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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Any day now, President Biden is expected to announce his nominee for the Supreme Court to succeed Justice Breyer when he retires at the end of his term. The President has made clear he will nominate the Court's first Black woman.

Once upon a time, President Ronald Reagan placed the first woman of any background on the Supreme Court, Sandra Day O'Connor. She's retired now and still alive at 91. Reagan, in his lifetime, certainly expressed his pride at having a hand in that milestone. In fact, in his campaign for the presidency in 1980, he made as explicit a pledge as Biden has now. Reagan said this.

Ronald Reagan: During my campaign for the presidency, I made a commitment that one of my first appointments to the Supreme Court vacancy would be the most qualified woman that I could possibly find. Now, this is not to say that I would appoint a woman merely to do so, that would not be fair to women, nor to future generations of all Americans whose lives are so deeply affected by decisions of the court. Rather, I pledged to appoint a woman who meets the very high standards that I demand of all court appointees. I have identified such a person.

Brian Lehrer: That was actually at the moment that he nominated Sandra Day O'Connor. Listeners, would you call these nominations examples of Affirmative Action? As it happens, the Supreme Court has also recently announced that it will hear a new challenge to its own precedents on Affirmative Action in college admissions in lawsuits against Harvard in the University of North Carolina. Interesting and important confluence of events. Biden stated in [unintelligible 00:02:00] and these lawsuits coming right now. Georgetown University Law Professor, Paul Butler, is also a contributing columnist to The Washington Post.

He has a column basically called "I Once Told The Supreme Court Justice That I Was A Recipient of Affirmative Action." We'll invite him to tell that story here now and also invite your stories of being recipients of Affirmative Action as we discuss the legal and racial justice argument's pro and con. Justice Clarence Thomas, for example, as some of you know, says he was alienated from Affirmative Action by his experience with it. Call us with your own Affirmative Action experiences at 212-433-WNYC. Professor Paul Butler is also the author of the book, Chokehold: Policing Black Men.

Professor Butler, it's always good to have you on the show. Welcome back to WNYC.

Professor Paul Butler: Hey, Brian, it's great to be here.

Brian Lehrer: Want to just start with a story in your article, The Justice was Sandra Day O'Connor, right?.

Professor Paul Butler: It was May 2003. That June, the Supreme Court was expected to decide a case about whether Affirmative Action in college admissions was constitutional. If the court decided that it was unconstitutional, then the number of African Americans and Latinx people, and Native Americans would dramatically drop. Justice O'Connor was going to be the deciding vote everybody knew. Brian, she was the graduation speaker at George Washington University Law School where I was a professor, and the students had voted me Professor of the Year, which meant that I got to make a little speech.

Oh, man, what should I do? What should I say? Some of my colleagues thought it would be tacky, inappropriate if I mentioned the case at all. Some of my other colleagues thought, "You got to go for it, Paul. This is the one opportunity that you have." This is what I did. I got up, I thanked the students for voting me Professor of the Year, and I said that my success had been accomplished because of my mother's love, because of my hard work, and because of Affirmative Action, and that was it. The Associated Press reported later that Justice O'Connor sat quietly, her hands folded in her lap while students and some faculty members applauded.

Brian Lehrer: The AP said that it was an awkward moment. You note that you did not tell O'Connor in your remarks that you thought she too was a beneficiary of Affirmative Action, but did you consider doing that in your remarks, and would you put that description on her appointment as we just heard it described by Ronald Reagan?

Professor Paul Butler: She did. In a later conversation with then-Chief Justice Rehnquist about Affirmative Action, Justice O'Connor said, "I'm on the court because of it." I don't think when people like us benefit from it, when we're invited to spaces where we were never invited before, as you heard President Reagan acknowledge, that we're stigmatized by it. We're not ashamed by it, we're proud to be present, and we understand the difference that our presence makes in these institutions.

I didn't have to tell Justice O'Connor that, it might have been an announcement to the rest of the world, especially to people who aren't familiar with how Affirmative Action works. I didn't have time to make a constitutional argument. I didn't have time to make a policy argument. I wanted to do what Critical Race Theories call, using the body as evidence. Brian, I wanted my Black body to be a data point.

