by JAMES TARANTO
Monday, June 23, 2003 3:42 P.M. EDT

'Affirmative Action' at Midafternoon
Call it a substantial but not total defeat for racial preferences. By a 6-3 vote this morning in Gratz v. Bollinger, the U.S. Supreme Court struck down the University of Michigan's infamous "point system," by which applicants who belonged to certain "underrepresented" ethnic minorities (blacks, Hispanics and American Indians) automatically received 20 "bonus points" in determining admission--which meant that a black B student was considered the equal of a white A student. But in a separate case involving Michigan's law school, Grutter v. Bollinger, a 5-4 majority endorsed the proposition that student-body "diversity" is a "compelling interest" that justifies some use of race in admissions. Only Justices Sandra Day O'Connor and Stephen Breyer voted with the majority in both cases.

Here's how Justice O'Connor, in her majority opinion in Grutter, sums up the difference between the two cases:

Unlike the program at issue in Gratz v. Bollinger, the Law School awards no mechanical, predetermined diversity "bonuses" based on race or ethnicity. . . . The Law School's admissions policy "is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight."

While the law-school policy is not colorblind, O'Connor notes that it "makes clear '[t]here are many possible bases for diversity admissions,' and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields." The undergraduate program, by contrast, "has the effect of making 'the factor of race . . . decisive' for virtually every minimally qualified underrepresented minority applicant," Chief Justice William Rehnquist writes for the majority in Gratz.

Those who favor colorblind policies should not be too discouraged by the ruling in Grutter. Although preference proponents will cheer the establishment of the "diversity" rationale as a binding precedent--previously it had been endorsed only by the late Justice Lewis Powell in University of California v. Bakke (1978)--the practical effect of this pair of rulings will be to scale back the use of racial preferences by public colleges. (Quite possibly by private ones too, since the court held that Michigan's undergraduate admissions preferences violated the Civil Rights Act of 1964 as well as the Constitution.) Schools that have policies more race-conscious than Gratz's but less than Grutter's will have to decide whether to scale them back to avoid being the next test case.

What's more, there's a broader trend away from racial preferences. In the 1980s some universities did not even permit opponents of racial preferences to debate the issue openly. Yet since then preferences have been abolished--by court decision, voter initiative or action by university regents--at public institutions in four states: California, Florida, Texas and Washington. And the court's decision in Grutter foresees the ultimate abolition of preferences. Here's Justice O'Connor:

We are mindful . . . that "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all "race-conscious programs must have reasonable durational limits."

In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. . . .

The requirement that all race-conscious admissions programs have a termination point "assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Justices Ruth Bader Ginsburg and Stephen Breyer, the court's two Clinton appointees, are more cautious, but in a concurring opinion even they go so far as to say: "From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action." While it's not yet dusk, certainly it's no earlier than midafternoon.

Gephardt's Massive Resistance
In what became known as "massive resistance," segregationist Southerners defied the Supreme Court's Brown v. Board of Education ruling. Yesterday Democratic presidential candidate Dick Gephardt vowed that if elected he would defy any Supreme Court decision striking down racial preferences. "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day," Gephardt told a conference of Jesse Jackson's Rainbow/PUSH Coalition.

CNSNews.com reports that at the same conference Gephardt claimed that President Bush heads a "radical extreme administration" that "has sold your government to the special interests of the country."

Dems Gone Wild
The Weekly Standard's David Brooks has a smart piece on the Democrats' increasingly distant relationship with reality. "The Democrats . . . look like they're turning into a domestic version of the Palestinians--a group so enraged at their perceived oppressors, and so caught up in their own victimization, that they behave in ways that are patently not in their self-interest, and that are almost guaranteed to perpetuate their suffering," he writes. The explanation:

Whether it is across the ocean or across the aisle, powerlessness corrupts just as certainly as power does. Those on top become overly self-assured, emotionally calloused, dishonest with themselves, and complacent. Those on the bottom become vicious. Sensing that their dignity is perpetually insulted, they begin to see their plight in lurid terms. They exaggerate the power of their foes. They invent malevolent conspiracy theories to explain their unfortunate position. They develop a gloomy and panicked view of the world.

Republicans are suffering from many of the maladies that afflict the powerful, but they have not been driven into their own emotional ghetto because in their hearts Republicans don't feel that powerful. Democrats, on the other hand, do feel powerless. And that is why so many Democratic statements about Republicans resemble European and Middle Eastern statements about America.

Noting that "fury rarely wins elections," Brooks speculates that if the Dems don't get real, and if the economy improves and the war continues to go well, we could soon see a "sharp political shift toward the Republicans."

