THIS THURSDAY, January 16, is the deadline for the Bush administration to file a friend-of-the-court brief in the University of Michigan race-preference cases currently before the Supreme Court. The media and Beltway conservatives have speculated a great deal recently about what position (if any) the Bush Justice Department will take. (Some background: Terry Eastland recently wrote an excellent editorial summarizing the Michigan program, as well as the administration's options, and offering The Weekly Standard's opinion; Linda Chavez also urged Bush not to "go wobbly" in a fine op-ed in last Wednesday's Wall Street Journal.)
As a Michigan alumnus who was still on campus when these cases originated, I'm more anxious than most about Bush's decision. The president has long been reluctant to stake out a clear position on racial preferences, but that merely makes him normal among GOP politicians. Consider, for example, our new Senate majority leader, Bill Frist, who was asked by Tim Russert on "Meet the Press" last Sunday what the administration should do:
RUSSERT: Should the administration file a brief supporting the University of Michigan's affirmative-action efforts to admit minority students?
SEN. FRIST: You know, that's--the decision has to be made by the administration. Historically, I think administrations have been active on issues surrounding affirmative action. It's a decision they have to make. I hope that the administration doesn't run from particular issues as well. Republicans and Republican principles are sound, they are solid. You're not going to see a lot of change in the policies themselves. Why? Because we care about equal opportunity. We care about affirmative action if you define affirmative action as we did in the 1960 Civil Rights Act. If you come to strict quotas today in terms of where the quotas are, most Republicans, including myself, [believe] that these strict quotas result in a reverse discrimination that divides the nation.
RUSSERT: Well, University . . .
SEN. FRIST: And this division of the nation is not what I hope will be reflected in the United States Senate.
RUSSERT: University of Michigan has a very specific program, and I'll show it to you. The undergraduate [school] gives applicants points, with 100 out of 150 enough to establish admission. A perfect SAT score, for example, will net you 12 points. Being African American, Hispanic, or American Indian is worth 20 points. Do you agree with that, that you should get points towards admissions simply for being a minority?
SEN. FRIST: You know, I am opposed to racial quotas and racial set-asides that tend to divide people and not bring them together. I don't know the Michigan admissions policy, and I really don't want to comment on specifics of their policy. It is not really fair to me, since I know nothing about it.
Frist's answer isn't internally consistent. Frist rightly urges the administration not to run from racial issues, because "Republican principles are sound, they are solid," and notes that racial quotas and set-asides "tend to divide people and not bring them together." But when Russert presents him with a specific example of a program that, in its practical effects, meets the definition of a set-aside, Frist turns coy.
Like most Republican politicians, Frist and Bush distinguish the "original" intent of affirmative action--now often dubbed "affirmative access," meaning special outreach programs and the like--from "strict quotas," "preferences," or "set-asides." It's a valid distinction, and one that needs to be stressed continually. But too often Republicans use it merely to placate persons on both sides of the issue and avoid taking a principled stand.
The question for Republicans is this: Where do they draw the line? What magic formula must an affirmative-action program possess for it to cross into the territory of unacceptable "preferences," as opposed to benign "affirmative access"? The Michigan cases are the clearest test imaginable of whether this distinction is useful as anything other than soundbite fodder. Legally, the cases are a slam-dunk. The university runs what amounts to a dual-track admissions system, with two different standards--one for "underrepresented minorities," and one for everyone else. If the administration can't bring itself to oppose Michigan's program, what racial preference scheme will they oppose?
Yesterday I dropped by the American Enterprise Institute to hear David Frum discuss his new book about President Bush, "The Right Man." He observed that the president is often strategically bold (witness his new tax cut package, or his long-term vision for democracy promotion in the Middle East) while simultaneously being tactically cautious, sometimes to a fault.
Let's hope Bush views filing a brief in the Michigan cases as a chance to demonstrate strategic boldness rather than tactical timidity, because the GOP desperately needs some strategic boldness on race issues. Republicans can never do enough to win the favor of the now-desiccated "civil rights" establishment (e.g., the NAACP, Jesse Jackson). Better to ignore them and appeal to the vast majority of Americans, of all races, who believe in the principles of the Declaration of Independence: that every American should be treated equally before the law.
The president took a solemn oath to "preserve, protect, and defend" the Constitution of the United States. Many conservatives were thus disappointed when Bush signed a campaign-finance "reform" bill that he admitted contained provisions the courts would likely find unconstitutional. I hope Bush and his political advisers aren't tempted to go this route once again, by staying out of the Michigan cases and leaving it to the court to clean up the mess. Not only would this be politically short-sighted, it would be a rank abdication of the president's constitutional duty. But I'm holding out hope that President Bush will do the right thing, and defend America's most fundamental principles by helping end the perverse admissions practices of my alma mater.
Lee Bockhorn is associate editor at The Weekly Standard.