Supreme Court

How To Achieve Diversity Without Affirmative Action

I've never been a huge fan of affirmative action. There's something about objective standards — however arbitrary they may be — that gives kids from working-class backgrounds a fair chance to succeed against those who were to the manor born. The American dream story has been told many times over by good test takers like me without a dime to spare. By comparison, there's something about giving extra points to someone because of what group they happen to belong to that strikes many fair-minded people as unfair. Give points for overcoming obstacles or personal accomplishments, that I understand, but not simply for race alone.

The problem is that diversity is a compelling objective not only for a university classroom but also for our society as a whole. It is critical when I teach a criminal law class that I have students participating in the discussion who understand issues from different perspectives; it does change the educational experience. And it is critical that we educate and train lawyers who will serve all communities in our society.

I'm not trying to reargue the Supreme Court case. That conclusion has been coming for a long time. It has been state law in California since 1996. We have learned to live with it in our state university system, and so will you. What I'm arguing is that diversity is still just as important as it has always been, and the challenge is how to achieve it without resorting to race-conscious admissions and/or endless lawsuits. Especially not endless lawsuits.

What has happened in California is instructive. In the immediate aftermath of Proposition 209, banning affirmative action in public education, the number of Blacks and Hispanics at the most selective schools in the state system literally tanked. That's true.

But as my friend Erwin Chemerinsky, the Dean of the University of California Berkeley Law School, one of the jewels of the system, told me on my podcast, many of the schools in the system, including his, then developed new programs and approaches to achieve diversity without race-conscious admissions. They did it with broad outreach and aggressive recruitment, involving both faculty and alumni, without in any way lowering their standards. They did it by relying on a whole host of factors to define excellence rather than simply applying a straight numerical formula. They did it without lowering the ultimate quality of the class.

Is it easy? Absolutely not. But even apart from this decision, and not necessarily because of it, many universities have been moving away from reliance on standardized test scores and ranking systems that are based on them because, among other things, of the cultural biases that are inherent in them. Again, I'm the first to admit to being of two minds about the move toward more subjective admissions. I hope it will help to build more diverse classes, including some kids who may not be as skilled at test taking, without sacrificing those who may not have the connections to check enough other boxes (like alumni connections or donor potential or, as one former admissions dean used to call it, the "glitter factor") that otherwise command attention.

What happens next, unfortunately, is likely to be another round of lawsuits as the post-affirmative action world "shakes out." Is it OK to take account of the obstacles applicants have overcome? Almost certainly yes, so long as those obstacles are not solely defined in racial terms. Is it OK to take account of economic hardships? It should be, as long as the hardships are not measured solely by ZIP codes that are race-based. And so the challenges will go. Admissions officials should be given broad deference in fashioning admissions systems, but sadly much litigation should be expected, and in the short run, at least, the danger is that admissions officials will be afraid to be bold when they most need to be.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

Reprinted with permission from Creators.

John Fetterman Victory Speech

What John Fetterman's Diagnosis Means For Him -- And America

He set out to be the senator from Pennsylvania — not a spokesman for people with disabilities, which he unintentionally became after suffering a life-threatening stroke, which became an issue in the Senate race and has posed challenges as he adapted to his role in the Senate.

And then last week, he announced that he was checking into the hospital to be treated for clinical depression, which unintentionally makes him something of a symbol, if nothing else, of the mental health issue in politics, which is hardly a role anyone would seek.

But one which needs a spokesperson.

It was in 1972 that a fine senator, Tom Eagleton, was bounced from the Democratic ticket (he had been nominated as the vice presidential candidate, to run with George McGovern) when it was revealed that he had been hospitalized for treatment of depression. It was political poison. He was quickly replaced as a candidate.

In 1988, a rumor was intentionally spread that Michael Dukakis, the Democratic nominee for president, had suffered from depression and been treated for it after losing a reelection campaign. I was his campaign manager; it wasn't true. He had never been seen by a psychiatrist. Jokingly, one might say, anyone who runs for president should be. But he hadn't.

Nonetheless, the rumor, intentionally spread by the Republicans, wouldn't stop. Then President Ronald Reagan referenced it in a press conference, and we had no choice but to deny it. "Dukakis not crazy; more at 11 ... " The news was almost that bad. We dropped half a dozen points overnight. On a rumor that wasn't true. Political poison of the worst sort.

Mental health is a crisis that never gets the attention it deserves in part because no one wants to volunteer to be the spokesperson. But volunteers are desperately needed. Even unintentional ones, maybe especially so.

According to his wife, there is no one less interested in talking about his own health at this point that John Fetterman, who would much prefer to be talking about the problems facing his constituents.

