make that self-determination, Your Honor. If
anyone, in any part of the application, violated some 
honor code then that could come out -­

CHIEF JUSTICE ROBERTS: Would it violate the 
honor code for someone who is one-eighth Hispanic and 
says, I identify as Hispanic, to check the Hispanic box?

[Honor code? We don't need no steeenking honor code!]

 MR. GARRE: I don't think -- I don't think 
it would, Your Honor. I don't think that that issue 
would be any different than the plan upheld in Grutter 
or the Harvard plan or in Bakke.

 CHIEF JUSTICE ROBERTS: You don't check in 
any way the racial identification?

 MR. GARRE: We do not, Your Honor, and no 
college in America, the Ivy Leagues, the Little Ivy 
Leagues, that I'm aware of.

 CHIEF JUSTICE ROBERTS: So how do you know 
you have 15 percent African American -- Hispanic or 
15 percent minority?

 MR. GARRE: Your Honor, the same way that 
that determination is made in any other situation I'm 
aware of where race is taken into account.

 CHIEF JUSTICE ROBERTS: You say the same 
way. What is that way?

 MR. GARRE: The persons self-identify on 
that form.

[The issue, obviously, is that in a country where the President is half black and chooses to identify on his 2010 Census form as only black, there are no downsides to identifying dubiously as belonging to a Designated Victim Group, other than the individual's own conscience and sense of honor. We should not underestimate the sense of honor among white people, but it's a little much to assume that it will remain wholly intact under long-term assault.

By the way, for the benefit of the Justices, here is the Pew Hispanic Center's intentionally hilarious guide to Who Is Hispanic?]

 JUSTICE SCALIA: Do they have to 

 MR. GARRE: They do not, Your Honor. Every 
year people do not and many of those applicants are 

 JUSTICE SCALIA: And how do they decide? 
You know, it's -- they want not just a critical mass in 
the school at large, but class by class? How do they 
figure out that particular classes don't have enough? 
What, somebody walks in the room and looks them over to 
see who looks -- who looks Asian, who looks black, who 
looks Hispanic? Is that how it's done?

 MR. GARRE: No, Your Honor, and let me try 
to be clear on this. The university has never asserted 
a compelling interest in any specific diversity in every 
single classroom. It has simply looked to classroom 
diversity as one dimension of student body diversity.

 JUSTICE SCALIA: I don't know what you are 
talking about. I mean it is either a factor that is 
validly in this case or it isn't. Do they look to 
individual classroom diversity or not? And if so, how 
do they decide when classes are diverse?

 MR. GARRE: This Court in Grutter, Your 
Honor, and maybe the most important thing that was said 
during the first 30 minutes was, when given an 
opportunity to challenge Grutter, I understood my friend 
not to ask this Court to overrule it. This Court in 
Grutter recognized the obvious fact that the classroom 
is one of the most important environments where the 
educational benefits of diversity are realized, and so 
the University of Texas, in determining whether or not 
it had reached a critical mass, looked to the classroom 
along with -­

JUSTICE SCALIA: Fine. I'm asking how. How 
did they look to the classroom?

 MR. GARRE: Well, Your Honor -­

JUSTICE SCALIA: Did they require everybody 
to check a box or they have somebody figure out, oh, 
this person looks 1/32nd Hispanic and that's enough?

 MR. GARRE: They did a study, Your Honor, 
that took into account the same considerations that they 
did in discussing the enrollment categories -­

JUSTICE SCALIA: What kind of a study? What 
kind of a study?

 MR. GARRE: Well, Your Honor, it's in the 
Supplemental Joint Appendix.

 JUSTICE SCALIA: Yes, it doesn't explain to 
me how they go about, classroom by classroom, deciding 
how many minorities there are.

 MR. GARRE: Your Honor, there are student 
lists in each classroom. The student lists --

CHIEF JUSTICE ROBERTS: There are student 
lists in each classroom that have race identified with 
the students.

 MR. GARRE: No, no, Your Honor. Of course, 
each classroom, the university knows which students are 
taking its classes and one can then, if you want to 
gauge diversity in the classrooms, go back -­

CHIEF JUSTICE ROBERTS: Oh, you go back to 
what they checked on the form.
application form in deciding whether Economics 201 has a 
sufficient number of African Americans or Hispanics?

