Hans Bader Goes Racial
The CNSNews.com columnist is concerned that non-white people might get access to a COVID vaccine or treatment before he does -- and that there may be too many black people on the Supreme Court.
By Terry Krepel
Bader complained in a December 2020 column:
The Department of Veterans Affairs is going to give priority to black and Hispanic veterans over white and Asian veterans when administering the vaccine for COVID-19. This racial preference is unconstitutional.
Yes, Bader is really arguing that. But at no point did he offer evidence that blacks and Hispanics are "not inherently at greater risk of contracting the virus" despite the fact that it's indisputably true that Blacks and Hispanics have risk factors that lead to them catching and dying from COVID-19 at a greater rate than whites.
Bader went into denial on this point, dismissing it all as societal, saying it's effectively their fault that they're more exposed to catching it:
But generally speaking, the fact that a group has been disproportionately affected is not a reason for giving the group a racial preference, even if the disproportionate impact is from a government policy -- rather than, as is the case for most black and Hispanic people who have contracted COVID, from societal factors that put them into more frequent contact with COVID carriers.
Curiously, Bader didn't offer a plan to reduce the way Blacks and Hispanics are "disproportionately affected" by coronavirus, despite his framing of it as merely a societal problem; he simply ranted that they don't deserve to cut the line in front of him. Not exactly the smartest hill for him to choose to die on.
Bader repeated the argument again in a January 2021 column:
Oregon plans to give minorities preference over whites in access to the coronavirus vaccine, which is unconstitutional.
It seems that Bader is just searching for legal loopholes to keep Blacks and Hispanics from getting the vaccine ahead of him. And, strangely, he didn't seem all that eager to give vaccines to those essential workers whose jobs put them more at risk.
He hammered this dubious argument again -- but with added dubious sourcing -- in his April 8 column:
The State of Vermont recently drew criticism for giving racial minorities priority in access to the COVID vaccine. Lawyers and law professors (including me) said that racial preference was unconstitutional. But at least Vermont didn't waste doses of the vaccine.
Of course, Bacon isn't the publisher of Virginia Business anymore; it's apparently not enough of a deal to even mention on the bio page on his own blog. Beyond that, the claim that 11,000 vaccine doses went "unused" is an estimate and not necessarily a reflection of actual reality.
Further, for all the whining that white people weren't getting the vaccines they are apparently entitled to, there was no explanation by either Bader or Bacon about whether they did their part to help people who are disadvantaged or lack the internet access needed to make an appointment to get a vaccine -- the main way of getting one at the time. Are those people on their own, where they will get trampled by better connected white people?
Bader went on a similar whine four days later:
Rhode Island excluded whites from vaccinations given out at Providence's Dunkin Donuts Center on April 10, where 3,000 doses were available. As a result, many of those doses were left unused.
Bader's source for the unsubstantiated 3,000 "unused" claim is a tweet from a right-wing education activist. Bader then rehashed an argument he has made before to assert that minorities are not deserving of better access to the vaccine than white people:
Lower vaccination rates among blacks reflected reluctance to take the vaccine, rather than racial bias in administering the vaccine. Surveys showed blacks were far more reluctant than whites to take the vaccine when it first became available. Higher COVID rates among blacks and Hispanics in many states have resulted from occupational and other non-racial risk factors, rather than discrimination by state governments.
This is just victim-blaming on Bader's part. Again, Blacks and Hispanics really are at enhanced risk of catching coronavirus, and even if they are in occupations that expose them to greater risk of catching it, that's all the more reason to prioritize them for vaccines.
It seems Bader wants a more Darwinian process for vaccine access, where the well-connected get it immediately and everyone else must scramble for leftovers -- strange since conservatives normally don't like Darwininan concepts.
Bader served up another version of this in his Jan. 3 column:
New York City has been putting coronavirus testing sites in mostly non-white neighborhoods, rather than mostly white neighborhoods. That is illegal racial discrimination. Just as bombing a bus because most of its passengers are black is racially discriminatory, giving an area benefits because of the race of most of its residents is racially discriminatory. For example, an appeals court ruled that deliberately putting public housing in “predominantly white” areas was racially discriminatory and thus presumptively unconstitutional, in Walker v. City of Mesquite (1999). Similarly, the Supreme Court ruled that redrawing a city’s boundaries to exclude 99 percent of its black voters was unconstitutional, in Gomillion v. Lightfoot (1960).
Yet we don't recall Bader complaining about racial bias in 2020 when white neighborhoods had more access to COVID testing than minority neighborhoods. Nor did he acknowledge that blacks and Latinos do, in fact, tend to have higher COVID infection and death rates than whites do.
Despite his racially charged argument being a very weak one, Bader continued:
New York State is also discriminating based on race in access to life-saving medical treatment. “NY State Department of Health warns they don’t have enough Paxlovid or Monoclonal Antibody Treatment and white people need not apply,” notes the New York Post’s Karol Markowicz. As the New York State Department of Health explains, “non-white race or Hispanic/Latino ethnicity” is a “factor” that can qualify you for access to “antiviral treatment” such as Paxlovid or molnupiravir.
