by JAMES TARANTO
Monday, January 20, 2003 11:54 A.M. EST

The Greenhouse Effect--I
Last Wednesday President Bush made a tough speech arguing against racial preferences and announcing that his administration would weigh in on behalf of plaintiffs challenging the University of Michigan's admissions policies in a pair of Supreme Court cases. On Thursday Solicitor General Theodore Olson filed the briefs in the cases of Gratz v. Bollinger (undergraduate) and Grutter v. Bollinger (law school). On Friday the New York Times published a "news analysis" in which Supreme Court reporter Linda Greenhouse claimed that "the reality of [the brief's] legal argument diverged substantially from the rhetoric of the president's prime-time statement." The administration, Greenhouse suggests, pulled a fast one on its conservative supporters.

Well, over the weekend we sat down and read the the Grutter brief (link in PDF form), and we're pleased to report that the delightfully named Greenhouse is full of hot air.

Here's her argument:

True to [President Bush's] promise, the briefs did ask the court to declare unconstitutional the undergraduate and law school admissions programs in dispute. But it did so by means of a legal analysis that, far from insisting that any consideration of race was impermissible, did not even ask the justices to overturn the Bakke decision, the 1978 landmark ruling that by allowing race to be used as a "plus factor" ushered in a generation of affirmative action in public and private college admissions.

It was as if the administration had filed a brief denouncing abortion without asking the court to overturn Roe v. Wade.

"In the end, this case requires this court to break no new ground" in order to hold the law school's admissions policy unconstitutional, the administration said.

That's the extent of her legal analysis; the rest of the piece consists of speculation about the motives behind the administration's purported two-faced approach to the case.

Greenhouse's analysis is laughable. When the administration says that the case requires the court "to break no new ground," that just means it's basing its argument on existing Supreme Court precedent. And it's true that the administration doesn't ask the court to overturn Bakke. Indeed, it cites that 1978 case repeatedly in support of its argument. But why would Greenhouse expect otherwise? After all, in Bakke the court came down on the same side the administration is taking now. It struck down the University of California's race-based admissions policy.

Greenhouse doesn't seem to have interviewed any conservative legal activists for this story. If she had, she would have learned that some are indeed disappointed in the brief, because the administration stops short of denying that "diversity" is a "compelling interest" that can justify the use of race in university admissions decisions. Terry Eastland is among those making this case.

It turns out, however, that there's less to this conservative complaint than meets the eye.

On page 14 of the brief (page 15 of the PDF document), the administration takes note of the law school's claim that diversity is a compelling interest. Two pages later, the brief declares:

Ensuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.

It sounds as if the administration accepts the argument that diversity is a compelling interest. But it's unclear if "ensuring" that institutions are "open and available" is the same as "diversity," and while "paramount government objective" sounds like roughly the same thing as "compelling interest," it's actually an evasion, a phrase devoid of legal meaning, as blogger Josh Chafetz points out in a valuable analysis.

The administration thus takes no position--at least so far--on whether diversity is a compelling interest. Instead, it bases its case against the Michigan admissions policy on two arguments:

1. Even when trying to achieve a "compelling interest," a government agency cannot take race into account unless it does so in a "narrowly tailored" way and--crucially--unless there are no "race-neutral alternatives."
   
   
2. Even if the interest is compelling and race-neutral alternatives nonexistent, "quotas" are still unconstitutional. The Michigan plan explicitly seeks to enroll a "critical mass" of students from particular ethnic groups, a quota all but in name. (The university, of course, denies that a "critical mass" is a quota.)

These arguments rest on well-settled Supreme Court precedent, and they ought to be sufficient to strike down the Michigan policy. The administration's conservative critics, however, contend that these arguments are insufficient because they fail to knock down "diversity" as a rationale for racial preferences.

