- The Washington Times - Thursday, November 1, 2001

The Bush administration's top Supreme Court lawyer defended a government program to help minorities share in government contracts yesterday, but also urged the justices not to rule on an 11-year court fight over affirmative action.
During oral arguments on a white-owned Colorado construction company's appeal, Solicitor General Theodore Olson said no controversy existed. He suggested that the court reconsider its decision to hear the case.
If the justices press ahead with a ruling on the merits of the case, they should find the program constitutional, Mr. Olson said. "We have the federal government trying to respond to a serious problem in a very responsible way," he said.
Adarand Constructors Inc. v. Mineta has all the elements for drama a family business headed by a white man fighting against reputed reverse discrimination, minority-owned firms that claim long hardship, the Bush administration stuck defending a program at odds with candidate Bush's campaign pronouncements.
The problem arose after the court agreed to hear the case last spring. The two sides now cannot agree what they are fighting about, or even if Adarand has a case at all.
"What are we supposed to do now, please?" Justice Sandra Day O'Connor asked Mr. Olson.
Adarand was challenging a government program different from the one that occupied most of its original complaint, several justices noted. They repeatedly asked Adarand attorney William Perry Pendley to justify his new position, and seemed dissatisfied with his answers. "Adarand still cannot compete on equal footing," he said several times.
Mr. Olson did not fare much better. Chief Justice William H. Rehnquist and Justice Antonin Scalia questioned the government's rationale for offering incentives to companies based on "social or economic disadvantage."
"What does that mean?" Justice Scalia interjected, saying he probably could apply that to himself.
"There are country clubs I couldn't get into," said Justice Scalia, a Roman Catholic whose family immigrated from Italy.
At issue is the way the federal government encourages participation in highway projects by minority- and women-owned businesses. Adarand, which makes guardrails, sued after it lost a contract to a Hispanic-owned firm, even though Adarand offered a lower price.
That 1990 lawsuit traveled to the Supreme Court and became the basis for the court's dramatic narrowing of federal affirmative-action programs in 1995.
Adarand is challenging a revised version of the Transportation Department contracting program.

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