The fact that the students had voted me, a recipient of Affirmative Action, the reason that I got into Yale College and Harvard Law School was because of Affirmative Action. To anybody who might dare think that I wasn't qualified, well, here I was voted by the graduating class of a fine Law School Professor of the Year.

Brian Lehrer: Then Sandra Day O'Connor became the swing vote in the important Affirmative Action case that year. Remind everyone which one that was and how that went.

Professor Paul Butler: It was the case called Grutter. It came from the University of Michigan, where a white student challenged their Affirmative Action program saying that she was being discriminated against because she was white. Justice O'Connor cast the deciding vote. Parentheses, I had nothing to do with that, I sincerely believe, and she saved Affirmative Action. She saved diversity in higher education.

She made it possible for the Black middle class to continue to exist, and to prosper, and for African American and Latinx people and Native Americans and some groups of Asian Americans to be admitted to the hallowed halls of elite schools, where we have prospered. We have demonstrated time and time again that we belong, and that all happened because of one vote by one woman, the first woman on the Supreme Court, Justice Sandra Day O'Connor.

Brian Lehrer: There are so many follow-up questions just to that little incident that I want to ask you. We'll get into the Ronald Reagan clip we just heard and how it relates to what Biden is intending with his Supreme Court appointment forthcoming. You just said a very-- If I heard you right, you made a pretty sweeping statement there that without Affirmative Action, we wouldn't have the Black middle class. How far would you go with that?

Professor Paul Butler: The Black middle-class consists of people who work for the government, people who are lawyers and doctors and professionals. These are folks who have college educations and often graduate school educations. The reality is that before Affirmative Action, African Americans were not present at selective institutions in large numbers. There was a study done by the presidents of Yale, Harvard, and Princeton, about Affirmative Action after it had been around for a while to see how it worked.

What's the evidence? The evidence was that people who got admitted to those schools through Affirmative Action did not only pass well but better in some cases than other people, including white folks. What Affirmative Action means in college is that when folks apply to selective institutions, often way more qualified people apply than can be admitted. Qualified means you can do the work, you can get As, you'll do well, you'll graduate. There has to be some way of choosing among all these qualified people, and everybody understands that legacy admissions are a big deal. If your parents and grandparents went to the school, you get a break, you get a leg up. Also, if you're an athlete or if you play a sport. If you're applying to Harvard or Yale and you're from Alaska or North Dakota, a place where they don't get a lot of students, you get a break. Affirmative Action means that if you're a member of an underrepresented minority, especially an African American, a Latinx person, a Native American, and some groups of Asian Americans, then that counts as a plus. It counts as a plus because, for a long time, your folks got left out, your folks couldn't join the party. It counts as a plus because our presence in those classrooms helps everybody learn better.

Brian Lehrer: Although, do I understand previous Supreme Court decisions correctly as saying colleges and universities may not engage in Affirmative Action for the reason you just stated, that is because of past discrimination to make up for past discrimination in any way, they can use Affirmative Action if they see an educational purpose to it like having a diverse student body is an inherent good for all the students, but they cannot use it as a way to make up for past discrimination against Blacks or other groups? Do I have that wrong?

Professor Paul Butler: You have it right, Brian. Think of three arguments in favor of Affirmative Action, three theories about why it should exist. One is to make up for past discrimination. It's like a tort remedy in the law, it's to put people of color in the place where we would be but for centuries of white supremacy and near-genocidal policies. The second theory is it's like a super anti-discrimination remedy. The idea there is that a lot of folks don't want us and institutions, in spaces that used to be all-white. It's not enough to say, "You can't discriminate," unless you make those groups have some incentive to include folks of color, they won't do it.

The third rationale is diversity, that there's something about having American institutions look like America. That's important and good. The Supreme Court, in a case called Baki, decided back in the '70s, said that only that third rationale, diversity, was constitutional for using race in higher education as a consideration. In the Grutter case decided in 2003, Justice O'Connor, for the court, endorsed that rationale.

Brian Lehrer: Listeners, if you're just joining us, we're talking to Georgetown Law Professor, Paul Butler, who has an op-ed in The Washington Post called "I Once Told A Supreme Court Justice That Affirmative Action Got Me Into Harvard and Yale, Today, They Wouldn't Listen." We'll get to that "today, they wouldn't listen part." If you're just joining us, he told the story of saying that basically to Justice Sandra Day O'Connor when they were both at a George Washington University commencement.