 MR. GARRE: That is information that is 
available to the university, Your Honor, the race of 
students if they've checked it on the application. But 
I do want to be clear on this classroom diversity study. 
This was only one of many information points that the 
university looked to.

 JUSTICE ALITO: Well, on the classroom 
diversity, how does the non-Top 10 Percent part of the 
plan further classroom diversity? My understanding is 
that the university had over 5,000 classes that 
qualified as small and the total number of African 
Americans and Hispanics who were admitted under the part 
of the plan that is challenged was just a little over 
200.  So how does that -- how does that -- how can that 
possibly do more than a tiny, tiny amount to increase 
classroom diversity?

 MR. GARRE: Well, Your Honor, first I think 
that 200 number is erroneous. There have been many more 
minority candidates -­


 MR. GARRE: No, not -- not on a per-class 

 JUSTICE ALITO: Individuals in class.

 MR. GARRE: I think in looking at the 
classrooms, Your Honor, what the university found was 
shocking isolation.

[I am shocked, SHOCKED.]

 JUSTICE ALITO: How many -- how many non-Top 
10 Percent members of the two minorities at issue here 
are admitted in each class?

 MR. GARRE: Your Honor, we didn't look 
specifically at that determination. What we did -- in 
other words, to try to find whether there were holistic 
admits or percentage admits, we did conclude in 2004 -­
and again this was before -- we did the classroom study 
before the plan at issue was adopted and at that time 
there were no holistic admits taking race into account. 
And what we concluded was that we simply -- if you 
looked at African Americans, for example, in 90 percent 
of the classes of the most common participatory size -­

JUSTICE ALITO: I really don't understand 
your answer. You know the total number of, let's say, 
African Americans in an entering class, right? Yes or 

 MR. GARRE: Yes, Your Honor.

 JUSTICE ALITO: And you know the total 
number who were admitted under the Top 10 Percent Plan?

 MR. GARRE: We do, Your Honor. But again at 
the time -­

JUSTICE ALITO: If you subtract A from B 
you'll get C, right?

 MR. GARRE: Your Honor, at the time -­

JUSTICE ALITO: And what is the value of C 
per class?

 MR. GARRE: Your Honor, I don't know the 
answer to that question, and let me try to explain why 
the university didn't look specifically to that. 
Because at the time that the classroom diversity study 
was conducted, it was before the holistic admissions 
process at issue here was adopted in 2003-2004. And so 
that determination wouldn't have been as important as 
just finding out are African Americans or Hispanics, 
underrepresented minorities, present at the university 
in such numbers that we are not experiencing racial 
isolation in the classroom.

 CHIEF JUSTICE ROBERTS: What is that number? 
What is the critical mass of African Americans and 
Hispanics at the university that you are working toward?

 MR. GARRE: Your Honor, we don't have one. 
And this Court in Grutter -­

[What's going on here is that the 1978 Bakke decision more or less legalized quotas as long as they aren't referred to as quotas. Since then, quota supporters have started to use the term "critical mass" to justify quotas. Now, "critical mass" sounds very scientific and quantitative (if you have a critical mass of plutonium of a certain amount, then BOOM), but if the quota supporters ever let themselves be pinned down to putting a number to it, then it sounds a lot like a quota.

The University of Texas at Austin has 38,400 undergraduates and about 15,000 are nonwhite. A couple of thousand are black. So, keep that in mind in the subsequent gang-ups.]

supposed to tell whether this plan is narrowly tailored 
to that goal?

 MR. GARRE: To look to the same criteria of 
this Court in Grutter. This Court in Grutter 
specifically rejected the notion that you could come up 
with a fixed percentage. Now -­

JUSTICE ALITO: Does critical mass vary from 
group to group? Does it vary from State to State?

 MR. GARRE: It certainly is contextual. I 
think it could vary, Your Honor. I think -- let me 
first say that my friends have, throughout this 
litigation, not in this Court, asserted 20 percent as a 
critical mass and that's lumping together different 
minority groups.

 JUSTICE ALITO: But could you answer my
question? What does the University of Texas -- the 
University of Texas think about those questions? Is the 
critical mass for the University of Texas dependent on 
the breakdown of the population of Texas?

 MR. GARRE: No, it's not at all.


 MR. GARRE: It's not at all. It's looking 
to the educational benefits of diversity on campus, and 
I think we actually agree on what that means and what 
Grutter said it meant in terms of -­

JUSTICE GINSBURG: Mr. Garre, could you 
explain -- I think you were trying to before -- what 
seems to me the critical question in this case: Why 
didn't the 10 percent solution suffice? There were a 
substantial number of minority members admitted as a 
result of the 10 percent solution. Why wasn't that 
enough to achieve diversity?

