- The Washington Times - Wednesday, June 25, 2003

Conservatives say the Monday affirmative-action rulings by the Supreme Court make them all the more convinced that President Bush must be careful in picking a Supreme Court nominee.

“We’re living with judges appointed not by Democrats but by Republicans, so that just really makes us nervous about President Bush now,” said Richard Viguerie, one of those credited with building the New Right movement.

One activist involved in the judicial nomination process, speaking on the condition of anonymity, called the court’s action another wake-up call.

“This decision is just another illustration of why we need judges who are committed to resisting making policy from the bench,” he said.

The Supreme Court struck down 6-3 the University of Michigan’s undergraduate admissions policy, which awarded points to applicants during the admissions process just for being black, Hispanic or American Indian. But in a 5-4 decision, the court upheld the university law school’s less specific admissions policy, which uses race as a factor.

Many conservative activists roundly decried the decisions as a failure for individual rights, but said the most important point is that affirmative action was upheld by two justices nominated by Republicans — Justice David H. Souter, who was nominated by President Bush in 1990, and Justice Sandra Day O’Connor, who was appointed by President Reagan in 1981.

Justices Souter and O’Connor sided with the court’s liberals in the law-school case to uphold the principle that some degree of racial preference is constitutional.

“There’s been a cry in the conservative community — no more David Souters. I think this shows the reason why,” said Phil Kent, president of the Southeastern Legal Foundation, who said the rulings and their implications were the topic of discussion among conservatives at a Heritage Foundation gathering Monday night.

He and other conservatives had been hoping the court would use the cases as opportunities to strike down any use of race in admissions policies. Instead, they said, the court has left room for more rounds of litigation over what is a legal use of race and what is an illegal one.

“It’s standing in place — back to Bakke all over again,” said Phyllis Schlafly, founder of the Eagle Forum. “We’ll have another 25 years of litigation. So I don’t think it’s going to change anything.”

The court’s 1978 Bakke decision said that state schools could use race as an additional factor in admissions but not as the decisive one, and for the past 25 years, courts have reviewed extensively whether affirmative-action programs take race too heavily into account.

President Bush applauded the dual rulings, saying they recognize the value of diversity on college campuses.

“Today’s decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law,” he said.

But many in Mr. Bush’s conservative base do not share that stance.

“Americans have moved past quotas, and the affirmative action as practiced by the University of Michigan,” said Jim Backlin, Christian Coalition legislative director, adding that the court decisions were “really outrageous.”

Mr. Viguerie said the president’s acceptance of the decisions sent a wrong message.

“That’s not a good signal to send to conservatives — that you’re happy with this vote — because that means you might appoint a judge that would rule that way,” he said.

But other conservative cautioned against a rush to judgment on the decision.

“When they sit down and get some time away next week and read it, they will get it — we won,” said Armstrong Williams, a radio show host. He said the 6-3 decision on the undergraduate program was a strong statement against a specific program, while the 5-4 decision upheld something much more general.

He said colleges and universities will have a difficult time trying to craft policies that pass court scrutiny.

House Majority Leader Tom DeLay, Texas Republican, called the two rulings “conflicting” and said it will take time to figure out exactly what they mean.

“I can’t figure it out yet,” he said. “Sometimes the Supreme Court makes these kinds of decisions and to me they were conflicting decisions — both decisions.”

“For the Supreme Court to kind of wink and say an aggressive affirmative action is bad, [but] subtle affirmative action is good for a certain period of time just makes no sense to me,” he said.

Mr. DeLay said the principle of working toward a color-blind society remains the same.

Sen. Jeff Sessions, Alabama Republican, said Congress will have to look at some of its policies in light of the decision. He pointed to the federal highway-construction bill, which includes set-asides for minority contractors.

“Congress needs to be careful when we pass laws to make sure they’re not discriminatory,” he said.

A number of other conservative lawmakers demurred when asked about the ruling, saying either that they hadn’t digested the details or that they didn’t want to talk about it.

Some activists speculated that this would be the final strike against the possibility that Al Gonzales, the president’s chief counsel, could be nominated for a Supreme Court slot should a vacancy arise.

Conservatives have strongly opposed Mr. Gonzales for supporting abortion rights and saw his hand behind the Bush administration’s decision not to come out entirely opposed to affirmative action in its filing before the Supreme Court.

“I hope the muddled Supreme Court decision which followed the muddled Bush administration brief will end the muddled candidacy of Al Gonzales for a seat on the Supreme Court when an opening occurs,” said former Republican Party presidential nomination contender Gary Bauer.

“When you look at these decisions, there are heroes like [Chief Justice William H.] Rehnquist, [Justice Clarence] Thomas and [Justice Antonin] Scalia and there are fools like Souter and O’Connor,” Mr. Bauer said. “And on this case, Gonzales provided the intellectual framework for the worst setback for a racially blind America in the last 25 years.”

Mr. Viguerie said the stance the administration had taken in its brief was critical to the court’s ruling.

“If [Mr. Bush] had felt different about this — if he had taken a good, solid conservative position — we probably would have won the Michigan case,” he said.

When the solicitor-general files a friend-of-the-court brief or joins the case formally, that party usually wins before the justices. In the last completed court year, the 2001-02 term, the government was on the winning side in 54 of the 65 cases it joined.

The Washington Times reported earlier this year that the Justice Department had filed a legal brief to the White House strongly backing white students who say they were denied admission to the University of Michigan because of “race-conscious measures.”

According to Ward Connerly, a leading opponent of affirmative action, Mr. Gonzales’ office had tried to get him to help file a brief backing “diversity” as justifying race-based preferences — the rationale on which Justice O’Connor based her majority opinion.

“It seems the Bush political shop, aided by Judge Gonzales’ office, doesn’t want to” argue against racial preferences in principle, Edward Blum, legal director of the Civil Rights Institute, told The Times in January, in the week before the brief was filed.

Charles Hurt contributed to this report.

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