She shortly thereafter went on to be the swing vote in that Grutter Affirmative Action case, which upheld it in the case of the University of Michigan, he takes no credit for her vote. We invite your stories of Affirmative Action. We're going to get into how Clarence Thomas, also a beneficiary by his own description of Affirmative Action at an Ivy League school, but why he now comes down against it in the interest he thinks of Black Americans in general, as well as the law and get Paul Butler's reaction to that. Listeners, we want your stories as there are these two big things in the news right now about to happen.

The president saying he will appoint a Black woman for the first time as a justice to the US Supreme Court, and the new challenge to Affirmative Action in higher education that the court has just agreed to take.

212-433-WNYC with your experiences or questions for Paul Butler. 212-433-9692, or if you can do it in 280 characters, tweet @BrianLehrer. I presume, Professor Butler, that you knew that Ronald Reagan clip that we played. Frankly, if I ever knew it, I had forgotten about it, and I only surface this morning in getting ready to talk to you how explicitly Reagan and talked about Sandra Day O'Connor as somebody who--

In his campaign that he had announced in advance, he would name the first woman Supreme Court justice. It is so analogous to what President Biden is doing right now, and of course, Ronald Reagan was Ronald Reagan, and yet Biden is getting some blowback that says, "Oh, you're not looking for the most qualified person per se, you're only restricting it to Black women." What do you think that the analogy?

Professor Paul Butler: I think it's great for a couple of reasons. First, thinking about Justice O'Connor and Reagan's support of her because she is a woman. Affirmative Action has benefited white women way more than anybody else. They're the people who've been able to crack that glass ceiling based on Affirmative Action, the idea that the presence of women in every space makes that space better. It's important to understand that Justice O'Connor, again, she wasn't ashamed. She didn't think there was anything wrong, she thought that there was a lot right about the fact that she cracked that glass ceiling because of Affirmative Action.

Brian Lehrer: Let's take a phone call, and then I'm going to throw a couple of Clarence Thomas quotes at you, Chris, in Brooklyn.

Professor Paul Butler: You have to.

Brian Lehrer: I have to. Chris in Brooklyn, you're on WNYC with Paul Butler. Hi, Chris.

Chris: Hi, Brian, I'm so glad you're having this discussion today. I have two stories. I'm a Black man and the second story is about my wife, she's a Black woman. I went to the University of Chicago for Business School. One thing that we would have would be resume reviews as part of all preparing for jobs, and wherever you'd have resume reviews, stop seeing the resumes of some of my classmates Black and white, and realize that there was essentially no difference. I will tell you, in a lot of cases, the Black resumes actually were way better than some of the white was resume.

Before this whole thing, I didn't have a proper understanding of Affirmative Action. I had I think the understanding that's largely about in the media, that somehow Black people have an easier time getting into elite institutions or what have you based on race. What I came to realize is that really, actually, Affirmative Action just allows Black people to get into these institutions, qualified Black people to get into these institutions, whereas otherwise it would not have been allowed in, even during medical education. It's so crazy and surprising that this is the narrative in the media that somehow you get in and you're not qualified.

People are highly qualified, we are highly qualified and able to get in on merit, just we would not have gotten in had it not been for some Affirmative Action so that's my story.

Brian Lehrer: Let me ask you a question, Chris, did you have to suffer through the perception of some of your white classmates at Chicago, that you were less qualified than they were just because, A, you are Black, B, you're a recipient of Affirmative Action?

Chris: I don't know what they were thinking, it never came up. I've never had anyone say that to me or anything like that, but I simply don't know. I don't know what anyone was thinking.

Brian Lehrer: Right but you didn't--

Chris: I would tell you.

Brian Lehrer: Go ahead.

Chris: The story with my wife, I think is also a really good example in so much as she is a doctor. She had qualified and stuff and when she was applying for a residency, she got into a program that she didn't want to be in, a much lower-ranked program than she thought she should have gotten into. They were to transfer into another program into a better program. On transferring in and talking to some of our colleagues, she realized that she had scored higher than some of her white colleagues in the exams. She had AOA ratings that were higher than them. She had ranked better in her class than they had.

