Posted on 01/17/2003 4:09:44 PM PST by TLBSHOW
White House Brief Stops Short of Bush Speech
January 17, 2003
Folks, I really don't relish the next words, sentences, and paragraphs, which you will read on this page or hear from my mouth in the audio links below. There is some angst today in the conservative legal community over the University of Michigan case and the brief filed by the Bush administration late Thursday night near the midnight deadline, and how this brief differs in scope from the president's amazing speech.
Now, the mainstream press, of course, is late to pick up on this. We have several wire reports, which I read on Friday's program that lead with lines like, "President Bush is siding with white students in the most sweeping affirmative action case…" And they don't think they're biased? President Bush is siding with white students? No, President Bush is siding with the Constitution. It's the Fourteenth Amendment, which is being largely ignored by those in the mainstream press. He's siding with the Constitution, not siding with white students or white people or white anybody.
That being said, our legal advisors here at the EIB Network and the Limbaugh Institute have read the brief filed by the Bush administration. We've studied it, and this position is not nearly as sweeping as that taken in the president's speech. In short, he does support overturning the policy of Michigan, but stops there and goes no further. The administration's brief contends that the admissions policy at Michigan does violate the Constitution, but the brief does not say that the use of race violates the Constitution. And that's the key.
Race-based anything violates the Constitution. No such discrimination is allowed, but the brief doesn't attack that, it only attacks the specific admissions policy at the University of Michigan. The Constitution does not outlaw all forms of discrimination, but it does prohibit discrimination based on race, and in some cases it discriminates or prohibits discrimination based on gender and religion.
The brief does not challenge racial preferences in college admissions. It accepts, in fact, the fact that race-based diversity is a constitutionally proper goal. So in the brief, as opposed to the speech the president made, the administration is not opposed to the goal, but merely Michigan's practice by which it was achieved.
Here is the upshot: The president's compelling speech certainly suggested he was taking on the whole issue of race-based preferences. This is why everybody was so excited. This is why you want a conservative in the White House, to stop a mess like affirmative action. It pits groups of people against each other and it stigmatizes people who benefit from it. There's nothing positive about it. The president's opponents predictably in their criticism certainly suggested that he was taking on the issue of race-based preferences.
After hearing the president speak, and from that reaction from the left, the press, pundits and all the rest of us concluded that Bush was challenging racial preferences in college admissions. But his administration's brief - I'm sorry to say, folks - doesn't do that.
Listen to Rush...
(…compare media reports of the president's position, with the actual brief) (…continue the legal analysis of the brief filed by the White House)
Read the Articles...
(AP: Bush Brief on Affirmative Action Due) (USA Today: White House to oppose Michigan policy of race-based admissions) (Reuters: Bush Lawyers Urge Top Court to Back White Students)
Read the Fourteenth Amendment to the Constitution...
For all the bleating of the last 5 years about Republicans being better than the alternative, when conservative policies are sabotaged or when liberal policies are cloaked with a conservative disguise, they are NOT better than the alternative.
I, of course, hope they DO win it. But we "miserable malcontents" won't claim credit. The credit will go to recognition of a discredited idea that was preposterous in the first place. But, make no mistake: Bush DID blow it, big time. He didn't hold anyone's feet to the fire.
Looking back, at last three or four decades, and reviewing the big issues, such as immigration, taxes, crime, personal rights, personal freedom, government growth, government intrusion, standard of education, not to mention our involvement in many other nations that has created unbelievable problems, etc, etc. I am of the opinion that the two parties in DC have not helped America or it's people. The issues mentioned, have all incrementally deteriorated and degenerated.
From the standard of living for our young and old, to our porous, open border mentality from both of the beltway parties, it seems this countrys direction and purpose has turned in the wrong direction. Just my opinion......
Today's Washington Times has an editorial and a column by Terry Eastland that are both highly critical of the administration's briefs.
EDITORIAL • January 21, 2003 Washington Times
Bush misses the mark The president's filings in the cases challenging the University of Michigan's affirmative action policies pending before the Supreme Court are a profound disappointment. In failing to condemn outright the use of race as a sole factor in the admissions process at academic institutions, the Bush administration has missed an historic opportunity to bring government policy into conformity with the 14th Amendment. According to White House statements and news accounts, this was a decision made personally by the president. As such, it is a decision that measurably subtracts from the reasons why conservatives should support President Bush.
Which is not to say that, legally, the briefs weren't clever. While the president does appear to argue that race can be a legitimate factor in the academic admissions process, the race-neutral means he outlines essentially preclude race from ever being the sole factor. In other words, it's as if the White House argued that race-specific measures are allowed whenever Christmas doesn't fall in December. As Curt Levey of the Center for Individual Rights, the group that represents the denied Michigan students, told us: "If the court completely adopted the analysis in this brief, racial preferences would be over, at least in admissions."
Still, while the president's Michigan briefs are at face value legal documents, they are also political ones.As such, it is clear that this Republican administration lacked the courage to say forthrightly that race-specific measures are unconstitutional under any circumstances. Whatever the Supreme Court's ruling later this year — and it likely will be a tight one — the debate within political circles over affirmative action in the academic admissions process will be far from settled. Sadly, President Bush has only added to this confusion.
Those directly involved in the Bush administration's struggle on this issue assure us that the president strongly dislikes race-specific measures, but that for his White House to say so would not be "politically palatable." Presumably, they mean that to oppose affirmative action might harm Mr. Bush's efforts to effectively proselytize the Republican Party among minority groups, particularly Hispanics.
In fact, fudging on affirmative action isn't necessary even at a level of electoral calculation. Prominent studies, including one by the Pew Hispanic Center highlighted recently on this page, demonstrate that the political decisions of Hispanics are not governed by the same aggrieved group-think as other minority groups. As such, efforts to woo Hispanics do not require the pandering that has historically marked minority outreach. The undiluted message of social conservatism has widespread appeal in the Hispanic community, and sticking with principles does not preclude the Republican Party from getting its fair share of votes.
Of course, no president should be judged on any one decision, and Mr. Bush's overall performance is vastly encouraging to conservatives as well as many other Americans. But inevitably, as this page periodically assesses the record of this president, his actions in the Michigan cases unmistakably go on the wrong side of the ledger.
Justice Powell said race could be a factor. The other members of the majority did not join that part of his opinion. The minority didn't either. Later courts have disagreed about whether Powell's assertion could be said to be a majority assertion of the court, and I agree with the Fifth Circuit in Hopwood that it was not.
The most recent action by the Court is an affirmation of Powell's opinion.
The Supreme Court also refused to review Hopwood, where the Fifth Circuit had held precisely the opposite of the Ninth Circuit.
And now it's hearing the University of Michigan cases, where the Sixth Circuit agreed with the Ninth Circuit, and disagreed with the Fifth Circuit.
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