 MR. GARRE: Let me make a couple of points, 
Your Honor. First, if you just looked at the numbers -­
we don't think it's the numbers, but if you looked at 
the numbers after 7 years, racial diversity among these 
groups at the University of Texas had remained stagnant 
or worse. 2002, African American enrollment had 
actually dropped to 3 percent.

[That's about a thousand blacks among undergraduates.]

That's one part of it.
 The other part of it is if you look at the 
admissions under the top 10 percent plan, taking the top 
10 percent of a racially identifiable high school may 
get you diversity that looks okay on paper, but it 
doesn't guarantee you diversity that produces 
educational benefits on campus. And that's one of the 
considerations that the university took into account as 

 JUSTICE SCALIA: I don't understand that. 
Why? Why doesn't it?

 MR. GARRE: Because, Your Honor, as is true 
for any group, and the Harvard plan that this Court 
approved in Bakke specifically recognized this, you 
would want representatives and different viewpoints from 
individuals within the same -- the same racial group, 
just as you would from individuals outside of that.

 JUSTICE SCALIA: What kind of viewpoints? I 
mean, are they political viewpoints?

 MR. GARRE: Anyone's experiences, where they 
grew up, the situations that they -- that they 
experience in their lives are going to affect their 

 JUSTICE SCALIA: But this has nothing to do 
with racial diversity. I mean, you're talking about 
something else.

 MR. GARRE: Your Honor, I think it direct
impacts the educational benefits of diversity in this 
sense, that the minority candidate who has shown that -­
that he or she has succeeded in an integrated 
environment, has shown leadership, community service, 
the other factors that we looked at in holistic review, 
is precisely the kind of candidate that's going to 
come -- come on campus, help to break down racial 
barriers, work across racial lines, dispel -­
stereotypes -­

JUSTICE SCALIA: Also, the kind that is 
likely to be included within the 10 percent rule.
 And, incidentally, when was the 10 percent 
rule adopted?

 MR. GARRE: 1998, Your Honor.
 But with respect to your factual point, 
that's absolutely wrong, Your Honor. If you look at the 
admissions data that we cite on page 34 of our brief, it 
shows the breakdown of applicants under the holistic 
plan and the percentage plan. And I don't think it's 
been seriously disputed in this case to this point that, 
although the percentage plan certainly helps with 
minority admissions, by and large, the -- the minorities 
who are admitted tend to come from segregated, 
racially-identifiable schools.

 JUSTICE ALITO: Well, I thought that the 
whole purpose of affirmative action was to help students 
who come from underprivileged backgrounds, but you make 
a very different argument that I don't think I've ever 
seen before.
 The top 10 percent plan admits lots of 
African Americans -- lots of Hispanics and a fair number 
of African Americans. But you say, well, it's -- it's 
faulty, because it doesn't admit enough African 
Americans and Hispanics who come from privileged 
backgrounds. And you specifically have the example of 
the child of successful professionals in Dallas.
 Now, that's your argument? If you have -­
you have an applicant whose parents are -- let's say 
they're -- one of them is a partner in your law firm in 
Texas, another one is a part -- is another corporate 
lawyer. They have income that puts them in the top 
1 percent of earners in the country, and they have -­
parents both have graduate degrees. They deserve a 
leg-up against, let's say, an Asian or a white applicant 
whose parents are absolutely average in terms of 
education and income?

 MR. GARRE: No, Your Honor. And let me -­
let me answer the question.
 First of all, the example comes almost word 
for word from the Harvard plan that this Court approved 
in Grutter and that Justice Powell held out in Bakke.

 JUSTICE ALITO: Well, how can the answer to 
that question be no, because being an African American 
or being a Hispanic is a plus factor.

 MR. GARRE: Because, Your Honor, our point 
is, is that we want minorities from different 
backgrounds. We go out of our way to recruit minorities 
from disadvantaged backgrounds.

 JUSTICE KENNEDY: So what you're saying is 
that what counts is race above all.

 MR. GARRE: No, Your Honor, what counts is 
different experiences -­

JUSTICE KENNEDY: Well, that's the 
necessary -- that's the necessary response to 
Justice Alito's question.

