https://www.thenationalnews.com/opinion/comment/2023/06/28/us-iran-nuclear-deal-talks/

An informal nuclear agreement will keep in check the likely drift towards war.

Over recent weeks it became increasingly evident that Iran has shifted its policy and once again became open to serious nuclear negotiations with the US. Reports suggest a limited informal or unwritten understanding is being developed through indirect negotiations in Oman. Despite the hand-wringing by critics on all sides, that’s definitely good news.

Confidence between the parties has grown such that, through carefully orchestrated leaks by diplomats, the basic outlines of a potential arrangement have been widely reported by the media.

The understandings begin with the long overdue release of three dual US-Iranian citizens imprisoned in Iran that Washington and much of the world consider hostages in exchange for the release of restricted Iranian funds. The US has allowed Iraq to pay Iran $3 billion for gas and electricity purchases, and South Korea $7 billion for Iranian oil already received. Both payments are limited to humanitarian purposes, specifically purchasing food and medicine. South Korean banks will receive indemnification assurances from the US Treasury Department that sanctions will not be triggered when they transfer these funds. The three prisoners may therefore be released in the near future.

Iran will reportedly limit uranium enrichment to 60 per cent, with 90 per cent considered weapons-grade. Although there are concerns Iran could potentially weaponise the enriched uranium it has already stockpiled, 60 is obviously far better than 90. In exchange, the Biden administration will commit to not imposing new sanctions on Tehran and to providing additional waivers on payments up to a total of about $2 billion, all targeted for humanitarian purposes.

Critics of the 2015 nuclear agreement between Iran and the Barack Obama administration, especially some staunch supporters of Israel, are outraged. The usual suspects have already been chanting their usual refrain of “pallets of cash, pallets of cash,” echoing Long John Silver’s parrot constant squawks of “pieces of eight, pieces of eight” in the classic novel, Treasure Island.

In truth, the Obama administration never delivered “pallets of cash” to Iran in return for the nuclear deal or anything else, and the Biden administration isn’t doing that either. It is releasing Iranian money that has been withheld as leverage precisely for purposes such as achieving a diplomatic breakthrough like this, no matter how limited.

Money, like oil, is fungible, so the restrictions to humanitarian purposes may be somewhat coy. Arguably, it still frees Iranian assets up for other uses, including military and nuclear ones. However, it is by no means certain that the Iranian regime would voluntarily be spending such funds on food and medicine. So, the payments could just as easily provide otherwise non-existent relief to innocents.

The crucial point is that such concessions are well worth the risks if such a limited, and even informal or unwritten, understanding can provide a real breakthrough. The revival of a functional dialogue between Washington and Tehran that begins to chip away at the mountainous edifice of distrust that has formed since the US withdrawal from the nuclear deal is absolutely indispensable.

That disastrous withdrawal is especially significant because these developments are unfolding in the run-up to the 2024 presidential election, which could well feature a rematch between Mr Biden – who served as Mr Obama’s vice president during the implementation of the defunct nuclear agreement – and his presidential predecessor Donald Trump, who scrapped the nuclear deal in favour of a campaign of “maximum pressure”.

Those sanctions perhaps limited Iran’s ability to fund the malignant activities of its network of armed gangs in neighbouring Arab countries, but they did nothing to mitigate its aggressive policies.

On the contrary, after about a year of trying to weather the sanctions, Tehran decided to strike back with its own campaign of “maximum resistance”, which involved a series of nefarious but deniable “grey zone” attacks against shipping and other targets in the Gulf. That culminated in the September 2019 attack on Saudi Aramco facilities that significantly reduced Saudi oil production for several days and rocked global petroleum markets. Meanwhile, Iran’s economy survived “maximum” sanctions, defanging what had long been a potent threat.

Republicans in Congress will be demanding oversight of anything discussed with Iran to prevent Mr Biden from achieving a crucial, albeit limited, diplomatic breakthrough and begin to repair the colossal damage done by Mr Trump’s error. They are counting on the Iran Nuclear Agreement Review Act of 2015, which provides a limited role for Congress in overseeing nuclear agreements with Iran.

