LAST OCTOBER IN ST. LOUIS, during the closing minutes of their third and final televised debate, Al Gore and George W. Bush had a little exchange on the proper role of affirmative action in federal decision-making. A woman in the audience asked Governor Bush what his intentions were with respect to "diversity" and "inclusiveness" and so on. Bush, in response, went on about how he didn’t like "quotas" very much, but did think government might appropriately "help meet a goal of ownership of small business, for example." It was this kind of "affirmative access" that he would pursue as president. And he would consequently "make you proud." Following up, Vice President Gore patiently explained that he, not Bush, was actually the fellow committed "with all my heart" to affirmative action. Of course, when you’re committed with all your heart to affirmative action, it simply means—pay attention, boys and girls—that you’re prepared to "take extra steps to acknowledge the history of discrimination and injustice and prejudice and bring all people into the American dream." With that in mind, could anyone in class tell the vice president what was George W. Bush’s real position on affirmative action? And, by extension, on the American dream, as well? That’s right: "The governor is against it," Gore said, raising an eyebrow for emphasis. This got the two men sniping back and forth for a moment, until Gore challenged his opponent firmly to commit on the issue, yea or nay: "Are you for what the Supreme Court says is a constitutional way of having affirmative action?" At which point Bush appealed to the referee—that night’s rules barred the candidates from addressing each other directly—and declined to answer. "I think that speaks for itself," the vice president sneered. And that was that. To review, then, as most of the nationwide television audience must have figured it: On one side of the controversy, favoring race-conscious government policy as a necessary means to acknowledge historical injustice, were Al Gore and the United States Supreme Court. And standing at least a few steps over on the other side was Bush, who seemed like a pretty nice man all in all, but nevertheless wasn’t quite prepared to say he agreed with the Court. Which is to say, Bush probably couldn’t be depended on, as president, to preserve executive branch affirmative action programs in their current form. Or, for that matter, when it came time to make bench appointments, to preserve the law of affirmative action as previously promulgated by the judiciary. It pleased—and still pleases—both major parties to encourage such a general view of things, the better to pacify their unsuspecting ideological loyalists. But with each passing month of the new administration, if you know where to look for evidence, it becomes increasingly clear that the picture is almost perfectly false, and in almost every particular. Much of it was plainly false even last October, in fact. There was, to begin with, Gore’s astonishingly cheeky endorsement of "what the Supreme Court says is a constitutional way" for the federal government to take note of a citizen’s race before deciding how nicely to treat him. It has been many, many years now since any such scheme has survived full constitutional adjudication—indeed, it’s only happened once since the Supreme Court’s 1989 Croson ruling, and that single exception was subsequently overruled. So Croson, a case about the Richmond, Virginia, city government’s insistence that only minority-owned subcontractors should be eligible to install the toilets in its municipal jail, has remained the essential precedent. And Croson stands for the proposition, one would think uncontroversial, that we fought a Civil War to eradicate such racialism from our nation’s laws. In order to repair the direct damage of its own illegal discrimination against an identified class of actual victims, the Croson court declared, public-sector institutions might theoretically be permitted to take race-conscious action on a time-limited, "narrowly tailored" basis. But neither past nor present "societal" bias provides a generalized warrant for purportedly "benign" discrimination. Quite the contrary, absent a fact- and case-specific "compelling interest" in the remediation of its own recent misdeeds, government is positively foreclosed from employing any conceivable racial classification. Not to put too fine a point on it, affirmative action—even though it stubbornly persists in ten thousand federal and state laws across the country—is almost without exception unconstitutional. It remains to be seen whether George W. Bush "agrees with what the Supreme Court says" here, though we will venture a nervous guess in a moment. It is beyond dispute, and immediately relevant to that guess, however, that such men as Al Gore very much don’t agree that there is anything noxious to democracy about government officials, in the ordinary course of business, explicitly distinguishing between the interests of their black and white constituents. Even as he was pretending, that evening last October, to invoke Supreme Court authority for his position on affirmative action, Gore’s colleagues in the Clinton administration were instead ferociously defending the federal government’s "right" to impose bald-faced and vaporously justified racial qualifications on tens of billions of dollars in annual disbursements. In particular, and in all but open defiance of Croson, the Clinton Justice Department was then completing its eighth straight year of litigation in support of something called the Disadvantaged Business Enterprise program at the Department of Transportation. Where protracted, high-stakes dishonesty is concerned, the Clinton administration’s handling of this case, currently labeled Adarand v. Mineta, may be without parallel in American law. But no one from the Clinton administration will ever formally be called to account for it. Adarand will be back before the Supreme Court this fall—for the third time in six years. And it will suddenly then be George W. Bush’s Transportation Department in the role of defendant. And George W. Bush’s designated advocates forced to confront unanswerable questions from the justices. In 1989, Adarand Constructors, Inc., a family-owned guardrail manufacturer, was the low-bidding subcontractor on a federal highway project in southwestern Colorado. Adarand did not win the work, however, because, then as now, federal law authorized handsome incentives to prime contractors who agree to share parts of their business with minority-owned firms. Adarand’s chief executive, Randy Pech, is white. In return for a $10,000 cash bounty from the Federal Highway Administration, Mountain Gravel and Construction, the Colorado project’s lead company, decided to reject his bid and go with Gonzales Construction Company instead. There was never any suggestion that the federal government had previously discriminated against Hispanic highway subcontractors in the state of Colorado. There was never any suggestion that Gonzales Construction has previously suffered discrimination of any kind. So Randy Pech, reasoning that the Disadvantaged Business Enterprise program at issue was presumptively unconstitutional