ALEXANDER BUTTERFIELD, CALL YOUR OFFICE:  Senator Grassley stated on the Senate floor that he has read the unredacted 1023 in the Biden family business case, and it says that the Burisma executive who allegedly bribed Joe and Hunter Biden says he has audio recordings of his conversations with them.

HMMMM:  On Sunday, the New York Times carried an op-ed by Judge Shira Scheindlin entitled “If the Supreme Court Abolishes Affirmative Action, Here’s What Women Need to Do.”  In it, she called women “among affirmative action’s greatest beneficiaries.”  At least when it comes to college admissions at non-STEM specialty schools, the truth may be a little closer to the opposite.  It is common for liberal arts schools discriminate against women in admissions.

In other news, Judge Scheindlin also appears to be unaware of the research showing that racial preferences leave under-represented minority students worse off in their pursuit of high-prestige careers.  But if she has a Google Search on her name, she’ll be able to read about it now.  You can too if you’re so inclined.

“THE FAILED AFFIRMATIVE ACTION CAMPAIGN THAT SHOOK DEMOCRATS“:  G*d help me, I know that pride is a sin, but there has never been a New York Times story that pleased me more:

The 2020 campaign to restore race-conscious affirmative action in California was close to gospel within the Democratic Party. It drew support from the governor, senators, state legislative leaders and a who’s who of business, nonprofit and labor elites, Black, Latino, white and Asian.

The Golden State Warriors, San Francisco Giants and 49ers and Oakland Athletics urged voters to support the referendum, Proposition 16, and remove “systemic barriers.” A commercial noted that Kamala Harris, then a U.S. senator, had endorsed the campaign, and the ad also suggested that to oppose it was to side with white supremacy. Supporters raised many millions of dollars for the referendum and outspent opponents by 19 to 1.

“Vote for racial justice!” urged the American Civil Liberties Union of Northern California.

None of these efforts persuaded Jimmie Romero, a 63-year-old barber who grew up in the working-class Latino neighborhood of Wilmington in Los Angeles. Homelessness, illegal dumping, spiraling rents: He sat in his shop and listed so many problems.

Affirmative action was not one of those.

“I was upset that they tried to push that,” Mr. Romero recalled in a recent interview. “It was not what matters.”

Mr. Romero was one of millions of California voters, including about half who are Hispanic and a majority who are Asian American, who voted against Proposition 16, which would have restored race-conscious admissions at public universities, and in government hiring and contracting.

The breadth of that rejection shook supporters. California is a liberal bastion and one of the most diverse states in the country. That year, President Biden swamped Donald Trump by 29 percentage points in California, but Proposition 16 went down, with 57 percent of voters opposing it.

On behalf of all the wonderful people who worked with me on defeating Prop 16, I am reliving that cock-a-hoop feeling I got in November of 2020 after co-chairing the campaign.  I’ll get back to worrying about all the ways universities cheat on Proposition 209 (which Prop 16 was intended to repeal) tomorrow.

NOT YOUR GRANDFATHER’S MILITARY:  True, true.

I ENJOY READING “THE IVY EXILE” ON SUBSTACK:  Maybe you will too.

SUPREME COURT WATCH:  I’ll be holding my breath between now and the end of June waiting for the Supreme Court to issue its decision in the Harvard/UNC cases.  I refuse to be quite as optimistic as some of my colleagues.  Thrice burned (1978, 2003, & 2016), forever shy.  But I can’t help looking forward to learning the result.

The good thing about my article An Agenda for Congress is that it contains recommendations that are useful no matter what the Court decides.  One of the recommendations that the article makes would probably have to be done by litigation instead.  Indeed, that would like be more satisfying.  But with the right President and the right Congress, it could be done legislatively.

UPDATE (FROM GLENN): Affirmative Action, Democracy, and the Supreme Court.

PLEASE NEVER GIVE A NICKEL TO THESE FOLKS:  Target funds an absurdly left group that seeks the closure of Mount Rushmore–which it calls “an international symbol of White supremacy and colonization”–and the return all the public lands in the Black Hills to indigenous peoples.  Customers need to make an example of the clowns at Target.

REPARATIONS:  NOW LEGAL SCHOLARS WANT THE UN TO ORDER THEM:  If you’re looking for a way to destroy a country, this is a good start:  Promise African Americans that you will “study” the possibility of slavery reparations.  Eventually, the time the comes (indeed in California it has come) to implement what the “studies” recommend.  At that point, three things can happen:  (1) the out-of-this-world recommendations will be implemented; (2) an out-of-this-world “compromise” will be implemented, and African Americans will feel shortchanged; or (3) nothing will happen, and African Americans will feel cheated out of what they had been told that they deserve.  All three possibilities are bad.

Conservatives have a tendency to blow this off as just more hot air from the Democratic Party. “It’ll never happen.”  Even if that’s true, it’s bad.  Successful nations are built on a vague sense of camaraderie and trust–a sense that we’re all in this together and that we’re all, more or less, being treated fairly and benefitting from being together.    The USA’s stock of trust and camaraderie is already running low.  Reparations talk may severely deplete what we have left.