However, the Act places no restrictions on presidential waivers of sanctions, does not require that Congress is informed of all details of every understanding, or even agreement, with Iran, does not provide a means for Congress to re-impose sanctions, and does not mandate a timeline or process for congressional review of whatever is submitted by the White House.

On the other hand, the president has the authority to conduct the foreign policy of the US, and both the language of the 2015 Act and the history of US policymaking and implementation suggest Mr Biden has great leeway when it comes to limited agreements and understandings with Iran, regardless of congressional heckling and grandstanding.

Mr Trump will claim that he had the situation entirely under control when he was president, especially after he withdrew from the nuclear agreement, and that Iran was about to fully capitulate to him. But that will be just another outrageous lie from a compulsive fabricator.

In reality, his policies infuriated Iran, but gained little for the US and its regional partners. Instead, they left a legacy of instability and peril. Hence the resumption of dialogue and diplomatic relations with Iran by key Gulf countries. Even when it comes to an apparently implacable adversary as Iran, international relations are very rarely reducible to a zero-sum equation.

Critics will be right that this potential limited understanding will resolve nothing. But it will come at an equally small cost. The real value lies beyond its specific terms. Successful indirect negotiations that produce reciprocal concessions on both sides are an indispensable prerequisite for taking the next step forward – if possible – with Iran regarding its nuclear programme and other egregious, unacceptable conduct.

Without a functional dialogue that can produce results, however limited, for both sides, the drift towards a ruinous and catastrophic war that will benefit no one will remain dangerously unchecked.

https://www.thenationalnews.com/opinion/comment/2023/07/25/trump-legal-cases/

It hardly constitutes an optimal context for a presidential victory.

Former US president Donald Trump still looms large enough that two national US calendars, which in the past have always run in parallel, seem set to collide as his gravitational pull slams them together. He faces a mounting set of legal and criminal reckonings and it’s almost impossible that all will be postponed. Many are set to intersect with the schedule of political primaries, party conventions and even the next presidential election.

Since Mr Trump faced his first criminal indictment in Manhattan in March on campaign finance and business records and tax falsification charges, he has appeared subdued and chastened in the dock. Unlike the civil defamation lawsuit, based on a sexual assault that a jury determined he indeed committed against writer E Jean Carroll, he won’t have the option of not attending these criminal trials.

Last week, a Trump-appointed Federal District Judge in southern Florida, Aileen Cannon, rebuffed his request for an indefinite postponement of his trial on 37 felony counts related to the alleged purloining, mishandling, concealing and unauthorised exposure of numerous highly sensitive government documents. Instead, she scheduled the trial for May 20, 2024.

While many complications may create delays, including the difficulty of getting attorneys cleared to review classified materials and finding a qualified jury, the Southern District of Florida is noted for its “rocket docket”, and may prove unsympathetic to his favourite legal tactic of endless delays.

Meanwhile, a judge in New York City has scheduled March 25 for Mr Trump’s state-level charges. As with the federal-level Florida case, he will be required to attend, while presumably his Republican rivals will be campaigning, fund-raising and debating.

By then the former president will already be embroiled in a second civil lawsuit brought by Ms Carroll on the same essential facts because he inexplicably repeated his accusations that she was lying about their alleged encounter after she won a resounding jury verdict last year. Shortly after, Mr Trump took to CNN to repeat his denials, claims that he didn’t know who she is (despite numerous photographs showing them together), and implications that she is unbalanced.

Interest in round two, which will surely result in yet another judgment against him, has been stoked by a stunning recent ruling by federal District Court Judge Lewis Kaplan. It held that, while the civil court jury ruled in favour of Ms Carroll on sexual assault and not rape charges under the exact meaning of the terms under New York State law, nonetheless their findings of fact establish that Mr Trump had indeed “raped” her “as many people commonly understand the word ‘rape’” .

It will not help Mr Trump in any elections whatsoever, even Republican primaries, that a federal judge has ruled it is legally accurate to describe him as an established rapist under the commonly understood meaning of the term. All of that is likely to be reinforced and disseminated by a disastrous second lawsuit he could have avoided by simply restraining his impulse to lash out at her again despite what had just happened in a court of law.