Yet the brief does challenge the idea of diversity, albeit slyly. For Ted Olson has hidden an Easter egg at page 24: "Although respondents [the University of Michigan] have not been clear about what they mean by diversity, we assume that they are not pursuing racial diversity for its own sake." That's actually not true; the University of Michigan brief acknowledges that the policy's aim is "to achieve meaningful racial diversity in its student body." But that admission runs afoul of Justice Lewis Powell's deciding opinion in Bakke, which Olson's brief quotes: "Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake."

The implication is that while diversity of some sort may be a compelling interest (then again, it may not), racial diversity not only is not compelling; it is illegitimate. Thus the only thing the brief concedes--and concedes by omission, not explicitly--is that promoting diversity of something other than race may be a compelling interest that would justify taking race into account (but not using quotas) if there's no race-neutral way of achieving the same goal. To put it more simply, the use of race in university admissions is constitutional (if ever) only if it is the only means to a nonracial end--which seems close to a logical impossibility.

In Bakke, Justice Powell managed to come down on both sides of the diversity question. While he rejected racial diversity "for its own sake," he also maintained that "racial or ethnic origin" was an "important element" of "the diversity that furthers a compelling state interest." It is upon the latter of these logically contradictory propositions that a quarter century of justifications for racial preferences in higher education have been built. That's rather amazing when you consider that these were the views of one man only; not a single other justice joined the portions of Powell's opinion dealing with diversity.

That's why the Bush administration isn't asking the court to "overturn Bakke." On the central issue in question, whether diversity is a compelling interest, there is no precedent to overturn. In any case, Justice Powell's view collapses under the weight of its own illogic. The Supreme Court may not accept every element of the administration's argument, but if it does, conservatives will have won a total victory.

White With Fury
Boston Globe columnist Derrick Jackson weighs in on the Michigan case:

Bush's effort is so special that this may very well be the first Martin Luther King. Jr. birthday during which the loudest celebrations come not from black churches and integrated downtown breakfasts but from the hallways of segregated suburbia to the romantic enclaves of the Confederacy. Finally for them, this is the day to shout "We Have Overcome." This is the day that a lot of God's white people--Jews and Gentiles, Protestants and Catholics--are holding hands and singing in the words of their new spiritual, "Free at last, free at last, thank God almighty, we are free at last!" . . . Lying is all Bush can do now that he has decided to make the White House the national headquarters of the NAACP--the National Association for the Advancement of Caucasian People.

The objections to this are too obvious to enumerate. But there is something slightly daring about the way in which Jackson approaches the issue, for he violates what surely is the first rule of debate over American racial issues: Always seek the moral high ground. Those who argue for preferences and those who argue against them usually cast their argument in terms of grand principles (equality, justice) or of outcomes no one could be against (diversity, opportunity). You're supposed to accuse your opponent of racism; if you harbor racial resentments, you keep them to yourself.

To be sure, these rules don't apply evenly. A white opponent of racial preferences could never write about blacks for the mainstream media the way Jackson, a black proponent of preferences, writes about whites. Such a double standard is entirely understandable, and it's worth noting that it hasn't always been this way. It used to be white racists who expressed their resentment openly, as when Strom Thurmond declared, during his 1948 presidential campaign: "All the laws of Washington and all the bayonets of the Army cannot force the Negro into our homes, our schools, our churches."

The civil-rights movement overcame not only the segregationist laws Thurmond was defending but also the attitudes he embodied. Thus hardly anyone defended Trent Lott last month, when he implicitly endorsed Thurmond's 1948 views. Meanwhile, a black columnist for a major newspaper is free to indulge in hate-whitey rhetoric. We don't mean to draw an equivalence between Jackson and Thurmond; while the latter was defending an abominable, oppressive system, the former is more of a crank than a menace. But it's certainly a measure of how much the country has changed.

