Affirmative Action Not on Trial in Harvard Case

the case. Affirmative action has been upheld as latest two thousand and sixteen, but that was when Justice Kennedy was still the swing vote, and of course he's been replaced by Justice Kavanaugh, so the admissions landscape could look very different depending on how this case turns out. Joining me is the Least Body professor at Rutgers University Law School and founder and executive director of the Inclusion Project at least. The suit was brought by a group opposing affirmative action

called Students for Fair Admissions. Explain their claims about Harvard engaging in racial balancing of Asian Americans well. Their claim is that Harvard sets a cap on the number of Asian Americans who are admitted to the university. UM. That claim is going to have to be sorted out by the District Court. We know that Asian Americans have been admitted UM an increasing percentage number of Asian Americans have been admitted over the last eight years or so. Two

they're now of the admitted class UM. So their their claim is that, uh, there's a limit that has been set UM. If that is in fact true, that is unlawful. And as I said, the district cord is going to have to sort that out. But I think it's important to understand what this case is really about and the significance of the case. Uh. What the plainists are arguing for is for colleges essentially around the country of this case cost of the Supreme Court and the Supreme Court

where to strike down affirmative action. Their claim that that colleges around the country should not be able to consider race and they not. They should also not, uh the they should not have a process in which admissions officers are aware of or can even learn the race or ethnicity of a particular applicant. So this is a very extreme case. It goes against settled law. But the goal here is clearly to overturn that law. And let's put

the suit into even a little more context. Affirmative action has been under assault, it seems like since it first began, and it's often on the verge of being affirmed by the Supreme Court by a slight vote. As we know that Justice Kenny was the swing vote. So you put it into context of the various cases at the Supreme Court on affirmative action. Sure so, Um, we can start by looking at the case the Bockey decision, which essentially held that quote as the use of quotas and admissions

is unconstitutional. Um by Justice Powell, who was who was sort of the Justice Kennedy of his day, concluded that race could be considered as one of many different factors in the comprehensive admissions process, and he pointed to Harvard as the model for how such an admissions process could be implemented. Um. Twenty five years later, the Court in two thousand three upheld again the use of race in admissions as one of many different factors. That was a

caste called Rooter versus Bollinger Um. In two thousand sixteen, the Court again in Fisher Um concluded that diversity student diversity UH was an important constitutional value. Um. It it's held uh it hap held the challenge against the University of Texas. UM. So we have a pre significant body of law in which the Court has found on different occasions that uh, the educational benefits of student diversity are constitutionally compelling. There is another aspect to that, which is

he has to make sure that it's being constitutionally implemented. UM. But what this case is seeking to do is essentially to say that you can't use any race at all in any context. UM. You've said that the plaintiffs are going back to the basics ensuing Harvard. What do you

mean by that? Well, as I as I mentioned a moment ago Um, the Harvard admissions process was cited by just As Powell back in the nineteen of the eight Bockey decision as the model example of how race could be constitutionally used, and so in in suing Harvard, UM, essentially, the plaintiffs are are pointing to our are trying to overturn a plan that has been cited in various contexts by the Court as being as being a model plan. UM. Harvard also is going to attract a lot of attention.

Harvard is defended in a case is going to attract a lot of attention, UM, because it does set the standard for how admissions is done. And so by suing Harvard UM, the plainests are going after a very big fish. And we also have the danger that UH if the Harvard UM case UH is successful, that it could have an enormous chilling effect around the country UH in university

admissions in terms of the consideration of race UM. And so it's it's a very deliberate effort UH by this outfit, which is run by um Ed Bloom, who is responsible for the earlier challenges against the University of Texas that I mentioned. He's also someone who brought the case challenging the voting rights back that gutted protections from minority voters. UM. This is not a person who cares about creating opportunities

for people of color around the country. The Justice Department's position has changed from the Obama administration to the Trump administration. What effect does the Justice Department have in this area? UM, Sorry I didn't hear. I didn't under the question. The Justice Department has taken a position in this case that is different from the position that the Obama administration took. What effect does it have when the Justice Department weighs

in that way? Oh? Sure so, UM. The the Justice Department rescinded certain UM regulations that UH that UH laid out how race could be constitutionally considered. The Justice Department does not have the power to change the law. The law is established by the U. S. Supreme Court. UM. Of course, it does have the chilling effect when the United States Justice Department weighs in UM in ways that

are adverse to affirmative action UM. But the law as it currently stands UH clearly indicates that UM, a comprehensive admissions process that includes race of one of many different factors is constitutional. And the question is, in that kind of admissions process where admissions officers do look at so many different aspects an applicants identity, should race UH also be included. And we are in a context, We've been listening to that context for four hundred years where race