They had gotten in and she had not gotten in. She was so good in the residency, she was made chief resident for a program that didn't even get into based on the first round of applications or whatever.

Brian Lehrer: The point of that story that, even as Affirmative Action may confer some technical advantage on Black applicants in certain situations, they're also still being disadvantaged by racist perceptions, even if unintentional?

Chris: Yes, and I would tell you too, she was applying for a fellowship after residency, and in one of the attendings, they told her she should play the Black card, in order to get into the fellowship when she was, as I said, chief resident, highly qualified, passed the board, did everything that she needed to do, this guy is still telling her, "Oh, you should play the Black card to get into the fellowship."

Brian Lehrer: Chris, thank you so much for your call. Professor Butler, do you want to reflect on anything Chris said?

Professor Paul Butler: Just that literally thousands of people have stories like that, about how Affirmative Action has not only allowed them to succeed, it's allowed them to lead. The person said that his partner is a doctor. I'm going to say she's saving lives, but for this policy, she wouldn't have had that opportunity. If we're talking about people of color, Black and Brown people, frequently, we're going back to our communities. We're taking what we learn, we're lifting as we climb. It's the gift that keeps on giving. I don't want to sound too rah-rah about it, I understand some of the concerns.

A lot of white folks think, "Oh, man, my boy, my girl would have got into Harvard, but for this Black kid taking up her space." I get those concerns. I think that they're good answers to those questions but make no mistake, Affirmative Action has made the United States a better, stronger country, which is why, in the last big case, not only that civil rights organizations try to persuade the Supreme Court to keep Affirmative Action, the Pentagon, the military, Fortune 500 companies all rally behind this idea, not because of Kumbaya, but because it makes us do business better. It makes us, as a country, more secure, and more successful.

Brian Lehrer: This is going fast, our time. We have to take a break and take more calls after that. Then right after the break, I'll bring up that Clarence Thomas counterpoint, which one could say is rooted in what we might call Critical Race Theory itself, but with a very different conclusion on his part. Listeners, stay tuned for that as we continue with Georgetown University Law Professor, Paul Butler. His Washington Post article, called "I Once Told A Supreme Court Justice That Affirmative Action Got Me Into Harvard And Yale. Today, They Wouldn't Listen." Stay with us.

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Brian Lehrer: Brian Lehrer WNYC with Georgetown Law Professor, Paul Butler. His Washington Post article, again, "I Once Told A Supreme Court Justice That Affirmative Action Got Me Into Harvard And Yale. Today, They Wouldn't Listen." That justice was Sandra Day O'Connor. Of course, President Biden says he's going to appoint the first Black woman to the Supreme Court, and they've just taken a major Affirmative Action in higher education case. Justice Thomas sees its role in his life differently, as you obviously know.

One of his quotes is, "Every time the government places citizens on racial registers, and makes race relevant to the provision of burdens or benefits, it demeans us all," demeans us all. A New Yorker profile of him a few years ago said, "According to Thomas, Affirmative Action is the most recent attempt by white people to brand and belittle Black people as inferior. Affirmative Action does not formally mirror the tools of white supremacy." In other words, they're saying he doesn't think it nearly mirrors the tools of white supremacy. "For Thomas," the article says, "It is the literal continuation of white supremacy."

The article places him in the context of-- This is why I said sort of Critical Race theory, disagree if you want, but that Clarence Thomas apparently sees a permanence, a persistence, a permanence of white racism in America, and judges on the basis of that. Do you understand where he's coming from even if you disagree?

Professor Paul Butler: I kind of do, but that's like asking do I understand the premise of anti-Blackness? I get it, but it's wrong. Justice Thomas apparently felt stigmatized by Affirmative Action. He, I guess, was hyper-aware, hyper interested in what white folks thought about him. Apparently, white folks communicated to him that either he wasn't qualified to be there or the fact that race played a role in why he was there diminished his value. That's not how most recipients of Affirmative Action understand their experience.

I was so interested when you asked the earlier caller who had gotten into the University of Chicago Business School, and his wife, a doctor had gotten into medical school because of Affirmative Action, that they felt stigmatized. He paused, like it was an interesting idea that he never thought of because--

Brian Lehrer: He sounded like that.

