ON THIS DAY IN 1789, JOHN JAY WAS SWORN IN AS THE FIRST CHIEF JUSTICE OF THE UNITED STATES: During his nearly six years in office, the Supreme Court decided only a tiny handful of cases. No wonder he gave it up to be Governor of New York. It’s a little for hard for me to imagine someone giving up the job for a governorship today.

ONE OF ELIZABETH WARREN’S OLD STUDENTS:  She reminds us of why all this stuff matters.

IT’S A SECRET WHY IT’S A SECRET:  So don’t ask.

Leftward, ho!:  Steve Hayward writes about the Democrats’ leftward march.

OCTOBER 17:  On this day in history, Evel Knievel was born.  And #MeToo.

LIZ WARREN: Don’t forget that this isn’t exactly the first time she has been caught misleading the public. I did warn folks back in 2006, but nobody wanted to listen. 

ONE THIS DAY IN 1907, VARIAN FRY—THE FIRST AMERICAN TO BE RECOGNIZED AS “RIGHTEOUS AMONG THE NATIONS”—WAS BORN: Varian Fry was a bookish Harvard grad, who came of age in the era when a certain level of anti-Semitism was common among the WASP elite to which he was born. It seems not to have infected Fry. Or if it did, it didn’t prevent him from risking his own life to save the lives of thousands of Jews.

Fry had become an ardent anti-Nazi after visiting Berlin in 1935 as a foreign correspondent for The Living Age. There he was appalled by the violence against Jews that he witnessed. When war broke out, Fry founded the Emergency Rescue Committee. He initially hoped that the Committee would find somebody “more qualified” than he to travel to Europe to undertake rescue operations. But nobody stepped up.

Instead, it was Fry himself who left for Marseille with $3000 strapped to his leg in 1940.   He had a list Jewish (and some non-Jewish) anti-Nazi dissidents and avant-garde artists. They were considered to be in imminent danger of Nazi arrest.

In Marseille, Fry worked with a crew of improbable allies—including American art student Miriam Davenport, Chicago heiress and bon vivant Mary Jayne Gold, and Gold’s lover, Raymond Couraud, a local gangster (and later a war hero).  Over the course of just a few months, they managed to smuggle thousands out of the country, mostly to neutral Portugal (and from there to the United States and other New World destinations.)

Crucial to their success was the help of Hiram Bingham IV, an American vice consul there, who issued visas, some of which were legal, but most of which were issued without legal authority.

Not all of those rescued can be described as anti-Nazi dissidents or avant-garde artists. But many were, including Hannah Arendt, André Breton, Marc Chagall, and Jacques Lipchitz.

MORE SUPPORT FOR THE MISMATCH THESIS: A recently-posted paper on the National Bureau of Economic Research web site contributes to the growing body of evidence that affirmative action preferences hurt, rather than help, their intended beneficiaries.

Interestingly, this study was of students’ experiences in primary school rather than in college or graduate school. But if competing with students that are much better prepared to do well can cause problems for primary school students, it’s hard to see why it is so unthinkable that it would do so for college students.

Richard Murphy and Felix Weinhardt write that their research “establishes a new fact about educational production: ordinal academic rank during primary school has long-run impacts that are independent from underlying ability.” To put it in more concrete terms: Suppose a primary school student has the experience of being toward the bottom of her class in math simply because her class happened to have a lot of high-ability students in it. After that experience, she is less likely feel confident of her math ability and less likely to study and do well in math in secondary school than a student who had the same demonstrated ability in primary school, but who ranked higher in the class because he happened to be competing with fewer high-ability students.

For more background on the problem of mismatch, read Want to be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg up May Hurt Your Chances and A “Dubious Expediency”: How Race-Preferential Admissions Policies on Campus Hurt Minority to Students.

THE PRIDE OF THE HERIOT CLAN: On this day in 1918, James Davison Heriot—the only Heriot to receive the Medal of Honor—charged two gun nests near Vaux-Andigny, France.

PLUS ÇA CHANGE, PLUS C’EST LA MÊME CHOSE: Argh! Despite the change in administrations, the EEOC continues to follow the policies developed during the Obama Administration, which declared it to be “race discrimination” to decline to hire job applicants with criminal records.

I wrote about that very wrongheaded policy back during the Obama Administration.   And yesterday I linked to new research that indicates that making it difficult for employers to ask job applicants about their criminal records ends up hurting low-skilled, young African American males (since it encourages risk-averse employers to avoid hiring from pools they perceive to be high-risk).

So far it would be difficult to tell the Trump Era EEOC from the Obama Era EEOC.

Here’s one idea for how to start moving in a new direction.

CALIFORNIA’S CORPORATE BOARD QUOTAS: Yes, it’s unconstitutional for California to set quotas for women serving on boards of public corporations.

