Bush's Affirmative Action Briefs Walk Fine Line

law.com ^ | 1/21/03 | Tony Mauro

[Jean S]

After last week's suspense over the Bush administration's position in the University of Michigan affirmative action cases, the question now is how significant its pronouncement will be to the Supreme Court.

The briefs in Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516, filed on Jan. 16, minutes before the midnight deadline, were the subject of intense deliberations inside and outside the Justice Department, involving President George W. Bush himself as well as National Security Adviser Condoleezza Rice -- whose experience as provost of Stanford University gave her views extra credence.

The briefs argue that the University of Michigan ignored race-neutral alternatives in its admissions policies at both its undergraduate and law school divisions, instead employing "race-based policies that amount to quotas." They also tell the Court that it needs to "break no new ground" in striking down the Michigan policies.

Conservative groups beforehand worried that if the briefs did not go all the way to urge the Supreme Court to reverse Regents of the University of California v. Bakke, they would recede in importance amid a stronger batch of filings that also went to the high court against affirmative action on Jan. 16.

But in general, these groups seem content with the outcome.

Curt Levey of the Center for Individual Rights, which represents the white students in the Michigan cases, says the administration "got to the same place that we did, so we are quite happy." Levey's group argued that the Michigan programs were invalid because diversity is not a compelling state interest that would justify using race criteria. The government brief avoided that point, but reached the same conclusion by focusing on the availability of race-neutral alternatives.

Other Bush supporters argued that the process that led to the briefs actually resulted in a more nuanced, superior product that will command the Supreme Court's attention.

"This is one of those rare cases where the politics actually yielded a superior outcome," says Catholic University School of Law Dean Douglas Kmiec, a former official in the Reagan Justice Department. The political discussions, Kmiec says, may have allowed Solicitor General Theodore Olson to "cut through some of the legalisms," such as the precise meaning and weight of Justice Lewis Powell's controlling concurrence in the 1978 Bakke case.

Kmiec thinks the government's brief may win over more than the five justices needed to strike down the Michigan program, "if the oral argument is as successful, and the justices as open-minded as the decision-makers in this political debate."

But others think that by avoiding hard questions, the briefs lose force and will be regarded by the Court as reflecting the administration's policy agenda, rather than its best legal arguments.

"The Supreme Court appreciates that briefs in cases like this simply represent the policy views of the current administration," says one veteran Supreme Court advocate who worked in the solicitor general's office. "The only way the briefs might change some votes is if some justice who aspires to be chief justice thinks it would be politically astute to vote the administration's way." This lawyer, who asked for anonymity, adds, "I don't believe in the past that the SG's briefs have been unduly influential in the affirmative action area."

Indeed, the Carter administration's approach to the Bakke case in 1978 foreshadowed what happened last week as the Bush administration crystallized its views in the Michigan cases.

The Bakke debate quickly grew to involve not only President Jimmy Carter but also other Carter Cabinet officials. Attorney General Griffin Bell went out of his way to insulate Solicitor General Wade McCree from White House pressure. In the end, McCree filed a middling brief that urged the Court to return the case to California courts.

The Bush administration's briefs are less equivocating, coming within a hair of describing the Michigan policies as quotas. In addition to saying the policy "amounts to a forbidden racial quota," in other places the government asserts that the Michigan admissions policies operate "no differently than more rigid quotas" or are "impermissible racial quotas or their equivalent." These formulations come close to matching President Bush's own description in a speech last week of what Michigan did as quota programs.

"This is a mischaracterization of what we have done," says Jonathan Alger, Michigan's assistant general counsel. "And both of the courts that ruled on the cases below agreed that these are not quotas."

The administration briefs are notable in other respects. They go into considerable detail about programs not before the Court -- policies from Texas, Florida and California, which, the administration says, have achieved diversity without using race as a criterion.

Olson's primary argument was that because these race-neutral alternatives exist, Michigan's actions are fatally flawed. "The government may not resort to race-based policies unless necessary," Olson wrote in the law school case. "It may not employ race-based means without considering race-neutral alternatives and employing them if they would prove efficacious."

Alger claims that argument will be easy to counter. "Nothing requires us to try and fail at every conceivable alternative before we do what we did," he says, adding that the university in fact did consider numerous alternatives.

Unlike Olson's brief, at least one of the others filed on the side of white students challenging the Michigan policies did not hesitate to call on the Court to reverse Bakke.

"In the wake of this court's divided three-way decision" in Bakke, said the conservative Center for Equal Opportunity, "state discrimination in the form of race preferences have been institutionalized throughout the United States."

[Inspectorette]

Phew - from the title, I thought it was gonna be about his skivvies ;-)

[Tom D.]

Ted Olsen may be a lot of things, but he ain't dumb, politically correct, cowardly, or a RINO. The Supreme Court makes it a practice to decide Constitutional cases as narrowly as it can. Olsen and his able lieutenants have certainly counted noses on the Court.

Some of the Supremes (e.g. Scalia) will vote to strike anything that uses race at all no matter who says what. Others (e.g. Ginsburg)will vote to say that not only is using race as a criteria allowed, but quotas are mandatory. The fight is for the middle: O'Connor and Kennedy, and perhaps Breyer and possbily Souter.

Olsen is not trying to play to an audience; Olsen is trying to win. This is something that a lot of Republicans are not used to.

It is a safe bet that Scalia, Thomas and Renquist are going to vote our way. It is a safe bet that Ginsburg and Stevens will vote for the University. That means that to win, the plaintiffs and those who think they are correct need two more votes.

O'Connor and Kennedy want to rule for the plaintiffs, but there is a good chance that they will not be interested in saying that the Constitution is as color blind as Dr. King indicated that he wanted it to be.

Souter's and Breyer's sentiments are going to be with the University, but Breyer is not at all comfortable with the University giving only 12 points to someone who gets a 1600 on his SAT's, but giving 20 points to someone whose skin is darker than some arbitrary standard. There is a long chance that it may cross Souter's mind that placing almost twice as much weight on the amount of pigment in someones skin as in the intellectual achivement and potential in someones brain when we are considering applications to institutions of higher learing is questionable.

I am beginning to digress. The long and the short of it is that Olsen has aimed arguments at those on the Court who may go either way. In most of our minds there is plenary reason to go with the plaintiffs, but what we think and our motivations are not necessarily the identical thoughs or motivations of the "middle four" of the Supreme Court.

It is more than refressing to see Republicans trying to win rather than merely to score points with folks who are going to agree with them regardles of howmany victorys we bring home. Give Olsen a break. Thought processes like his are what will keep us on top.