Opinion: Not The Color Of Our Skin; Congress & Presidents (except Trump) Abdicated, So Only Hope Is SCOTUS

in William Perry Pendley/Column

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By William Perry Pendley, columnist
Mr. Pendley, a Wyoming attorney, led the Bureau of Land Management for the Trump administration.

A few years ago in Casper, I sat in the memento-filled office of the late Mick McMurry, Vietnam Veteran, Midas-touch entrepreneur, and magnanimous philanthropist. 

As everyone in the “oil patch” knows, Mick discovered the Jonah Field—one of the largest gas province in the country—near Pinedale when he applied the decades old but not fully in its prime technology—hydraulic fracturing or fracking. 

He took some Bureau of Land Management (BLM) leases that had been worked over without promising results, hired the “best men I could find who knew a lot more about fracking than I did,” and set about—often operating a bulldozer himself—to change the world. 

The rest is history.  In 2019, for the first time since 1957, America became energy independent, which all the smartest people said was “impossible.”

Earlier, however, Mick and his father were in the highway construction business, albeit separately.  There was not a stretch of Wyoming highway that did not bear their imprint.  I asked Mick why he got out of that business; after all, he knew nothing about oil and gas.

“It was because of the issues involved in the case you took to the Supreme Court,” he said.  “The federal government was making it impossible for me to win contracts.”

The case was Adarand Constructors, Inc., which involved a family-owned business operated by Randy Pech out of Colorado Springs, challenging the constitutionality of the U.S. Department of Transportation’s awarding of federal highway contracts based on race. 

What made Mick McMurry an oilman, angered Randy Pech, and took me, first member of my family to finish elementary school, to the Supreme Court three times was long in coming.  Sadly, it is not over yet; in fact, it has gotten worse.

In 1964, Congress enacted the Civil Rights Act, but with a pledge.  The statute that sought to pay up on what Reverend Dr. Martin Luther King, Jr. called the “promissory note” that was the Declaration of Independence would not result in racial quotas. 

Regrettably, thirteen years later, Congress enacted quotas in funding a public works act.  That was challenged, but in 1980, the Court, in a bifurcated opinion, upheld the law due to its limited scope and duration. 

That ruling opened the floodgates and federal, state, and local entities across the land adopted the same race-based quotas.  In 1989, a challenge to one such action by Richmond, Virginia, reach the Court, which ruled the quota unconstitutional.  Unfortunately, in 1990, the Court approved a federal agency using race to award radio broadcasting licenses.

In 1995, Adarand Constructors, Inc. reached the Court where the Department of Justice argued the Constitution’s equal protection guarantee did not apply to Congress. 

By 5-4, with Justice O’Connor writing the opinion, the Court disagreed, overturned its 1980 and 1990 precedents permitting racial discrimination, and declared “strict (often fatal) scrutiny” the standard for reviewing even purportedly benign racial discrimination, including by Congress. 

Justice Scalia wanted to declare what Congress was doing unconstitutional, but O’Connor—having changed the “ground rules”—wanted more fact-finding in the lower courts.

Congress had the opportunity in 1997 and 1998 to codify the Adarand ruling, but by bi-partisan agreement, both sides of the Hill “left it up to the courts.” 

In 2001, Adarand reached the Court its third and final time.  Clinton’s lawyers argued the case was ready for a ruling, but incoming Bush lawyers cleverly maintained it had outlived itself and was moot.  The Court agreed. 

It was the beginning of the end of applying the Court’s brave 1995 ruling in Adarand, although the precedent remains binding on all governments, including Congress.

In 2003, O’Connor demonstrated she had lost her way.  She switched sides at the urging of major corporations, bigwig retired generals, and university poohbahs and held that universities could grant admission based on race for another 25 years! 

Early the next term, over the dissent of Scalia and Chief Justice Rehnquist, the Court declined to hear a challenge by my client to a Denver program just like the Richmond one struck down in 1989.

Bush sought no changes in how race-based programs were enforced or challenged, but Obama went whole hog, most egregiously mandating using race to hire air traffic controllers, which I challenged.

President Trump saw all that differently; in fact, he ordered the settling of the air traffic controller lawsuit, but more importantly, he demanded his Justice Department join with Asian Americans in their challenge to decades of abuse by Harvard University of the Constitution’s equal protection guarantee.

Biden/Harris, of course, abandoned the Harvard case, but that was just the beginning of their government-wide effort—in response to systemic racism, they claim—to make race the determinative factor in every appointment, policy, and decision. 

Even that was not enough for radicals in Congress.  Two U.S. Senators declared they would vote for no more white males until more people of their preferred racial, gender, and sexual orientation groups are nominated for high positions. 

It goes without saying that, like the City of Richmond following the Court’s 1980 ruling, state and local governments, major corporations, and colleges and universities are following suit.  For example, doctors at Harvard, as part of their own mini-reparation effort, now provide health care based on race.

It is not just an east coast phenomenon.  The NBA’s Utah Jazz in Salt Lake City is awarding high school scholarships, not based on need, but on race—with the Governor’s full approval. 

Coca-Cola, whose products are ubiquitous, trained its employees to be “less white” and ordered its executives to work only with outside law firms that guarantee 15 percent of their billed hours are from African American attorneys. 

Meanwhile, United Airlines, Wyoming’s primary air carrier, proudly announced that it will hire pilots, not for their skills at aviating the “Friendly Skies,” but due to their race and gender.

None of this is legal, of course, but with Biden/Harris running things it will only get worse.  That is, unless and until the Supreme Court of the United States puts a stop to it.

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