If your stomach starts to churn whenever the office or classroom discussion turns to “affirmative action,” it may be wise for you to start stocking up on Maalox now.
A blockbuster lawsuit will be decided by the Supreme Court by the end of next week that will focus the nation’s attention to the issues of race and preferences like never before. And considering how quickly the Democrats are likely to play the race card after this opinion is released, it wouldn’t hurt for the White House to lay in a case of Rolaids as well.
Specifically, the Supreme Court is due to issue its opinion in a pair of Univ. of Michigan affirmative-action admissions cases that have been characterized as the most important the Court has reviewed in nearly 25 years. The resolution of these cases has the potential for galvanizing the Democrats and their allies in the racial-advocacy groups for a full frontal assault on President Bush’s civil-rights record.
And attack him they will. The nine Democrats running for president may not agree on the war in Iraq or health-care policy, but they’re all singing from the same pro-affirmative-action hymnal. Once the primaries shift to states with significant numbers of black voters like South Carolina, each of the Democrat presidential candidates will pull out the stops in their vocal support of race-based programs like those at the Univ. of Michigan and lambaste the president for his opposition to them.
For legal conservatives, however, the Democrat attacks on the Bush administration’s position in the UM cases and his general civil-rights record will be sorely misplaced, and full of irony. As they see it, this administration’s track record on racial preferences is muddled at best, surely not worthy of attack for being too conservative, and in some instances, no different from those advocated by the Clinton administration and the NAACP.
“They’re schizophrenic,” said Roger Clegg, my colleague and general counsel at the Center for Equal Opportunity in a recent Washington Post story by Dana Milbank. Clegg was referring to the contradictory jumble of legislative, legal, and regulatory racial-minority initiatives the Bush White House has offered during the last 2.5 years.
He’s right. They have been schizophrenic. But no matter how the UM case is finally resolved at the Court, Democrats will use the decision to bludgeon President Bush.
The central issue to be decided in these cases — and the one that has bedeviled the legal and higher-education communities for the last 25 years — is whether achieving “diversity” in a college setting is so compellingly important that using racial and ethnic preferences in the admissions process to achieve that goal is justified.
The Bush administration’s friend-of-the-court briefs (submitted shortly after the Trent Lott firestorm) never answered that question. In fact, they advised the Court that answering this critical question was actually unnecessary since the UM admissions policies were really diversity “quotas,” which had already been found to be unconstitutional by the high court in earlier cases.
This position satisfied no one: NAACP chairman Julian Bond called it a “sad, sad gift” and little more than an attempt to disguise the president’s failure to “support justice,” while conservatives muttered that the White House political shop turned the briefs into lukewarm legal mush.
Very few observers think the court will side with UM. Rather, the inside betting here is that the high court will either take the position that the administration advocated and find the current admissions policies at UM to be unconstitutional quotas, or more likely, the justices will tackle the bigger question that the administration avoided and ban the use of race and ethnicity for the goal of achieving diversity.
Regardless of which tack the Court uses to decide UM to be in violation of the law, the Democrats will use the decision to hammer the president. They have already started. When the details of the Bush brief were made public last January, Democrats pounced on the opportunity to play the race card.
Gushed Sen. John Kerry (D., Mass.), “In their first significant opportunity to show a more inclusive side of the Republican party, the Bush administration has decided to intervene and try to undermine Michigan’s efforts. The Bush administration continues a disturbing pattern of using the rhetoric of diversity as a substitute for real progress on a civil-rights agenda.”
Connecticut Sen. Joe Lieberman (D.) who once upon a time challenged the fairness of affirmative action before he ran as Al Gore’s running mate, also criticized Bush, saying the president “sided with the right wing of his party and sent a signal that equal opportunity in higher education is a low priority for his administration.”
Sen. John Edwards, (D., S.C.) took his swing by stating, “President Bush had a chance to show he supports diversity and civil rights, but he failed.”
But these criticisms are gentle compared to what you will hear once the decisions are handed down. How the president responds to these charges initially and throughout the 2004 campaign will likely determine his chances for winning a handful of key battleground states with large minority populations such as Florida, Michigan, and Pennsylvania.
Unfortunately, the president’s track record in defending and explaining his position on “affirmative access” — his term — is as fuzzy as his UM brief. No one can forget his fumble during the 2000 presidential debate when Al Gore repeatedly asked him if he supported affirmative action. He hedged his answer and, in doing so, looked like he was hiding his real agenda.
He shouldn’t repeat that strategy when the Univ. of Michigan cases are handed down, even though the political temptations to do so will be enticing. That was the inopportune path taken by President George Herbert Walker Bush after the Supreme Court handed down a series of anti-quota decisions 1989, including Wards Cove Packing Co. v. Atonio. Sensing the political opportunity to score points and rally their African-American base, congressional Democrats succeeded in passing legislation that in effect nullified much of the high court’s prescription. And, to the horror of conservatives, President George H. W. Bush then flipped sides and signed the Democrat’s legislation, even though he argued against the exact same policies earlier in his administration’s Supreme Court briefs.
Of course, as sure as a moth is drawn to a flame, congressional Democrats will propose legislation attempting to gut any decision the justices pronounce in the Michigan cases that favor colorblind legal precepts in university admissions. And judging from the ever-growing body of squishy pro-preference legislation in the last few years, it’s a fair wager that House and Senate Republicans won’t do much to stand in their way.
So if we can’t count on congressional Republicans to stem the probable legislative rollback efforts of the Democrats, the job will fall to the president — all of this during the reelection campaign. Yet while the Democrats are assailing Bush’s positions in the UM cases, and, it is to be hoped, his refusal to support legislation to undo either one, Bush can score his own points by contrasting an equal-opportunity vision of civil rights with those of his pro-preference-Democrat opponents.
This will take some real fortitude on his part because of the pressure from the political shop’s fixation on expanding the party’s reach into minority communities, especially Hispanics. But the two are not mutually exclusive. Principled colorblind public policies championed by this president won’t negate the GOP’s efforts to broaden the party among minorities — obfuscation, waffling, and pandering on racial preferences will. The president should remind the nation after the decision that eliminating racial preferences in college admissions means the nation is much closer to ending the “soft bigotry of low expectations” that cast a shadow over all minority students.
In 1996, then-Gov. Bush went on record as supporting the decision of the 5th Circuit Court of Appeals in Hopwood vs. Texas, a case that banned the use of race as an admissions criterion to achieve diversity at UT’s school of law. In spite of this, he went on to win nearly 40 percent of the Hispanic, and one quarter of the black vote for his reelection in 1998.
President Bush should remember those percentages when the Democrats begin to demonize him after the Supreme Court’s opinions are released.
— Edward Blum is a senior fellow at the Center for Equal Opportunity in Sterling, Virginia.