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Jewish World Review August 9, 2005 /4 Av, 5765 Preferences, not abortion, threatened By Peter A. Brown
http://www.JewishWorldReview.com |
Those who worry John Roberts could change the direction of social policy in this country if he is confirmed to the Supreme Court are on the right track. They are, however, focusing on the wrong issue.
It's not that President Bush's choice to replace Sandra Day O'Connor will shift the court's balance to ban abortion that should worry them.
They should be more concerned that Roberts can tip the balance toward banning programs that give racial minorities an edge in college admission, the workplace and in government contracting.
Known as affirmative action by supporters, and racial preferences by opponents, some of these programs were upheld by the narrowest of margins in 2003. O'Connor was the swing vote in favor of their legality.
Abortion-rights supporters should not rejoice at Roberts' nomination. His background indicates he is more likely than not to favor the limitation if not a ban of the procedure.
Yet even with his vote, there likely would not be the five needed to overturn the 1973 Roe v. Wade decision that legalized abortion nationally.
The affirmative action/racial preferences question, however, is one on which he could, by himself, have a major effect.
Moreover, it is potentially a powder-keg political question that splits much along racial lines, and has generally worked to the benefit of critics of such programs when it becomes a campaign issue.
Roberts has not ruled on the issue as a U.S. Court of Appeals judge, but there are hints in his background: memos he wrote as a Justice Department lawyer two decades ago and the political company he keeps.
It would be surprising if he were not skeptical about the legality of programs that discriminate in favor of underrepresented minorities (blacks and Hispanics) over whites and Asians in competitive situations for college admissions and jobs.
In recent days, Democrats ranging from Sen. Ted Kennedy of Massachusetts to the heads of various groups who claim to represent African-Americans have begun focusing on Roberts' ability to slaughter their sacred cow.
In 2003, the Supreme Court split on the question.
It struck down the University of Michigan undergraduate admissions system that gave minorities points for their race that allowed them to gain admission over whites who had superior academic credentials.
Yet the same day, the court approved a University of Michigan Law School process that did not use strict numerical racial weighting but gave minority candidates an edge.
O'Connor was the swing vote that affirmed the law-school program. She justified her support by finding that diversity in the student body was a compelling government interest that could justify a process of discrimination based on race.
Although the cases involved only college admission, they were widely seen as providing general guidelines for hiring and contract awards.
Since that decision, colleges that had admitted students using a formula similar to the one ruled unconstitutional have tried to comply with the court, but also attract more minorities.
Court challenges to those programs are likely in the coming years, hence potentially presenting Roberts with the opportunity to change the status quo should he disagree with O'Connor that diversity is a compelling enough state interest to justify racial discrimination.
In Florida, like California and Texas, the issue is less explosive because Gov. Jeb Bush has banned the use of race in college admissions. At the same time, he has guaranteed admission to any student who finishes in the top 20 percent of his or her high-school class, similar to programs in those two other states.
The strategic problem for Kennedy & Co. is that they know they cannot defeat Roberts' nomination on the affirmative action/preferences issue. It may move core Democrats, but it turns off the much larger general population.
Public opinion varies depending on how the question is asked; majorities favor outreach programs but oppose the use of differential standards in competitive situations.
That's why the Democrats have begun warning vaguely that Roberts would turn back the clock on civil rights.
They want to raise a general image of Roberts wanting to return the country to a time of legal discrimination against blacks, when in fact he appears to be opposed to supporting continued legal discrimination in favor of them.
It's a cheap shot, but Democrats don't have anything else.
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Peter A. Brown is an editorial page columnist for the Orlando Sentinel. Comment by clicking here. © 2005, Knight Ridder/Tribune Information Services |
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