affirmative action on life

support. i'm michael smerconish in philadelphia. monday america celebrates the third ever federal holiday of juneteenth, commemorating the emancipation of enslaved african americans. as we do, the consensus among legal scholars is the supreme court will soon be ending affirmative action, at least in the context of college admissions. does that mean it achieved its purpose or we're abandoning the underlying premise? a pair of cases have been argued. we'll soon know the results. one involves harvard, the other the university of north carolina. the conventional wisdom is that race-conscious admissions will end. currently race is permitted to be a factor, meaning one factor among many to be considered as schools seek to create a diverse student body. kwoet quote teas, however, are unconstitutional. that's the bottom line after the supreme court has taken up several cases involve ing

affirmative action over time. justice sandra day o'connor wrote we expect 25 years from now the use of racial preferences will no longer be necessary. it's been 20 years. is it still needed and legally defensible. opponents of race-conscious admissions argue that in schools like harvard, asian americans are being discriminated against where despite excelling academically they score lower on subjective personality traits. all sides seem to agree that without race as a factor, the percentage of black and hispanic students will drop and whites will rise. in 1996 it prohibited government institutions to prohibit race, ethnicity in public employment, public contracting and

education. at the university of california schools the percentage of underrepresented groups declined. it remains to be seen just how expansive the reasoning of an opinion banning affirmative action in college admissions might be. it could extend into the workforce. schools will likely respond with race-neutral alternatives such as admissions guarantees based on class rank or focus on socioeconomic diversity. the current debate largely driven by an affirmative action opponent named edward blum. in the 2013 case of shelby county v holder, he was behind the successful challenge to the voting rights act of 1965. there the court struck down as unconstitutional the formula about laws needing pre clearance based on state's histories of discrimination in voting. the supreme court said it was based on data over 40 years old making it no longer responsive to the current needs. voting rights and app affirmative action sprung from

the same era. two months before he signed the voting rights act on june 4, 1965, president lyndon johnson delivered the commencement address at howard university. it was an important speech. one remembered as establishing the intellectual framework for affirmative action. president johnson acknowledged the treatment of blacks from slavery to jim crow, and he said this. >> freedom is not enough. you do not wipe away the scars of centuries by saying now you are free to go where you want and do as you desire and choose the leaders you please. you do not take a person who for years has been hobbled by chains and liberate him bringing up to the starting line of a race and then say you're free to compete with all the others, and still

justly believe that you have been completely fair. thus, it is not enough just to open the gates of opportunity. all our citizens must have the ability to walk through those gates. >> president johnson said equal opportunity is essential, but that it's not enough, that men and women of all races are born with the same range of abilities, but ability is not just a product of birth. 58 years later we're still having the same debate. south carolina senator tim scott announced his presidential campaign by reflecting on his own american story. >> we live in the land of opportunity. we live in the land where it is absolutely possible for a kid raised in poverty in a single

parent household in a small apartment to one day serve in the people's house, and maybe even the white house. [ cheers and applause ]. >> my colleague david axelrod asked his former boss, former president barack obama to react to senator scott's comments. >> if a republican who may even be sincere is saying i want us all to live together doesn't have a plan for how do we address crippling generational poverty that is a consequence of hundreds of years of racism in this society, and we need to do something about that, if that candidate is not willing to acknowledge that again and again we've seen discrimination and

everything from job -- getting a job to buying a house to how the criminal justice system operates. if they're not doing that, then i think people are rightly skep skeptical. >> there are many statistics about african-americans that confirm education is not equal. 27% of blacks had a bachelors degree as compared to 38.3% of whites. median income for the average black household was $48,297, for whites $78,000. 19.5% of blacks living in poverty level compared with 10% of whites. the life expectancies for blacks at birth, 78. -- homicide the leading cause of death among black males 15-34, 22 times

higher than white counterparts. by those measures we've not wiped away the scars of centuries as president johnson would have said. the gates of freedom have been open, but some among us, many african americans still not walking through those gates at the same pace as others. not all of the disparate attributable to the unforgivable crime against humanity represented by slavery, but surely remnants remain. there's the challenge, the simultaneously salute the opportunity afforded to tim scott and barack obama while not losing sight of others who look like them but are still behind. as i noted, this discussion happening just as we celebrate the recently instated federal holiday of juneteenth, the whole country acknowledging the emancipation of enslaved african-americans. that's all well and good. how do we address generational poverty that's the result of years of racism in our society?