Criminal courts are almost certainly Mr Trump’s least preferred environment since few of his standard tactics work well there. Indeed, many of his closest legal associates now face disbarment precisely because they followed his preferred stratagems in legal proceedings, where such shenanigans are not well tolerated outside the white-collar civil proceedings that he has been used to.

Even then, New York State isn’t through with its least-favourite son.

New York’s attorney general, Letitia James, is suing Mr Trump, much of his family, and their private company on civil charges of systematically misrepresenting their assets by overvaluing them to investors and undervaluing them for tax purposes. Her ultimate goal is to not merely regain assets but to bar Mr Trump and his two older sons, Donald Jr and Eric, from ever running any businesses in the state again. That civil trial is scheduled to begin this October.

Arching over it all is special prosecutor Jack Smith’s apparent upcoming additional federal charges related to the January 6, 2021 insurrection and Mr Trump’s broader failed coup effort following President Joe Biden’s electoral victory in November 2020. Mr Trump recently received a so-called target letter from the Justice Department, reportedly advising him that he may well face charges of conspiracy to defraud the US, obstruction of an official proceeding, and, to the surprise of many, conspiracy to defraud people of their constitutional rights. There is little doubt another federal indictment will follow soon enough.

This, logically, seems to focus on the more sinister underlying efforts to overturn the election results – such as the plot to promote “fake electors” from Republican-controlled states that would secure victory for Mr Trump over Mr Biden despite the election outcome – than just the more dramatic mayhem of January 6.

Mr Trump also seems likely to face charges in Georgia on related state-level crimes, given that he was recorded pressuring senior officials to “find” exactly the number of non-existent votes he needed to defeat Mr Biden there.

These charges are merely looming, so there is no indication yet when expected additional trials might begin. But the first Republican primary debate is scheduled for August 23, kicking off the nomination campaign. Republican primary voting begins with the Iowa caucuses and New Hampshire primary in January 2024 and culminates in March. The Republican National Convention will be in Milwaukee from July 15-18, potentially right in the middle of the current front-runner’s varying criminal trials and other legal woes.

Only if he survives all that comes with his potential rematch with Mr Biden. Suffice it to say, the developing calendar smashing together Mr Trump’s political ambitions and legal exposure doesn’t seem like the optimal context for victory.

As the legal schedule now stands, his criminal trial in Florida may begin mere days after the end of the one in New York. It’s already taking its toll.

In the last quarter of fund-raising, most of Mr Trump’s donation dollars went not to his presidential campaign, as most donors no doubt expected, but to an affiliated “political action committee” that serves mainly to steer funds into paying his mounting legal bills.

Mr Trump’s rapidly filling, unavoidable criminal trial agenda could well hammer his presidential ambitions with a continuously running, self-authored anti-Trump TV ad campaign that will most likely only get more damaging as the 2024 presidential election approaches.

https://www.thenationalnews.com/opinion/comment/2023/07/20/it-is-americas-right-not-its-left-whose-views-on-the-israeli-occupation-have-changed/

Conservative claims that Joe Biden is implementing an outlandish new liberal conceit by labelling the Palestinian territories as ‘occupied’ are cynical and dishonest inversions of the truth,

The partisan schism over US policy towards Israel and the occupation that began in 1967 is solidifying in ways that should alarm both Israelis and Palestinians albeit for different reasons. Republicans are increasingly embracing the annexationism championed by Israeli Prime Minister Benjamin Netanyahu’s radical new cabinet, while US President Joe Biden’s administration is working to restore Washington’s commitment to peace.

Last week, an official editorial in The Wall Street Journal, an authoritative conservative establishment publication, fulminated against the Biden administration’s Middle East policies by relying on two glaring falsehoods.

It condemned Mr Biden’s opposition to proposed Israeli judicial “reforms” that would strip the judiciary of most powers over the government. It insisted that Mr Biden has been treating Israel’s government more harshly than he has the Iranian regime.

The absurdity of this claim is clear. A distinct coolness between Mr Netanyahu and Mr Biden is evident, but US support for Israel remains generous and robust. By contrast, the Biden administration has held firm against unreasonable Iranian demands in nuclear negotiations and maintained remarkably harsh sanctions and significantly ramped up military deterrence against Teheran.