 MR. GARRE: Well, Your Honor, what we want 
is different experiences that are going to -- that are 
going to come on campus -­

JUSTICE KENNEDY: You want underprivileged 
of a certain race and privileged of a certain race. So 
that's race.

 MR. GARRE: No, Your Honors, it's -- it's 
not race. It's just the opposite.
 I mean, in the LUAC decision, for example, 
this Court said that failing to take into account 
differences among members of the same race does a 
disservice -­

JUSTICE KENNEDY: But the reason you're 
reaching for the privileged is so that members of that 
race who are privileged can be representative, and 
that's race. I just -­

MR. GARRE: It's -- it's members of the same 
racial group, Your Honor, bringing different 
experiences. And to say that -- if you took any racial 
group, if you had an admissions process that only tended 
to admit from a -- people from a particular background 
or perspective, you would want people from different 


MR. GARRE: And that's -- that's the 
interests that we're discussing here. It's the 
interests that the Harvard plan specifically adopts 
and lays out -­

CHIEF JUSTICE ROBERTS: I understand my job 
under our precedents to determine if your use of race is 
narrowly tailored to a compelling interest.
 The compelling interest you identify is 
attaining a critical mass of minority students at the 
University of Texas, but you won't tell me what the 
critical mass is. How am I supposed to do the job that 
our precedents say I should do?

 MR. GARRE: Your Honor, what -- what this 
Court's precedents say is a critical mass is an 
environment in which students of underrepresented -­

CHIEF JUSTICE ROBERTS: I know what you say, 
but when will we know that you've reached a critical 

 MR. GARRE: Well -­

CHIEF JUSTICE ROBERTS: Grutter said there 
has to be a logical end point to your use of race. What 
is the logical end point? When will I know that you've 
reached a critical mass?

[What the University of Texas bigshots would say if they could be completely honest, not only with the Supreme Court but inside their own minds is: "Look, we know we've got a good thing going here with all sorts of smart white and Asian students wanting to come here, and we don't intend to screw it all up the way CCNY did in 1969 by letting in so many Hispanics and blacks that we kill the goose that lays the golden eggs. Trust us to be cynically self-serving."]

 MR. GARRE: Your Honor, this question, of 
course, implicates Grutter itself. And, again, I 
understood my friend not to challenge that. They 
haven't challenged that diversity is a compelling 
interest at all.
 What -- what we look to, and we think that 
courts can review this determination, one, we look to 
feedback directly from students about racial isolation 
that they experience. Do they feel like spokespersons 
for their race.

[This "does not feel like spokesperson for his or her race" test of when a critical mass is big enough is a very weird one since racial preferences are defended by people who are professional spokespeople for their race. The Xochitl Hinojosa-type ethnic spokespersons tend to be ethnic warriors for increasing the number of people of their supposed group in the country so they can make even more money as spokesmodels.]

conduct a survey and ask students if they feel racially 

[All teenagers feel isolated. I remember watching a Britney Spears video back about 12 years ago where she plays a high school girl who feels so lonely. She really was getting into it.]

MR. GARRE: That's one of the things we 
looked at.

 CHIEF JUSTICE ROBERTS: And that's the basis 
for our Constitutional determination?

 MR. GARRE: Your Honor, that's one of the 
things that we looked at.

 CHIEF JUSTICE ROBERTS: Okay. What are the 

 MR. GARRE: Another is that we did look to 
enrollment data, which showed, for example, among 
African Americans, that African American enrollment at 
the University of Texas dropped to 3 percent in 2002 
under the percentage plan.

 CHIEF JUSTICE ROBERTS: At what level will 
it satisfy the critical mass?

 MR. GARRE: Well, I think we all agree that 
3 percent is not a critical mass. It's well beyond 

[Three percent is about 1,000 black undergraduates on the UT Austin campus.]

 CHIEF JUSTICE ROBERTS: Yes, but at what 
level will it satisfy the requirement of critical mass?

 MR. GARRE: When we have an environment in 
which African Americans do not -­

supposed to decide whether you have an environment 
within particular minorities who don't feel isolated?

MR. GARRE: Your Honor, part of this is a -­
is a judgment that the admin -- the educators are going 
to make, but you would look to the same criteria -­

["You'll decide, Mr. Chief Justice, when self-appointed minority spokespersons damn well tell you to decide that minority students no longer feel like minority spokespersons, and not a minute before!]

you tell me, that's good enough.