go to smerconish.com this hour and answer this week's poll question. is affirmative action necessary? joining me now, a policy analyst at the manhattan institute, getting her phd at boston college where her dissertation is on affirmative action. she wrote this piece in "the new york times," affirmative action is wrong, there's a better way to make campuses diverse. thank you for being here. you heard the speech. president johnson said in 1965 it's not enough to open the gates of freedom. was he right then? >> he was right then, michael. affirmative action served a unique purpose in the mid to late 1960s and the 1970s which was to pro vice assistance to disadvantaged african americans as a result of the horrible legacies of slavery and jim kroerks but that purpose is not

necessarily being fulfilled today. when you look at the majority of black students at harvard, for example, they're largely the children of immigrants and typically middle and upper middle class. the purpose of affirmative action isn't being sold anymore by an explicit preference based on race. >> you'd like to see race conscious admissions done away with. i think you're about to get your wish when the supreme court issues its opinion or opinions. what will that next incoming class at harvard look like in comparison to what has been the status quo? >> it depends on the the supreme court still says schools can pursue their trysts in diversity. if they can, i anticipate a lot of colleges and universities in america will turn to the race neutral alternative of and admission tip based on low income status. in that case you see whiten rollment at harvard declines,

african american and hispanic enrollment increase, asian american enrollment increase. >> renu, to cut to the chase, how do we do both? how do we continue and make right the since of slavery as president johnson laid out, as the statistics i've heard make clear, and yet do something about what's happening with asian americans who i think are clearly on the short end of the stick with superior academic performed and yet these subjective personality traits being held against them. can we do both? >> michael, i think we can do both. i'll also point out that the supreme court has held remedying societal discrimination isn't actually a proper legal justification currently for affirmative action. it's really to increase diversity. the way in which you can help disadvantaged black children and

disadvantaged children of all races is to maybe measure -- provide a more accurate measure of disadvantage which would probably be some sort of admissions tip based on income status or to do something like a top 10% plan where you admit at a public state university the top 10% of students in their graduating high school class. that would provide remedies for low-income, disadvantaged children, not just who are black but of all races and aal alleviate the discrimination that asian american children are subjected to in the admissions process? >> your reference to a class approach is often the model in texas. let's answer social media together. i'll read it aloud because you probably don't have a screen on which to see it. affirmative action, says jag, served its purpose in the '70s and '80s. but now it is working against those it was to protect. i'm not sure, renu, believes it's working against african americans, because i think they

were the intended recipients. go ahead and respond to that from your perspective? >> i think that viewer is trying to get at my earlier point which is that those that receive the admissions tip based on race at harvard and other elite schools, are largely the children of african immigrants, for example and tend to come from middle and upper middle class status, whereas when affirmative action was instituted in the 1960s, it was to help the most disadvantaged in our society. which is why if you take a top 10% plan, or one based on socioeconomic status, that could help the intended beneficiaries. >> i get the argument you're making, if you're talking about the son or the daughter of an african american couple where one or the other is a physician or one is an attorney, it hardly seems fair that there be an advantage over a white applicant

oration applicant whose mother or father works in the trades by way of illustration. i just don't know that broad brush addresses the norm of what's going on out there. any any event, i appreciate you being here. i know how you'll vote on today's poll question. make sure you go and do it, okay? go to smerconish.com. today ooes poll question -- we went through a whole variety of machinations. i said to katherine or katherine said to me, let's make it similar. is affirmative action necessary? that's the question. go vote at smerconish.com. still to come, now even the centrists are polarized. the group no labels working to nominate a third party president candidate while rival group third wave says that would just elect donald trump. will special counsel jack smith's documents case hold up in court? several of the previous ones ended with a mistrial or hung