Professor Paul Butler: Yes. He said, "No, I never felt that way." Brian, without Affirmative Action, the reality is there are no Black and Brown people in the classroom. Think about the stigma that that communicates, that there's something about African Americans and Latinx people that they don't belong at Yale, and Harvard, and the University of Chicago with us, white folks. I think the expressive value of having no or few Black and Brown people in the classroom, that's a way-greater stigma than a few random white boys thinking that their other white boy would have gotten to the school but for Affirmative Action.

Brian Lehrer: Wilson in Bushwick, you're WNYC with Professor Paul Butler. Hi, Wilson.

Wilson: Hi, Brian, thank you for taking my call, and I think this is a very interesting conversation for me to go and call in. I am an African American male, and I went to an elite college as well. I went to Vanderbilt University, and one of the things that I would hear, specifically in my freshman year was that, oh, well I must have gotten in because of the Affirmative Action or quota. I graduated third in my class in high school. Our valedictorian went to Harvard, the salutatorian got into Yale, but I'm from Tennessee originally, so we stay in Tennessee as well.

I'm wondering when we think about how Affirmative Action works, and I'm not pushing back against the professor who-- I think that Affirmative Action is necessary because it does get women, white women as well, and people of color in spaces that they may not have been into, but also like this assumption that we're there because of this, and that's not the case. We are there because we're good. What I'm curious about is the nuance of this language and the way that the narrative is told that Affirmative Action arms everyone except white men. I don't know what your thoughts are on this, professor.

Brian Lehrer: I'm sorry. Do you mean that the narrative is that Affirmative Action helps everyone except white men?

Wilson: That's the narrative. That's the narrative that shows that it helps everyone except white men, but what's not being said is that like when you add diversity to any type of space, whether it's a workspace or a school space, or educational space, it actually does help everyone.

Brian Lehrer: Got it. Professor Butler.

Professor Paul Butler: I'll answer by wishing Wilson and Brian happy Black History Month. Black History Month was articulated by a man named Carter G. Woodson. Woodson was the second Black person to get a PhD from Harvard University, W. E. B. Dubois was the first. Wilson, they didn't need Affirmative Action, Harvard didn't have it back. Then they had to fight a lot harder to get in because they were Black. The reality is that even if Affirmative Action goes away, there are going to be people like Carter G. Woodson, and W. E. B. Dubois who get in, but that's not most Black folks.

Here's the deal. That's not most white folks either, including most white people. I've taught at Harvard Law School. I went to Yale College. I've had some amazing white students, but they're no more amazing than the Black and Brown folks who got in through Affirmative Action. Wilson said, "Well, how do you know that they got in through Affirmative Action?" We'll learn a lot about the process and these upcoming Supreme court cases, but if you focus too much on numbers, if you just look at SAT, ACT, and GPA, they're going to have a whole lot more white folks in the front.

The problem is that those numbers don't mean all that much. There's a minimum, but above the minimum, there are a lot of Black people, a lot of Brown people who can do the work, who can get As, who can graduate at the top of their class. What Affirmative Action means is don't only look at the numbers, don't give them too much weight, think about people's life experiences. Brian, I'm teaching stop and frisk in my criminal law class in a couple of weeks. If I didn't have Black students and Black male students in that room to talk about what it's like, it'd be a whole different education.

Brian Lehrer: Right. It would all be book learning.

Professor Paul Butler: Exactly.

Brian Lehrer: Wilson. Thank you so much for your call. Can I use that as an opportunity to digress for a moment since you do teach criminal law, including stop and frisk? I've been identifying you as a Georgetown Law Professor. I know you're also a former federal prosecutor. Listeners, Professor Butler also wrote the book that came out a few years ago, he was on for that too, called Chokehold: Policing Black Men.

I'm curious if you know Eric Adams, the new Mayor of New York City, and if you have a point of view about how he says he can use a version of stop and frisk that is not based on profiling like the old discredited and officially ruled unconstitutional version was, or if they can go to a standard in the New York courts when it comes to bail reform of judges using their perception of the dangerousness of a suspect to keep them behind bars before a trial, rather than the monetary bar of bail? I realized that's two very different questions. Maybe the stop and frisk first.

