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
Posted 5/25/2022

Hans Bader

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.

The VA is doing this because it thinks blacks and Hispanics are at greater risk. But these minorities are not inherently at greater risk of contracting the virus. There is nothing special about their genes that puts them in danger. It is just that their jobs, neighborhoods, and backgrounds tend to put them in more frequent contact with people who already carry COVID-19. So it is those characteristics -- not race -- that the VA can legally consider in handing out the vaccine to veterans. As the Supreme Court explained in Bartlett v. Strickland (2009), the government is supposed to use race only as a "last resort." That's true even when it has a better reason for using race than the VA has -- like addressing a history of past governmental discrimination against a minority group.

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.

The Supreme Court has ruled that "societal discrimination" against a minority group is not a valid reason for giving priority to members of that group. (See Richmond v. J.A. Croson Co. (1989)). So even if black and Hispanic people experience discrimination that shunts them into lower-paying jobs with increased risk of catching the coronavirus, that wouldn't be reason enough for the VA to give them a racial preference.

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So the fact that "some groups of people have been disproportionately affected by COVID-19" is not a reason to give such groups priority in access to the vaccine, based on their race.

The VA may argue that it is OK to consider veterans' race because it is only doing so as one of several factors, such as age and existing health problems. But giving a racial preference is presumptively unconstitutional, even when race is just one of many factors being used by a government agency and there are special reasons for it to prize racial diversity.

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.

After vaccinating healthcare workers, teachers, and seniors, Oregon plans to vaccinate "people in communities of color, specifically those most impacted by the pandemic: 'Black, African-American, Hispanic/Latino/Latinx, indigenous peoples, tribal and urban-based native communities, and Pacific Islanders.'”

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The racial differences in disease rates aren't based on genetic susceptibility. Hispanics, who have a lot of white DNA, are the most disproportionately impacted: they account for 36% of COVID-19 cases in Oregon, despite being only 13% of Oregon's population. People who have looked at similar or larger disparities in other states have concluded that they are not due to racism, but rather due to other factors, such as Hispanics being a disproportionate share of the essential workforce exempt from government lockdowns, or their living in densely-populated apartment buildings.

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There is nothing special about their genes that puts them in danger. It is just that their jobs, neighborhoods, and backgrounds tend to put them in more frequent contact with people who already carry COVID-19. As medical school professor Sally Satel observes, the risks of exposure for blacks and Hispanics "are increased because they are more likely than whites to work lower-paying jobs that require interaction with the public and to travel to those jobs by public transportation. Blacks and Hispanics are also more likely to live in homes with many family members sharing close quarters."

So it is those characteristics -- not race -- that Oregon can legally consider in handing out the vaccine to individuals.

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It might be argued that blacks live in densely-populated areas plagued by coronavirus partly due to discrimination, such as redlining by banks, or discrimination by landlords. But the Supreme Court has ruled that "societal discrimination" against a minority group is not a valid reason for giving priority to members of that group. (See Richmond v. J.A. Croson Co. (1989)). So even if black and Hispanic people experience discrimination that shunts them into lower-paying jobs with increased risk of catching the coronavirus, that wouldn't be reason enough for Oregon to give them a racial preference.

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.

The state of Virginia did. It kept at least 11,000 doses of the COVID vaccine unused due to its extreme push for racial "equity." That will result in increased transmission of COVID-19 among Virginians of all races, notes James Bacon, the former publisher of Virginia Business.

In Danville, Va., so few local residents were getting shots from a COVID-vaccination clinic that people, mostly white, were driving in from out of town to avoid the long waits elsewhere. Danville is over 51% black; Virginia as a whole is only 20% black. The administration of progressive Gov. Ralph Northam became concerned about the “equity” implications of so many more white people getting vaccinated than blacks. So the Northam administration restricted access for out-of-town walk-ins. Only people separately scheduled through a state registration system would be allowed.

That largely shut down vaccinations in Danville. Danville’s vaccination clinic had the capacity to administer up to 3,000 vaccinations per day. But in early April, it was averaging only 184 shots per day, according to an article in the Danville Register & Bee. So the Northam administration's way of promoting “equity” in vaccinations was to prevent white people from getting them, even if that did not result in more vaccinations of black people.

