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How the high Court rules may depend in part on the position that the Bush Justice Department takes in its brief to the Court. The question therefore is: Will this Republican administration go to bat on behalf of opponents of racial preferences with anything resembling the zeal that the liberal judges displayed on behalf of the defenders of such policies? At first blush, the answer seems to be a resounding "no." Bush has declined every opportunity to declare his opposition to racial preferences. The most he has ever said about the subject is that he opposes quotas but believes in something called "affirmative access." Such vague statements seem calculated to preserve room for a future sellout on racial preferences. It seems that the process of selling out has already begun: Bush faced his first major test on affirmative action last August in Adarand v. Mineta, when his Justice Department defended the Department of Transportation's (DOT) minority-preference programs before the Supreme Court. Under these programs, a portion of the DOT business is reserved for minorities, a practice that could be fairly called a quota. The DOT also gives minority bids an edge by inflating the bids of competing non-minorities. And it often gives white prime contractors a hefty bonus to subcontract with minority-owned businesses, the practice that originally inspired the Adarand lawsuit. Interestingly, the Bush officials responsible for the Adarand brief, Attorney General John Ashcroft and Solicitor General Ted Olson, are both vocal opponents of preferences. Indeed, Ashcroft, as a senator, denounced these very DOT programs as "offensive" and "un-American." Given his turn-around, it would be understandable if racial-preference opponents concluded that Bush planned to abandon their cause in the Michigan case. They may be wrong, however. Whatever Bush's rationale for picking Ashcroft to be his attorney general, if he intended to endorse Michigan's racial double standard, it is highly implausible that he would have picked Olson to be his solicitor general. Olson not only opposes preferences, he is the man who opened the door to the legal challenge against preferences by successfully overturning their use by the University of Texas in the famous Hopwood case. Moreover, the Center for Individual Rights — a public-interest law firm that Olson represented in Hopwood — is also the one sponsoring the lawsuit against Michigan. Thus if Olson now endorses Michigan's racial double standard, he will not only be turning against a cause that he has spent a good part of his legal career promoting, but also his colleagues and ideological kin. Although a dedicated Republican, it seems unimaginable that the temptation of serving in the Bush administration could be sufficient for Olson, a well-off private attorney, to compromise his professional integrity. Thus if Olson defends the DOT's programs, it can't be with an eye toward helping the administration engineer a future sellout on preferences, but precisely because he has obtained an understanding that there won't be such a sellout. This is suggested by the schizophrenic character of the Adarand brief itself: On the one hand, it reaffirms all of the most stringent standards and the constitutional tools needed to challenge affirmative action. On the other hand, it maintains with transparently lame arguments that the DOT's programs actually meet these standards. Legally, government-sponsored discrimination must meet the strict-scrutiny standard in order to pass constitutional muster. This standard allows the government to use preferences only when they serve a "compelling state interest," namely, to undo its own discrimination — not historic discrimination or general social discrimination. Moreover, preferences have to be "narrowly tailored" to correct specific acts of discrimination. Of course, this is the toughest possible interpretation of the strict-scrutiny standard, and Olson, just as he did in Hopwood, affirms it in Adarand. But he ties himself in knots in order to prove that the DOT's programs fulfill these legal requirements. Olson cannot in good faith argue that the DOT programs, which have been in place for decades, are meant to redress specific acts of discrimination by the department. This would lead to the absurd conclusion that the DOT actively engages in discrimination even as it is trying to undo it. Instead, he claims that in the absence of such programs, the DOT will become a passive participant in existing discrimination. For instance, minorities supposedly have a harder time than non-minorities obtaining capital and loans from private lenders. Without some special provisions to counteract such practices, the argument goes, the DOT will become a tacit colluder in them. But this passive-participation rationale comes dangerously close to something Olson himself admits that strict scrutiny forbids: ameliorating existing social discrimination. A further indication in the Adarand brief that Olson and the Bush administration intend to oppose the University of Michigan's racial double standard is what the brief leaves out: the Clinton administration's argument that the government's interest in promoting diversity justifies discrimination. The diversity rationale forms the crux of the Michigan case and its exclusion from the Bush brief cannot be a mere oversight. Further evidence that Bush would like to end racial preferences is manifest in his judicial appointments. Bush no doubt realizes that the best hope for ending racial preferences lies not in Congress, but in the courts. Therefore, the smartest way of promoting this cause may not be by making it a visible political issue, but indirectly by getting the right judicial appointments in place. This is obviously not easy. Bush can't use racial preferences as a litmus test for potential federal court nominees without provoking a jihad on the part of the civil rights establishment. The best he can do is to nominate candidates with solid conservative credentials, fight for their confirmation, and then hope that they'll do the right thing when they get on the bench. Nearly all of Bush's judicial appointments so far appear to be consistent with this calculation. To get his nominees through, however, Bush needs to avoid raising the preference issue early in his term. This also explains why he had to defend the DOT's programs in Adarand, a case that fell in his lap within six months of assuming office. PHILOSOPHY