is very much a reality. And so to say that in that context you can't take a considerative consideration of race, all right, at least we'll have to leave it there. But the case will be going on and we'll keep following it. Lease Body, professor at Rutgers University Law School. In August, President Trump's lead attorney, Rudy Giuliani discussed the Mueller investigation on Fox News, talking about how it would

play in the mid terms. Well, I think if it isn't over by September, then then we have a very very serious um violation of the Just Department rules that you shouldn't be conducting one of these investigations, uh in the sixty day period. Now it's mid October, there are just three weeks until the mid terms, and the Mueller investigation is still going strong. Joining me is William Banks,

professor at Syracuse Universe State Law School. Bill Rudy Giuliani predicted the end of the Muller investigation or threatened about it time and time again. But Paul Maniford is now cooperating with Mueller. Is that an indication that the investigation is not coming to a conclusion anytime soon? I think it's sure is you know mr has made a number of claims and predictions that haven't turned out to be true.

There are no Justice Department rules that limit the investigation, and the tendency of an election, and as we've discussed many times, Mr Muller is simply going about his business UH day by day and UH indictment by indictment and letting the letting the facts and law lead them to where they need to go. They have manifort to work with here, and they're still awaiting sentencing and outcome on some of the other indictments have been brought between the

Russians and others. According to Political Trump slam the Mueller quote witch hunt on Twitter nearly fifty times since July fourth. He manages is campaign rallies, Yet it seems to be something that both Republicans and Democrats are avoiding talking about as the campaign for the mid terms. Why that's seeming disconnect Well, I think you know, there's a it's a

relatively quiet time now. The investigation, the Mueller's team is is working to see what they can get from Manaford and others to building case either on the instruction of justice or on the conspiracy colusion side of things. And there's simply not much to talk about. And obviously we've had plenty of other things to talk about concerning partisan politics with having on the nation and lots of other issues pending the election. But this this thing is simply

going on. It has its own momentum, uh, and it's not dependent on November six or any other magic date. One thing that there is to talk about is that CNN's reporting that Trump's lawyers are providing in the process of providing written answers to a first round of questions and several questions about potential collusion. How does it advance Mueller's investigation to have written answers drafted by Trump's attorneys,

Probably not very much. Uh. You know, this is a game that the president's lawyers have been playing with the Mueller team from the beginning. The personalities of changed, the presidents brought in new lawyers, and some lawyers have left.

There's now, you know, the White House counsels on his way out and the presidents interviewing replacements for Don McGahn, which I think we'll see yet more dynamics and uh in the in the effort to either respond to or not respond to Mueller's request for an interview of Trump. This is going to primarily go to the possibility of obstruction determinations, of course, but it could be important for

other aspects of the investigation as well. Turning out to the White House Counsel's office, we know that Council Don McGann is leaving his position, and he was regarded by some as a restraining influence on Trump. The Washington Post is reporting that Trump has chosen a conservative Catholic activists and Washington lawyer Pat Chipoloney as his next White House Council He's already been advising the president's personal lawyers on Trump reportedly, what will this change mean in the approach

to Mueller. Well, I don't know much about Shibloney, but I believe that it's going to, you know, play to the sort of the hardball side of of dealing with the Muller team. I think he'll be pretty tough and pretty uh unwilling to cooperate and even to compromise on providing materials to the investigators. I think at the same time, we have to remember that the White House Council's job involves much more than just dealing with the single investigation.

Mcgon had a very signal role in getting the Kavanaugh nomination through the Senate ultimately, and then his legacy, of course, in lining up lower court judges that's probably been the president's single most important accomplishments so far. Off to see whether the tip alone can do as well or whether there's someone else in the team that will take over that responsibility. Speaking and in the list of we'll have

to see. Most observers think that we'll see Trump firing a G. Jeff Sessions after the mid terms, and the Washington Post reported that Trump had talked to sessions chief of staff Matt Whittaker about the job, and Trump hasn't denied that Whittaker has a conservative record and path explain what that might be. Well, you know, he's he's going

to replace Sessions. If he does, he's going to replace him with someone conservative, to be sure, and looking for someone with a lower profile, as would be the case here, might serve his interest in uh, you know, not paying much attention to the uh, the office of the Attorney General, perhaps going beyond the Attorney General to try to interfere again and investigation uh and dismissing Mueller. We'll see if that might happen. It depends, of course, on what the

next steps are in the Mueller team. It's sort of a cat and mouse game. And Bill just a quickly here Whittaker. Would he have to be have a confirmation hearing or is he already confirmed by the Senate and so could just slide in there? No, he'd have to be confirmed separately for this post. Okay, thanks so much as always, William Banks, Professor at Syracuse University Law School.

Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg