RUTHFULLY YOURS

With Neil Gorsuch safely on the Supreme Court, the White House is turning its attention to the lower federal courts. President Trump took a major step Monday, naming five new nominees to the federal appellate courts and five to the district courts.

The five appellate nominees are Joan Larsen of the Michigan Supreme Court and John Bush of Kentucky to the Sixth Circuit, Kevin Newsom of Alabama to the 11th Circuit, David Stras of Minnesota to the Eighth Circuit and Amy Barrett of Indiana to the Seventh Circuit.

Judges Larsen and Stras were on Mr. Trump’s original list of 21 judges he said he’d consider for the Supreme Court, and the group has sterling credentials. Ms. Barrett is a law professor at Notre Dame who clerked for federal Judge Laurence Silberman, a giant of the appellate circuits, as well as the late Justice Antonin Scalia. Mr. Newsom is a former clerk to Justice David Souter and has argued multiple cases before the Supreme Court. Mr. Bush is a highly regarded lawyer in private practice who represented President Reagan during the Iran-Contra investigations.

It’s likely the left will pressure Democratic Senators like Al Franken (Minnesota) and Joe Donnelly (Indiana) to withhold their endorsements of the home state judges, known as “blue slips.” But White House Counsel Donald McGahn has put together impressive nominees who will be hard to obstruct for reasons beyond raw partisanship.

Prompt Senate action on the nominations is important—not least because the number of vacancies on the federal bench is around 129. After these latest nominees, that includes 14 on the appellate circuits. President Obama made 331 judicial appointments, and his nominees to the federal appeals courts now represent about a third of the judges.

According to the Brookings Institution, as of September 2016 there were 92 liberal appellate judges and 75 conservatives. It’s time to redress the balance in the 115th Congress while Republicans have a Senate majority.

We live in an age of identity politics, which is a misleading way of saying we are segregated – by race, religion, socio-economic positions and sex. Differences do exist, and highlighting them is a way to spotlight societal problems. But partition today is done, cynically, for political purposes – to compartmentalize voters for easy access. As a nation, we need debate but should focus on commonalities. However, in the matter of the sexes, it is the difference between men and women that is fundamental to our continued existence. After all, without procreation we would die off.

All agree, there is no excuse for sexual harassment and that there should be equal pay for equal work – that women should have the same opportunity as men in terms of education and careers. And – despite the above Wodehouse quote – intelligence is not confined to one gender. Respect should have no boundaries.

We are formed by our past. While I went to an all-boys high school and spent forty years on male-dominated Wall Street trading floors, I was fortunate to have been raised in a household, and in a family, where women were always considered equal to men. Of my parents, my mother was the more dominant, and certainly had more of a head for business than my father. While both were artists, he was quiet and reserved, interested in sculpture, nature and his children. My maternal grandmother was raised in the south and in Washington, D.C. She married at 18 and, with her husband, moved into the New Haven home of her widowed father-in-law, where she became the head of a large household. While she never went to college, she was, according to my father, as well-read as anyone he knew. My paternal grandmother married at age 31. In the late 1890s and early 1900s, she spent six years studying at M.I.T., which accepted her tuition, but refused to grant her a degree because of her sex. She always remembered that slight, but didn’t let it consume her. She lived to be 93, and maintained a life-long interest in public health, an interest nurtured at M.I.T.

The gender equality I encountered in my youth was accompanied with a chivalrous attitude toward women. I was taught to remove my hat and open doors for women, to pull out their chair when they came to the table. This was not because they were incapable of doing so themselves, but as a sign of respect. (If you had seen my mother on a horse you would know she wasn’t fragile.) Shortly after I met my wife, she and I drove out to Wellesley to visit my paternal grandparents. My grandfather had just turned 89 and Caroline was in her early 20s. When she walked into the room, he stood. Civility and manners that make for genteel behavior are neither condescending nor patronizing. They lubricate rules of civility.

