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Multilateral Race Preferences By: Joseph J. Sabia
FrontPageMagazine.com | Wednesday, April 09, 2003

Last week, the U.S. Supreme Court heard oral arguments in the University of Michigan affirmative action cases, Grutter v. Bollinger and Gratz v. Bollinger.  During these proceedings, Bill Clinton’s Supreme Court appointees apparently decided to compete for the title of “Most Asinine Interrogator.”  How else can anyone possibly explain their totally bizarre behavior?  Consider these remarks from Justice Ginsburg to Solicitor General Ted Olson:

JUSTICE GINSBURG: General -- we're part of a world, and this problem is a global problem. Other countries operating under the same equality norm have confronted it. Our neighbor to the north, Canada, has, the European Union, South Africa, and they have all approved this kind of, they call it positive discrimination. Do we -- they have rejected what you recited as the ills that follow from this. Should we shut that from our view at all or should we consider what judges in other places have said on this subject?

We all know that liberals believe in a “living, breathing Constitution” (i.e. no Constitution), but when did they farm out our founding document to Canada, the E.U., and South Africa?  What is this woman talking about?  She is a Supreme Court Justice charged with interpreting the U.S. Constitution.  But rather than stick to her job, she is whining about our failure to heed precedent in Manitoba.

Has she been watching Kofi Annan too much?  Is she worried that the Supreme Court will decide the Michigan case unilaterally?   Do we need France’s support on racial preferences?  Ted Olsen hit Ginsburg’s strange question out the ballpark:

GENERAL OLSON: I submit, Justice Ginsburg that none of those countries has our history, none of those countries has the Fourteenth Amendment, none of those [countries] has the history of the statements by this Court which has examined the question over and over again...

More mean-spirited logic from the Bush Administration.  Damn linear thinking.

Justice Breyer got into the “Most Asinine Interrogator” competition by grilling plaintiffs’ attorney Kirk Kolbo on the issue of legacy preferences in admissions to universities, despite the fact that the phrase “legacy status” appears exactly zero times in the Constitution.

JUSTICE BREYER: The reason that the injury is more severe to the white person who doesn't get in when that white person doesn't get in because she's not in half league or he's not a -- he's not an alumnus or he's not any of the other things that fits within these other criteria? What is the difference there is?

MR. KOLBO: The difference is the Equal Protection Clause, Your Honor. It does not apply to alumni preferences in scholarships. It applies to race.

JUSTICE BREYER: That's the legal conclusion. But the reason if I thought, for example, that there is a difference...

That’s the legal conclusion, but...?  What was Kolbo thinking, making a legal argument to liberals on the Court!   Obviously, there should be no “but” in Breyer’s response.  The legal conclusion is all that matters. And the Left says Clarence Thomas is an idiot.

As Weekly Standard publisher Terry Eastland noted, we didn’t fight a civil war to end legacy admissions.  Who cares what Breyer personally thinks about legacies or anything else for that matter?  In America, we do not substitute justices’ personal judgments of fairness for the text of the Constitution.

Incredulously, Justice Breyer also argues that racial preferences rise to the level of protecting “life and limb” in America:

JUSTICE STEVENS: No, I -- I think that's your position, is it not? That the only permissible use of race is as a remedy for past discrimination?

MR. KOLBO: I would not go that far, Justice Stevens, there may be other reasons. I think they would have to be extraordinary and rare, perhaps, rising to the level of life or limb. We do know that the Court has recognized past identified discrimination...

JUSTICE BREYER: ...this is an extraordinary need to have diversity among elites throughout the country. That without it, the country will be much worse off. That's what we're being told. In fact, the country might not function well at all. And we have to train those people. We have to. All right, now, how can you say, or can you say, that isn't extraordinary? That isn't a of life or limb for the country? It isn't really that necessary, when so many people are telling us the contrary?

Does Justice Breyer have any sense of proportion? What “life and limb” is on the line?  Nobody is dying.  Contrary to Breyer’s pleading, we don’t have to train anybody since there is no Constitutional right to job training.  And who cares what “so many people are telling us”?  Putting aside the fact that close to 70% of Americans oppose racial preferences, the Supreme Court should not be making decisions based upon what “so many people are saying.”  Their job is to interpret the Constitution as written.

Justice Scalia sums this up perfectly in response to an assertion from University of Michigan attorney Maureen Mahoney:

MS. MAHONEY: ...what the record tells us is that 95 percent of all the admissions decisions that are made each year are not affected by the consideration of race. That the chance -- that there are about 2500 students who are rejected each year probably only 80 of them would have been -- would have gotten an offer of admission from Michigan under a race-blind system. That is a very small and diffuse burden. It's not one to be minimized. It's certainly something that the Court has to pay attention to, but this is extremely limited in scope and relative to the benefits to students of all races and to our Nation.

JUSTICE SCALIA: I don't know any other area where we -- where we decide the case by saying well, there are very few people who are being treated unconstitutionally. I mean, if this indeed is an unconstitutional treatment of -- of this woman, because of her race, surely, it doesn't make any difference whether she is one of very few who have been treated unconstitutionally.

Scalia makes a critical point here—the U.S. Supreme Court should not conduct a cost-benefit analysis to see if the gains from a program outweigh the costs and then decide cases on that basis.  Rather, the Court is supposed to decide Constitutional questions.

Breyer and Ginsburg have no interest in consulting the Constitution to reach their judgment on the matter of affirmative action.  Long ago, they concluded that racial preferences are the “proper” social policy and they will simply work around the Constitution to justify their decision.  Breyer and Ginsburg’s behavior in the Michigan case is a classic example of how liberals view the U.S. Constitution as an impediment to be overcome in implementing their agenda. 

Joseph J. Sabia is a Ph.D. candidate in economics at Cornell University.

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