Duke U: Terrorists Have Rights Too!
A truism about American higher education is that when university officials aren't suppressing free speech, they can usually be found invoking it to deflect criticism. Duke University has officially responded to our Thursday item noting that its African and African-American studies program will be providing a forum to terrorist Laura Whitehorn, who bombed the U.S. Capitol in 1983 and subsequently spent 14 years in prison. The statement from Duke flack David Jarmul is oh so predictable:

Duke does not exert control over or pressure its faculty and departments in their selection of campus speakers. One of our nation's greatest values, and one we at Duke celebrate, is the freedom for people to express their thoughts openly. Students, faculty and other members of the Duke community benefit from hearing and debating a wide variety of ideas. We have confidence in the ability of the members of our community to analyze and critique the arguments they hear, an activity that is central to democracy, and to universities in particular.

Duke hosts speakers with a wide array of views. During the week Ms. Whitehorn will appear, for instance, it will also hold campus events on topics ranging from spiritual responses to environmental problems to intellectual property in cyberspace. Some speakers may hold views that others consider too radical or tainted to be provided a forum. Nonetheless, Duke remains committed to the academic freedom that has contributed so much to the traditions and strength of our nation.

Of course, no one is objecting to the "freedom for people to express their thoughts openly." Laura Whitehorn, a felon who has served her time, is entitled to exercise her right to free speech. The issue is whether it is appropriate for a prestigious university to provide a forum to a violent criminal who is, by all accounts, totally unrepentant. Jarmul's statement explains that Whitehorn "was invited to speak about HIV/AIDS in prisons." A worthy topic, no doubt--but couldn't Duke have found someone knowledgeable on the subject who isn't a terrorist?

We have won a small victory. The African and African-American studies program has changed its description of Whitehorn in its announcement of her appearance. Originally, as we noted, it described her as having been a "political prisoner." The new version tells the truth: "Laura Whitehorn spent more than 14 years in federal prison for her role in planting a bomb in the U.S. Capitol building in 1983."

We hadn't made the connection until a reader reminded us, but one of Whitehorn's partners in crime, Linda Sue Evans, was among the recipients of 11th-hour clemency from Bill Clinton. "I'm not repentant, that's for sure," she remarked after winning her freedom, as we noted in April 2001. Evans printed fake IDs that enabled the bombers to buy explosives. As far as we know, she has not yet been invited to speak at Duke--a mere oversight, we're sure.

289 Million Americans Back War
Saturday was a big day for those of us who favor the liberation of Iraq. "Anti-anti-war demonstrators gathered in grocery stores, shopping malls and private homes to proclaim their disagreement with protestors marching in the streets of Washington D.C. and San Francisco," ScrappleFace.com reports. "Police across the nation estimate the crowd that avoided [Saturday's] anti-war demonstrations at about 289 million."

No disturbances were reported. "It was a normal Saturday in America," one law-enforcement officer tells ScrappleFace.

The liberal media, however, chose to cover the tiny pro-Saddam demonstrations instead. According to the Washington Post, turnout at the Washington rally, sponsored by the communist front group International Answer, was somewhere between 30,000 and 500,000. Even if you accept the implausible estimate of half a million, that's still a mere 1/578th of the turnout for the pro-war demonstrations--surely within the margin of error, meaning that it's statistically possible no one showed up to the "antiwar" rallies.

Even so, according to Reuters, "President Saddam Hussein hailed worldwide anti-war demonstrations on Saturday and said the protests showed that Iraq had international support for standing up to the United States."

How to Keep a Secret
"America's Ultra-Secret Weapon," reads the headline of a Time magazine article. We won't describe the weapon in question--after all, it's a secret--but it seems to us this is a big embarrassment for Time magazine. If the weapon is still a secret even after Time magazine has published an article about it, that means no one reads Time magazine. Then again, maybe it's not such an embarrassment. If no one reads Time magazine, then no one will see this article.

The Lunatics Are Running the Asylum Policy
"A Taliban soldier who fought British and American troops in Afghanistan has been granted asylum here because he fears persecution from the new Western-backed government in Kabul," London's Daily Telegraph reports.