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so how might jack smith's case or perhaps cases against former president trump hold up at tliel? between 2010 and 2015 smith led the doj's public integrity unit of about 30 prosecutors investigating public corruption cases of politicians and others. among smith's more notable prosecution, democratic senator and vice presidential candidate john ed wards over payoffs to the woman with whom he had an affair and bribery case over democratic senator robert menendez. both those cases resulted in hung juries and mistrials. he did secure a conviction for extortion, bribery, money laundering an racketeering. in 20201 trump pardoned renzi.

bob mcdonnell has a personal experience on smith. smith tried him and convicted him but the conviction was overturned unanimously by the supreme court. the case concerned mcdonald and his wife accepting more than $175,000 of loans and gifts from a businessman seeking the state's help in researching a dietary supplement. chief justice job roberts wrote the court's opinion and said the prosecution had taken, a quote, boundless interpretation of the federal bribery statute. former governor of virginia bob mcdonald joins me now. thank you for being here. you, john edwards, robert menendez, all failed prosecutions. what's the common denominator, if any, as it relates to jack smith? >> michael, thanks for having me on. jack smith, harvard educated, good career as a tough prosecutor, decisive, but those

five years during the time he was head of the public integrity section of doj, you chronicled some of the cases with menendez and former vice presidential candidate john edwards. also lois lerner, he was getting advice to going after conservative groups for irs matters. my case, michael, it's long in the past now, but he wrote a 38-page brief we gave the government in advance telling them why their theory of the case was wrong. we had amicus briefs filed by people like a former white house counsel for five u.s. presidents from reagan to baem, 83 former attorneys general saying why this is wrong. yet, they persisted. what i get out of that is i think he's been overzealous. he's willing to stretch the law. john roberts called it a boundless interpretation that would catch up politicians in

their ordinary acts that they do for people. i think it just says maybe a lack of judgment. that's the concern that i get out of my case and the others. >> well then why do you think he was selected? >> well, merrick garland made the choice. he also brought in david harbaugh, one of his top people in this case. harbaugh was in the courtroom. gave the closing argument in my case and was also in the edwards case. again, there's some judgment questions there. but i don't know what pool or what criteria he had to pick from. on paper, he's been a good public servant. in the courtroom and in the judgments he's had these failures. in my case $28 million in legal fees and 3.5 years for my state, my family, my staff. i just think he's willing to stretch the law. here is the problem, michael. you know as a lawyer the ethical rules are, as a government

attorney, federal prosecutor, you're supposed to seek truth and justice not merely to convict. a very difficult ethical duty. i think that's been the downfall in some of these cases, he'd rather win. >> to state the obvious, two things can be true at the same time, president trump shouldn't have retained the 31 documents at issue here and that jack smith is an overzealous prosecutor. none of this excuses trump's conduct. let's make that clear. >> i agree. i'm not making a judgment on the facts. if smith or smith and his team can prove that the evidence will support the allegations in this indictment, this speaking indictment, then i think mr. trump may have some criminal culpability. you know i hate having things tried in the press. we'll have to see how this plays

now the the courtroom because one of the sides is going to be really embarrassed when it comes to evidence. >> to your case, chief justice roberts wrote the opinion, it was unanimous. i'll read one paragraph for the audience not familiar with what he said. there's no doubt this case is distasteful. it may be worse than that, but our concern is not the tawdry tales of ferraris, rolexs and ball gown, it's instead with the broader legal interpretations of the government's boundless interpretation of the federal bribery statute, leaving ample room for prosecuting corruption while comporting with the text of the statute and the precedent of the court. obviously merrick garland, the attorney general knew when appointing jack smith that the supreme court had kind of spanked him as it relates to your case. but he selected him nonetheless. why do you think? >> boy, michael, that's a question for merrick garland. i hate to pass on that, other than the fact he's got, again,