[Roberts gets the joke.]

 MR. GARRE: No, Your Honor, not at all. You 
would look to the criteria that we looked at, the 
enrollment data, the feedback from the students. We 
also took into account diversity in the classroom. We 
took into account the racial climate on campus.

 JUSTICE ALITO: But would 3 percent be 
enough in New Mexico, your bordering state, where the 
African American population is around 2 percent?

 MR. GARRE: Your Honor, I don't think it 

[Perhaps all the black college students in New Mexico should be bussed to Texas in order to benefit from Critical Mass. Hey, it worked in Boston!]

I mean, our concept to critical mass isn't tied 
to demographic. It's undisputed in this case that we 
are not pursuing any demographic goal. That's on page 
138 of the Joint Appendix.
 All of -- I think many key facts are 
undisputed here. It's undisputed that race is only a 
modest factor. It's undisputed that we're taking race 
into account only to consider individuals in their 

 JUSTICE SOTOMAYOR: Mr. Garre, I think that 
the issue that my colleagues are asking is, at what 
point and when do we stop deferring to the University's 
judgment that race is still necessary? That's the 
bottom line of this case. And you're saying, and I 
think rightly because of our cases, that you can't set a 
quota, because that's what our cases say you can't do.
 So if we're not going to set a quota, what 
do you think is the standard we apply to make a 

 MR. GARRE: I think the standard you would 
apply is the one set forth in Grutter, and it comes from 
Justice Powell's opinion in Bakke, that you would look 
to whether or not the University reached an environment 
in which members of underrepresented minorities, African 
Americans and Hispanics, do not feel like spokespersons 
for their race, members -- an environment where 
cross-racial understanding is promoted, an environment 
where the benefit -- educational benefits of diversity 
are realized.
 And the reason why the University of Texas 
concluded that that environment was not met here, it 
laid out in several different information points that 
this Court can review -­

JUSTICE SCALIA: But that holds for only -­
only another what, 16 years, right? Sixteen more years, 
and you're going to call it all off. ...

 JUSTICE ALITO: Well, in terms of diversity, 
how do you justify lumping together all Asian Americans? 
Do you think -- do you have a critical mass of Filipino 
Americans? Cambodian Americans -­

MR. GARRE: Your Honor -­

JUSTICE ALITO: -- Cambodian Americans?

[This is hardly just theoretical. Lots of Asian spokespersons argue for more finely dividing the Asian category so that Cambodians and Hmongs and the like can be considered Underrepresented Minorities. Indeed, Pacific Islanders used to be lumped with Asians, but in the 1990s they got the Clinton Administration to give them a separate racial category so they can benefit from quotas.]

 MR. GARRE: -- the common form that's used 
has Asian American, but also, next to that, has a form 
that says country of origin where that can be spelled 

 JUSTICE ALITO: But do you have a critical 
mass as to all the subgroups that fall within this 
enormous group of Asian Americans?

 MR. GARRE: Your Honor, we've looked to 
whether or not we have a critical mass of 
underrepresented minorities, which is precisely what the 
Grutter decision asks us to do.
 I think -- if I can make a quick point on 
jurisdiction -­

JUSTICE KENNEDY: If I could, before we get 
to that.

 MR. GARRE: I'm sorry.

 JUSTICE KENNEDY: Suppose we -- that you, in 
your experience identify a numerical category a 
numerical standard, a numerical designation for critical 
mass: It's X percent. During the course of the 
admissions process, can the admissions officers check to 
see how close they are coming to this numerical -­

MR. GARRE: No. No, Your Honor, and we 
don't. On page 389 -­

JUSTICE KENNEDY: You -- you cannot do that?

[Mr. Garre must be really sweating now. He needs Kennedy's vote and that's not at all a helpful question that Kennedy just asked.]

 MR. GARRE: We -- we wouldn't be monitoring 
the class. I think one of the problems -­

JUSTICE KENNEDY: But isn't that what 
happened in Grutter; it allowed that.

 MR. GARRE: It did, Your Honor. It was one 
of the things -­

JUSTICE KENNEDY: So are you saying that 
Grutter is incorrect?

 MR. GARRE: No, Your Honor. It was one of 
the things that you pointed out in your dissent. What 
I'm saying is we don't have that problem, because -­

JUSTICE KENNEDY: I'm -- I'm asking whether 
or not you could do that. And if -­

MR. GARRE: I don't think so, because the 
Grutter majority didn't understand it to be monitoring 
for the purposes of reaching a specific demographic.