The second glaring falsehood merits particular attention. The editorial claims that, under Mr Biden, “all of the West Bank and East Jerusalem is treated as occupied territory”. “This is now a liberal article of faith,” it insists.

These assertions – that it’s somehow incorrect to label the occupied Palestinian territories as “occupied”, and that doing so is a new and especially liberal conceit – invert reality. Shortly after the occupation began in 1967, it was labelled exactly that by the UN Security Council, including the US, and was reconfirmed countless times ever since. This makes Israel’s occupation a legal and diplomatic fact, not anyone’s opinion.

The suggestion is that liberals have adopted a weirdly anti-Israel stance by claiming Israel is an occupying power. Yet the opposite is true, as the editorial’s cynical authors are surely aware. In fact, it is the American right that has abandoned a longstanding bipartisan Washington consensus recognising the reality of the occupation and endorsing a two-state solution.

In 1980, then-president Ronald Reagan, a conservative hero, strongly supported Security Council resolutions condemning Israel’s de facto annexation of occupied East Jerusalem and declaring it null and void. Both presidents Bush, father and son, were also clear on the reality of occupation and the need for two states.

But in the 21st century, radical Christian fundamentalists support for the occupation and annexation steadily spread from the fringe to the mainstream in right-wing discourse.

The Donald Trump administration proved decisive. His Israel policy was run by three religiously conservative, pro-settlement Jewish Americans personally close to him: his son-in-law Jared Kushner, and two of his attorneys, Jason Greenblatt and David Friedman.

Mr Trump endorsed Israel’s annexation of the Golan Heights and issued an ambiguous statement recognising Israel’s sovereignty in Jerusalem but leaving it unclear whether he was making distinction between West Jerusalem and occupied East Jerusalem.

As US ambassador to Israel, Mr Friedman, the most radical of the group, was unusually empowered. During his tenure, everyone more senior at the State Department studiously avoided Palestine-Israel issues. He was, therefore, usually able to get his way.

He fought hard for the elimination of all references to the occupation or the occupied Palestinian territories in State Department documents, most notably the annual Country Reports on Human Rights Practices. From their outset, these crucial documents tracked Israel’s abuses and carefully distinguished Israel from the clearly identified “occupied territories”.

During Mr Friedman’s ambassadorship, State Department references to the occupation began to quickly disappear. The area designation in the annual reports was immediately switched from the traditional “Israel and the Occupied Territories” to “Israel, the West Bank and Gaza”. By 2018, all references to the occupation were eliminated. Under Mr Biden, Mr Trump’s area designation unfortunately persists, but the fact of occupation is clearly labelled and shot through the analysis of human rights realities in the occupied territories.

Mr Trump’s 2020 “Peace to Prosperity” proposal, overseen by Mr Kushner, was the key turning point. By encouraging Israel to annex 30 percent of the West Bank, including the Jordan Valley thereby surrounding any potential Palestinian mini-state within a greater Israel, the White House gave its blessing to the Republican right, especially radical fundamentalist Christians, to openly embrace occupation and annexation as legitimate and even desirable.

This otherwise ineffectual document succeeded in its unstated but actual primary mission of stretching the “Overton window” of political discourse on the occupied territories in Washington to include support for annexation. For the Republican right, there was no turning back. Cue editorials pretending that this radical transformation of conservative attitudes that has smashed a longstanding, bipartisan foreign policy consensus is merely the rejection of an outlandish new liberal “article of faith”.

Who else has recognised the reality of occupation? The Israeli military, repeatedly, going before Israeli courts to justify measures such as checkpoints and live-fire zones that are allowed to occupying powers under international law. The Israeli government, too, has frequently cited the occupation when convenient. But whenever it comes to settlements and other civilian projects that grossly transgress international human rights law – because the Palestinians and other occupied peoples have the right not to be colonised – Israel reverts to pretending there is no occupation after all.

