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The Pledge

A pragmatist president attempts to fulfill his promise to appoint non-pragmatic Supreme Court justices.

11:00 PM, Oct 30, 2005 • By PAUL MIRENGOFF
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In 2003, the Bush administration filed briefs in two Supreme Court cases involving the use of racial preferences by the University of Michigan. The undergraduate admissions office, which employed a point system to determine whom to accept, was awarding points to African-American applicants solely because of their race in order to ensure that this group had the level of representation in the student body desired by the administration. The law school was taking race into account too. While it claimed not to be using a formula or shooting for a specific level of representation, African-Americans were admitted at roughly the same rate every year, and the average standardized test scores and college grade-point averages of those admitted always fell far below those of their white counterparts.

The Bush administration argued that both Michigan schemes were unconstitutional, but offered a different way in which the university could guarantee levels of black representation well in excess of what a truly color-blind admissions process would produce. The administration's recommended approach, which Bush had instituted as governor of Texas, was for state universities to admit all applicants who finish in the top 10 percent of their high school class. Such a system would likely produce something close to the desired admission rates because at many inner-city and other high schools, African-Americans and Hispanics don't compete with white students. At an all-black high school, every member of the top 10 percent will be black.

THIS WAS VINTAGE BUSH PRAGMATISM. Both liberals and conservatives would like to see African-Americans well-represented among students at the University of Michigan and the University of Texas. But nearly every conservative believes (as most liberals once did) in the principle of color-blindness. Because color-blindness currently cannot produce the desired level of African-American participation at top state colleges and law schools, the desired outcome and the conservative principle could not both be vindicated in the Michigan cases.

The Bush administration nonetheless attempted to craft a synthesis, refusing to yield much, if at all, on the desired racial outcome, but doing what it could to cling to conservative principles. Thus, the "10 percent solution" was facially neutral as to race. African-Americans received no points or extra credit for being black. And the system rewarded achievement--finishing in the top 10 percent of one's class is always an accomplishment. Unfortunately, though, Bush's solution ultimately failed to vindicate core principles of color-blindness and non-discrimination. Choosing a facially neutral selection system for the purpose of achieving a racial result is a classic form of illegal discrimination under the civil rights law. Thus, problem-solving trumped conservative principles.

PRESIDENT BUSH'S APPROACH to the Michigan cases plainly bears more resemblance to the centrist pragmatism of Justice O'Connor (who found yet another way to split the difference in this instance) and Justice Powell than to the steadfast conservatism of Justices Scalia and Thomas. And, as we have seen, Bush's approach to the Michigan cases is not an aberration--it stems from the same impulse that drives his handling of a range of domestic policy issues.

But this does not mean that Bush is destined to be unsound from a conservative standpoint when it comes to nominating judges. To the contrary, we know that he is mostly sound, having nominated many conservatives to the appeals courts and one to the Supreme Court. Bush said he would nominate Justices in the mold of Scalia and Thomas, and Bush is a man of his word. But Bush is not immune from error in identifying potential justices in that mold. Not just because he's a non-lawyer, but also because when it comes to public policy he's not conservative enough by inclination automatically to prefer practitioners of judicial restraint to judicial pragmatists. Accordingly, when Bush makes his next selection, "trust but verify" should remain the operative maxim for conservatives.

Paul Mirengoff is a contributing writer to The Daily Standard and a contributor to the blog Power Line.