In an email to constituents, she made clear what the family was going through: "After what he's been through in the past year, there's probably no one who wanted to talk about his own health less than John."

But asking for help, and doing so publicly, is as brave and important an act as any a senator could do.

His wife said she was proud of him. The rest of us should be grateful.

It's a sort of sad coincidence that the senator should be checking in to the hospital on the same day that the family of super macho hero Bruce Willis reveals his devastating diagnosis of dementia. There are so many illnesses that are verboten, that need to be discussed, that need to be the subject of some sunshine and light. We have teenagers suffering from anxiety and isolation while their parents struggle with depression and their grandparents with fears of dementia. And yet it still takes a celebrity diagnosis to capture our attention, to give us a spokesperson, to trigger discussions that are long overdue.

John Fetterman is lucky in one respect. He will receive excellent care. And when he returns to the Senate, as he will, he will be in a better position to help ensure that others who face similar challenges are able to receive the compassionate care that they deserve as well. That is what is meant to be.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

Reprinted with permission from Creators.

How To Lose 50 States

How To Lose 50 States

Easy. Nominate Bernie Sanders. I’ve been through my share of blowouts. I was a kid when George McGovern won Massachusetts — and nowhere else. I was in Florida working for Jimmy Carter (on loan from Ted Kennedy’s office) when we lost not only the White House but also the Senate majority in Ronald Reagan’s first landslide. I was in Minnesota waiting to see if Fritz Mondale would carry any states. Two weeks before the 1988 election we were going to lose, with the help of then-Gov. Jim Hunt from North Carolina, I spread money all over the country for down-ticket races so Michael Dukakis didn’t carry down the Democratic Party when he lost 40 states. I was on television looking at the exit polls from Ohio when I realized they were all wrong, and that John Kerry would lose. I canceled my law and politics class in 2016, the day before the election, because I didn’t want to lie to my students and tell them that I thought Hillary Clinton was going to win.

I understand why Democratic ideologues are voting for Bernie Sanders. I used to be one myself. But losing one election after another, two to Reagan, one to George H.W. Bush, two to George W. Bush and, of course, one to Donald Trump, is painfully instructive. This is not horseshoes. This is not a battle for the heart and soul of the Democratic Party. It is a battle to beat a dangerous president.

And the truth is that the only Democrat with a chance of doing that is Mike Bloomberg.

I never thought I’d say this, but I will: I will do anything to help Bloomberg win. Which is to say, I will do anything to beat Trump.

Bernie Sanders would lose in a landslide. So would Elizabeth Warren — if a senator from Massachusetts runs fourth in neighboring New Hampshire, he or she will do even worse in a general election. Her candidacy is all but over.

Pete Buttigieg is the brightest star on the Democratic side. If he were 10 years older and didn’t look like Beaver Cleaver, I’d be ringing doorbells. Of course there are folks who would not vote for a gay man with a wonderful husband and a brilliant military record. That’s not my problem. I’ll vote for him in the future. I believe he will be president someday. But not in 2020.

And then there’s Joe Biden, who lost to Amy Klobuchar, a senator who is known on Capitol Hill as the most impossible person to work for. She might get away with it if she were a man (see, e.g., Donald Trump), but a woman who talks about which bills she has passed on the stage with Donald Trump, with billions against her? I don’t think so. Actually, I’ve yet to hear a pundit or a columnist or an independent pollster even make the case.

Former Vice President Biden is a fine man. I have always liked him. He has survived hardships that I could not endure. He would be a fine president. But he has always been a terrible candidate, and this year is no exception.

Which leaves the one candidate Trump is rightly afraid of. Trump claims to be a billionaire, even if it’s not actually money he made. Mike Bloomberg is THE real deal. He makes Trump look like a piker. Which, of course, drives Trump crazy.

There was a Bloomberg event in Los Angeles a few weeks ago. Hundreds of Clinton and Obama Democrats were there. People weren’t asked for money. For most of my friends, it was the first time attending such an event. They were not there because they are lifelong Bloomberg supporters. They were there because, as Vince Lombardi, the famous Green Bay Packers coach said, winning is the only thing.

And the only Democrat who can beat Trump is Mike Bloomberg. Bloomberg-Buttigieg — that’s my ticket. Trump has done enough damage. Given how strong the economy is, Trump should be a shoo-in. He isn’t because he’s Trump, a hopeless narcissist; a leader so unreliable and unpredictable that leaders across the world find him terrifying; a man who managed to escape impeachment when he shouldn’t have and is now busy punishing a war hero who dared to speak the truth.

We have exactly one choice. Or we lose. And if Sanders is at the top of the ticket, it won’t just be the presidency we lose.