The Moral Authority of the United Nations
Reuters reports that the U.N. Human Rights Commission has elected a new chairman--Najat al-Hajjaji of Libya. That's right, Libya, a country still subject to U.N. sanctions because it blew up an American commercial plane back in 1988. Normally the chairmanship rotates among the world's regions; Africa's turn was up, and its delegates settled on Libya. In an unusual move, the U.S. forced a vote, which came out 33-3 in favor of Libya, with 17 abstentions. (The ballot was secret, but three cheers for Canada, which announced beforehand it would vote with America.) As America's Ambassador Kevin Moley said, "This is not a defeat for the United States, this is a defeat for the Human Rights Commission."

An earlier Reuters dispatch reported that "Asian and Middle Eastern states are increasingly opposed to the singling out of states for criticism" by the commission. Does this mean no more ritual denunciations of Israel? Don't hold your breath.

You Don't Say--I
"Anti-Semitism Rears Its Ugly Head in Europe"--headline, WorldNetDaily, Jan. 13

What Kind of Girl Do You Think I Am?
"Saudis are increasingly debating the phenomenon of spinsterhood, with the number of unmarried women in the Kingdom estimated to be as high as 1.5 million," the Arab News reports. "The local media have sounded the alarm bells and called on the authorities and community leaders to address the issue."

The answer, according to "50 Saudi female intellectuals and educationalists"? "They advised Saudi families--and women in particular--to accept a more modest dowry." It reminds us of an old joke. You've no doubt already heard it, so we'll just cut to the punch line: "We've already established that; we're just haggling over price!"

Homer Nods
In a Friday item, we misstated the name of a group responsible for an illiterate online conference itinerary. It's the Union of Arab Student Associations, not American. We've corrected the mistake.

You Don't Say--II
"Cuban Election a One-Horse Race"--headline, Australian Broadcast Corp., Jan. 20

Red Alert
"Director Oliver Stone is set to screen 'Comandante,' his documentary tribute to Cuban dictator Fidel Castro at the Sundance Film Festival in Park City, Utah, this week," reports WorldNetDaily's Joseph Farah.

Gee, what's next for Stone, a Yasser Arafat biopic? Well, actually, yes. Farah says the director is in fact at work on a movie about the 1994 Nobel Peace laureate. Seriously, this isn't a joke.

Say What?
"Bush Fires Rage in Australian Capital, One Dead"--headline, Reuters, Jan. 18

Metaphor Alert (R.)
In an article on Sen. Chuck Schumer (D., N.Y.), the New York Observer quotes Republican strategist Rick Wilson (italics ours):

"Maybe this strengthens Schumer in New York, where you have an audience that's somewhat receptive to that sort of incendiary, chest-beating liberalism. . . . I think the Democrats are just looking for any port in a storm right now as far as what they can do to re-energize their base. Certainly one of the most parochial issues for them is race. Now they're trying to characterize this guy--because he opposes their precious racial set-asides--as David Duke. But for the average American, the ungodly esoterica of Charles Pickering is unlikely to cut one way or another."

Metaphor Alert (D.)
CBSNews.com quotes Democratic strategist Donna Brazile on a prospective presidential candidacy of erstwhile senator Carol Moseley-Braun (again, italics ours):

"The Democratic Party is running on the same tank of gas we had in 1992. We have not broadened the electorate. . . . She could excite the Democratic base in ways that it has not been excited."

You Don't Say--III
"Campaign Trail Finds Sharpton Critical of Bush"--headline, Eagle-Tribune (Lawrence, Mass.), Jan. 18

You Don't Say--IV
"Bush Set to Pick Conservative for Supreme Court"--headline, NewsMax.com, Jan. 20

The Greenhouse Effect--II
A Boston Globe editorial beating the dead horse of Kyoto makes the odd claim that "global warming extends the areas of high risk for skin cancer." How could this be true even if global warming is real? Skin cancer is caused by sunlight--specifically, ultraviolet rays--not heat.

Guns Don't Kill People, Cars Kill People
"Woman Shot in the Neck by Passing Car"--headline, Newsday.com (Long Island, N.Y.), Jan. 17

Bum Taxonomy
"Cops Arrest 2 Transients in S.J. Killing of Homeless Man," reads a headline in Saturday's San Jose Mercury News. Is a "transient" just a "homeless" person who's committed a crime?

