Counting on diversity in court

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I have a sneaking sympathy for Dick Gephardt. Hitherto the Democratic Party's most reliably unexciting presidential candidate, the House Minority Leader went bananas the other day and said if the Supreme Court did something he didn't like he would sign an executive order overturning it.

Several conservatives did a bit of pro forma huffin' an' a-puffin' about why this makes Mr. Gephardt unfit to be president. But, speaking personally, I can't see why rule by Dick-tat would be worse in principle than the present system, whereby the nation's course for the decades ahead is effectively set by executive orders from Sandra Day O'Connor, the Supreme Court's eternal swing vote and tiebreaker-in-residence. Poised between opposing ideological quartets, Swingin' Sandra inclines not to black and white but swims in the murky grey in between. The trick for those appearing before the court is to decide the precise degree of murk at which Sandra will jump.

This last week provided some useful guidelines, with Supreme Court rulings on diversity and sodomy. Whatever your position, sodomy is a precisely defined act. It means ... Well, let's not get into that, as the choirboy said to the ... oh, never mind. My point is that laws ought to be about clearly defined acts and a high court should be concerned with the legal principles at stake in those acts. Whether or not you dig it as a personal philosophy, "diversity" makes a poor legal concept. It was not intended to be precisely defined, but instead woozy and fluffy and soft-focus. It makes a fabulous bumper-sticker: "Celebrate Diversity." But it makes a poor legal concept to enshrine at the heart of the U.S. Constitution, which is where Swingin' Sandra's vote put it last week.

The correct term is "racial quotas," but that's too bald, too clear. So its proponents came up with the coy evasion of "affirmative action." But over the years that also became tarnished. Hence the invention of "diversity." Who could be against "diversity"? Who wouldn't want to celebrate it? It's the perfect enlightened vapidity.

But who ever thought it would fly as a legal concept? Last week, the court had before it two models of University of Michigan diversity: In the first version -- the undergraduate school's system -- they give you 20 points for being black. You need 150 points to get in. So, by being born black, you're 13 percent of the way there. Tough for whitey, but he knows the rules. If Albert Gore IV wants to get into the joint, he understands Jesse Jackson XXVII has got a head start and he is gonna have to make up those 20 points somewhere else. Being a scion of the first Android-American to run for president is not an approved minority group. Nor is being a Jew or Asian or a Pacific islander from Tuvalu.

Cruel, but it's all there in the fine print. Down the road at the Law School, the same thing goes on in practice, but it's all swathed and swaddled in vague soothing multiculti mumbo-jumbo and is "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight," whatever that means. But whatever it means it's less vulgar than handing out points for pigmentation.

As Swingin' Sandra put it, approvingly, the Law School (like Sandra) "engages in a highly individualized, holistic review ... flexible, non-mechanical ... soft variable ... nuanced judgment ... potential to enrich ... ." Zzzzzzzz.

Which is the point. The court's message is: So long as we don't see how the sausage is made, you're OK. Take your "soft variables" into the smoke-filled room. Worse, the court has dignified "diversity" -- a flag of activist convenience, a wily obfuscation -- as a compelling state interest, and on its promoters' terms. "Diversity" doesn't extend to, say, some dirt-poor fundamentalist white trash. Her presence wouldn't "enrich" anyone. "Diversity" means "more blacks." That's why traditional African-American colleges are exempt from its strictures: as 100 percent black schools, they're already as diverse as you can get.

As a general rule, the more noisily an institution proclaims its commitment to diversity, the more slumped in homogeneity it gets -- at least when it comes to the only diversity that matters, not diversity of race or gender or orientation, but diversity of ideas. Take the New York Times and its star columnist Maureen Dowd. Of all the various aspects of the judgment, the one that took Maureen's fancy was that a black man had the effrontery to vote against quotas for blacks. Pronouncing Clarence Thomas "barking mad," she declared, "He knew that he could not make a powerful legal argument against racial preferences, given the fact that he got into Yale Law School and got picked for the Supreme Court thanks to his race ... ."

Really? He didn't get into Yale on merit? Only because he was black? How does she know? And, by taking it as read that he's only there to make up the race numbers, doesn't she inadvertently confirm Justice Thomas' point? That the cult of diversity stigmatizes all blacks: No matter how high they soar, the assumption of white liberals like Miss Dowd is that it's due to white liberals making allowances for them. How dare he be so ungrateful to Mr. Sulzberger and all the fine ladies up at the big house who got him into the nice Liberal Guilt Academy for the Exotically Disadvantaged. "It's poignant, really," sighs Maureen. "It makes him crazy that people think he is where he is because of his race, but he is where he is because of his race."

Here's a game we can all play: It's poignant, really. Maureen knew she couldn't make a powerful argument if her life depended on it, given the fact she got into the New York Times thanks to her being a woman. It makes her crazy that people think she's where she is because the buttoned-down white guys running the Times needed a fluffy-chick quota hire but ... .

American liberals have had great success inventing evasive language to advance their agenda, ever since "abortion" became "choice." Only the other week, with the cooperation of foolish, shortsighted Republicans, "welfare" morphed into "tax credit."

But one purpose of a court of last resort should be to reject the seduction of euphemism, to demand plain language and clear meaning. "Diversity" narrows the mind, it pigeonholes us into identity-group stereotypes, some approved, some not, but all so limiting that Maureen Dowd's "diversity" can't even grapple with the concept of a "black conservative."

Indeed, a "diverse" culture can't even be honest about its racist past. Lester Maddox, Georgia's last segregationist governor and a white restaurateur who closed his business rather than be forced to serve blacks, died last week, and neither ABC, CBS nor NBC could bring themselves to tell viewers that this man was (gasp) a Democrat. Imagine that: a racist Democrat.

Oh, come on, nobody's that diverse.

Mark Steyn is a senior contributing editor for Hollinger Inc. Publications, senior North American columnist for Britain's Telegraph Group and North American editor for the Spectator.