Hillary Clinton is wrong: Plenty of people like Sanders. He has accomplished a great deal politically, energizing young people, strengthening the progressive movement, giving voice to concerns that millions share. But he can’t win a general election. I’m not even sure he could carry Massachusetts.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

And The Iowa Loser Is…

And The Iowa Loser Is…

he winner of the Iowa caucus is very rarely the next president. Looking at the Democratic side, Barack Obama was the only Iowa caucus winner to go on to win the presidency since 1980, when it was actually uncommitted, not Jimmy Carter, that won.

On the other hand, since 1984, five Iowa winners have gone on to lose the presidency.

This year, who loses Iowa matters more than who wins.

Iowa can be relied upon to support the most liberal candidate in the race because the true believers will be in a school assembly hall (or a similar locale) on a Monday evening listening to speeches by their neighbors and moving around the room, which is how you vote.

The problem with Iowa is that the most liberal candidate — with the exception of the miraculously gifted Barack Obama — is almost never the one most likely to beat the Republican. If he were, he probably wouldn’t win Iowa.

That is certainly true of Bernie Sanders. If he wins Iowa, it means he is the choice of the ideologues. It does not mean he will win the nomination, much less the presidency.

On the other hand, if Elizabeth Warren loses Iowa (meaning she doesn’t finish second, maybe not even third), she’s in trouble. Candidates from Massachusetts are supposed to win the New Hampshire primary. But it’s tough to win New Hampshire if you lose badly in Iowa. We once calculated that even though then-Massachusetts Gov. Michael Dukakis was leading in the New Hampshire polls pre-Iowa, he had to at least finish third or he would lose that lead. He finished first. And Warren isn’t running first in New Hampshire.

If Sanders wins in Iowa, it should help Joe Biden, unless Biden loses badly, which should help Michael Bloomberg.


Yes, Bloomberg. Where else will the majority of Democrats who don’t think Bernie can win go if Biden gets beaten by Bernie in Iowa and then New Hampshire?

Joe Biden is one of the best-liked politicians in the Democratic Party. But if he can’t beat a 78-year-old Jewish socialist from New York, how can he beat President Donald Trump? You don’t hear too many Democrats say they could never vote for Biden. The polls reflect that. What you do hear, a lot, is Democrats worrying about whether he can win.

And Bloomberg?

Can it be that 2020 is the year of 70-something billionaire white men?

Most years, primary voters don’t vote strategically. They vote for the candidate they like best. That’s why “losers” sometimes win late primaries. It’s about the heart and soul of the Democratic Party, we used to say.

2020 is not a battle for the heart and soul of the Democratic Party. It is a battle to beat Donald Trump. ABT — Anybody But Trump, which is to say, Anybody Who Can Beat Trump. I’ve been working and watching Democratic primaries for a very long time, and I have never seen anything like it. We have always had ideologues; I used to be one. But I’ve never seen so many pragmatists.

As I write this, it is days before Iowa. I can’t remember a year when so many people who know so much about politics and care about it passionately don’t have a candidate. It’s not that we don’t care but that we care too much. How do we win this election? In 2020, we are the Green Bay Packers, and winning is the only thing.

If only we knew how, which is to say, who.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

The New Abortion Wars, Starting At Six Weeks

The New Abortion Wars, Starting At Six Weeks

In the not-so-old days, the guerrilla battle against Roe v. Wade took the form of state laws that imposed endless obstacles in the face of women seeking to exercise their constitutional rights, from waiting periods to hospitalization requirements to exhaustive credentialing of clinics, not to mention repeated efforts to defund Planned Parenthood.

Time and again, cases went to the Supreme Court. And instead of overturning Roe v. Wade, which might have started a political firestorm, the court founds ways to uphold most of those burdensome requirements. The result was not to deny abortions to middle-class women who have access to pills and private doctors. Forty-three percent of all women of childbearing age in America live in states that have been classified by the Guttmacher Institute as hostile to abortion. Ninety percent of counties in America have no abortion providers. These are the clinics that should serve poor women and rural women and teenage girls. These are the places where clinics are needed the most.

Remember “partial-birth abortion”? Actually, there is no such thing. It is a political term invented by those who were looking for yet another way to limit access to abortions. These “partial-birth abortions” happened to hit the most life-threatening cases hardest.

But that wasn’t good enough. No state allows an “abortion” of a baby who could be saved. Babies born alive are babies.

Now the anti-choice folks have pushed even further. Forget about second- and third term abortions. Four states have now voted to ban abortion at six weeks, when a fetal heartbeat can be detected. And Alabama wants to ban all abortions, having removed the possible exceptions for rape and incest on Thursday, with sentences of up to 99 years for doctors who perform abortions in the absence of “serious” risk to the mother.

