Friday, January 17, 2003

It was as if the administration had filed a brief denouncing abortion without asking the court to overturn Roe v. Wade.


White House Briefs Take Cautious Stand in Race Case
As an example of political stage-management, the Bush administration's handling of its Supreme Court brief in the Michigan affirmative action case was masterly, impressive even by the standards of a White House unusually skilled at spin control.

By denouncing the University of Michigan's race-conscious admission policies in a late-afternoon live television appearance on Wednesday, President Bush was able to dominate an entire 24-hour news cycle with an image of strong opposition to affirmative action.

It was the message his core conservative supporters most wanted to hear and one calculated to put an end to the growing carping from the right that the brief would not be tough enough.

So by the time his solicitor general, Theodore B. Olson, actually submitted the administration's briefs late tonight as the clock approached a midnight filing deadline at the court, the briefs were a fading second-day story and there was hardly anyone still on duty — certainly not the television news anchors — to notice that the reality of its legal argument diverged substantially from the rhetoric of the president's prime-time statement.

True to his promise, the briefs did ask the court to declare unconstitutional the undergraduate and law school admissions programs in dispute. But it did so by means of a legal analysis that, far from insisting that any consideration of race was impermissible, did not even ask the justices to overturn the Bakke decision, the 1978 landmark ruling that by allowing race to be used as a "plus factor" ushered in a generation of affirmative action in public and private college admissions.

It was as if the administration had filed a brief denouncing abortion without asking the court to overturn Roe v. Wade.

"In the end, this case requires this court to break no new ground" in order to hold the law school's admissions policy unconstitutional, the administration said in Grutter v. Bollinger, one of the two cases. The sentiment was echoed in the brief in the second case, Gratz v. Bollinger.

After the president's television appearance on Wednesday, the Senate Democratic leader, Tom Daschle, went to the Senate floor to criticize the administration's position on affirmative action. The administration had shown an insensitivity to civil rights, Mr. Daschle said, "in virtually every single occasion when actions spoke louder than words."

But this time, it turned out, the words spoke louder than the action.

Perhaps the divergence of rhetoric from reality reflected a split-the-difference compromise between warring factions within the administration — much as the Carter administration's awkwardly compromised brief did in the Bakke case itself. On that occasion, an internal ideological struggle that had become painfully public led the Carter administration to ask the justices to send the case back to the California Supreme Court for further consideration.

Or perhaps the administration's Janus-like posture reflected a more strategic calculation that its interests were best served by looking in both directions at once. The president got the political benefit of denouncing Michigan's undergraduate admissions program as a quota system (a characterization the briefs emphasize but that the university strongly disputes) while his lawyers got to make the more nuanced arguments that have the only real chance of succeeding at the court.

http://www.nytimes.com/2003/01/17/politics/17ASSE.html?pagewanted=all&position=top

No comments:

Post a Comment

con·cept