Well, unlike Solomon, Justice Sandra Day O'Connor wasn't in the awkward position of slicing one baby in half. With the University of Michigan cases she was fortunate enough to have twins to help her split the difference.
Make no mistake here: Even though O'Connor and Chief Justice William Rehnquist split the opinion-making in the two University of Michigan cases, O'Connor was clearly the spiritual parent to both. The Grutter case involving the University of Michigan's law school, was written by O'Connor; this decision was decided first and released first. The Court, being reasonably politically aware, must have known what the public reaction would be to headlines reading, "Affirmative Action Upheld."
Clearly what swayed O'Connor is the fact that, controversial or not, our society's "establishment" has made its peace with affirmative action. "Diversity," regardless of what many conservatives or libertarians might prefer, is not merely the law of the land—it has become the cultural ethos of the land. When the court is flooded by amicus briefs from members of the military and corporate America in support of keeping affirmative action, it's pretty clear which way the wind is blowing.
Lewis Powell's lonely observation twenty-five years ago, when he decided that diversity could be a compelling interest, has become the zeitgeist and was vindicated by Sandra Day O'Connor's court yesterday.
Question O'Connor's legal consistency all you want, but she is nothing if not a crafty politician. She wrote a political decision. She also found four other justices who were prepared to do what only Lewis Powell was willing to do a quarter century ago—say that diversity was a compelling interest in society. On the other, she put up a "Stop" sign for an explicitly numerical approach to admission. But then again, in a statement that shouldn't be too heartening to proponents of racial preferences, she declared that there is a time limit on the diversity apparatus: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
If Lewis Powell was being elliptical in his decision a quarter century ago, O'Connor is direct here. The clock is ticking on the diversity industry. It's up to liberals and civil rights activists to figure out how to address minority under-achievement in education over that time.
So what do the conservatives do? They are fired up at O'Connor's seeming betrayal (which will make them even more energized when the next Court opening comes up). But, the truth is that they are very much alone here. While most whites oppose racial preferences—especially when nightmares like Jayson Blair pop up—in general, "diversity" is supported across society.
Many, though by no means all, conservatives, seem more concerned that a black kid in college has no business being there rather than that he is there.
Clint Bolick and the Institute for Justice, are of course, notable exceptions: In addition to fighting quotas, IJ has spent years pushing school vouchers to free black kids from a public school system that is destroying them and assisting black small business owners blocked by various municipal regulations. Unfortunately, Bolick seems alone in crusading for both sides of the Inclusion Principle.
So, the rest of the conservative movement will likely just spend several years trying to bring O'Connor's imagined quarter-century to a much earlier end.
Of course, the people happiest with yesterday's rulings—aside from Democrats and civil rights leaders—would have to be George W. Bush and Karl Rove. Many Republicans believe that 1989's Casey Supreme Court decision putting restraints on abortion may have fired up feminists and suburban women in 1992. The last thing Republicans wanted was minority Democrats having a passionate desire to come out and vote in droves in 2004. This decision will not drive Democrats to the polls.
That's why one could find nary a word of criticism in Bush's statement. Further, in a tip of the cap to O'Connor, "diversity uber alles" was Bush's theme:
"I applaud the Supreme Court for recognizing the value of diversity on our nation's campuses. Diversity is one of America's greatest strengths. Today's decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law."
If not standing up for principle, at least O'Connor and Bush are standing up for reality. Diversity as a compelling interest? It's something that has been understood in the context of the politics of the Court for decades. It's why there is a so-called "Jewish" seat. It's why a black conservative (Clarence Thomas) replaced a black liberal (Thurgood Marshall).
For Republicans to pretend otherwise insults the intelligence. (Indeed the cynicism of the GOP can be awesome to behold. The 1996 Republican convention 1996 featured a well-placed black child with AIDS. At the 2000 convention, the stage was filled with black people. Meanwhile, political operatives wistfully ruminated that Bush's 1992 loss prevented the rise of a ticket that "was supposed to be Quayle-[Clarence]Thomas.")
If today's Democrats use race, i.e. charges of racism, as a club, today's Republicans use it as a shield. Last year, when asked by a reporter about NAACP criticism on his commitment to civil rights, Bush responded brusquely, "Let's see: There I was, sitting around … the table with foreign leaders, looking at (Secretary of State) Colin Powell and Condi (National Security Advisor Condoleezza) Rice." Bush feels that appointing blacks in prominent positions protects him from criticism on civil rights grounds.
Which is probably what more than a few business leaders feel as well.
Of course, diversity is a compelling force in society. Even the Republicans play it.
The Republican National Committee, of course, employs a regular supply of racial outreach staffers (including, at one time, this writer) to help expand the party. They are given tasks such as calling black members of the press (including this one a week or so back) to see if the reporter would like to be made available for media inquiries when the University of Michigan inquiries came down.
Cognitive dissonance? Not in politics.
After the Trent Lott fiasco, Republicans scurried around to distance themselves from their fallen comrade while showing that they were "down" with the cause of inclusion. House Majority Leader Tom DeLay, probably one of the members most opposed to affirmative action, held a press conference where he proudly showed off resumes of black Republicans and pledged to bring more minorities on staff.
Of course, his comment, "One of our problems was, in the hiring of African-Americans, we can't find good conservative African-Americans to work for us," suggested that he still had a way to go. The statement may have been factually true, i.e., there aren't many blacks signing up for Republican campaigns, but it was a little to close to "good help is so hard to find these days."
George W. Bush wants to be a different kind of Republican—which is to say, a JFK/LBJ Democrat. Though he announced his opposition to the University of Michigan programs on Martin Luther King's birthday (awkward timing that), he enthusiastically endorsed the rulings that came down.
What else could he do? Sunday's Washington Post reminded voters that, "In 2002…the White House and the national party committees told GOP candidates that if they wanted to receive financial and other assistance, they had to include in their campaign plan a commitment, backed up with money, to bid for the Latino vote, including the use of Spanish-language media where possible. The same will be true in 2004."
Recall that this is the same Republican Party that pushed English as the U.S. official language just a few years ago. But now, under George W. Bush, it has, dare we say it, a compelling interest in appearing diverse.
Just like academia.
Just like the military.
Just like corporate America.
Just like the Supreme Court.
It's Sandra Day O' Connor's world. The rest of us are just trying to figure out how to live in it.