Republicans Favor Affirmative Action in Criminal Justice

 

Let Republicans rejoice in the Supreme Court's decision to ban affirmative action.  Affirmative action has never been my issue. But it should be noted that, after Republicans have spent decades deriding affirmative action as a quota system, they now seem to have come out in favor of a quota system -- in criminal justice.

When it comes to academic tests and job qualifications, Republicans have long insisted that disparate impact is not proof of discriminatory intent.  If black people don't do as well on a certain test as white people, or are less likely to meet a particular job qualification, Republicans have long insisted that it is not proof that the test or job qualification is discriminatory.  Republicans may grant that many black people come from disadvantaged backgrounds and begin with the opposite of a head start.  But, Republicans say, that is no excuse for reverse discrimination.  Instead of asking for standards to be lowered to meet their disadvantage, black people should put in an extra effort, work extra hard, pull themselves up by their own bootstraps, and meet that standard.

Criminal justice, until recently, was a different matter.

 There was a time when white liberals and white conservatives disagreed strongly on affirmative action in college admissions and hiring but agreed that criminal cases must be judged strictly on the individual merits.  In this they were opposed by certain Black activists, and certain radicals of all races who believed that the whole concept of individual justice was racist, and that verdicts should be entered on the basis of righting wrongs done to entire oppressed groups.

The bizarre police pursuit of OJ Simpson's van

Thus when O.J. Simpson went on trial for the murder of his ex-wife, the memory hung in the air of four while L.A. cops who were acquitted of a vicious beating of Rodney King, despite being filmed in the act.  There were people prepared to say that since four White cops were acquitted of beating a Black man in the face of all evidence, it was only fair that a Black man should be acquitted of killing his White ex-wife in order to balance things.  White liberals and white conservatives saw eye to eye in disagreeing.  While white liberals and conservatives generally agreed that the acquittal of Rodney King's attackers was an outrage, two wrongs do not make a right.  

The same applied to the murder of Meir Kahane, the Jewish ultra-nationalist who founded the terrorist Jewish Defense League in the U.S. and later moved to Israel to found Kach, a party that advocated theocracy and the expulsion of Israel's non-Jewish in habitants.  Kahane was murdered in New York by an Arab fanatic and possible terrorist and acquitted of the crime. He was convicted of illegal firearms possession and the non-fatal shooting of a Hispanic police officer, a verdict the judge described as "against the overwhelming weight of evidence and was devoid of common sense and logic."  Radical lawyer William Kunsler justified the verdict as the result of having "third world people" on the jury who presumably saw criminal justice in terms of group solidarity rather than individual merits.  And once again, white liberals and conservatives saw eye to eye, and agreed that, no matter how odious Kahane's political views, killing him was still murder and should be treated as such.

But now that powerful Republicans -- and regular folks acting on behalf of powerful Republicans -- are facing criminal charges, suddenly a careful balance between groups must be observed, and any powerful Republican charged with a crime must be matched with a powerful Democrat or we have a "two tier system of justice."*

Actually, so far the number of powerful Republicans the political affirmative action crowd is upset to see prosecuted is one -- Donald Trump.**  The quota system condemns that.  Donald Trump, a Republican candidate for President, is being prosecuted for mishandling of classified documents.  Hillary Clinton was investigated for mishandling of classified documents but not prosecuted.  Clearly, then, Trump, must not be prosecuted either, in order to keep things fair and balanced.  Trump and Clinton's respective actions are never treated as relevant to the decision whether to prosecute.

John Durham

Oddly enough (not!), when the news first came out that Trump had been under FBI investigation during his candidacy, no one seems to have said, well, the Democratic candidate was under FBI investigation, so the FBI had to investigate Trump in order to balance things. Instead, Republicans greeted news of the FBI investigation of Trump with general outrage and proclaimed that his status as candidate for president should have been an absolute exemption from investigation.  I will admit that so far I have only briefly looked at the Durham Report, but it should lay that allegation to rest at least.  The Durham Report makes clear that the FBI has a duty to investigate the sort of tips it received.  It does, however, often seem to indicate that in the interests of balance, counter-intelligence investigations of both campaigns should be treated exactly the same, without regard to trivial details like whether the Russian intelligence services were hacking one party's e-mails and releasing them in a manner calculated to cause maximum damage.

Admittedly, some Republicans are willing to dismiss the Hillary Clinton matter in the interest of letting bygones be bygones.  They prefer to match the prosecution of a powerful Republican (Donald Trump) today with the prosecution of a powerful Democrat (Hunter Biden) today.  And invariably, Republicans say that it is unfair and shows a two tier system of justice that Donald Trump is facing more serious charges than Hunter Biden. And I will admit that Republicans have made one realistically plausible complaint. The Hunter Biden investigation is led by David Weiss, Donald Trump's appointee as U.S. Attorney for Delaware.  The Biden Administration kept Weiss on to avoid any accusation of favoritism.  Some Republicans say this is not enough, and that Weiss should have been granted special counsel status to allow him to bring charges outside of Delaware. They may have a point there.

But the Republican quota system of criminal justice seems to be asking for something else.  Republicans seem to be asking for exactly equally serious charges against Donald Trump and Hunter Biden regardless of the facts in their individual cases.  Presumably Jack Smith, as special counsel investigating Donald Trump, should call up David Weiss, as special counsel investigating Hunter Biden and say that he has enough charges against Trump to put him away for 400 years and what does Weiss have on Hunter.  When Weiss says that Hunter is looking at a mere 20 years, Smith should call on him to make a serious effort to throw the book at Hunter.  And if no matter how severe the charges, Weiss just can't get all the way to 400 years, presumably Smith will have to dismiss enough charges to even them out.  Or suppose Hunter Biden's lawyers want to make a plea bargain.  Under a quota system of justice, Weiss would have to call up Smith and see if Trump was willing to make a deal.  If the answer was no, then no plea bargain for Hunter and both cases would have to go to trial.  Presumably even Republicans would acknowledge that there is no way to requires juries to reach the same verdict.  But judges presumably should coordinate to ensure that both defendants receive the same sentence regardless of the verdicts.

And yes, I am being somewhat facetious here, but honestly, what other conclusions can one make?

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*I suppose it should not come as a surprise.  Republicans for some time now have been fans of a quota system in social media terms of service.   When social media's terms of service and bans on lies, or defamation, or hate speech keep affecting more conservatives than liberals, that could not possibly be because conservatives lie more, or defame more people, or express more hate.  No, obviously it proves that the terms of service are liberally biased.  There has been some talk of doing away with terms of service altogether, but as a practical matter that invariably leads to social media being overrun by pornography and spam.  So Republicans keep searching for the perfect term of service that will keep out spam and pornography but allow all right-wing speech, no matter how false, inflammatory, or defamatory.  Or, at a bare minimum, any political terms of service must be on a strict quota basis -- for every right wing post taken down, a left wing post must also be taken down.  If candidate A accuses his opponent of committing unspeakable acts with farm animals and social media takes the post down as false and defamatory, it must take down a post by his opponent as well.  The results of such a quota system are all to predictable and would create a perverse incentive for anyone making political postings to be as outrageous as possible -- in order to force social media to take down the other side's posts as well.

**That number may increase when charged come down for the attempt to overturn the election.  Any number of accomplices may also be charged.