PRIVATELY OWNED IMMIGRATION DETENTION FACILITIES:  Progressives really hate them.  But the one I visited a few years ago looked quite good.

THE WAR ON PUNISHMENT:  California is considering a ban on solitary confinement in prisons, jails, and immigration detention centers.  Unlike many other California ideas, this one doesn’t strike me as completely crazy.  Many people consider solitary confinement, at least over long periods of time, to be unnecessarily cruel.

But it’s interesting to remember that at one point in history the opposite view was riding high:  In the early 19^th century, the notion that convicts should be placed in solitary confinement in order to allow them the opportunity to reflect upon their sins and become penitent (hence the term “penitentiary”) was considered kind.  This Quaker-inspired philosophy was pushed by the Philadelphia Society for Ameliorating the Miseries of Public Prisons in part as a substitute for corporal punishment and other harsh treatment.

The Eastern State Penitentiary in Philadelphia was built on this view in 1829.  Each prisoner was to be separately enclosed in a cell lit by a glass skylight representing the “Eye of God.”  They had no contact with other human beings except when absolutely necessary and were expected to read their Bibles silently, work, and contemplate the wrong turns they had taken in life.  The importance of solitude was taken to such an extreme that their heads would be covered when they had to be moved from one cell to another.

In its time, Eastern State Penitentiary was the most famous prison in the world.  Alexis de Tocqueville visited in 1831 with Gustave de Beaumont.  (Don’t forget that the original purpose of their American tour was to learn about the prison reform movement here).   Charles Dickens visited in 1842 and was apparently horrified:

Looking down these dreary passages, the dull repose and quiet that prevails is awful.  Occasionally, there is a drowsy sound from some lone weaver’s shuttle, or shoemaker’s last, but it is stifled by the thick walls and heavy dungeon-door, and only serves to make the general stillness more profound.  Over the head and face of every prisoner who comes into this melancholy house, a black hood is drawn; and in this dark shroud, an emblem of the curtain dropped between him and the living world, he is led to the cell from which he never again comes forth, until his whole term of imprisonment has expired…. He is a man buried alive; to be dug out in the slow round of years….

But here’s the problem for me:  It seems like every form of punishment known to man is considered intolerable these days.  They all have to go.  The de-incarceration movement is regarded as God’s work on both the Left and certain portions of the Right. Corporal punishment is considered barbaric by huge numbers of people these days, certainly for adults and increasingly for children too.  And many view the death penalty with horror.  My colleagues on the Commission on Civil Rights are aghast at the use of monetary fines and also at so-called “collateral consequences” of felony convictions (such as ineligibility to vote, ineligibility for certain public housing, etc.).  And don’t get me started about school discipline issues ….

There is every reason to want to avoid unnecessary cruelty in the world.  But it seems naïve to think that the world can get by without the need to punish wrongdoers.  If we try, I suspect we’ll find ourselves with a lot more wrongdoers.

I recently ran across a vividly worded passage from The Laws of Manu, an ancient Hindu legal text:  “If the king did not, without tiring, inflict punishment on those worthy to be punished, the stronger would roast the weaker, like fish on a spit.”

Maybe it’s my dour Scottish ancestry talking, but that sounds like a bit of ancient wisdom to me.

THAT’S QUITE A GLITCH:  Software snafu leads to 400 individuals getting bogus letters saying they might have cancer.

WE’RE SUING THEM!!:  Yesterday, the American Civil Rights Project on behalf of the Californians for Equal Rights Foundation et al. filled a complaint in court against the City and County of San Francisco et al. in response to their blatantly illegal and unconstitutional race-based guaranteed income program.

(Full disclosure:  I am chairman of the board of the American Civil Rights Project and executive vice president of the Californians for Equal Rights Foundation, and I’m feeling pretty good this morning.)

WHAT AMERICA NEEDS IS A FEW GOOD FEDERAL BUDGET EXPERTS:  Just in case a decent President is elected, conservatives need a detailed plan already in place to defund the left.  Maybe I should write it this way for emphasis:  FOR PETE’S SAKE WE NEED TO DEFUND THE LEFT.  We can’t wait till the election is over.  By then it’s too late to get the job done.  Too much taxpayer money is going to identity politics projects through colleges and universities and through “community action” nonprofits of various sorts.  It needs to stop.  (At least it looks like Ohio is on the right track.)

PRAYERS FOR GUAM:  A major typhoon is striking Guam.  I understand it is somewhat less powerful than it was originally predicted to be, but I’m sure it’s bad enough.

This may give the Biden Administration’s FEMA some real grief.  Dealing with a disaster on an island far from the mainland (and in Guam’s case thousands of miles even from Hawaii) is a horrendous task.  The Trump Administration was unfairly accused of racism in its efforts to deal with Hurricane Maria in Puerto Rico in 2017.  Puerto Rico’s population is about 20 times Guam’s, so that will make FEMA’s task easier this time around.  But Guam is much farther from Hawaii than Puerto Rico is from Florida, so that will add to FEMA’s difficulties.