“THE UNINTENDED CONSEQUENCES OF ‘BAN THE BOX’: STATISTICAL DISCRIMINATION AND EMPLOYMENT OUTCOMES WHEN CRIMINAL HISTORIES ARE HIDDEN:” Research continues to show that laws prohibiting employers from asking about a job applicant’s criminal record encourage employers to discriminate against young African-American males. Here is the abstract:

Jurisdictions across the United States have adopted “ban the box” (BTB) policies preventing employers from asking about job applicants’ criminal records until late in the hiring process. Their goal is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment. However, removing criminal history information could increase statistical discrimination against demographic groups that include more ex-offenders. We use variation in the timing of BTB policies to test BTB’s effects on employment. We find that BTB policies decrease the probability of employment by 3.4 percentage points (5.1%) for young low-skilled black men.

The Obama-Era EEOC had a similar policy that it justified as an application of disparate impact liability. I wrote extensively about it in connection with a report by the U.S. Commission on Civil Rights. The policy hasn’t changed under Trump.  A good case can be made that the federal government should encourage employers to hire ex-offenders (for example, through the already-existing modest tax deduction program). But to do it by insisting that employers wear blindfolds has perverse consequences.  Young, law-abiding, low-skilled African American men end up paying for offenses they didn’t commit.

ERIC DREIBAND AND JEFF CLARK WILL FINALLY GET A FLOOR VOTE: Well, it’s about time. I can’t imagine a good reason for the Trump Administration to want to allow DOJ’s Civil Rights Division or its Environmental and Natural Resources Division to go without a leader for this long.

“PERCEPTIONS OF NEWSWORTHINESS ARE CONTAMINATED BY A POLITICAL USEFULNESS BIAS”: Of course, after the last few weeks, if you need Hal’s and my diligent research to prove that to you, there is something wrong with you. Maybe somebody should write an article entitled “Perceptions of Political Usefulness Wholly Determine Whether Something Is Considered Newsworthy These Days.”

MIGHT ACCEPTANCE OF THE MISMATCH THESIS COME SLOWLY?: Last week I wrote about the efforts to eradicate yellow fever and malaria during the Panama Canal construction. One thing that struck me as I was reading about the subject was how long it took many in the medical profession to accept the proof that mosquitos were the problem. It gives me hope that universities may yet take seriously the evidence that we would have more African Americans physicians, dentists, engineers, scientists, and college professors (and likely more African American lawyers) if race-neutral admissions policies were the norm.

I’ve written about this in Want to be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg up May Hurt Your Chances and in A “Dubious Expediency”: How Race-Preferential Admissions Policies on Campus Hurt Minority to Students. (Yes, I’ve posted these articles before. I figure I’ll keep posting them until I’m sure that everybody and his brother know about the evidence.)

NOW THAT KAVANAUGH HAS BEEN SWORN IN, IS IT MORE LIKELY OR LESS LIKELY THAT THE COURT WILL GRANT REVIEW IN METCALF v. UNITED STATES?: I can make arguments running both ways. What I have a hard time understanding is why anybody would think the Thirteenth Amendment (slavery prohibition) gave Congress the power in 2009 to pass a law against racially-motivated hate crimes, long after any threat of slavery’s return had passed. But you can judge for yourself if you read this brief.

ON THIS DAY IN 1893, Finley Peter Dunne’s fictional character, Mr. Dooley, first appeared in print in the Chicago Evening Post. For 33 years, Dunne furnished Chicagoans with wit and political wisdom though this amiable Irish immigrant bartender.   Among Dunne’s better-known quotations:

EXPERTS: “A war expert is a man ye niver heerd iv before. If ye can think iv annywan whose face is onfamilyar to ye an’ ye don’t raymimber his name, an’ he’s got a job on a paaper ye didn’t know was published, he’s a war expert.”

THANKSGIVING: “The Puritans gave thanks for being preserved from the Indians, and we give thanks for being preserved from the Puritans.”

TRUST: “Trust everybody. But always cut the cards.”

VEGETARIANS: “Most vegetarians look so much like the food they eat that they can be classified as cannibals.”

There’s a lot more, some of which will sound familiar and some of which will sound fresh. Much of it was originally rendered in dialect, but (as you can see from the above) you’ll often find it in standard English.

WALTER WILLIAMS ON RACIAL DISPARITIES IN SCHOOL DISCIPLINE: He cites this article. (Yes, I want you to read that article. That’s why I keep posting it. And I want you to read the Walter Williams essay.   The issue is important, more important than most of the crap that passes for news in the modern era.)

ON THIS DAY IN 1854, WILLIAM CRAWFORD GORGAS, WHO FOUGHT YELLOW FEVER AND MALARIA AT THE PANAMA CANAL, WAS BORN: It also marks an interesting coincidence in history. The doctor who delivered little Billy Gorgas was Dr. Josiah Clark Nott, a general practitioner in Mobile, Alabama. Six years before, Dr. Nott had published a paper in the New Orleans Medical and Surgical Journal making what was then regarded as a fantastic claim—that yellow fever were caused by insects, possibly the lowly mosquito.

Nott was not the first to suggest insects as a possible cause for yellow fever. But he was among a very tiny number over a long period of time, and he was more insistent than previous writers. Nevertheless, it would be decades before the claim was taken seriously. Yellow fever was considered akin to malaria in the sense that it was caused by bad air and poor sanitation. The notion that “malaria” was caused by “bad air” was so deeply rooted in the minds of people that it was buried in the word itself: mal-aria.

