Justice Greenhouse twists Bush's briefs.

A mostly political Weblog.
Jan. 18 2003 11:37 AM

Affirmative Spinning

Plus: Did Mitch Daniels really say that?

A stirring, blurb-worthy testimonial to Paul Krugman in TAPPED:

"... no doubt he's occasionally shrill and over-the-top. But Krugman is far, far from the most shrill, over-the-top columnist in America."

If my hunch is right, that's not the sort of praise Krugman will take lightly! ... Sometimes honest, half-hearted defenses are more revealing than outright attacks. ...1:26 A.M.

Greenhouse, J., dissenting ... Four (4) annoying things about the opinion Justice Greenhouse has issued  on the announcement of Bush's affirmative action brief, which she sneeringly praises as "impressive even by the standards of a White House unusually skilled at spin control."

1) Greenhouse declares that "lawyers ... with Supreme Court experience ... wondered whether the theatrics of the past few days would prove counter-productive" to the Bush position ("theatrics" being Greenhouse's word). But can you imagine how the press would have responded if Bush had filed his brief without issuing a public statement? 'Stealth filing ... midnight brief ... filed in the dead of night to avoid publicity,' etc., etc. If Bush had failed to file a brief at all, he'd have been accused of cravenly ducking a politically explosive decision. Most of the "theatrics," in other words, were demanded by the press and public, which rightly recognized an important case when it came down the chute.

2) The quote Greenhouse gives from the sole Supreme Court lawyer she actually names, Prof.  Thomas Merrill, contradicts the anti-theatrics stand she attributes to him and her other, unnamed, experts. Merrill tells her that on policy matters like affirmative action the Justices don't look for precise legal guidance but for "signals about the political atmosphere, 'for what's do-able.'" In other words, the theatrics, rather than the "more nuanced arguments" of lawyers, are what the Court wants. How were they counterproductive, then? Merrill seems to be saying Bush would have failed as an advocate without the theatrics -- which certainly sent a "signal about the political atmosphere."

3) Greenhouse also overstates the tensions between what Bush said and what's said in his brief. She says, of the latter, "the reality of its legal argument diverged substantially from the rhetoric of the president's prime-time statement." What, exactly, was the divergence? She notes that the brief, "far from insisting that any consideration of race was impermissible, did not even ask the justices to overturn the [1978] Bakke decision." But Bush's statement didn't insist that "any consideration of race was impermissible." As Greenhouse notes, he repeatedly denounced the Michigan set-up as a "quota" scheme with "numerical targets," which is what you'd do if you wanted to have it struck down within the Bakke principles -- which is what Bush's brief asks the Court to do....

4) But Greenhouse's piece is not that bad. It's worse! I was shocked when I actually read the NYT's excerpts from the briefs after reading Greenhouse's characterization of them. Greenhouse says Bush's "words spoke louder than the action" of the brief, since the brief didn't challenge Bakke's ruling "allowing race to be used as a 'plus factor.'" OK, you figure -- so maybe Bush was guilty of skipping over the way his brief ducked this issue (i.e. the key issue). But no! The brief actually looks pretty tough on the question of considering race. Sure, it nominally claims to be working within Bakke's framework. But within that framework it twists Bakke into an anti-preference machine.

a) The brief declares that "express consideration of race" is only constitutional if there are no "race neutral alternatives;"

b) Yet it argues there "are a variety of race-neutral alternatives available to achieve the important goals of openness, educational diversity, and .. meaningful access." [Emphasis added.]

c) So "express consideration of race" isn't permitted and won't be unless those "race-neutral alternatives" should somehow disappear. The brief says:

"In light of these race-neutral alternatives, [the school] cannot justify the express consideration of race in their admissions policy."

That's not quite the same as saying consideration of race is never permissible as a matter of principle. But, contrary to Greenhouse's gloss, it more or less amounts to saying consideration of race is never going to be permitted as a practical matter -- unless the colleges switch to justifying preferences with a goal, other than diversity, that can't be satisfied by race-neutral schemes. (Suggestion: Black students get a few points on an individual basis for having overcome discrimination -- i.e. as part of determining their individual 'merit' --- whether or not that results in a "critical mass" of minorities actually being admitted).

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