What does Obama think? That's a question raised by the Federal Circuit's decision this week in Rothe Development Corp. v. Department of Defense, which held unconstitutional a federal law that sets aside five percent of defense contracting dollars for businesses owned and controlled by "socially and economically disadvantaged individuals." The statute presumes that Black Americans, Asian Americans, Hispanic Americans, and Native Americans are socially disadvantaged and thus eligible for those set-aside dollars. The three-judge panel (two appointed by Reagan, the other by Clinton) found that the racial classifications couldn't be justified because they lacked what the judges called "a strong basis in evidence." The government's case, as the judges saw it, was much too flimsy to support the racially preferential set aside.
The government almost always defends federal laws challenged in court (and so the Bush administration has defended against Rothe's lawsuit). The Obama administration most likely will continue to defend the five-percent set-aside. But you have to wonder what Obama himself thinks about the presumptions of the statute in question and the weak evidence offered to support this program of race preferences. And you have to wonder about these things not just because of Obama's background as a law professor but also because of his campaign message about transcending racial division. Isn't the statute now voided by the Federal Circuit a product of "the habits that prevent us from being who we want to be as a nation," specifically of the "politics that tells us that we have to think, act, and even vote within the confines of the categories that supposedly define us"? Obama, who could ask Congress to pass a new statute in this area that does not categorize and prefer, and, yes, discriminate, by race and ethnicity, should be asked about Rothe, which could soon be on its way to the Supreme Court.