Hardship turned into hope in a federal courtroom for the backers of California's Proposition 209, who must defeat an ACLU-led legal challenge for the initiative to take effect. On February 10, a randomly drawn panel of three judges heard a challenge to District Judge Thelton Henderson's preliminary injunction against Proposition 209. (See "Treaties or Equal Treatment," Citings, April.) The judges' questions indicate that they are skeptical of the ACLU's claim that Prop. 209 is unconstitutional because it alters the political process to make it harder for minorities to secure preferences while doing nothing to prevent government from setting up preferences for veterans and the poor.
Judge Andrew J. Kleinfeld pressed ACLU attorney Mark Rosenbaum on this issue of political potency. "In any jurisdiction other than a mining camp," Kleinfeld stated, "women are a majority, and women and minorities combined are certainly a majority of voters." Kleinfeld also asked Rosenbaum at what point would it be permissible for the voters of a state to determine that racial preference programs had outlived their usefulness. Rosenbaum responded that "the people of California are not entitled to make [that] decision–that is for the courts."
It sounds like we have "government of, by and for the people" replaced with "government of the people by those with the highest LSAT scores," Kleinfeld retorted.
Defenders of Prop. 209 are cautiously optimistic about the panel's ruling. "The hearing gave us some reason to believe that the judges have been persuaded by our position," says Prop. 209 co-author Tom Wood. (For continuing updates on Prop. 209's progress, see the Prop. 209 Watch reports filed by Manny Klausner for Reason Online.