Andrew McCarthy: They Knew Affirmative Action Was Wrong

Andrew McCarthy, Fox News Contributor, Former Assistant U.S. Attorney For Southern District Of NY, Author of Ball Of Collusion: The Plot To Rig An Election And Destroy A Presidency joined the Guy Benson Show to discuss recent Supreme Court decisions and responding to unwarranted hate.

Listen to the full interview below:

McCarthy had this to say about the moral issue of Affirmative Action.

“They knew that it was wrong… It’s a shame that somebody had to say that, it should be obvious enough.”

Full transcript below: 

Guy Benson: Joining us now is Andy McCarthy, FOX News contributor, former federal prosecutor, author of multiple bestselling books, including Ball of Collusion, his most recent one. Andy, it’s great to have you back here.

Andrew McCarthy: Guy. Great to be back. How are you?

Guy Benson: I’m doing well. I want to get your reaction to the Supreme Court term that just ended a couple of weeks ago. There have been several important cases along the way, mostly decided and announced, at least at the very end, which is a fairly typical. And we reacted a bit to it here. As a constitutional scholar, I want to get your analysis as well, and perhaps as a jumping off point, we can listen together to the White House spokeswoman, Karine Jean-Pierre. So she was on MSNBC late last week and she was lamenting, decrying what the Supreme Court has done. And she was in particular homing in on the decision involving racial preferences and racial discrimination in college admissions. Here’s how she framed it in court. 27.

Karine Jean-Pierre: What we saw last week, affirmative action again, taking away taking away important constitutional rights that have been in place for a long time. Let’s not forget, the president was when he was the senator, he was the chair of the Judiciary Committee. He is an expert on this. He understands how this works. A lot of these you know, a lot of these unprecedented decision that this SCOTUS has made, they have been held up in the past by Republicans, by Democrats. Right. And so there’s so much changes that have happened in the past year. And it is it is, you know, unheard of. It is really wrong what we’ve seen.

Guy Benson: No. Okay. Unheard of. And really wrong is what she said. And she described colleges and universities racially discriminating in a codified way as an important constitutional right. And that was taken away, which seems like, at least to me, a very, very strange way to argue about this.

Andrew McCarthy: Yeah, it’s nonsensical Guy, in the sense that the precedent that the Supreme Court finally I think I’d rather say exhausted rather than overturned was the Grutter case from about, you know, 23 years ago or thereabouts. And the problem that that they grappled with in Grutter is that they knew what they were doing was unconstitutional. It was against the letter of the 14th Amendment. It was against the Civil Rights Act, which is very clear on the inpermissibility of organizing people according to race in the United States, which really adopted Justice Harlan’s long ago philosophy that we have a colorblind constitution. It’s a shame that somebody had to say that it should be obvious enough. But the thing is, you know, when they did what they did way back then, they put a 25 year limit on it because they knew what they were doing was wrong. And what we have now basically is the court has essentially lined up what colleges and universities are expected to do with what the Constitution literally requires and was understood to require when the provisions we’re talking about took effect. So this was this was normalizing what we now have to the constitutional standard, not the opposite. You know, obviously what the left would want. But it’s always amusing to me when they talk about when they talk about precedent and constitutional rights, as if they cared what it said. What they actually want is something in the nature of a super legislature where the Supreme Court will essentially endorse whatever policy priority they have, regardless of whether it lines up with the constitutional standards or not. And they’re trying to disguise that fact not very well in in the kind of arrangements of precedent and constitutional language. But I don’t think it’s a very successful argument.

Guy Benson: Well, when she describes this type of thing is deeply wrong and totally shocking and never seen anything like this before, at least on this particular case. And I made this point on the day that the ruling came down and public opinion should not impact rulings. It’s the law. It’s whatever the Constitution says. But the argument from the left, Andy, has been that the court is diminishing, if not destroying its credibility through decisions that are unpopular, that the American people do not support, that the American people disagree with, and therefore the legitimacy of the institution itself is in question because these justices are just out of touch with the American people. I think that’s a bad argument. But they’ve made that argument in a number of different capacities and scenarios. Well, on this one, race based discrimination in in college admissions, it’s a 70 to 80 percent issue in the other direction, not the one that they espouse, not the one that the Biden White House has embraced because the left wing identity politics activists are on one side. Inevitably, the Biden administration, which sides similarly with the hard left at every turn. They were going to also take that same position. But it’s one that is totally out of step with the American people, including super majorities of every single racial demographic in poll after poll after poll. And yet they seem to kind of abandon and the argument about legitimacy based on the popularity of a decision, at least on this one, while also pretending and posturing as if they are the righteous majority in this country. And they think they, as they so often do, portray themselves as the good Guys, while in the process of literally arguing in favor of systemic racism and racial discrimination in the name, I guess of progress and equity, but they get themselves pretty twisted around.