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.

As Erika Sanzi of Parents Defending Education notes, this vaccination "event was only for BIPOC residents of the state —they ended up with tons left over. So many people desperate to get one but can't because" of so-called "equity." To get the vaccine, you had to be "Black, Indigenous, Asian, Hispanic" or "People of Color."

The total exclusion of whites was unnecessary to help minorities. But Rhode Island has reserved for minorities only, in Providence and Woonsocket.

This was discrimination for discrimination's sake, so it was doubly unconstitutional. Rhode Island didn't have a "strong basis in evidence" for giving minorities a preference at all. But even if minorities deserved a preference, to ensure that they would get the vaccine, totally excluding whites made no sense, because that wasted many doses of the vaccine.

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).

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Staten Island’s mostly white South Shore — despite one of the city's highest coronavirus rates — is not among those 31 priority neighborhoods. Staten Island has 13 city testing sites, all on the more heavily non-white North Shore.

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.

"That means that a healthy twenty-year-old Asian football player or a 17-year-old African-American marathon runner from a wealthy family will be automatically deemed at heightened risk to develop serious COVID illness — making them instantly eligible for monoclonal treatments upon testing positive and showing symptoms — while a white person of exactly the same age and health condition from an impoverished background would not be automatically eligible," observes journalist Glenn Greenwald.

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This use of race as a factor is unconstitutional. The Supreme Court has ruled that preferences for racial minorities are presumptively unconstitutional, and that even if minority groups have faced “societal discrimination,” that is not a reason to give them a preference.

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.

"Melanin endows blacks with greater mental, physical and spiritual abilities," while "most whites are unable to produce melanin because their pineal glands are often calcified or non-functioning," wrote Clarke in the Harvard Crimson newspaper in 1994.

If Clarke still believes blacks are superior to whites, and is involved in formulating the Biden administration's affirmative-action policies, her racist views may affect their legality, by tainting their motivation.

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.

Clarke and I both attended the same school, Harvard University. There, I encountered black students who believed crackpot racial theories that echoed Clarke's statements (such as the idea that blacks are, by nature, warm, communal, spiritual people, unlike whites, who are coldhearted oppressors). These bizarre racial claims were made without any hint of humor or irony. The black secretary of the Harvard Law School student government told me in all sincerity that his kids would fight mine in a race war some day. And I had thought he was my friend!

I don't believe Kristen Clarke, because she is a blatant liar. In the same April 14 hearing where she claimed her racist remarks were made in jest, she also denied having supported defunding the police, in an article in which she stated three times, "We must invest less in police."

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.

Progressives support this race-based appointment based on the assumption that blacks are underrepresented on the Supreme Court. But Jackson's confirmation would make the Supreme Court 22% black, even though America is only 13% black, and the legal profession is 5% black. One of the nine Supreme Court justices is already black (Clarence Thomas); Jackson will be the second. Two out of nine justices is 22%, well above the percentage of Americans who are black.

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.

Nor is the federal judiciary as a whole a bastion of white supremacy. Black judges are actually overrepresented compared to the percentage of black lawyers (4.8% of all lawyers are black, and federal judges are drawn from the ranks of experienced lawyers). Under that measure, “African Americans are& overrepresented by a factor of nearly three: They make up 12.7 percent of active federal judges while accounting for only 4.8 percent of lawyers,” noted former Justice Department lawyer Ed Whelan in June 2021. Moreover, “black men are overrepresented in the federal judiciary: They account for 7.9 percent of active federal judges but only 6.8 percent of the population,” says Whelan.

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Liberal journalists constantly imply that blacks are "underrepresented" in powerful positions, no matter how many blacks hold such positions. That misleads the public into wrongly thinking a big share of the population must be black, when only one-eighth of all Americans are black.

Biden's nomination of judges like Jackson based on their race violates the Constitution. Setting aside positions for a particular race violates Constitutional equal-protection guarantees, unless that race has been subjected to recent, intentional discrimination in access to those positions.

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.