Fast forward to the Havana, Cuba of 1901. By this time researchers had all-but-proven that yellow fever and malaria were spread by mosquitos (although doubters were still more far numerous than believers). By then, William Crawford Gorgas was a military doctor and a specialist in yellow fever. Notably, he was not among those who believed in the mosquito “theory.” Nevertheless, he thought it was worth a try and used Havana as a proving ground for the theory. His campaign of eradication turned out to be astonishingly effective. Efforts to get rid of the mosquito culprits essentially eradicated yellow fever and came close to eradicating malaria in Havana.

Because of his success, Gorgas was chosen to be the sanitary officer for the Panama Canal project. Building a canal there would have been an extraordinary feat of engineering even if disease were not a problem. But, if anything, disease was the more difficult problem. During the 1880s, the French, led by Ferdinand de Lesseps (then fresh from building the longer, but otherwise less challenging, Suez Canal) had already failed in large part because of the horrific rates of yellow fever and malaria. Without Gorgas—who faced superiors who continued to doubt the mosquito theory—the Americans would have done no better.

Gorgas knew that yellow fever mosquitos (now called the aedes aegypti) lay their eggs only in fairly clean standing water and that they live only near human beings (their favorite prey). He set about getting rid of standing water wherever it could be found near humans. And it was nearly everywhere. Hospital bed legs were in pans of water to keep the ants away.  Rain barrels collected fresh water for each household, and it was commonly stored indoors in earthenware pots. Those pans, barrels and pots were often teeming with tiny larvae. His staff members went door to door getting rid of standing water or covering it with a thin layer of oil. Citronella, screens, netting and fumigation were put to use.

It worked magnificently. Yellow fever cases plummeted. After late 1906, there were no further deaths.

Malaria was harder, since the anopheles genus of mosquito is more widespread. Swamps had to be drained, brush and trees cut, and a carbolic acid larvicide spread liberally. Workers were given prophylactic quinine. Many were put to work killing individual anopheles inside buildings with swatters. While malaria was not conquered entirely, the workforce hospitalization rate for malaria went from an astonishing 9.6% in 1905 to 1.6% in 1909.

The Path Between the Seas: The Creation of the Panama Canal 1870-1914 gives an interesting account of the building of the canal and Gorgas’ role in its success.

BTW, Josiah Clark Nott did not live long enough to see the infant he delivered help vindicate his insect theory (or even to know that Gorgas was studying to become a doctor).  That’s part of the human condition.  We don’t get to see all the direct and indirect effects we’ve had on the world.  Alas, that makes it harder to know whether you’re doing it right.

NEWS YOU CAN PURR ABOUT:  Yes, today was another record Dow.

THE AKAKA BILL, IT’S BAAACK!!: Out of nowhere, my Democratic colleagues on the U.S. Comm’n on Civil Rights have decided to attach an endorsement of the proposed Native Hawaiian Government Reorganization Act (formerly nicknamed “the Akaka Bill”) to an unrelated report.  The report will then be fast-tracked.

For reasons you can read about in the testimony I gave several years ago before the House Committee on Natural Resources, the Akaka bill—which would facilitate the creation of what would likely be the nation’s Indian tribe—has always been a very bad idea. During the Bush Era, the Commission’s majority recommended against it.  Fortunately, when the GOP took the House of Representatives in 2011, the bill got shelved.

The Obama Administration tried to achieve the same result through administrative action, but so far, those efforts have not yet borne fruit. It now looks like supporters of the idea of Native Hawaiian sovereignty are hoping for a blue wave that will put the bill back on the legislative agenda.

GEORGETOWN PROFESSOR SAYS WHITE MEN SHOULD DIE MISERABLE DEATHS, BE CASTRATED AND FED TO SWINE: Do you ever wonder how the world can ever be made sane again?

WHO WAS BEHIND THE FLAKE ELEVATOR INCIDENT?:  Those women apparently weren’t just random Americans who happened to oppose Kavanaugh’s nomination.

IS EARLY VOTING A BAD IDEA? John Fund argues that the Kavanaugh debate demonstrates how issues unfold after the early votes are already in.

ON THIS DAY IN HISTORY, LÁSZLÓ BÍRÓ, THE INVENTOR OF THE FIRST COMMERCIALLY SUCCESSFUL BALLPOINT PEN, WAS BORN: Journalists aren’t usually great inventors, but the Hungarian-born Bíró was an exception. He noticed that the ink used on newsprint dried quickly and smudge-free, so he started working on pen that could use that ink. He patented an early design for a ballpoint pen in Paris in 1938.

As Nazism enveloped Europe, Bíró, who was Jewish, made his way to Argentina. While there, he filed another patent, this time in the United States, in the name of Bíró Pens of Argentina. The invention caught the attention of F.G. Miles, who secured a license to manufacture the pens for the Royal Air Force. The pens were economical and, unlike fountain pens, could write upside down.

After the war, Marcel Bich bought the patent. For the purpose of marketing the pen, Bich shortened his name to “Bic” so that it wouldn’t be confused by English speakers with you-know-what.

Bíró’s birthday is celebrated as Inventors’ Day in Argentina.