Jewish World Review June 24, 2003/ 24 Sivan, 5763

Wesley Pruden

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Let's be fairer to some than to others | The pols love a mealy-mouth Supreme Court decision, especially close to an election year. And why not? The punt is the favorite ploy in any pol's playbook.

George W. no doubt had his fingers (or at least his unseen toes) crossed when he said he "applauds" the court for upholding race as a means of deciding who's more equal than others, and for "recognizing the value of diversity on our nation's campuses." He looks forward to the day when the race hustlers are in the graveyard and America is a colorblind society. But Karl Rove can be glad we don't have to be colorblind yet, because race can be a useful bipartisan hustle.

He didn't quite say it that way, because George W. is, after all, our No. 1 pol, and a colorblind society would put the race hustlers out of business. (The Rev. Jesse Jackson would have to get a job.) The Republican campaign slogan, even for Republican tough guys, is always the same: "We're Republicans, but we're not as bad as you think."

A muddle-headed split decision, as in the Michigan case, gives all pols cards to play. Sen. John Edwards, the zillionaire trial lawyer, was the first Democrat to get his spin machine spinning. His typical Democratic response echoed George W.'s argle-bargle about diversity. "The court affirmed America's commitment to equal opportunity and justice," he said, and offered a caution to the White House, which may think the no-yes-maybe by the court defuses the issue for '04.

The 5-to-4 margin, he said, "underscores the importance of nominating and confirming justices committed to upholding civil rights." Translation: "It's important to keep the White House intimidated, and the close vote will do that and galvanize our troops besides. We can't wait."

The court's tortured ruling debunks once more the myth that the Supreme Court is above politics. The five majority justices upheld the University of Michigan Law School policy of granting extra rights to minority applicants, but - with a grudging nod to the Constitution - only as long as the extra rights are called spinach, or broccoli, or something else. The undergraduate schools can't award points as long as they're called points. Sandra Day O'Connor, a nice white lady who wanted to do something nice for the colored folks (and came up with only a bowl of mush), wrote that "effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized."

Mrs. O'Connor cited the Bakke decision, which a generation ago upheld using race to determine qualifications in college admissions, but the language of her majority decision invokes instead a whiff of the corpse of Plessy v. Ferguson, the 1896 separate-but-equal doctrine that became the legal sustenance for Jim Crow. This court endorses the view, she wrote, that student-body diversity is a "compelling state interest that can justify the use of race." This is not so far removed from the essence of the Plessy view that keeping the races separate, compelling to a 19th-century court however wrong-headed it was, justified the use of race.

The Michigan decision, wrote Chief Justice William Rehnquist for the four dissenters, "is precisely the type of racial balancing that the court calls 'patently unconstitutional.' " The Michigan scheme is "a naked effort to achieve racial balancing."

No wonder that Mrs. O'Connor, invoking her womanly right to a change her mind, then switched sides and joined the chief justice and his band of brothers in the Constitution to knock down racial discrimination in undergraduate admission.

The president of the University of Michigan professes to be elated, naturally, citing it a "resounding affirmation" of campus racialism, boasting that the clanging and banging would be heard "across the land from our classrooms to our corporate boardrooms." Curt Levey, the lawyer for the three losing white law-school plaintiffs, hit closer to the mark.

He said the court had invited decades of continued litigation. The court itself would agree. That's what a punt is all about. The court's offering of mush might have been avoided if the Bush administration had made a strong, principled argument instead of offering a weak and tepid defense of the constitutional notion that all Americans are held to be equal in the sight of the law, a notion often honored in the breach in years past. A president never looks good riding sidesaddle, as the master of Prairie Chapel Ranch could have told him.

We all have a duty - a Christian duty, as it might have been called in the fashionably dishonored past - to lend a helping hand to those who need help, and particularly to those whom we injured in the past. But the judicial ratification of racial discrimination is something we thought we had, at great pain and cost, relegated to that past. We clearly have not. Not yet. The Supreme Court is not finished with this.

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JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.

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