under Croson, filed a lawsuit. On eventual appeal to the Supreme Court in 1995, the Clinton administration argued that Croson had been a case only about local law and that its strictures should not apply to national programs like Transportation’s. The federal government should not be required to present geographically precise, industry-by-industry findings of discrimination in its past procurement practices before it is permitted to "improve" those practices with racial classifications in the present. The goal of a "diverse" small business community should be sufficient pretext, the Justice Department offered. But a five-vote majority of the Supreme Court rejected these suggestions, and instructed the lower courts to consider Adarand and the Disadvantaged Business Enterprise program anew, in the same light as the Richmond toilet-bowl set-aside in Croson—that is, with a level of scrutiny that will "seldom provide a relevant basis for disparate treatment." It depended on what the meaning of the word "seldom" was, apparently. Immediately following the Supreme Court’s ruling, the Clinton administration set about to prove what it had earlier tacitly admitted wasn’t true: that federal procurement programs had long "participated" in discrimination, after all, and that businesses like Gonzales Construction had, in fact, suffered for it. A Justice Department task force made public its "evidence" for this discovery—the so-called Appendix A—in late May 1996, along with a package of meaningless regulatory "reforms" it proposed various executive branch agencies should make, the better to insulate their affirmative action programs from the Constitution’s irritating demands. "Seldom" meant "always," you see. One Department of Justice lawyer prominently involved in all this scheming would later testify that Appendix A had been cobbled together in less than two weeks by a low-level paralegal. This same man further confessed that it was likely that no one in the Department had ever actually read the hundreds of thousands of pages of junk-science gibberish referenced in that document. Nevertheless, this "research," the Clinton administration now represented to the lower courts, was an "impressive" indication that the United States did, too, have a compelling constitutional interest in refusing to do business with white-owned highway guardrail factories. And largely on that basis, the 10th U.S. Circuit Court of Appeals, blithely thumbing its nose at the Supreme Court, would twice in the next four years dismiss Randy Pech’s complaint. The first time the 10th Circuit did this, in 1999, the Supreme Court was volubly irked. Without even bothering to request briefs on the merits, all nine justices, including the four original Adarand dissenters, approved a withering unsigned decision reversing the appeals court and ridiculing its "crucial" error. This time, we can safely assume, the high court will be grumpier still. Which will be just one of its new reasons for again striking down the Disadvantaged Business Enterprise program. Defenders of that program will urge the justices to consider it "narrowly tailored" on the basis of recent federal regulations that require would-be beneficiaries to certify that they genuinely qualify as victimized and disadvantaged. But the underlying congressional enactment the regulations ostensibly implement enshrines a presumption of such disadvantage and victimization for members of more than forty different racial, ethnic, and immigrant groups—and regulations that demand proof of something the law has already guaranteed are always void. There’s no way around the statutory text: If your family originally came from "Juvalu," the federal government believes that prejudice has damaged your career in the highway construction industry. That there’s no such place as "Juvalu"—it’s a typo in the U.S. Code—isn’t the point. All the other "victim" classifications are real. And together they embrace more than 60 percent of the American population. There exists not a speck of evidence that federal highway procurement officers have discriminated against more than 60 percent of the American population. There exists not a speck of evidence that federal highway procurement officers have discriminated against guardrail-manufacturing subcontractors owned by Hispanics in Colorado. Adarand v. Mineta has already been decided. And only two interesting questions remain: How broadly and explicitly will the Supreme Court wind up invalidating federal affirmative action policy as a whole? And what advice will the Bush administration offer the Court beforehand? As a Senate subcommittee chairman in 1997, attorney general John Ashcroft held hearings on the Transportation Department Disadvantaged Business Enterprise program at issue in Adarand. The program was then up for reauthorization, and Ashcroft thought the pending vote was "an easy case." The vote should be "no," he said, because the program’s unconstitutional features were "obvious" and "plainly impermissible" and "offensive" and "un-American." We have no reason to imagine that Ashcroft has since changed his mind, and we know for a fact that the current administration is heavy with serious men and women, lawyers and non-lawyers both, who entirely agree with him. But it may be that the president of the United States does not. It may be that Bush meant it back in October when he hinted approval of racial preferences to "help meet a goal of ownership of small business, for example." And that may be why John Ashcroft himself felt obliged a few months ago to tell NBC’s Meet the Press, "I will defend the Department of Transportation’s regulations" in Adarand. And why, on May 1, a senior Bush Transportation official felt obliged formally to reject the conclusions of a new General Accounting Office study that finds "no" reliable evidence of discrimination in federal highway procurement. And why, on May 8, Bush Transportation secretary Norman Mineta signed and made public a proposal that would require Disadvantaged Business Enterprise program applicants to submit notarized affidavits attesting, on penalty of perjury, that they have the "disadvantaged" skin color their government prefers. We reprint above the sample affidavit that was included with Mineta’s Federal Register notice. Otherwise you might not believe it. It will fall to Justice Department solicitor general Ted Olson to speak for the Bush administration at the Supreme Court’s Adarand hearing this fall. Olson is a fine man with a fine mind who knows as well as anyone in the country that the Union army won the Civil War. And that thirty-one years later, the Supreme Court made a horrible mistake in its Plessy v. Ferguson "separate but equal" ruling. And that the Court has since spent more than a hundred years, up to and including its initial, 1995 Adarand ruling, correcting that error. We have no doubt that Ted Olson, personally, thinks the executive branch is constitutionally and morally obliged to follow the Supreme Court’s lead. But we’re not at all sure President Bush will let him say so. Olson has until August 10 to file his brief with the Court. We’re getting ready to feel sorry for him.
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