Not Too Brite--XLVII
"Britain's High Court on Thursday jailed a bungling hitman who agreed to kill a businessman in return for $160 and an old car--but confused the address and shot the wrong man," Reuters reports from London. "Paul Jones, 41, ended up shooting and severely wounding his intended victim's next-door neighbor Ernest Broom." Oddly Enough!

You Don't Say--V
"Failure to Pay Property Taxes Could Lead to the Loss of Your Home"--headline, South Bend (Ind.) Tribune, Jan. 20

Mike Bloomberg's New York
With New York City facing a fiscal crisis and graffiti having returned to the subways, Mayor Mike Bloomberg knows what his priorities are. "Bloomberg is fuming mad over Rolling Stones members smoking on stage at Madison Square Garden during an nationally televised concert this weekend," according to the Drudge Report. "HBO cameras captured band members Keith Richards and Ron Wood smoking cigarettes while performing," Drudge reports:

"The mayor sent cops to issue summonses," one stage source told the Drudge Report late Saturday. "But the cops watched the show, off stage, by a monitor, instead of stopping the concert." . . . "The band raced out of the Garden after they finished their last number, avoiding the police," an insider said. "The music had not even finished playing; and they were in cars already, spinning away. They did not even go to their dressing rooms!"

The Clinton Legacy
Ronald Barker of Escondido, Calif., has been convicted of "conspiring with his girlfriend to kill her boss after she slept with the boss on a date, a crime the prosecutor called 'the worst kind of territorial marking,' " reports the San Diego Union-Tribune. Barker, 38, shot David Stevens to death more than three years ago, but the crime went unsolved until the girlfriend, Ny Nourn, now 20, made a videotaped confession to police. Nourn is to go on trial this week; Barker acted as his own lawyer:

Although Barker admitted his role in the killing to police, at trial he said he was tricked into giving a false confession.

"Let me remind you of a statement," Barker told the jury in an effort to demonstrate that police are capable of lying. " 'I did not have sexual relations with that woman.' The man who made that testimony was the highest official in the United States of America."

Speaking of Bill Clinton, London's Guardian reports that Gerhard Schroeder, Germany's chancellor, "was last night said to be seething over a British Sunday newspaper's blatant defiance of a court order issued in Germany forbidding it to repeat claims about his private life." The Mail on Sunday picked up reports that Schroeder was having an extramarital affair; the chancellor argues that the German court's order, based on his country's strict privacy laws, applies throughout the European Union.

Good thing the Europeans are so sophisticated about sex, or this would be a really messy affair.

(Elizabeth Crowley helps compile Best of the Web Today. Thanks to Steven Platzer, Jerry Skurnik, Ralph Drury, T. Young, Tom Jackson, Chuck Muth, Michael Segal, Greg Reynolds, Robert LeChevalier, A. Gill, S.E. Brenner, Irene Margolin-Katz, Jon Kirk, Howard Weiser, Chana Lajcher, Mikael Nussdorf, Barak Moore, David Cushing, Neil Levine, Naftali Friedman, Joel Goldberg, Jim Cole, Craig Renner, Crampton Helms, Emily Cochran, Eric Jones, Harvard Fong, Dave Lister, Patrick Landa, Victor Spassov, Julian Cangelosi, Devon Swann, Rex Pilger, David Kaufman, Art Metz, Kurt Fletchner, Steve Stewart, Steven Rosenberg, Randy Bayuk, Lewis Chilton, Jon Fabian, Brian Schneider, Lisa Tetzlaff, Rosanne Klass, Frank Mangan, Bob Jacobsen, Tom Linehan, Greg Griffith, Dave Anderson, George Lenz, Dan Carter, Aviva Ross, Andrei Muresianu, Ed Morrissey, Tom Linnard, Michael Marz, Steve Campbell and Erik Fortune. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)

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