I think we should just be candid about Todd Butler’s nomination to the Fifth Circuit. He has done nothing to prove his conservatism, despite what his conservative friends have said. Being a member of multiple bar associations is almost definitive proof that he is not conservative. I just did a quick scan through the Capital Area Bar Association from Jackson and found numerous DEI programs–yes, even in Mississippi. Butler had nearly two decades to perform pro bono work for a conservative public interest firm, but he didn’t. He could have served in government, but he didn’t. Again, we should just…

The Civil Rights of Act of 1866 (42 U.S.C. § 1981) was interpreted in the late 1960s as prohibiting discrimination even in private contracts based on race. In 1991, Congress expressly included that interpretation in the statute. Because in the late 1800s, “race” was understood to include what today might refer to “ethnicity” (e.g., German, Arab, Jewish), the Court concluded that § 1981 extends to such discrimination based on ethnicity. But there is no statute generally banning discrimination in contracting (as opposed to specific kinds of contracts, like employment, housing, or public accommodation) based on religion. Section 1981, by its…

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