Courting Trouble

Congress would rather complain about life-tenured federal judges than make recalcitrant bureaucrats enforce the law.

With their compromised budget deal behind them, Republican congressional leaders turned their attention to a refreshingly soft target: the federal judiciary. In mid-May, the House Judiciary Committee's Subcommittee on Courts and Intellectual Property held a hearing on judicial impeachment. The hearing highlighted several instances of judicial misbehavior, but the impeachment advocates' poster child is clearly Northern California District Judge Thelton Henderson, who blocked the voter-approved California Civil Rights Initiative on flimsy constitutional grounds.

The troubling aspect of the impeachment movement is not the saber rattling. It is what this movement says about the willingness of Congress to lead on critical issues. One gets the feeling Congress is taking on the judiciary because, unlike President Clinton and the members of his administration, life-tenured judges tend not to talk back when they come under temporary political fire.

More important, focusing attention on individual judges deflects attention from the fact that in some very critical areas--labor law, environmental law, and civil rights--federal courts have handed down some sound opinions, only to find them all but ignored. If fully implemented, such Supreme Court decisions asCommunications Workers of America v. Beck, Dolan v. City of Tigard, and Adarand v. Peña would restrict the range of federal and local bureaucrats and defund some of the interest groups whose sole purpose is to expand the state. The challenge of implementation lies not in the courts but in the bureaucracies, both federal and local.

On the issue of civil rights, the Clinton administration has done far more to stall the movement to color-blind decision making by government than Judge Henderson, whose restraining order against the CCRI, after all, was overruled by a panel of three appellate judges. (The CCRI is still not in effect though, as it is stayed pending a decision on whether the panel's decision will be reviewed by a majority of the 9th Circuit.) If Congress truly cares about this issue, it has two fronts on which to advance. It could hold oversight hearings to scrutinize the Justice Department's interpretation of recent federal court decisions. It could also pass legislation to clarify the meaning of the 14th Amendment's Equal Protection Clause.

While Henderson is certainly a speed bump on California's highway to color-blind law, in recent years the U.S. Supreme Court has supported the idea that governments should not categorize people by race. In 1989, the Court ruled in Richmond v. Croson that the city of Richmond's 30 percent set-aside for minority contractors was unconstitutional. Finding the program grounded more in power politics than past discrimination, the Court ruled that any government program using race as a decision making factor must pass the judicial test of "strict scrutiny." This means that the government must prove a "compelling interest" in using race based on past discrimination rather than unequal societal outcomes. Any anti-discrimination program must also be "narrowly tailored" to meet its ends, limited in both scope and time. Croson applies these criteria only to state and local governments.

In June 1995, a few months after Republicans took over Congress, the Supreme Court extended the principles it laid out in Croson to the federal government in Adarand v. Peña. "All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny," wrote Justice Sandra Day O'Connor for the majority. In his concurring opinion, Justice Antonin Scalia emphasized the universality of American citizenship. "Under the Constitution there can be no such thing as either a creditor or a debtor race," wrote Scalia. "We are just one race in the eyes of government."

Less than a year later in March 1996, the U.S. Court of Appeals for the 5th Circuit declared the University of Texas Law School's racial admission system unconstitutional in Hopwood v. State of Texas. In this case, the court applied the strict scrutiny test to higher education admission policy and found "no compelling justification, under the Fourteenth Amendment or Supreme Court precedent, that allows [the University of Texas] to continue to elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body." Hopwood removed the foundation on which affirmative action in higher education rests: the need for diversity. The Supreme Court refused to hear the case on appeal, making Hopwood the law in Texas.

The courts have provided Congress with both the tools and the rhetoric with which to make significant progress on restoring universal civil rights. And while Congress has done precious little with them, the White House has executed an end run around these decisions.

At the time, Adarand was seen as a major setback for the quota establishment, but the Court did not entirely rule out the possibility of racial preference programs. O'Connor wrote, "It is not true that strict scrutiny is strict in theory but fatal in fact." Nearly two years later, strict scrutiny has in fact rarely been fatal. Of the 160 programs the Congressional Research Service identified as using race preferences in February 1995, only one has been ended in the wake of Adarand. In May, the Justice Department published its proposed regulations to bring the government into compliance with Adarand. These regulations were so tepid, says Clint Bolick, director of litigation at the Institute for Justice, that they wouldn't end a single program.

It isn't surprising that Adarand spurred little change. "The notion that what the Court says is the last word is completely wrong," notes Abigail Thernstrom, senior fellow at the Manhattan Institute. "What the Court says 10 times in 10 decisions in strong language starts to become the law," but the process is faster if those who enforce the law support those decisions. Unfortunately, the Clinton administration has turned over its policy to a civil rights establishment that will fight Adarand and its progeny to the death.

When exposed to the public, Clinton's "extend it, don't end it" policy on affirmative action has been singularly unpopular. This makes Congress's lack of a broad agenda in this area--and its reticence to expose the administration's actions--all the more troubling.

Consider the resistance Norma Cantu, picked to be the head of the U.S. Department of Education Office for Civil Rights, faced when she tried to unilaterally overrule the Hopwood decision. In March, Cantu put Texas officials on notice that Hopwood was binding only on the University of Texas Law School and that other state-run schools in Texas risked losing $500 million in federal funding if they didn't maintain racial preference programs. Cantu based her edict on the Clinton administration's policy of "nonacquiescence."

William Kanter, deputy director of appellate staff in the Justice Department's civil division, described this position in a letter to an appellate court clerk: "[T]here is no constitutional requirement or any other inflexible rule that a federal agency must apply the legal principles announced in a court of appeals decision to the administration of a statutory program, either generally or in matters arising in that particular circuit." In other words, Clinton's regulatory bureaucracies appear to believe they are not bound by appellate court decisions, even in the circuit in which they are handed down. Kanter noted that the "Acting Solicitor General...agrees with the positions taken in the letter."

Cantu's attempt failed. After stories on her edict appeared in The Chronicle of Higher Education, The New York Times, and The Wall Street Journal, public outrage and attention from the Texas congressional delegation, including a promise by Sen. Phil Gramm (R-Tex.) to examine her budget, forced a reversal. On April 10, Walter Dellinger, the acting solicitor general, instructed the Office of Civil Rights that "the Hopwood panel decision is binding in the Fifth Circuit."

Dellinger's letter, however, raises a conflict that Congress would do well to look into. Kanter's position is that circuit court decisions aren't binding on federal agencies. But when Cantu applied this logic to a highly charged issue in Texas, she was instructed by Dellinger that this was not the policy. The question remains whether Dellinger's letter represents a one-time reversal or a change in policy.

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