Need I point out that most women don’t know they are even pregnant until eight weeks? If we do, we don’t even tell friends and family, because the danger of miscarriage is so high. Look to your left, and look to your right, and you will find a woman who has had a miscarriage. Our doctors reassure us. Who is the Alabama Supreme Court to tell us otherwise?

The argument these states have concocted is that “viability” — which provided scientific support for the constitutional approach taken in Roe — has advanced since that decision.

It has not advanced to six weeks.

They are taking another run at Roe. They have been taking these runs since I was a teenager.

A new round of lawsuits has been filed. A new round of arguments will be held. Once again, years of time and energy will be devoted to fighting for rights that are guaranteed to us under the Constitution.

It’s a game being played with women’s lives.

IMAGE: Abortion rights supporters demonstrate in front of the U.S. Supreme Court during the National March for Life rally in Washington January 22, 2016. REUTERS/Gary Cameron 

Dianne Feinstein’s Independent Stand

Dianne Feinstein’s Independent Stand

“I feel I have an obligation to do everything I can to keep this country safe. So put that in your pipe and smoke it.”

That’s how Sen. Dianne Feinstein explained her view, which is winning her buckets of liberal criticism, as a defender of the NSA program.

Edward Snowden’s leaks? “An act of treason.”

She is 80 years old, and she is not pulling her punches.

Right on.

This is what politics should be about. She is not doing what most of her friends want her to do. She isn’t even playing around with some kind of middle ground — some yes, I’m for security, and yes, I’m for privacy, and of course there doesn’t have to be a tradeoff between the two.

Actually, there does.

I can’t really say I agree with Feinstein. How could I? She chairs the Senate Intelligence Committee. She knows as much about this program — how it works, what we’ve learned, plots that have been thwarted — as anyone.

I don’t. I know there are tradeoffs. I know the threats are real. But as for evaluating the effectiveness of this program, how can anyone who doesn’t know the details do that? As for specific abuses of privacy, we don’t know about that, either, with the exception of the most egregious, which is of course Snowden’s abuse.

What I find so admirable about Feinstein’s stand is just how nonpolitical it is.

It isn’t based on a poll. A poll would never tell her to go so hard on this one. And why would she need a poll, anyway?

It has nothing to do with who has given her money in past campaigns. Liberals give her money. I’m sure she’s hearing from them. But so what?

It isn’t intended to win friends. She’ll still be reviled for her ardent support of gun control by many of those who agree with her on this. She’s a longtime supporter of gay marriage. Feinstein is never going to be the darling of the right, and I don’t think she cares two whits about that.

She is doing what she thinks is right. She is standing up because she thinks it’s what’s needed to protect our country.

Agree with her or disagree with her, I defy you not to smile a little on this July 4th weekend and remember that standing on principle for what a leader believes is right — throwing the usual rules of “politics” to the wind — is the essence of the miracle we call America.

That’s why we want “great” men and women in public office and on the bench. Most of the time, in the run-of-the-mill vote or decision or dispute, you may not need “greatness” to pick a side. “Greatness” is not a very good predictor of how someone will do at fundraising or whether they can endure months or years of canned speeches and town halls without making a ridiculous mistake. “Greatness” is not necessarily the same thing as never having done anything in your life that you wouldn’t want to go viral.

We need great men and women for important moments, when what counts is courage and conviction, when you need to risk the wrath of your friends in order to seek what you believe to be the larger good.

Sen. Dianne Feinstein has always been known for a streak of independence.

It’s what makes a great senator.

It’s what we celebrate with joy on the Fourth of July.

Happy holidays.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

© 2013

A Second Look At The Death Penalty

I still remember back in 1988 sitting in a Chinese restaurant when then-Gov. Bill Clinton took a napkin and listed on one side the Democratic governors who were against the death penalty and, on the other, those who were for it. In its time, the issue was the third rail in American politics — the line that divided those who could win because they were considered tough on crime and those who would face electoral problems. A few years later, my friend Kathleen Brown was trounced in the governor’s race in California in large part because she opposed the death penalty.

Things have changed. Kathleen’s brother, Jerry, is now California’s governor. Barack Obama is now president. And last week, California’s new and very conservative chief justice, Tani Cantil-Sakauye, told a reporter that she had come to question the death penalty not because she thought it immoral for the state to take a life, and not even because she thought it might be administered to those who were in truth not guilty, but because it’s too expensive and ineffective.