Andrew McCarthy: Well, and that’s going to continue to happen, Guy, because, you know, the the Ibrahim Kendi view of the world which in which the affirmative use of racism to cure systemic racism based on past racism, which is indelible, by the way, is a system that never, ever ends. But one of the problems that the universities had in the oral argument of the cases we’re talking about was when Harvard was asked, like, “How long do you think this needs to go on?” They don’t have an end date, Right? What’s Justice O’Connor and Justice Kennedy were grappling with back in the Grutter days when they knew what they were doing was wrong? The reason they put a 25 year limit on it is not only that they knew that it was wrong, but they wanted they thought you couldn’t have a decision that ran afoul of what the Constitution says without at least having an end date on it. But what they’re teaching in the universities and what the universities represented to the court is that there is no end date because this is indelible.

Guy Benson: It goes on in perpetuity. And basically and it’s boiling it down. And it’s a slight simplification, but not really the argument of this worldview that effectively the Biden White House is maybe the biggest champion of, again, flying in the face of vast public opinion. Their position, the equitable progressive so-called opinion, is we need more good racism to solve or make up for bad racism. And what the court decided and this is a turn of phrase that Chief Justice Roberts famously used in previous decisions as well. He comes back to it, which is you don’t solve racial discrimination with more of it. I get a paraphrase there, and that’s something that 75% or so of the country agrees with in their bones. They understand fundamentally that is fair. That is right. The justices said that’s also what’s constitutional. And yet you have this fringe that represents much, if not most, of the official Democratic Party today, Andy, and much of the media, of course, and increasing percentages, I would say, of academia, where now they’ve gotten their wings clipped to some extent by this court. And then you see the White House spokesperson come out and say that this is an important constitutional right, the right to racially discriminate. Just an incredible thing for any White House press secretary to say I in particular, this one I would argue. Quickly, Andy, on the Supreme Court and this current term. Any quick thoughts on the 303 creative case? I gave some of my analysis in the last hour on that or on the student loans question.

Andrew McCarthy: Well, I think on the on the on the 303 case Guy, at least they I feel like the court addressed part of what my gripe was with Masterpiece cake back when, which is, you know I think that in that iteration of the court, Chief Justice Roberts, who I think has a lot of influence over the way he’s now really along with Kavanaugh, he and maybe Kagan as well, they’re really the swing of the of the court. And I think back in the Masterpiece Cake days, I thought it was important to project collegiality more than it was to grapple with the main religious and free expression issue in the case. So they really reached a procedural decision that didn’t decide the main question. I think here at least they decided the main question. They did it on free expression grounds rather than rather than religious liberty grounds. But I think it was important that they at least made a decision that you couldn’t have compulsory speech directed by. The government, especially under circumstances where the person who was in the middle of the litigation was not saying that she wouldn’t serve people. There was a particular expression that she didn’t want to incorporate. But, you know, to the extent that the left was making the claim that, you know, this was unheard of, I think it was a this was Justice Sotomayor who said that, you know, that we we’ve reached this unheard of place where, you know, you’re licensed to do business by the state and you can discriminate against people and not serve them. That wasn’t what was happening at all, but that was pretty clear from the litigation. And I guess on the.