How-Weird Dean
The dean of Democratic dementia is officially running for president. In a Burlington, Vt., speech today, former governor Howard Dean shouted at supporters: "You have the power to take our country back! You have the power! You have the power! You have the power!" This came a day after a highly entertaining appearance on NBC's "Meet the Press," in which the wannabe commander in chief was unable to answer when host Tim Russert asked him how many military personnel are on active duty in the U.S. military. It's a "silly" question, Dean answered, "like asking me who the ambassador to Rwanda is."

Dean also claimed that "there's only one person who's contending for the Democratic nominee for president who did serve in the military." Presumably he's referring to Dick Gephardt's service in the Missouri Air National Guard (1965-71). Dean apparently is unaware that another Democratic candidate, John Kerry, also served in the military. He was in the Navy from 1966 through 1970 and the Naval Reserves from 1972 through 1978. He even served in Vietnam. Granted, Kerry doesn't exactly advertise his military service, but you'd think Dean could be troubled to do a little research before he makes statements like this about his opponents.

Another Dean blooper came in the course of outlining a Krugmanic conspiracy theory about the motives behind the Republicans' economic policies:

These tax cuts are incredibly bad for the economy. I believe their purpose is essentially to defund the federal government so that Medicare and Social Security, the icons of the New Deal, will be undone. Karl Rove and others have talked about going back to the McKinley era before there was any kind of social safety net in this country. Really that's what the campaign's about. It's to undo what I consider radical Republicanism.

Dean must be taking history lessons from Wesley Clark. In fact, Medicare was not part of the New Deal at all. It was enacted in 1965, two decades after Franklin Roosevelt's death.

As for Dean's theory about the Republican agenda, it simply makes no sense. It's true that Karl Rove looks to McKinley as an example, but that's because McKinley ushered in a several-decade period of Republican dominance. The GOP held the White House for 28 of the 36 years starting with McKinley's inauguration in 1897. A party can't win that many elections without being popular, and destroying popular programs like Social Security is no way to become popular. What's more, the Bush administration is now proposing to expand Medicare by establishing a prescription-drug benefit. Dean doesn't like the president's proposal, but he says if he were in Congress he might vote for it anyway:

It's clearly an election-year sop, but what Senator [Ted] Kennedy says, and he has probably the most extraordinary record on health care of any United States senator, what he says is this is the opportunity to get this in the door. We know it may not work. But let's do the best we can. And we'll try to fix it later once the entitlement is established.

So Dean accuses Republicans of having a hidden agenda of eliminating entitlements, while openly admitting Democrats have an agenda of expanding them.

Dean also tells Russert that the death penalty isn't a deterrent, except when it is:

I think there may be one instance where just possibly it could be and that's the shooting of a police officer. If you're about to pull a trigger on a guy who's in uniform and you know that you're going to get the death penalty and if you don't pull the trigger something different will happen, maybe that might save the police officer's life.

He adds that "we don't know whether in the long run the Iraqi people are better off" without Saddam Hussein, and says he favors a constitutional amendment to balance the budget even though "it's not very good public policy."

Will the Dems be crazy enough to nominate this guy? If so, it should make for a colorful campaign next year.

I Scream, You Scream, We All Scream for Howard Dean
Ben & Jerry's, the Vermont-based left-wing ice cream chain, is selling a "special sundae" in six Vermont stores today in honor of Dean's presidential campaign. Called "Maple Powered Howard," it "will consist of vanilla ice cream topped with hot maple syrup, maple-flavored whipped cream and walnuts," the Associated Press reports. We're tempted to remark on the appropriateness of honoring Dean with a sap-sweetened snack and leave it at that, but there's a serious question here too: Is Ben & Jerry's complying with all applicable federal regulations governing "independent expenditures" by corporations promoting a candidate for federal office?

Great Orators of the Democratic Party

• "One man with courage makes a majority."--Andrew Jackson
  
  
• "The only thing we have to fear is fear itself."--Franklin Roosevelt
  
  
• "The buck stops here."--Harry Truman
  
  
• "Ask not what your country can do for you; ask what you can do for your country."--John Kennedy
  
  
• "We knew there weren't any weapons of mass destruction. That was a fraud. I've been a mayor of a city, and I understand where the weapons are, Mr. Bush. You come to urban America. We'll show you weapons of mass destruction. Homelessness is a weapon of mass destruction. And joblessness is a weapon of mass destruction. Poor health care is a weapon of mass destruction. And lying to the American people is a weapon of mass destruction."--Dennis Kucinich

Consistently Inconsistent
John Kerry has been all over the map on the liberation of Iraq. He voted for it, then denounced it, then supported it again, the said President Bush had "deceived" him into backing it. But this is nothing new. In the last of a seven-part profile of the haughty, French-looking Massachusetts Democrat, who by the way served in Vietnam, the Boston Globe notes that he did much the same thing 12 years ago during the Gulf War:

After the Iraqi invasion of Kuwait in 1990, Kerry suggested that the United States needed to give Saddam Hussein enough diplomatic "wiggle room" to leave Kuwait without losing face. He then voted against the congressional resolution authorizing military force, but became an enthusiastic supporter of the war as the allied coalition drove to victory in early 1991. His position was so nuanced that his office couldn't keep up with the changes, at one point mistakenly mailing out letters to his constituents that appeared to take both sides in the debate.

