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 n Friday,
USA Today reported that the Bush administration will file
a brief this week with the Supreme Court that defends the discriminatory
contracting program run by the Department of Transportation. The
program treats contractors and subcontractors more or less favorably
depending on their race and ethnicity. Conservatives have had their
eyes on this filing for a
long time, and will be very angry with President Bush if it
turns out the report is true.
Of the four major areas in which racial and ethnic preferences
are used — contracting, university admissions, employment, and redistricting
— it is perhaps least defensible for contracting. The only conceivable
justification is that somehow such discrimination is needed to undo
the effects of past discrimination, but there are better and more
direct remedies — and there is little or no connection between who
suffered discrimination (or benefited) in the past and who benefits
(or is discriminated against) now.
Both President Bush and Attorney General John Ashcroft, indeed,
are on record as opposing the use of contracting preferences. This
makes it even more dangerous for the administration to support such
discrimination now. It will be not only bad policy but a betrayal
(remember the political furor over the broken pledge for "Read
my lips: No new taxes"?). So why would President Bush do such
a thing?
Is it because the federal government has defended this program
in the past? But new administrations frequently change policies.
That's why we have elections. The Clinton administration acknowledged
changing the government's position before the Supreme Court in no
fewer than five Supreme Court cases in its first 15 months. Such
a reevaluation is especially appropriate in the contracting case
since the Clinton administration was a notorious scofflaw when it
came to following civil-rights case law.
Is it because the Justice Department always defends the constitutionality
of challenged federal programs? But, in fact, it doesn't. If the
facts or the law are solidly against the government, then the tradition
is to admit it, for — as an inscription on the Justice Department's
walls says — "The United States prevails whenever justice is
done." In this case, the facts are solidly against the government,
as
recently buttressed by a deposition of one of the government's own
lawyers. And while legal standards can always be disputed, it
cannot be right for the federal government to distort the law when
it knows that the interpretation it is advocating will be extraordinarily
far-reaching and is not in the interests of the country as a whole.
Well, then, we come down to what probably most people immediately
assume has to be the answer whenever the government does something
otherwise clearly immoral and illegal — namely, political expediency.
And this seems especially likely when the issue involves race and
the decision makers are Republicans. The conventional wisdom for
what is going on in this case is that Karl Rove et al. are eager
to make inroads with minorities, especially Hispanics, and what
better way to do it than to support "affirmative action"
— and, conversely, what worse way than by opposing it?
Except that this rationale doesn't make much sense either. Racial
and ethnic preferences are only one kind of "affirmative action,"
and they are the least popular politically, among either whites
or minorities. The administration will make far more enemies than
it will win friends by supporting such discrimination. True, there
are people who adamantly favor preferences, but they will never,
ever vote for a Republican anyhow. There is no way that Republicans
can out pander Democrats in this area. Instead, the
president should explain — forthrightly and unapologetically
— why he won't support discrimination.
The Bush administration is going to make enemies no matter what
it says in the brief it files this week, and no matter whether it
does the right thing or the wrong thing. It might as well do the
right thing, and make the right enemies.
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