- The Washington Times - Thursday, December 26, 2002

Hard-rock conservative Republicans for years have berated the U.S. Supreme Court for dictating controversial social policies by constitutional fiat. Abortion and school prayer are exemplary. Their sound track is familiar: Judicial restraint is the hallmark of enlightened judging; judicial activism means judicial rule like Platonic Guardians, thus shriveling government by the consent of the governed.
But look who's looking to the Supreme Court to escape political accountability for knifing racial and ethnic preferences in education, employment, contracting or otherwise. Conservative Republican detractors of affirmative action.
Pending before the Supreme Court are a pair of constitutional challenges to race- and ethnic-based preferences in admissions involving the University of Michigan and Michigan law school. Since at least 1969 with the Nixon administration's celebration of the "Philadelphia Plan" endowing blacks with preferences in the construction industry, the issue of "reverse" discrimination has stormed the political seas. Supreme Court rulings disavowed the idea that preferences were constitutionally mandated, except for individual victims of intentional discrimination. And even in such cases, the preferences were confined to what the victims would have achieved absent the unconstitutional misconduct.
In sum, no legislature or executive official has ever been required to shower preferences on non-victims of discrimination or to tolerate the same in the private sector by a constitutional court decree. All such preferences and they are omnipresent have been born by defeating detractors in the political arena. Debate has been unsmothered, in contrast to squelching a full and fair exchange of views by Senate filibusters over civil rights legislation in Congress until 1964.
The Supreme Court interpreted the Civil Rights Act of 1964 to permit (not require) preferences in industries where the "underrepresentation" of minority employees is pronounced in United Steelworkers vs. Weber (1979). One justice, Lewis Powell, in Regents, University of California vs. Bakke (1978), declared that admissions preferences short of quotas should be within the realm of university discretion under the Constitution if a polychromatic student body was cherished. And in Griggs vs. Duke Power Co. (1971), the Court construed the federal Civil Rights Act to prohibit racially neutral employment practices that disqualified more minorities than whites. The sole illusory employer defense to departing from proportional representation in his workforce was proof of a virtual congruence between the employment criteria and actual job performance.
Neither Weber nor Bakke nor Griggs were constitutional mandates. Nothing the high court said blocked preference foes from clamoring for congressional legislation that would enshrine a colorblind standard for the nation in all walks of life. That is, conservative Republicans could have sponsored and summoned all their political capital and moralizing behind legislation that would outlaw non-victim preferences in education, employment, contracting, housing or scholarships. And the preference ban could have applied to both the government and private sectors. Moreover, whites remain the dominant numerical majority in Congress and the nation at-large. Thus, unlike the situation for discrete and insular minorities in seeking equal opportunity laws, the consensus needed to pass anti-preference legislation confronted no exceptionally precarious political hurdles.
Indeed, five states, including California and Washington, have ended government preferences within their jurisdictions by popular initiatives. And if preferences were explicitly banned by federal statutes, an unelected Supreme Court would never have occasion to pronounce on their constitutionality. The controversial and polarizing question would have been mooted by a political decision for which representatives, senators and the president would have been accountable to the people democracy at its best with no chivvying by the Supreme Court.
But with rare exceptions, conservative Republicans in Congress and the executive branch have desisted from disturbing preferences through legislation or executive orders. No serious political campaign has been marshaled against Weber, Bakke or Griggs. Conservatives reason that the political risk of alienating or antagonizing minority voters would be too steep to justify exalting a colorblind principle throughout the United States and earning a chapter in "Profiles in Courage." Their inglorious sotto voce motto: "Let the Supreme Court do the political dirty work."
Conservative Republicans who deify judicial restraint thus deserve reproach for doing nothing in Congress to obviate the Supreme Court's constitutional confrontation with preferences in the Michigan cases. And additional rebuke is warranted for declining to file an amicus curiae brief with the high court assailing the preferences and taking a clear stand. Instead, like Pontius Pilate, they crave washing their hands of the politically explosive matter.
What three decades of grappling with preferences proves is that conservative Republicans will throw social policy questions to the Supreme Court if a political resolution risks unpopularity and a shipwrecking of their vaulting ambitions. While that shirking of duty clashes with their soundtrack of judicial restraint, they are solaced by knowing that taking consistency to extremes is a dead end.
Henry Clay foolishly said he'd rather be right than be president, and he got his druthers.

Bruce Fein is a founding partner of Fein & Fein law firm in Washington.

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