The 19th Amendment, which gave women the right to vote, was ratified in August 1920, a hundred and thirty-one years after George Washington was inaugurated. Neither of my grandmothers could vote until they were middle-aged. When I was growing up most women did not go to college and careers open to men were not open to them. In high school, girls took “home economics,” while boys took “shop.” Ten years later, in the mid 1960s, opportunities for women were still limited. The feminist movement was well-timed. Women like Betty Friedan and Gloria Steinem led marches for jobs, equal treatment and rights. The Equal Rights Amendment (ERA) was passed by Congress in 1972, but only ratified by 32 States, so never became part of the Constitution. Phyllis Schlafly was, in part, responsible for its failure. Her argument: women bear babies, so must be cared for by the men who get them pregnant, an observation rooted in biology. Nevertheless, over time, most of what the ERA demanded has been enacted into law, and/or have become part of the accepted norm. There are more women in universities today than men. While not equally represented in government, business, law, academia and the military, they have made in-roads inconceivable to those of my parents’ and grandparents’ generation.

If you’re a Democrat, and your program is wealth redistribution—with a big cut for yourself as a ruling middleman—it turns out that racism is a much better rationale than inequality for robbing selected Peter to pay collective Paul. Inequality, as New York mayor Bill de Blasio ruefully found, is too fuzzy a cause to fire up most people with righteous indignation, since American liberty has always meant that people free to use their different talents and virtues in their own way will arrive at widely varying outcomes. But racism—oh, racism is the original American sin. It is so obviously, wickedly, unjust as to get the blood boiling in blue states and cities across the land.

Trouble is, there isn’t that much racism festering in the nation any more. It was Barack Obama’s political obsession, perhaps bordering on political genius, to convince a majority of Americans that it pervaded everywhere, like phlogiston, seventeenth-century science’s imaginary substance—invisible but supposedly ubiquitous and providing our ancestors with an explanation for the otherwise inexplicable phenomenon of combustion.

Accomplishing this task, though, required a massive rewrite of the American history of the last half-century. As recently as 15 years ago, there were a lot of people around for whom the civil rights movement had been a formative, firsthand experience. I don’t mean the race hustlers like Jesse Jackson and Al Sharpton. I mean ordinary people who had a deep commitment to ending racial segregation and discrimination and to winning equal opportunity for all Americans, regardless (as the mid-century slogan put it) of race, creed, or color. We had heard the speeches of Martin Luther King and yearned for the day when only the content of your character, not the color of your skin, would count; had known (or even been) Freedom Riders, rumbling south by the busload to help hitherto disenfranchised blacks register to vote; had seen Birmingham police commissioner Bull Connor stand by while the Ku Klux Klan beat those demonstrators and later set his own police dogs and fire hoses on the next peaceful group; had seen Governor George Wallace stand in the schoolhouse door to keep blacks out of the University of Alabama. We saw the moral force of that movement inexorably marginalize the racists, and the legal force of the federal government steamroll them, starting with Brown v. Board of Education in 1954 and gaining momentum when Deputy Attorney General Nicholas Katzenbach, flanked by federal marshals and national guardsmen, forced Wallace to step aside as the first black students entered his state university in 1963, and when Congress the next year passed the epochal 1964 Civil Rights Act.

My generation lived through decades of what seemed a world-historical liberation. Before our eyes, as we saw it, Jefferson’s dream of an America based on the idea that all men are created equal had solidified into a reality at last. So indelibly etched on our memories were those heady times that on 9/11, when my left-wing baby-boomer neighbors spontaneously assembled at the Firemen’s Monument on Riverside Drive, candles in hand, all they could think of to solemnize the occasion was to sing not “The Battle Hymn of the Republic” but the civil rights anthem “We Shall Overcome.” If the Vietnam War was the shadow of our formative years, the civil rights movement’s success was the sunshine.

But like many admirable movements, even this one had its excesses. Equality of opportunity wasn’t enough, some insisted. We needed equality of results. Government and private institutions adopted numerical goals and quotas and tried to reach them through affirmative action—that is, through a supposedly beneficent discrimination by race, seemingly legal, since the Supreme Court, even in Brown v. Board of Education, had never repudiated Plessy v. Ferguson’s odious 1896 acceptance of racial discrimination. We got forced school busing to make student populations of each school mirror the racial composition of the region, and public education’s focus shifted from imparting knowledge to fighting racial disparity—or, as the progressive-ed schools put it, advancing social justice. Needless to say, the education of black kids improved not a whit.