Guy Benson: Student and Justice Gorsuch, by the way, Justice Gorsuch, who wrote the majority opinion, really just flayed Sotomayor’s dissent and made the point that it even contradicted itself. He said the dissent actually opens fire on its own previous position. And at one point I asked what they’re even arguing about because she seems to concede the top question in the case. It was a withering response to the dissent. And I would really encourage people just following up on what I said in the last hour, If you missed it, you can go back and listen on the podcast, read the decision, read Gorsuch’s decision, and feel free to read the dissent as well and make up your own mind who has the better constitutional argument and case? You’re also taken in by this argument, Andy, and I’ve seen this as well. So this was sort of a fake case based on a fake situation. It wasn’t even real, it was hypothetical. And there was this made up complaint that’s also deeply misleading. Right. Even the liberal justices didn’t go there. Are you? It’s not uncommon, speaking of precedent or things that are not unprecedented. There are challenges all the time. Pre enforcement and the state of Colorado stipulated in the case, yes, we were going to enforce this against this woman. So I know that that made the rounds on sort of lefty social media to try to invalidate or undercut the legitimacy of the decision. It’s also that argument based on a fallacy. Even NBC News wrote a big piece sort of debunking it. So I would I would encourage people to do a little bit of research on that front as well. I would also just point out my friend Sarah Isgur Flores put out a few stats about this term at the U.S. Supreme Court. And there’s a big push on the hard left with the media very much in tow to try to frame the current court as a rogue, totally out of control, just trashing precedent, right wing outfit. In fact, President Biden was asked if there are if there are rogue court a couple of weeks ago, and he said that’s not a normal court. Well, in case people didn’t see these factoids, because I’d imagine they probably didn’t it doesn’t go along with the narrative. 50% of all the cases decided this term were unanimous. Half of them were 50%. 89% of the rulings had at least one of the liberal justices, the three liberals, at least one of them in the majority, 89%. Only 11%. Were either six two, three or 524 with all the Democratic appointees on one side. So the large, large majority, almost nine in ten, were unanimous or included at least one of the liberal justices in the majority, only 11%, I guess some of the big ones, some of the tough ones, some of the high profile ones were more along ideological lines. But it’s not really the right wing rogue court that some people are trying to make it out to be. And a law professor named Jonathan Adler. He also noted that the current court overturns precedents less often than its post-World War Two predecessors did. So since World War two. Modern era of American politics and jurisprudence, this court has overturned precedent less than the other courts. You would never know that from a lot of the coverage in the way this is being positioned. One more fun. One thing, Professor Adler. This term Justice Jackson, courtesy Brown. Jackson was in the majority more often than Justice Clarence Thomas or Justice Samuel Alito. Again, that doesn’t really comport with the story they’re trying to tell for partizan reasons. Andy, let’s take a quick break. When we come back, I want to get your response to something I know you wrote about this.



Guy Benson: You wrote a very long piece, actually, while you were on vacation, tragically responding to some spurious attacks against you and your character in your legal analysis. And basically the gist of it was Andy’s a hypocrite. He’s a Never Trumper who’s attacking Trump in ways that are dishonest. When he defended Obama on the same stuff involving this federal indictment against the former president. And you decided to go against your better judgment. You wrote respond to people that you refer to as cranks. In a nutshell, Andy, what are the key points? And if people want a whole exposition, they can, of course, go and read your piece at National Review.

Andrew McCarthy: Well, I think I probably made a mistake doing it because I think I probably brought more attention to it than it would otherwise have gotten. But who knows? It’s for other people to judge. You know, I think I’ve been a pretty honest broker about Trump. You know, I’ve been pretty supportive not of him, but of like positions that that he’s taken. And there’s a long record on this. There’s even a long book written about it. And I don’t know, I just you know, I think I try to call the legal stuff. I’ve always been I’ve always tried to be somebody who was clinical. You know, I’ve always maintained that when I was a prosecutor in New York, my best friends in the office were liberal Democrats. I was a conservative lawyer in New York, you know, that was in New York. And none of that stuff mattered when we went in to enforce the law. But at least back in those days now, I haven’t been a prosecutor for over 20 years now. But, you know, that stuff got checked at the door. And, you know, it’s the exercise of figuring out what the law is, figuring out what the facts are.

Guy Benson: Oh, absolutely. And Andy, just because we’re up on a break here, the arguments, if you can even call them that against you and the claims of hypocrisy, I mean, you just totally dismantle them in the piece that you wrote. And I understand the impulse, the instinct to want to defend yourself, which is what you did very ably against people who don’t really care, frankly, about the truth. The reason that we have you on this show as often as we do, and we’re always grateful that you’re here, is because you are an honest broker. Whether we agree or disagree every time doesn’t matter. You’re an honest person and one hell of an analyst. And we’re proud to have you here and we look forward to next time, Andy.

Andrew McCarthy: Well, I am proud to to be with you. And I’ve always found our relationship to be very positive for exactly that reason. I think I detect in you the same thing. I strive for myself, which is which is just try to get it right. Don’t pretend you can always get it right, but try.

Guy Benson: Well, that’s a very high compliment. Thank you. Andy McCarthy on The Guy Benson Show.