HOT! HOT! HOT!:  My “Roots of Wokeness” article is now in its final, published form.  If you want a sense of how we got to where we are today, this article will supply you with a significant piece of the puzzle.

(Also:  Thank you to the student editors at the Texas Review of Law & Politics for their hard work.)

YOU CAN’T MAKE THIS STUFF UP:  Old:  Sexually explicit material in the workplace may constitute sexual harassment and violate Title VII.  New and groovy:  The removal of sexual explicit material from the school library may constitute sexual harassment and violate Title IX.

(Yes, the Biden Administration’s Office for Civil Rights at the Department of Education said that.)

C. BOYDEN GRAY, R.I.P.:  Yesterday, Boyden Gray–best known as George H.W. Bush’s White House Counsel–died at the age of 80 of heart failure.   He will be remembered, among other things, for his successful efforts to win Senate confirmation for Bush’s Supreme Court nominee Clarence Thomas.

The first time I laid eyes on Boyden Gray, I had to love him.  It was at a Federalist Society event at the Mayflower Hotel in the late 1990s.  I don’t recall what the panel discussion had been about.  What I remember is the question-and-answer period.  Two celebrity lawyers lined up at the microphone along with several rank-and-file Federalist Society members.  The first was a well known federal judge who shall go nameless.  The guy just couldn’t resist making sure everybody knew he was a big shot and seemed to assume that he would be adored for it.  He asked a snarky and ultimately pointless question.  Later in line came Boyden Gray–at the time at least as well known as the judge and probably a little more so.  He mumbled his name and identified himself as “a lawyer in Washington.”  His question was gentle and insightful.  If you didn’t know better, you might have thought Boyden Gray was just another Washington lawyer, practicing his craft in relative obscurity.  But most of the people in the room did know better.   That’s why it was so endearing.  A quarter of a century later I still remember it fondly.

SHE’D MAKE A GREAT RUNNING MATE FOR BIDEN’S SECOND TERM:  Barking mad Nebraska State Senator really wants you to know that she’s pro-trans.

HIGH NOON PODCAST WITH INEZ STEPMAN (and yours truly as guest):  “How Legal Changes to the Civil Rights Act Turbocharged the Woke Regime.”

FLAG OFFICERS FOR AMERICA COME OUT SWINGING:  On May 16th, 160 retired Admirals and Generals wrote a letter urging Congress to defund the military’s insane Diversity, Equity and Inclusion program.  The letter begins:

We respectfully request that Congress, pursuant to its constitutional powers “… to raise and support Armies …” and “… to provide and maintain a Navy …,” take legislative action to remove all diversity, equity, and inclusion (DEI) programs from the Department of Defense (DoD).  Additionally, we ask that you ensure that no DEI related policies, programs, and funding are included in the 2024 NDAA.

As our Nation faces looming threats from “foreign” adversaries/enemies, our military is under assault from a culture war stemming from “domestic” ideologically inspired political policies and practices.  If not stopped now, they will forever change the military’s warrior ethos essential to performing the mission of deterring aggression and failing that, to fight and win our Nation’s wars.  Our military must be laser focused on one mission–readiness, undiminished by the culture war engulfing our country.

For generations, our military was a meritocracy, which, simply defined, means selection and advancement based solely on merit and ability.  Service Members (SMs) were judged not by the color of their skin but by their character, duty performance, and potential.  Meritocracy, coupled with equal opportunity, created conditions for all to advance and excel, which stimulates healthy competition, thereby raising standards.  Historically, our military has been one of, if not the most, diverse and inclusive institution in America.

The domestic cultural threat has an innocuous name:  “diversity, equity, and inclusion” (DEI).  But, in reality DEI is dividing, not uniting, our military and society. … Under the guide of DEI, some people are selected for career enhancing opportunities and advancement based on preferences given to identity groups based on race, gender, ethnic background, sexual orientation, etc.

It’s quite the letter.  You can find the list of signatories at the link above.

ANOTHER LINCOLN STATUE IN JEOPARDY:  It’s so nice to know that the average college freshman is morally superior to every human being in history.  We should let those nice students get rid of all the statues and decorate their campuses with selfies.

UNSURPRISING:  Study Shows that Teachers’ Race Does Not Affect Students’ Outcomes.

HOLY TOLEDO, DOJ IS BARKING MAD:  “Justice Department:  Crime Statistics Are Racist, Shouldn’t Be Used to Focus Resources on High-Crime Areas.”

HOT! HOT!:  In An Originalist Approach to Prospective Overruling, my colleague Michael Rappaport and John O. McGinnis argue that the Supreme Court can prospectively overrule bad precedent as part of a strategy to get back to the Constitution’s original meaning.  It’s sure to be controversial.

HANS BADER:  “California Reparations Task Force Recommends Paying Black Residents Up to $1.2 Million Based on Their Race.”