Posted on 01/10/2003 6:25:04 PM PST by RCW2001
By Ron Fournier
AP White House Correspondent
Friday, January 10, 2003; 8:56 PM
WASHINGTON –– Bush administration lawyers are laying the groundwork to oppose a University of Michigan program that gives preference to minority students, a step that would inject President Bush into the biggest affirmative action case in a generation.
Bush himself has not decided what role, if any, the administration will play in the landmark case but several officials said Friday night he is unlikely to stay on the sidelines. White House political allies are planning to intervene against the Michigan program nonetheless.
The administration officials, who spoke on condition of anonymity, pointed to Bush's record in Texas and their continuing review of Clinton administration affirmative action cases as signs that the president is inclined to oppose the university's policies. Furthermore, he is likely to suggest alternatives to racial preferences that still promote diversity, officials said.
Bush is awaiting formal recommendations from Justice Department and White House lawyers before making his decision.
The Supreme Court, in its most important case this year, is expected to rule on the constitutionality of programs that gave black and Hispanic students an edge when applying to the University of Michigan and its law school.
The issue is a lightning rod both for conservative voters who back Bush and for minority voters, whom Republicans are courting.
Further complicating the White House's decision is the fallout for the GOP from the racially provocative comments that cost Sen. Trent Lott, R-Miss., his job as Senate majority leader. Bush denounced Lott's remarks, which were widely interpreted as nostalgia for segregation.
Siding with white students so soon after the Lott controversy could be seen as an affront to blacks.
The administration is not a party to the Michigan fight and does not have to take a position. Traditionally, however, the White House weighs in on potentially landmark cases.
Bush must decide soon. Legal briefs opposing affirmative action are due to the court Jan. 16, and briefs supporting the Michigan admissions plans are due in February.
Lawyers for political allies of the White House are drafting friend-of-the-court briefs arguing that the University of Michigan policy is unconstitutional, administration officials said.
The Justice Department is awaiting word from Bush on whether to file a brief of its own. At the least, Bush is expected to take a public stand on the matter and explain his position that racial quotas are not needed to foster diversity, officials said.
In Texas, Bush opposed racial preferences in public universities and proposed instead that students graduating in the top 10 percent of all high schools be eligible for admission. Supporters say the policy increased diversity because many schools are largely minority.
Among the cases that would bolster their argument against the University of Michigan, officials said, is a 1997 affirmative action suit that supported a white high school teacher's claim that she suffered reverse discrimination when laid off from her job. A black teacher was retained.
The Clinton administration argued that the school district's affirmative action policy went too far and could not be justified merely by the notion that a diverse teacher corps is a worthy goal.
"A simple desire to promote diversity for its own sake ... is not a permissible basis for taking race into account," the government said then.
The brief was largely written by Walter Dellinger, former head of the Office of Legal Counsel and later the Clinton administration's acting solicitor general. Administration lawyers consider at least one other Dellinger brief, a case involving a Wisconsin teacher, as further basis to argue against the University of Michigan policy.
Contacted Friday, Dellinger said the reasoning assumed that there is some role for affirmative action but noted that the tool can be wrongly used.
"The general position taken was that while the use of race is sometimes permissible in educational settings, it must be narrowly tailored and shown to advance important educational goals," he said.
In a 1995 memo analyzing the effects of a Supreme Court case over affirmative action in government contracting, the Clinton administration's Justice Department's Office of Legal Counsel noted that the Supreme Court has consistently rejected racial balancing as a goal of affirmative action.
"To the extent that affirmative action is used to foster racial and ethnic diversity, the government must seek some further objective beyond the achievement of diversity itself," said the memo, largely written by Dellinger.
Like I said, you're not fooling anyone.
Let's take a journey into Utopia, shall we?
The way that I have understood that our form of government should work is as follows:
If I am right in this interpretation, the presidential duty is to await the decision of the Judicial branch, and enforce it. They may also raise challenges in Court if need be. Now, I know that's a rather simplistic view, and that there are a lot more intricacies and duties, but it’s sufficient to make my point.
I believe that in that perfect void where the Founders imagined a government working, the political ideology of the president should never influence the decisions of the Courts. The way that the Executive Branch is constitutionally able to influence the Courts, lies in the nomination of appointees to the Federal benches.
The real battle is there.
Ya think?
My point to those "real conservatives" reading, is that expecting the president to weigh in on this or any other matter before the Courts, is anatema to their constitutional governance stance, and in fact, they are advocating politics over the constitution.
I understand the politics of every situation. They understand it only when it suits them.
I would not be surprised to find out, after the fact, that Gonzlez may have recused himself from this process, on the grounds that in the near future he may be nominated to the federal bench, and the same issue may come before him as a judge.
Congressman Billybob
Hardly Luis, there is nothing anti-constitutional about the executive filing an amicus brief.
Likewise, there is nothing anti-constitutional about Senator McConnell filing against CFR.
I was beginning to dispair of finding intelligent life on this thread. Then I came to your post.
Actually, the Executive Branch DOES have a role to play in Judicial Branch decisions. The Solicitor General is there for the purpose of presenting the Administration's position to the Supreme Court. Where the government is a party to the case, the SG must take part in the case.
The second alternative comes in cases where the government is NOT a party. Then, the SG can come in if he and the President want to do that. The last and rarest opportunity is when the SG has not come in, and the Court INVITES a brief from the government. Though this is only a "request," any lawyer ignores a "request" from a judge at his peril.
No matter how the SG comes into a case, the Court always gives great weight to briefs filed by the SG. However, the Court is in no way bound to accept the postion set forth by the SG.
So it is a subtle role, and not a controlling role, but the Executive does have input in the course of Judicial decisions.
Congressman Billybob
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