What Israel has tried to create is a mobile, ever-shifting landscape where “Israel” legally exists wherever and whenever Israeli settler happens to be hunkering down, with or without permission of Israeli authorities, and everywhere else is an amorphous and undefined occupation, with the status of the land and its people to be determined at some future date. Or not.

Comparing the Biden administration’s Human Rights Reports with such conservative editorials and Republican presidential candidates’ scramble to outdo each other in support for Israel and annexation, it is clear that Mr Trump and his annexationist inner circle succeeded in demolishing the pre-existing bipartisan consensus in favour of peace.

With Mr Netanyahu’s judicial “reforms” set to severely undermine Israel’s “Jewish democratic” bona fides over Mr Biden’s strong objections, and the bitter partisan split developing over the occupation, the decades-old “special relationship” between the two countries seems ready to give way to a less “special”, more normal, status, at least with Democrats. That may dismay Israelis, but alarmingly for Palestinians, most Republicans now appear irreversibly pro-annexation.

https://www.thenationalnews.com/opinion/comment/2023/07/12/a-new-court-ruling-on-disinformation-pokes-another-hole-in-americas-constitution/

The US legal system is stuck in an ongoing pattern of undermining everything it’s meant to stand for.

The more than 200-year-old US constitutional system has been strained, almost to the breaking point, repeatedly in the 21st century. The latest instance is potential new limitations on co-operation between the government and corporations to limit online disinformation.

A Louisiana judge has ordered President Joe Biden’s administration, including public health and security agencies, not to engage social media companies with “the purpose of urging, encouraging, pressuring or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech”.

That effectively bars the government from working with these platforms to try to create voluntary standards that protect the public from especially egregious and harmful disinformation. It privileges the free-speech rights of wild-eyed individuals, who could always still say whatever they want in their own media, at the expense of the same rights of private companies and the government itself, not to mention the interests of the general public and constitutional order.

The century began its ongoing pattern of stress-testing the creaking US Constitution with the fraught aftermath of the 2000 presidential election between George W Bush and Al Gore. The result was a virtual stalemate, with a result in Florida that was so close it became clear that no amount of contested recounts would produce a clear outcome either way. The election was ultimately decided by the Supreme Court, which voted strictly along partisan lines to halt any further recounts in the state, handing Mr Bush the presidency.

Although Mr Gore graciously accepted their ruling, not only did the electoral system appear badly broken (Mr Bush lost the popular vote), but the Court initiated a process of shattering self-inflicted delegitimisation which continues today. In addition to all justices voting in a manifestly partisan manner, they adopted stances on state authority that flatly contradicted well-established liberal and conservative positions on the issue, obviously in order to promote a politically advantageous outcome for their ideological allies.

The ensuing 15 years saw disasters ranging from plainly unconstitutional torture with impunity by the government following the 9/11 terrorist attacks to the 2010 “Citizens United” ruling that unleashed a tidal wave of unaccounted-for “dark money” from wealthy powerbrokers and corporations that flooded the US political system on all sides with uncontrolled, unprecedented and legally sanctioned corruption.

The arrival of Donald Trump and his “Make America Great Again” movement (which brought the Louisiana lawsuit) initiated a series of sustained challenges to the system from within that have neither brought down the US constitutional order nor been successfully suppressed. Indeed, Mr Trump remains the leading Republican candidate for the 2024 presidential nomination, and makes no secret of his intention to use his power to inflict “retribution” for his supporters against all of their perceived adversaries.

One of the earliest and most alarming challenges to the constitutional order posed by the Trump movement was the mobilisation of disinformation and conspiracy theories largely through social media. It developed into an unprecedented and sustained attack on the very notion of objective reality beyond mere assertion and opinion. Most disturbingly, this attack on the very concept of verifiable truth combined internal and external forces, both working, for their own reasons, to try to secure Mr Trump’s victory over Hillary Clinton.

Internally to the country, Mr Trump’s campaign and movement elevated fabrication, conspiracy theorizing, wild speculation and baseless allegations to a campaign specialty, if not an art form. Externally, a sustained and focused campaign by Russian intelligence, carefully monitored by a number of US government agencies and outlined in the final report by special counsel Robert Mueller, used many of the same tactics and tropes to promote Mr Trump and undermine confidence in both the US political system and the notion of objective reality.