Professor Paul Butler: There's no kinder, gentler way of doing stop and frisk. What happens is you're going to see your grandma, she lives in the projects. The lock on the door is always busted, you just walk in. There are cops waiting. They push you against the wall, "Get against the wall, hands on the wall, spread feet apart," touch you all over your body. Don't find anything, and let you go. They never apologize. You're supposed to feel safer by that.

You're supposed to feel your grandma's better off. There's no nice way of doing that, and there's no way that the NYPD can do that that's not all about race and class. They're going to be in Brownsville. They're not going to be on the upper east side.

Brian Lehrer: Adams would say, "That's where the guns are."

Professor Paul Butler: Well, that's not how they find the guns. They find the guns by talking to folks. When something goes down in the hood, a lot of people know who did it, but if when your grandson was coming to visit you, the cops violated his body, you're not going to want to cooperate with the police.

Brian Lehrer: Adam said on the show last Friday that they can use data to track the racial bias of judges if they go to a dangerousness standard to keep individuals behind bars while they're awaiting trial rather than using bail or bail reform.

Professor Paul Butler: Brian, when we think about reform of the criminal legal process, the mantra is "smart on crime, rather than tough on crime." Smart on crime means evidence-based approaches, and what the evidence reveals is that bail reform has been a great success. It avoids tragedies like what happened to Kalief Browder, for example, a young man who was brutalized in Rikers, and when he finally came home, ended up taking his own life.

The evidence is that bail reform makes it more difficult for judges to use the bias that everybody has to let white folks go home while they wait for their trial and lock up Black and Brown people. There's simply no evidence that those common-sense policies make us less safe.

Brian Lehrer: Back to Affirmative Action for one last call. George in Queens, you're on WNYC. Hi, George.

George: Hello.

Brian Lehrer: Hi, George. You're on the air.

George: Yes. I wanted to make a point of the professor's expose. I agreed with everything he said, but one point he should have mentioned is that although Justice O'Connor saved Affirmative Action in the Grutter case, what he failed to mention is that she put a sign-out date on Affirmative Action. She said that 25 years from 2003, Affirmative Action should go out of business because we have made enough progress in race relations in America. Now that Affirmative Action is going to the court, won't they use that as an argument to say that we have reached a tipping point of racial equality in this country and Affirmative Action should go out of business?

Brian Lehrer: George, thank you. Great question, and he's right about that O'Connor quote, isn't he?

Professor Paul Butler: She changed her mind about that. She later said, not in a court opinion, but to other judges, that she had been overly optimistic. Her honor, unfortunately, is ailing now, reportedly she has Alzheimer's, so she probably- I don't know how much he knows about the murder of George Floyd. I don't know how much she is aware of this important reckoning one race that we've been having for the last couple of years. I don't think there's anyone who would deny that we're not there yet, and that when it comes to racial justice in the United States, we have a long, long way to go. As long as that's true, we still need Affirmative Action.

Brian Lehrer: Last question. There's been so much discussion about how the Supreme Court might discard its own precedent in Roe versus Wade, and throw that one out. Would it have to discard its own precedent in the Grutter case we've been talking about from 2003 in order to throw out Affirmative Action in these new cases?

Professor Paul Butler: Indeed, but what we've seen from this radical right-wing Supreme court is that it's cool with that. It's all good to return the United States to what it was like back in the day when straight white men ruled. That's the agenda of the Supreme court and they got six to three votes to accomplish that goal.

Brian Lehrer: I guess judging from your article, you think there isn't as much open-mindedness on the Republican appointees' parts as there was by Sandra Day O'Connor.

Professor Paul Butler: They're not justices like her. Justice Kennedy, the conservative Republican-appointed judge who ushered in marriage equality. Justice Souter, another Republican-appointed judge. Now we have right-wing firebrands. This is the moment that Justices Clarence Thomas and Samuel A. Alito have been waiting for for 20 or 30 years. That moment is now here. God help America.

Brian Lehrer: Paul Butler teaches law at Georgetown. He's a former federal prosecutor, an MSNBC contributor, and a Washington Post contributing columnist. His latest is "I Once Told A Supreme Court Justice That Affirmative Action Got Me Into Harvard and Yale. Today, They Wouldn’t Listen. Always great to have you on the show. Thank you.

Professor Paul Butler: Always a pleasure, Brian.

Brian Lehrer: Brian Lehrer on WNYC, much more to come.

 

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