tremendous experience being in public -- taking decisive action on high-profile cases and tough enough to stand up against the president of the united states in the courtroom and an historic indictment. that would be my best guess. he had to know he'd subject himself to immense scrutiny based on really bipartisan mistake, going after both democrat and in my case a republican person and getting unanimously revoked. he got the law unanimously wrong in my case. i question mr. garland's judgment in this -- >> -- on the prosecution of so-called public corruption across the country. i'll read aloud a social media reaction that just came in. katherine, let's see what it says. potus 47, a/k/a potus 47, donald trump, not 45, will not need to pardon himself. let that sink in. >> governor, a quick question

for you, what's the prospect that whomever is potus 47, trump, biden, kamala harris, ron desantis pardons donald trump? do you think this ends with a jerry ford-like move? >> that presumes he'd be convicted, michael. my greatest concern is we have weaponized the criminal justice system. i think both parties have done it. the rule of law is much more important than any person or one president that might be elected. that's my broader concern is when you do things as in my case getting the law wrong for whatever your motivations might be. you undermine the basic tenet of the american civilization, no one is above the law and everyone is treated fairly under the law. if he's convicted, there very well may be, because of the reaction to that conviction, there may be an act by a future president to do, as you said that ford did, to create peace

in our nation to have a pardon. that's a long way down the road. we have to see what's the real evidence, not in the press, but in the courtroom. >> well, pretty compelling that speaking indictment laid out a hell of a case. we'll see how the former president defended himself. appreciate you being here. >> thanks, michael. make sure you're voting. is affirmative action necessary? juneteenth is monday. where are we? the supreme court is about to say, we think, that affirmative ak shoun race-conscious admissions are unlawful. where are we? is it necessary still? up ahead there's a battle whether it's bad for the count to have a third party presidential candidate in 2024. you might remember i recently reviewed ryan clancy, the chief strategist of no labels. that's the group trying to get on the ballot in enough states to win. today, equal time to third way.

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now it's the centrists at war. "the washington post" reports last week there was a high-powered meeting at a d.c. think tank aimed at shutting down a potential third party presidential candidacy for 2024. in attendance strategists including advisers to president biden like ron klain, former u.s. senators doug jones, heidi heitcamp, claire mccaskill. as the post put it, their mission to figure out how to best subvert a potential third party presidential bid by the group no labels, an effort they

all agreed risked undermining biden's re-election campaign and reelecting former president donald trump to the white house. third way's co-founder will join me in another moment, leading the charge to top no labels, this despite the fact that america has been showing little enthusiasm for a 2024 rematch between biden and trump. more americans identify as i rather than r or d. peggy noonan wrote, if the race is indeed a trump-biden rematch, a third party slate will certainly enter the race. they have to get on almost every ticket to accomplish people, one from each party, presumably political veterans whom people can see, hear and think they can do the job, they'd have a better

than even chance of surprising history by winning. no labels has made things complicated by saying it would end its campaign if the gop nominee is desantis or anyone else not named trump because their research shows that they then wouldn't be able to attract enough dissatisfied republicans to make the candidate viable, nor would no labels run if a candidate polls show biden is way out ahead of trump next spring. how could anybody know that given the unreliability of our polling. joining me is matt bennett, co-founder of third way, served as deputy assistant to president clinton for intergovernmental affairs. 66% say it would be a disaster for joe biden to be re-elected. 56% say the same thing about donald trump. so what's wrong with giving choice to the majority who don't want either of them? >> well, the problem is that what no labels is offering is