The fact that Bader is turning to professional right-wing (and right-wing friendly) grievance-mongers like the New York Post and Glenn Greenwald. But Bader deceptively edited New York state's guidance on access to the drug. The state said that non-white race or Hispanic/Latino ethnicity" is a "risk factor"; Bader edited out the word "risk."
As he has before, Bader insisted that minorities' increased risk for catching and suffering from COVID is no reason white people should be inconvenienced:
Even if certain minorities were more likely to have risk factors for COVID-19, New York State would still not be allowed to give those minorities a preference, or use their race as a proxy for such risk factors. The Supreme Court says the government is only allowed to use race as a “last resort,” after race-neutral remedies have been tried. If poverty puts people more at risk for COVID-19, the the government can give preference to the poor, but it can't give preference to an entire race, just because its members are often poor. That would be impermissibly using race as a proxy.
As Media Matters has noted -- but Bader didn't -- none of these New York guidelines prohibit white people from receiving the treatments if they meet the eligibility criteria. But it seems that Bader, as a white guy, doesn't want to have to deal with possible competition.
Lashing out at Biden nominee
COVID was not the only issue on which Bader went weirdly racial.
Among the many nominees from President Biden that CNS attacked was Kristen Clarke, who was nominated as assistant attorney general for civil rights, was no exception. CNS left it to its commentary section for the hit jobs on Clarke, Bader was its star attacker. In a Feb. 1, 2021, column headlined "Biden Nominates Lawyer Who Outright Said Whites Are Inferior," Bader claimed:
Clarke has said that blacks are genetically superior to whites.
CNS refused to cover Clarke's confirmation hearing at which the truth was told about the letter. Instead, it published an April 19 column by Bader pretending that Clarke's satire wasn't clear at the time and that she only recently claimed it was satire:
Clarke now claims her anti-white statements were satirical, in contrast to the past, when she stood by them. But they occurred in a serious discussion, and she made these statements at a place and time where even shocking racial claims about whites were made in all seriousness.
Bader then cited right-wing publications claiming that it the satirical intent wasn't clear at the time, even though it came in the wake of "The Bell Curve," something Bader tried to downplay (not to mention the fact that Clarke was a 19-year-old undergrad at the time). Bader also refused to discuss the existence of "The Bell Curve" and its controversial claims.
Too many black people on SCOTUS?
Bader took his own direction in CNS' war on Supreme Court nominee Ketanji Brown Jackson by fretting that, with Biden's promise to appoint a black woman to the Supreme Court, there will be too many black people on the Supreme Court. He wrote in his March 18 column, headlined "Biden SCOTUS Nomination Fueled by Statistical Ignorance":
President Biden has nominated Judge Ketanji Brown Jackson to the Supreme Court, following through on his campaign vow to name a black woman. Three-quarters of Americans disagreed with Biden's decision to consider only black women for the Supreme Court vacancy; in an ABC news poll, they wanted Joe Biden to consider "all possible nominees," regardless of their race or gender.
Bader omitted a more relevant statistic: Of the 115 people who served on the Supreme Court in all of American history before Jackson's appointment, 108 have been white men, four have been white women, and only three have been non-white (Thurgood Marshall, Clarence Thomas and Sonia Sotomayor). Historical underrepresentation is at least a valid a statistical metric as current representation, but Bader pleads ignorance of the fact that more than 180 years of American history passed before a non-white man was allowed to serve on the court. He goes on to push his racist-adjacent argument that there are too many black people on the court and in the overall judiciary:
But even if Jackson were not appointed, blacks would still comprise 11% of the Supreme Court, which is similar to their percentage of the population (around 12%). As a Supreme Court Justice, Jackson would not be an "underrepresented member of a marginalized group" (as The Signal's Soorin Kim claimed) or the voice of a "marginalized and underrepresented" group (as NAACP board member Theresa Dear claimed). Her group would have nearly a quarter of all seats on the Supreme Court.
It could be argued that SCOTUS positions were set aside for white men for nearly 200 years of the nation's history. But he invoked a no-takeback clause: "Racial set-asides can’t be used to remedy discrimination that occurred long ago. Federal appeals courts have struck down racial preferences designed to remedy discrimination that happened 14 or 17 years earlier, saying that such discrimination in the distant past is irrelevant." Still, he slaved away at his increasingly dubious talking point:
Blacks have not been discriminated against in appointments to the Supreme Court in recent years. Indeed, there has been a black Supreme Court justice ever since 1967, even though blacks have never been more than 13% of the U.S. population during that period, and blacks have usually comprised less than 3% of the legal profession during that period. (It is the black percentage of the legal profession, not the black percentage of the general population, that is legally relevant in assessing whether blacks are "underrepresented" in the judiciary, according to Supreme Court rulings like Wards Cove Packing Co. v. Atonio (1989)).
It would be entertaining to see Bader cling so desperately to his argument if it didn't make him look ridiculous to the point of being more than a little racist.