On Jan. 22, 1991, Kerry's office sent a letter to a constituent, thanking him for expressing opposition to the deployment of additional US troops in Saudi Arabia and the Persian Gulf. "I share your concerns," Kerry wrote, noting that on Jan. 11 he had voted in favor of a resolution opposing giving the president immediate authority to go to war and seeking to give economic sanctions more time to work.

On Jan. 31, the same constituent received a letter stating that, "From the outset of the invasion, I have strongly and unequivocally supported President Bush's response to the crisis and the policy goals he has established with our military deployment in the Persian Gulf."

Kerry blamed the mix-up on a computer error and subsequently wrote in defense of his position on the Gulf war: "The debate in the Senate was not about whether we should or should not have used force, but when force should be used."

Aren't you glad he cleared that up?

Do as I Say, Not as I Do
Israel struck another blow for Middle East peace Saturday night, killing Abdullah Kawasmeh, head of Hamas's "military wing" in the West Bank, when Kawasmeh tried to evade arrest. The Jerusalem Post reports that Kawasmeh was implicated in at least 35 terrorist murders, and that Secretary of State Colin Powell said of the killing: "I regret we had an incident that could be an impediment to progress."

Meanwhile, London's Observer reports that a U.S. Hellfire missile strike hit a convoy in Iraq last week and may have hit Saddam Hussein and one of his sons. The New York Times, however, reports "some officials were doubtful" that the missiles nailed Saddam. No word from Powell whether the killing of Saddam would be "an impediment to progress."

Don't Know Much Biology
In a publication called Resurgence, one Jane Goodall, "founder of Roots And Shoots, an environmental and humanitarian programme for young people," claims that war is bad for the environment. But how can we believe a word she says when she commits a howler such as this: "People prefer not to know, not to think about such things but rather, like some gigantic flock of ostriches, bury their heads in the sand. As more and more of that sand becomes contaminated as a result of war and the preparations for war, the outlook for the ostriches--and for all life on Earth--will become increasingly desolate."

As Straight Dopester Cecil Adams points out, ostriches do not bury their heads in the sand.

Life Imitates National Lampoon

"Gay Palestinians Attempt to Blow Away Stereotypes, Jews"--headline, NationalLampoon.com, April 4, 2002

"Canada's Gay Muslims Unite to Celebrate Their Faith and Their Sexuality"--headline, Canadian Press, June 18, 2003

Better Late Than Never--II
Once again, we've scooped a New York Times correction:

An article last Sunday about the role of Valéry Giscard d'Estaing in the constitutional convention of the European Union likened it imprecisely to Thomas Jefferson's contribution to the United States Constitution. Jefferson wrote the Declaration of Independence, and many of its elements were incorporated into the philosophy of the Constitution. Jefferson also corresponded with James Madison, a principal author of the Constitution, but did not attend the Constitutional Convention. At the time, he was the American minister to France.

This time, though, the Times was only five days behind us.

Who Knew?
"Study: Discount Hotel Rates Cut Revenue"--headline, Associated Press, June 23

Hey Gents, Can't You Pitch In and Help the Ladies Out?
"Broads Pay for Genetic Institute"--headline, Los Angeles Times, June 20

Street Fight
Al Sharpton is enraged by a compromise the City Council in Lorain, Ohio, a Cleveland suburb, reached on the naming of a local street, the Cleveland Plain Dealer reports. An earlier decision to rename 21st Street after Martin Luther King "brought complaints from residents and businesses about the cost and inconvenience of having to change driver's licenses, insurance policies, stationery and other forms." So the council decided to give the street two names, 21st Street and Dr. Martin Luther King Boulevard.

Sharpton thinks it's an insult to Dr. King to force him to share the street with an ordinal number. In a letter to Lorain's mayor, the novelty Democratic presidential candidate says this "is precisely the kind of second-class treatment that Dr. King fought against his entire life."

If such a vanishingly trivial matter is what passes for a civil-rights battle these days, the Supreme Court is far too pessimistic in thinking we're a quarter-century away from a colorblind society.

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