not choits. what they're going to do is offer a spoiler, someone who can attract protest votes, people that are truly by the time we get to november of next year, unable to pull the lever for either candidate. there's enough of those people to make a difference in the race. we saw that in 2016 where in very critical states 6% to 8% of the people voted for people like jill stein and gary johnson. what they're not going to provide is a real path to victory. that's just ridiculous. there's almost no one who is a serious political observer who thinks that is remotely possible. they are very unlikely to win a single state. no candidate has done that since 1968 as a third party. they certainly aren't going to win 270 electoral votes. >> how could you know that -- respectfully how could you know that if you don't even know the

identity of the third party ticket that we're talking about? >> first of all, there's history. one of the most popular presidents in american history four years after leaving office ran as a third party candidate, ted did roosevelt. he was a spoiler for his republican party but didn't win. if you add up all the electorate votes, that still doesn't get you to 270 votes. there's just no way. there have been credible third party candidates on the ballot in recent history, ross perot in 1992 and 1996. but he didn't win a single state and no one has except for guys running as overt racists in the '50s and '60s. this just isn't going to happen. what happens in electoral politics is even though there are a lot of independents and people out there who would like a third choice, in the end they go back to their parties and that's why have these very close

presidential races. >> matt, i hear from many, and on your website i know you have david brooks' recent take on this, posted at thethirdway.org website. i've heard this sentiment from others, this idea that people say conceptually i like the idea and americans ought to have more choice, but not this cycle. to which i respond and say, wait a minute, this is the perfect cycle where a majority of americans say please don't saddle me with either of these guys. maybe this is the breakthrough year. >> it isn't. if you look back at the numbers on incumbent presidents in recent history, the ones who got re-elected, bill clinton, barack obama, george w. bush, they were polling in the low 40s and people were dissatisfied. american voters tend to be kind of grumpy. but what happens as we get close to the election is that members of their party, democrats and republicans, go back to their

base. yes, there are a lot of independents out there, but only about 7% of the electorate are true swing voters, which is to say they would and do vote for either party. for the most part, those independents either vote almost all the time for the ds or the rs. that's going to happen again this time. however, there's going to be enough of those people if a third party candidate is on the ballot to swing the election, and the data all show it would swing the election to trump. that's a risk that we just believe america can't take. >> i'm limited on time, but quick final answer if you don't mind. if the polling were showing a third party candidate was pulling equally from biden and trump, would you feel differently? >> no, because i wouldn't believe that polling. polling has been pretty irn accurate in these close presidential races. we're convinced -- >> wait a minute. why can't i say the same thing about the polling you've been referencing, i can't believe that because that must be inaccurate? >> i'm not referencing polling. i'm referencing history and what

happened in actual elections in 2016 and 2020. in these very close races, horse race polling can't get it that accurate. what we do know is it is overwhelmingly likely that more people are reluctant biden voters than reluctant trump voters, if you give them an option, they may take it. that's an enormous -- >> the only thing we know for sure is we have no idea. there's never been a cycle like this. the twists and turns about to come our way, nobody can predict. i really appreciate. thank you. >> thank you. social media reaction, katherine, what do we have on this subject? a lot of interest i know? if it's biden and trump, yes, and polling has confirmed this, the situation has never been more ripe for no labels. the we is who is that candidate. he says he's not interested. he's going to be upset with me for even floating his name.

are you telling me that if an admiral william mcgraven decided he were willing to be drafted by his country to serve that you could today, mid june of 2023 say, well, that could never work because i can't accept that opinion. i just can't accept that opinion. i believe the polls that say a majority of americans don't want either of the two who are right now leading their tickets. don't take it out on me, admiral. it was a question i was asked. i was speaking honestly. go to smerconish.com and answer this very simple and yet so complicated. is affirmative action necessary? still to come, it's the greatest theft in american history, how thousands of everyday americans were able to steal billions in government money under the guise of covid relief?

