Strengthening Constitutional Self-Government

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Lott Affirmative Action Concession May Be Spreading

WaPo reports this morning that the Bush Administration is split on whether to weigh in on the University of Michigan affirmative action case. Side note: to the headline writers at the Post, it is a discrimination case, not a bias case. This is actually not too big a surprise, and is just a little bit of history repeating itself. Ted Olson, the U.S. Solicitor General, reportedly is eager to take a position against the Michigan programs. He knows the issue well: he was counsel for Cheryl Hopwood in the landmark case of Hopwood v. Texas, which struck down the discriminatory admissions system at the University of Texas. President Bush was Governor at the time, and refused to take an official stance during the litigation. Indeed his office was adamant in their silence.

White House Counsel Alberto Gonzales is reported to be among the key White House advocates against weighing in on the issue, because of fears that this will impair Bush’s ability to appeal to Hispanic voters. This is something to keep an eye on, because Gonzales is considered the leading nominee for the next U.S. Supreme Court opening. At best, the statement suggests that he is willing to compromise taking a stand on the principle of equal protection for votes; at worst, it suggests that he has a one-way ratchet view of equal protection (EP applies to "bad" discrimination, but not "well-intentioned" discrimination). Neither suggests well for his jurisprudence.

Of course, the entire issue is complicated by Lott’s statements, which is likely to leave the administration running for cover. It is unlikely that Bush will make the mistake that Lott made on BET, in which he flipped on affirmative action to mitigate his political losses, but Lott’s statements make it far more likely that Bush will reserve his judgment until the Court releases its judgment.

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