“I don’t think it is working,” the Republican appointee said. “I don’t know if the question is whether you believe in it anymore (and she said she did.) I think the greater question is its effectiveness, and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?”

In California, as in many states with large numbers of people on death row, more inmates are likely to die of old age than to meet death for their crimes. Appeals are guaranteed as a matter of right in death penalty cases, but there is a dire shortage of lawyers willing to handle them. The average waiting time for lawyers to handle the first appeal is five years. Litigation has put a halt to executions until the courts and the state can agree on an effective procedure for executions, further increasing the cost of what has become more of a symbol than anything else.

For years, proponents and opponents of the death penalty have been divided over whether the death penalty actually deters murders. But both sides have to agree that deterrence requires that any penalty be swift and certain, or at least reasonably so. The death penalty just isn’t.

And don’t blame the lawyers. Any lawyer representing an inmate facing death should take his work particularly seriously. But most of these inmates are indigent, meaning the state must pay the costs of representation. While lawyers will tell you that if they do their jobs right, what they get reimbursed is far less than the cost of the time spent, it still costs taxpayers a bundle.

In the old days, when the penalty was imposed more sparingly, it was far easier to recruit lawyers who regardless of their own point of view saw this kind of representation as a high calling. But that’s no longer true. So today you have longer waits and often less-able lawyers (in one case that went to the Supreme Court, the lawyer fell asleep and the Court nevertheless upheld the penalty) and, in turn, even more litigation about the efficacy of counsel.

In short, the system is a mess — less because of reasonable doubt than of costs and delays.

A new ballot measure has been proposed in California that would replace the death penalty with life without possibility of parole. Other states are considering similar measures. Twenty-four years after Bill Clinton marked up that napkin, the time has come for a reasoned debate about the death penalty that focuses not on symbolism — not on whether a candidate is “tough on crime” — but on cost and effectiveness.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

The New You

Jane Fonda had her eyes done. Granny — an 83-year-old property manager from Santa Ana, Calif. — is making national news for her “boob job.” And not to leave out the men reading this, it has been reported that tough guy Lakers star Kobe Bryant was seen recently having a mani-pedi — a manicure and pedicure.

Every one of them has an excuse, sort of.

Fonda reminds us that she is an actress who needs to be ready for her close-up.

Bryant is trying to deal with injuries to his hand and knee.

As for granny, she’s still working as a property manager, still active and vibrant, even as gravity is literally dragging her down. My guess is that, not being a celebrity, she probably didn’t expect that what would otherwise be considered routine surgery in Southern California would become the national story it is.

Should age matter? Yes.

Should gender? No.

When I say age matters, I don’t mean old age. I have been a fan of Fonda for, well, a very long time. If she wants to let go of her bags, including the ones under her eyes, more power to her. As for granny, I hope her doctor explained to her the risks of anesthesia and took whatever steps he could to minimize those risks. I don’t see myself being willing to take those risks to get rid of the sag and add a cup size or two, but ask me again in a quarter of a century.

There are plenty of people in my hometown, Los Angeles, who are visibly stretched too tight and more than enough doctors who don’t seem to have learned the word “no.” But excess and risk taking are not limited to plastic surgery. For my part, I wouldn’t ride a motorcycle at any age. If Fonda or granny wants to get on a Harley, the most I’ll do is tell them to wear a helmet and drive safely. Ditto for climbing Mount Everest. We live in a free country, which gives people the freedom to take risks, even risks others would consider foolish.

It’s the grandkids that worry me: the teenagers getting boob jobs and sucking fat out of their thighs before they’re old enough to vote; the baby actresses parading high-priced bodies toppling out of dresses that have every 15-year-old running out to search for similar slut-wear and hating themselves for having the body of someone their own age.

I’ve asked my son any number of times about getting a pedi or a polish-free mani. I’m pretty sure he’s not going to be influenced by Kobe’s example, but I’m not worried about it, either. A foot massage feels great without regard to gender. I’m not a big Kobe fan, but I love my manicurists, and what’s good for them is fine with me.

Nor do I foresee a rush of 73-year-olds getting their eyes done or 83-year-olds getting boob jobs, if for no other reason than the recessed economy. But the impressive thing about Fonda and Granny is that, by their own definition, the purpose of their surgeries was to make their bodies match the vibrant and active lives they live.

On that score, more power to them. If your body is sagging and your mind is sharp, you can decide for yourself.

It’s the children we should be concerned about, the kids trying to change bodies that have yet to develop in the first place, the parents scraping into their savings to change their kids’ bodies instead of trying to change their minds, and the doctors who are too eager to cut or too busy to heal.

Too old for plastic surgery? No. Too young? Absolutely.