 CHIEF JUSTICE ROBERTS: They don't -- they 
don't monitor, but race is the only one of your holistic 
factors that appears on the cover of every application, 

 MR. GARRE: Well, all the holistic factors 
are taking into account on the application, and they're 
listed at various points on the application.

question was whether race is the only one of your 
holistic factors that appears on the cover of every 

 MR. GARRE: That -- that is true on the 
cover of the application.


peterike said...

Oh my god, I couldn't even get to the end of that. It was too maddening.

Does this Garre fellow really believe the muddled, incoherent insanity he's spewing? Or is he just a hired gun thrown into a hopeless situation?

Curious how the court will go, though. The four Commies will vote in favor of Aff Action no matter what (Constitution be damned). But Roberts is the interesting one. Will he try to win back the hearts of Conservatives and vote the way he knows damn well the Constitution would have him vote? Or has the Left corrupted him utterly?

I guess we'll known eventually.

Anonymous said...

So, it all comes down to what the students feel?How many of the students have to feel "like ethnic spokesmen?" A majority? A plurality?One third?

Off topic, Steve, but do you have any reaction on the race-traitor rhetoric being dumped on Stacey Dash after she endorsed Romney?

chucho said...

Reads like Ionesco.

BN said...

I went to the University of Texas and I am currently in academia. Many, if not most professors it seems to me are quite aware of the limitations of affirmative action, at least as it is currently practiced. They may spout the correct lines when they have to about supporting it more and more no matter what, but behind closed doors it is different. They're liberal, but not generally blind. However, I will never forget one class in the Communications Department. Intercultural communication. There were students wanting to add the class at the beginning of the semester. Of those already registered for the class were at least half were minority. The professor was only going to let three or so more students in (he could have let in more but he wanted to limit his work, it seemed). He stood up there and said he would only let in minorities so the class wouldn't be so white. Everyone-minorities included-were laughing at him. He just could not see past his ideological blinders. Blacks and Hispanics could, but he couldn't.

TontoBubbaGoldstein said...

That is some funny stuff!!

Wait a minute... That was real?? !!

We have come a long way from Marbury v Madison...

TontoBubbaGoldstein said...

Truly hilarious!

W-w-wait a minute. This is real???

Cail Corishev said...

This stuff is hilarious. I've never argued before the SCOTUS, so I'm wondering: are you required to say "Your Honor" every time you open your trap, or is this guy just being a kiss-ass?

This is great: "First, if you just looked at the numbers -­ we don't think it's the numbers, but if you looked at the numbers after 7 years..." Look at the numbers, even though it's definitely not about the numbers, because you told us it couldn't be about the numbers last time, but look at the numbers, but don't ask us for numbers that would make us happy, because we're not allowed to put a number on that, just look at the current numbers which are definitely too low....

Hilarious how he keeps trying to appeal to precedent, basically telling them, "Hey, you ruled for us last time, and the other side hasn't asked you to overrule that, so you have to stick with what you said then, whether it was stupid or not." Too bad that actually works as often as it does.

He's lying through his teeth, and everyone in the room knows exactly what he's lying about and why, and what's really going on here. If there were any common sense or justice involved, they'd have stopped him about two minutes into this and told him to stop wasting their time and get out before they put him in stocks outside so people could throw rotten fruit at him. What nonsense. How can anyone take our government seriously anymore?

Cail Corishev said...

Heck, even Sotomayor pointed out the obvious problem with his claim that they can somehow reach this magical "enough diversity" level when they insist the can't even put a measurement on it. She seemed to be trying to get him off the quota hook that Scalia and Roberts were hanging him on, by giving him a chance to offer some other standard, but that's not possible because any standard would have to be a quota at heart. Maybe she can't see that.

JUSTICE SOTOMAYOR: Mr. Garre, I think that the issue that my colleagues are asking is, at what point and when do we stop deferring to the University's judgment that race is still necessary? That's the bottom line of this case. And you're saying, and I think rightly because of our cases, that you can't set a quota, because that's what our cases say you can't do. So if we're not going to set a quota, what do you think is the standard we apply to make a judgment?

Anonymous said...

Pure comedy gold. Like an Abbott and Costello routine.