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it's the biggest grift in u.s. history. billions stolen from the u.s. government by everyday americans. i'm talking about the federal covid-19 relief aid intended to cushion the most devastating pandemic in a ced press, fraudsters may have stolen nearly $280 billion in covid-19 relief funding. most of the theft was obvious and simply done. in georgia a u.s. soldier awaits sentencing after admitting to stealing millions after she submitted nearly 150 payment protection loan applications. a pastor in florida went on the run after receiving more than $8 million from the government's covid relief program for small businesses and non-profits. his family filed paperwork falsely claiming their ministry had over 400 employees and a monthly payroll of $2 million. in california, a couple

convicted after stealing more than $18 million in covid relief loans to purchase free homes, luxury watches, expensive furniture and other valuables. alone they read like one-offs by an opportunistic criminal. to date the u.s. government has already charged more than 2,000 defendants with pandemic-related fraud and investigating thousands more. the yoond justice department for fraud enforcement calls it an unprecedented amount of fraud. how could such enormous amounts of fundings be divvied out unnoticed? investigators are attributing it to the government trying to provide quick relief. it lacked oversight. not nearly enough restrictions on who can apply. in short the con was all too easy. joining me to discuss is richard

h lardner. richard, round numbers. how much money was pumped out and what percentage is believed to have been stolen or wasted? >> well, congress appropriated about $5.2 trillion and presidents approved those bills. about the accounting we have from the response accountability committee says 4.2 trillion has been spent. some of the money has a longer tail on it to spend. those numbers will be updated. it's over $5 trillion in total that's been appropriated for covid relief. >> is it a reflection by economies of scale. you write there was an $837 billion irs prim that had 99% success in its delivery. that sounds pretty darn impressive. that 1% fail was $8 billion.

>> yeah. i do think, as we went through these numbers, you can sort of become a little numb. some of these programs are so large, hundreds of billions of dollars. still to us and i think to most people $8 billion is a lot of money. nothing is ever going to be perfect in a massive emergency aid program like this one. but still, we shouldn't lose sight of large sums of money and what they mean. >> how aggressive are the government efforts now to recoup those funds and to continue prosecuting cases? >> i think they're very aggressive. there are three strike forces that were created to go specifically after covid fraud. the biden administration wants to triple that number. this is keeping federal prosecutors, investigators and inspectors general very busy and

will for some time. the statute of limitations on crimes related to the two large sba programs, paycheck protection and the covid emergency -- economic injury disaster loan program have been extended from five to ten years. there's also a push to do that same statute of limitations extension for crimes related to unemployment and systems fraud. >> i had this conversation on radio, and one of my callers said to me, not that anyone defended the waste, fraud and abuse, but that the fire hose needed to be opened to keep the economy afloat and this was one of the likely ramifications that was going to take place. quick thought from you? >> well, i think that's right. that was a moment where businesses were shutting down. people were out of work. economies were in free fall and

washington responded aggressively. they wanted the money out fast, so the standard safeguards that normally protect federal money from going to the wrong people were lowered. but i think it's important -- it takes people on the other side. there were people that took advantage of that during a public health crisis. based they saw an opportunity for an easy payday and they grabbed it. >> congrats to you and your colleagues. i'm so glad you're on this case because it needs more attention. so thank you. >> thank you. quick social media reaction, katherine. what do we have on the greatest grift of all time? a bungled pandemic response and up a paulg misuse of money. i mean it's appalling, absolutely. but maybe there was not an alternative. you will open the hose at that velocity, because you think you need to sustain the economy, i'm

not depending it, i think it's disgusting. who among us is going to capitalize on a public health crisis to line their pocket? still to come, more of your best and worst social media comments, and have you voted yet? please go now to smerconish.com, register for the daily newsletter. while you're there, you'll love it, it's free, and answer this question, is affirmative action necessary? my retirement funds allow me to enjoy what i love to do. as long as you can make an impact, why stop? works hard at hour one and twice as hard when you take it again the next day. so betty can be the... barcodbeat conductor. ♪ go betty!

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