VS. POLITICS It would be silly to deny that attracting minority voters is part of Bush's motive here. But if that were all he was interested in doing, he would not have nominated candidates with an established history of antipathy toward preferences to head various government departments (Labor Secretary Elaine Chao and Education Secretary Rod Paige, for example) and to top civil rights positions in those departments (Charles James and Mark Wilson of Labor; Ken Marcus of HUD; Brian Jones and Gerald Reynolds of Education). Indeed, as the outcry by black groups against Gerald Reynolds demonstrated, such appointments are a double-edged sword with more potential for alienating than attracting minority voters. Moreover, stacking his government with so many anti-preference officials makes it harder for Bush to embrace preferences down the road without inviting a rebellion among his rank-and-file. Thus if there is any immediate political gain that Bush is seeking in appointing minorities, it is that they offer Bush a way of getting his conservative team past the Democratic Senate. But there is another, more principled, reason behind Bush's minority appointments: They allow him to demonstrate his vision of racial equality: "affirmative access." He filled out a gubernatorial questionnaire in 1998 in which he stated that he meant by affirmative access "aggressive efforts to reach out and be inclusive to people from all walks of life." But even this statement does not fully capture the core of what Bush has in mind. What he means is that he wants to resurrect the old civil-rights ideal of a colorblind society — but with an emphasis on outreach. He is in favor of a colorblind inclusiveness — as opposed to the color-conscious inclusiveness favored by liberals. Nearly all Americans agree with Bush's vision in theory, but fear it in practice: Minorities fear that a policy of mere colorblindness in the absence of a positive — "affirmative" — commitment to help them will simply allow the bigotry still lurking in America to shut them out of the mainstream; opponents of racial preferences fear that a principle of inclusiveness cannot remain colorblind, that it will inevitably degenerate into an unfair quota system. But Bush believes that he can overcome this distrust and convince the country that the principle of colorblind inclusiveness can work. As a new-generation man, free of liberal guilt, Bush has an instinctive capaciousness that enables him to connect with people — minorities and non-minorities alike — based on the quality of their mind and character. This allows him to hire minorities not simply in order to help them — but in order to get help from them. His minority appointments are thus free from the taint of paternalism, something that has produced the touching spectacle of a black woman like Condi Rice, his national-security adviser, so comfortably assuming the roles of his assistant, friend, and mentor all at once. Clinton also appointed women to prominent positions: Madeleine Albright, Donna Shalala, Janet Reno. But Clinton picked them not because of their value to him, but to prove his own value to feminists. Thus they never achieved the kind of easy friendship with him that would have allowed them access to his inner circle of advisers (all of whom were white men). Bush's inner circle, on the other hand, includes not just Rice, but Karen Hughes, Al Gonzalez, and Colin Powell. By putting his vision into action, Bush is hoping, on the one hand, to show minorities that a policy of sincere colorblindness that is rooted in enlightened self-interest provides a reliable basis for opening new opportunities to them. On the other hand, the unimpeachable credentials of his minority appointments demonstrate to the anti-preference camp that genuine inclusiveness need not lead to an erosion of standards or fairness. Affirmative access is, in a sense, an extension of compassionate conservatism to civil rights. His hope, perhaps, is that it will help move the nation toward true racial equality by softening the battle lines without provoking a traumatic confrontation. This is admittedly a kinder, gentler strategy to achieving a colorblind society that is more reminiscent of Bush senior than Reagan. What this means for the Michigan case is that Bush will certainly not play the kind of political hardball that the liberal federal court judges played in order to obtain the outcome they wanted. But this does not mean that he can't — or won't — put up a forceful argument against racial preferences before the Supreme Court. He has given reason to hope that he will. — Shikha Dalmia is an editorial writer with the Detroit News. |
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week, a few months after five liberal judges at the Sixth Circuit Court
pulled some eye-popping procedural stunts to give a thumbs-up to the racially
discriminatory admissions policies employed by the University of Michigan
law school, the case was appealed to the Supreme Court. The Supreme Court
will now have the opportunity, should it choose to take it, to settle
once and for all whether the use of racial preferences by public institutions
is constitutionally kosher.