I like the "you can't feel like your the spokesman for your race" standard. What if you are Burmese-American or Australian Aborigine-American or some other rare ethnic group? How many more of you do they have to get on campus before you don't feel like you are the designated spokesperson? Or, as the UT lawyer hints, is it close enough if there are a bunch of Asians on campus even if Burmese have nothing in common with Koreans? Also what if you are a rare combination - say 1/2 Japanese and 1/2 Tutsi. Do they have to find more Japanese/Tutsis or even more Asian/Black people (Tiger Woods?) so you don't have to assume the dreaded spokesperson role? The clever administrators will KNOW when this level is reached, even though they can't tell you what the number is. It is like pornography - they will know it when they see it.

Pure comedy gold I tell you. You can't make this stuff up.

Anonymous said...

Garre's logic will lead to every smart white or asian kid searching their genealogy for some kind of arguably Spanish or Latino ancestor. Future mothers from China may want to give birth in Puerto Rico.

Anonymous said...

It is rather amusing. First the Supreme Court says they can't use numerical quotas, and then the Justices question them on what numerical quotas would be necessary to declare victory. It's obscuritanism meets scientific rationalism.

Anonymous said...

This is the world we're supposed to regard as normal and go out and be successful in.

The people who do so, without engaging in criminal activity, are gifts that mankind has no right to expect.

But these saints are part of the problem. They give this insane society legitimacy. Instead of continuing to work in this society, they might consider rioting in the streets. But never fear; they won't rebel, except, at most, in quiet, unseen ways.

What is more troubling is the dilemma of the younger generations. They are not yet fully hooked into the Establishment. They aren't bought yet. They have no real allegiances (just the vague one of keep the parents happy, maybe). So, what must they think when the evil become clear to them? (Especially in a personal way, e.g., the defendant in this case and everyone represented by the defendant.) Their choices then are fundamentally two: either unplug totally from the culture (forget college, start a dry cleaning business and keep your head way down) or become apparatchiks. This means, over time, the further corruption of the society.

This mechanism is part of what makes an empire rot and finally expire.

This case is at least being addressed in highest court. So we can rest assured that fair-minded legal eagles like Ginsberg and Sotomayor will straighten it all out definitively. (sarcasm)

Cail Corishev said...

Legal eagles, huh.

You know, when I read discussion forums on bridge (the card game), I'm often blown away by the intelligence of the contributors and their ability to build logical constructs. Likewise when I read computer programming discussions, or when someone like Derb talks about math. Really smart people sound really smart when they talk within their fields.

But when I read these transcripts, I get none of that. Oh, some of the justices, especially Scalia, are clearly sharp and can make a good point, but nothing I couldn't have thought of with a few minutes' ruminations. No one says anything that's both honest and not completely obvious. They're pretty good at turning a phrase, but they sure don't give off any impression of great mental skills.

Auntie Analogue said...

We, the People, pay these robed geniuses how much, exactly, to go through this "You can't make this stuff up" exercise in obscurantist gibberish?

Having read that silliness I now understand the reason for the origin of the exclamation, "Just shoot me!"

Cut the crap! Just admit those who earn admission because they qualify! But we could wait for that like two characters I know of who waited for Godot.

Anonymous said...

"Garre's logic will lead to every smart white or asian kid searching their genealogy for some kind of arguably Spanish or Latino ancestor. Future mothers from China may want to give birth in Puerto Rico."

I laughed so hard reading that. They might actually start doing that if things continue going the way they are.

Anonymous said...

Interesting. The lawyer is tap-dancing as fast as he can on the facts, doing his best to obfuscate what the university actually does (to the extent he understands it). Instead, he continually throws back bits of the Court's prior opinions that he thinks will allow them to rule his way, without getting real specific as to what use the university makes of an applicant's race. Embarassing.

Anonymous said...

Garre's logic will lead to every smart white or asian kid searching their genealogy for some kind of arguably Spanish or Latino ancestor. Future mothers from China may want to give birth in Puerto Rico."

If Asians were anything like whites, they would just say forget all this crap. We will just build our own universities. We have the money, the talent and the skills. We don't need your Ivy League, we will build our own Lemon grass league and you will come begging us someday. Look how many US institutions were founded exactly that way. The outsiders got tired of the gatekeepers and just built their own stuff. Just read the histories of the top US universities.

Kylie said...

Hamilton Burger must be Garre's role model. There is no other explanation for this level of risible incompetence.