The Kremlin thus sought to export its “nothing is true and everything is possible” domestic political atmosphere to the United States, with devastating effectiveness and consequences. Mr Trump continues to complain about “the Russia hoax,” and it’s true that definitive evidence linking his campaign to unlawful cooperation with Russian intelligence was never established. But the Russian use of disinformation on behalf of his candidacy and against the US constitutional system and political culture was all-too-real and exhaustively documented.

There is no telling how many of the more than 1.1 million Americans who have died from Covid-19 refused a vaccination that could have saved them. But the number may be in the hundreds of thousands. Even Mr Trump was booed by his own supporters when he once made the mistake of promoting vaccination at a rally.

Mr Trump may be out of office and off of Twitter, but the disinformation threat is by no means over. His allies in Congress have been using subpoena powers to investigate, intimidate and deter disinformation researchers at universities and think tanks in co-ordinated parallel to lawsuits seeking to restrict government communication with social media companies.

Those who embrace the spread of online falsehoods are naturally hostile to efforts to study and counter this malignancy. It’s no surprise that Representative Jim Jordan of Ohio, one of the leading promoters of the baseless conspiracy theory that the 2020 election was stolen from Mr Trump, is leading the attack on these researchers.

Meanwhile, undeterred new research shows that Russian and Chinese covert efforts sought to influence US public opinion reaction to criminal charges filed against Mr Trump. There is no doubt such forces, both inside and outside of the country, are preparing another onslaught against the 2024 elections, whether he is a candidate or not.

Meanwhile, undeterred new research shows that foreign powers sought to influence US public opinion reaction to criminal charges filed against Mr Trump. If this is true, then there is no reason to doubt that such forces, both inside and outside of the country, are preparing another onslaught against the 2024 elections, whether he is a candidate or not.

When courts try to prevent government public health and security agencies from helping social media companies voluntarily create safeguards in the public and national interest on manifestly spurious “free speech” grounds, it is another depressing reminder that the US body politic seems increasingly unable to overcome even thoroughly diagnosed malignant and metastasising cancers like online disinformation.

https://www.thenationalnews.com/opinion/comment/2023/07/05/affirmative-action-us-clarence-thomas/

Rather than being “colorblind,” the US Constitution has always been aggressively color-conscious, mostly to the extreme detriment of minority groups.

The US Supreme Court has issued another shocking but unsurprising ruling that arbitrarily dispenses with precedents and upends long-settled law at the expense of the historically disempowered. Last year, women were denied a 50-year-old individual right in America to early-term abortions. Now African American and Latino students will be deprived of “affirmative action” programmes considering race in university admissions.

The hypocrisy and absurdity were best illustrated by Justice Clarence Thomas’s passionate invocation of “our colourblind Constitution.” All six Republican-appointed Justices describe themselves as “originalists” or “textualists,” meaning that they seek to discover the “original” or the literal meaning of constitutional texts, respectively.

Originalism is unworkable not just because of radically transformed sociopolitical contexts, but because the framers of the Constitution frequently disagreed about the broader implications of their compromises. Each was willing to live with a passage based on their own interpretations. But the assumption there was a shared originary understanding of constitutional texts is demonstrably false.

Rigorous textual analysis is indispensable to jurisprudence, but “textualism” tends to reduce it to a crude game of definitions, etymologies, centuries of Anglo-American legal technicalities, and other questions having little to do with a decent outcome or rational interpretation of constitutional law under current circumstances. It often hints at the old BBC radio game My Word!, only without the charm and wit.

These methodologies are intended to transfix the meaning of constitutional law, insofar as possible, in bygone eras when black people were enslaved or excluded, women subordinated and disenfranchised, racism codified throughout society, and segregation, enforced by brutal lynching, the norm in many states.

The Constitution has had many anti-racist admirers, most notably Frederick Douglass and Martin Luther King, who saw in it potent correctives to such barbarism. But originalism and textualism are thinly-veiled efforts to slow, block, or now reverse much of the constitutional progress since 1954.

The ruling involved extraordinary colloquies between Mr Thomas and two liberal justices, Sonia Sotomayor and newcomer Ketanji Brown Jackson.

