You can put lipstick on a pig, but it's still a rancid bigot.
“Have we no shame?” Judge William Young asked, in an unmistakable
echo of attorney Joseph Welch, who famously punctured Joe McCarthy’s
popularity with his simple plea for decency.
Seventy-five years ago, McCarthy and his sidekick Roy Cohn
hunted Communists. Now, Donald Trump, who was mentored by Cohn, hunts a
different kind of subversive. In executive orders signed during his first weeks
in office, he targeted “Illegal
DEI and DEIA policies,” claiming that they violate civil rights laws.
He declared that
“it is the policy of the United States to recognize two sexes, male and
female,” and branded “efforts to eradicate the biological reality of sex” as
discriminatory against women and girls.
This is a radical misstatement of the law. No court in the
land has ever held that DEI — whatever that means —
constitutes racial discrimination, or that allowing trans people to participate
in society amounts to gender discrimination. It also defies the medical and
scientific consensus about sex, gender, and biology. But no matter! The
president redefined reality by executive fiat, and then instructed his minions
to carry out a purge consistent with his edict.
And purge, they did! The administration immediately moved
to kick
trans service members out of the military, reorient the
Equal Employment Opportunity Commission to focus on “DEI-related discrimination
at work,” and pulled down websites on everything from baseball
icon Jackie Robinson to transgender
health care.
But while the government was busy deleting pronouns from
civil servants’ signature lines, it also slashed thousands of federal grants
because some
DOGE bro (or possibly
an AI) decided that the recipient was vaguely “woke” — whatever that means.
At NIH, more than a $1 billion of funding was cut because of its supposed
association with “woke” ideologies.
Blanket termination letters informed recipients that their
funding was being cut, often in the middle of a multi-year grant, for vague
thought crimes:
Research programs based primarily on artificial and
non-scientific categories, including amorphous equity objectives, are
antithetical to the scientific inquiry, do nothing to expand our knowledge of
living systems, provide low returns on investment, and ultimately do not
enhance health, lengthen life, or reduce illness. Worse, so-called diversity,
equity, and inclusion (“DEI”) studies are often used to support unlawful
discrimination on the basis of race and other protected characteristics, which
harms the health of Americans. Therefore, it is the policy of NIH not to
prioritize such research programs.
How one would study, say, sickle cell anemia without discussing race is an exercise left for the reader. (Or not, since the government would probably pull a book on disease which primarily afflicts Black people off the shelves for being “DEI.”)
A coalition of 16 blue states sued,
and the case was joined with a similar
one filed by several public health and labor groups. They argued that
NIH “adopted a series of directives that blacklist certain topics — e.g.,
‘DEI,’ ‘gender,’ or ‘vaccine hesitancy’ — that the Administration disfavors.”
All the impoundment cases, which involve money appropriate
by Congress which the Trump administration simply refuses to disburse, recite a
now-familiar set of legal claims. And indeed the plaintiffs here, too, argue
that the president is violating the Spending Clause and the separation of
powers — essentially that he is stealing Congress’s power over the federal
budget. They also call the grant terminations “arbitrary and capricious,” in
violation of the Administrative Procedures Act.
But here the plaintiffs make another argument in defense of
their “woke” priorities. They note that statutes passed by Congress mandate
that NIH fund research that supports racial equity and better health outcomes
for gender and racial minorities.
“The Challenged Directives purport to restrict research on
subjects that Congress has expressly required NIH to support,” they write. “In
declaring research related to DEI, gender identity, and transgender health
off-limits, defendants’ actions are contrary to congressional mandates.”
So, for instance, 42 U.S.C. §282(h) instructs the NIH
director to “support[] programs for research, research training, recruitment,
and other activities, provide for an increase in the number of women and
individuals from disadvantaged backgrounds (including racial and ethnic
minorities) in the fields of biomedical and behavioral research.”
Similarly, 42 U.S.C. §283p says that NIH “shall encourage
efforts to improve research related to the health of sexual and gender minority
populations, including by (1) facilitating increased participation of sexual
and gender minority populations in clinical research” and by “facilitating the
development of valid and reliable methods for research relevant to sexual and
gender minority populations.”
Congress even established a
National Institute on Minority Health and Health Disparities! So Trump
simply cannot terminate all grants that touch on race and
gender simply by labeling them as “discriminatory” or “divisive.” Or, he can,
but judges are likely to rule that he’s done so unlawfully, as happened Monday
in Boston.
“My duty is to call it out”
Judge Young, who was appointed to the federal bench by
Ronald Reagan in 1985, called the terminations “arbitrary and capricious.” But
he went further than other
judges in the many impoundment suits, calling the administration out
for its flagrant animus against racial and sexual minorities.
“I am hesitant to draw this conclusion — but I have an
unflinching obligation to draw it — that this represents racial discrimination
and discrimination against America’s LGBTQ community,” he said, according
to Politico.
“That’s what this is. I would be blind not to call it out. My duty is to call
it out.“
DOJ lawyer Thomas Ports Jr. countered by echoing NIH’s
boilerplate termination notices.
“Research programs based on gender identity are often
unscientific, have little identifiable return on investment and do nothing to
enhance the health of many Americans. Many such studies ignore rather than
seriously examine biological realities,” he said. ”It is an improvement to
eliminate these.”
“Where’s the support for that?” Judge Young shot back. “I
see no evidence of that.”
Of course, there is no such evidence of that, which is why
the government never presented any. Instead it pointed to Trump’s executive
orders, insisting that the president gets to make his own reality. Other than
various jurisdictional arguments aimed at getting the case moved to another
court, they really had no defense. Ports wasn’t even able to define “DEI” when
pressed by the court.
“You are bearing down on people of color because of their
color,” the judge hammered
on. “The Constitution will not permit that.”
Hit dogs holler
In 1954, Welch’s “Have you no decency, sir!” marked the
beginning of the end for Sen. Joe McCarthy. Public support for his witch hunt
collapsed, and he died in disgrace three years later. But decency is in short
supply these days, and the White House is digging in.
“It is appalling that a federal judge would use court
proceedings to express his political views and preferences,” White House flack
Kush Desai sneered.
“How is a judge going to deliver an impartial decision when he explicitly
stated his biased opinion that the administration’s retraction of illegal DEI
funding is racist and anti-LGBTQ?”
A hit dog will holler. And maybe that dog will win a
reprieve from the Supreme Court, too. But even so, it still matters when old
bulls of the judiciary, particularly conservatives like Judge Young and Judge
Royce Lamberth, who enjoined
attacks on trans prisoners, call out the Trump regime for turning civil
rights laws on their head.
“I’ve never seen a record where racial discrimination was so
palpable,” Judge Young fumed. “I’ve sat on this bench now for 40 years. I’ve
never seen government racial discrimination like this.”
