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November 24, 2018

FEINSTEIN CRITICIZES TRUMP NOMINEE KENNETH KIYUL LEE FOR HIS “CONTROVERSIAL” POSITION ON AFFIRMATIVE ACTION … except that Lee’s position is more in keeping with that of the majority of Americans than Feinstein’s. As Paul Sniderman and Thomas Piazza, experts in political opinion, wrote a number of years ago, issues like preferences in college admissions are “politically controversial precisely because most American do not disagree about [them]. The distribution of public opinion on … affirmative action (understood as involving either preferential treatment or racial quotas) … is unmistakable … In the country as a whole, affirmative action in employment or in education is opposed by four in five, or more.” (Italics in original.) That opposition continues.

Just before Grutter v. Bollinger, I wrote an article that argued: (1) Obviously, public support for race discrimination shouldn’t count for squat when it comes to determining its constitutionality; (2) But on the other hand, if the public opposes race discrimination (as it does in the case of race-preferential admissions policies), that should pretty much foreclose a finding by a court that a “compelling” need for it. What’s so compelling about an argument that most Americans don’t buy?

Alas, Justice Sandra Day O’Connor must not have read it….