Ms Sotomayor outlined the undeniable endurance of structural and institutionalised racism and its profoundly negative effects for African Americans and Latinos. Mr Thomas countered that discrimination based on race can never be tolerated in any context. He posed as a champion of highly qualified Asian-American student applicants, arguing that Harvard’s admissions policies come primarily at their expense.

He accused Ms Jackson of viewing all aspects of life through an irreducible racial framework. She denied this and countered that his insistence that race is, or should be, irrelevant to law is so divorced from the social realities shaped by the Constitution it is effectively delusional.

Mr Thomas’s implacable hostility to affirmative-action is especially noteworthy because he is arguably the greatest-ever beneficiary of these programmes and ethos, and concomitant expectations of inclusivity. He attended Holy Cross College and Yale Law School based on affirmative action. He enjoyed a meteoric rise on the political right, and, at the tender age of just 33, headed his own federal agency, the Equal Employment Opportunity Commission. A mere 10 years later, following a contentious Senate committee hearing chaired by current US President Joe Biden, he was confirmed to the Supreme Court.

His spectacular career, especially given his upbringing amid poverty and segregation, is undeniably impressive, even inspiring. But it’s equally undeniable that, at every stage, and precisely because it coincided with the institutionalisation of affirmative action and the imperative of greater racial diversity in universities, corporations and government, his race played a significant role in his cascading triumphs. Unfortunately, he now appears mortified by this appropriate corrective, as if it were a badge of shame.

He was one of few Black conservatives available to run Ronald Reagan’s Equal Employment Opportunity Commission (EEOC), and then replace the first Black Supreme Court Justice, Thurgood Marshall.

As EEOC Chairman in 1983, Mr Thomas acknowledged: “God only knows where I would be today” without affirmative action policies, which he correctly called “critical to minorities and women in this society.” Now, he resembles a survivor in a lifeboat using an oar to beat back others attempting to clamber on.

Crucially, Mr Thomas’s “colourblind Constitution” dogma is especially unworkable from originalist or textualist perspectives. The original Constitution didn’t explicitly mention slavery, but plainly allowed it, defining slaves as “3/5 of a person” for purposes of congressional representation. In 1857, the Supreme Court ruled that no Black residents could be considered citizens and “had no rights which the white man was bound to respect.”

After constitutional amendments outlawing slavery and ensuring citizenship for following the Civil War, and a brief period of greater equality in the South known as “Reconstruction,” by 1896 the Supreme Court had promptly endorsed the growing practice of abusive racial segregation. Unequal separation by assumed race was consistently endorsed by the Court until the first legal cracks appeared in 1954. But the attempt at real redress only began in the mid-to late 1960s when policies such as affirmative action were developed.

It is impossible to argue that this project is complete, given the ongoing socio-economic gaps between “African Americans” and others, particularly those currently considered “White.” Instead, Mr Thomas and the court majority argue that any effort to redress centuries of rampant racial mistreatment with decades of limited succor is racist against everybody else.

The “colourblind Constitution” canard might just barely be plausible if US history began in 1965, although that would still involve a grossly unequal playing field. In fact, the Constitution has been aggressively colour-conscious throughout its history, mainly at the expense of minority groups. Consequently, Mr Thomas and his ilk are forced to rely on ahistorical myths to rationalise halting and reversing efforts to correct these monumental and profoundly lasting government-imposed wrongs. Many suggest income-based preferences instead, but that would probably intensify a troubling trend towards elite student bodies split mainly between the very rich and the very poor.

Meanwhile back at Harvard, over 40 per cent of “White” students were admitted because of family “legacies,” parental donations, ties to staff, or participation in, often boutique, sports teams rather than academic merit. Yet none will likely feel the neurotic sting of assumed inferiority that haunted Mr Thomas at Yale and until today. White preferences are normalised and normative in US society.

As the country celebrated its 247th birthday on Tuesday, this radical Supreme Court, wrapping itself in the disingenuous twaddle like “our colourblind Constitution” that informs this privilege and inequality, appears determined to preserve and protect as much of it as possible.

Happy birthday, America.