Conservatives deride racial diversity and detest affirmative action, as attested by their sputtering outrage at the Supreme Court’s Michigan decisions. And conservatives despise “litmus tests” for court nominees, as they protest whenever liberals venture to apply them. These unbending principles can never, ever be abandoned-except, of course, when upholding them becomes politically inconvenient.
Indeed, as the Republican right anticipates the potential High Court vacancy that could be contested this summer, those principled activists are preparing to deploy their own perverse version of diversity, as well as their own strict litmus test. What they will demand from the White House is a black or Latino candidate who can be depended upon to rule against affirmative action in any form.
The misuse of racial politics for cynical court-packing is an old story, dating back to 1991, when the previous President Bush nominated Clarence Thomas to the top bench. Everyone understood that Mr. Thomas, a figure of no great distinction, had been hand-picked due to a happy coincidence of skin color and political coloration. Although he had benefited from affirmative action throughout his career, Mr. Thomas had since displayed his eagerness to deprive others of the means by which he had advanced.
At the time, columnist George Will confessed: “Trashing the truth is now so natural in Washington that there were only worldly smirks and shrugs when George Bush began the Thomas saga by saying two things he and everyone else knows are untrue-that Thomas is the person best-qualified for the Supreme Court, and that his race was irrelevant to his selection.”
What the Thomas saga proved is how easily expedience trumps principle. More recently, the Republicans have repeated the Thomas ploy by promoting Hispanic nominees for district and appellate court seats-and abruptly screaming “racism” whenever anyone questions their qualifications or positions. By nominating Miguel Estrada to the federal bench, for instance, the Republicans meant to intimidate Democrats and attract Hispanic voters.
Such calculations once spurred predictions that President Bush would name his friend and counsel Alberto Gonzales to the Supreme Court someday. But as the author of the administration’s “moderate” brief in the Michigan cases, Mr. Gonzales has suddenly become the scapegoat for conservative fury over the outcome of those decisions.
As right-wing legal activist Clint Bolick explained to The New York Times after the Michigan decisions were announced, “Conservatives will want to make sure that anyone appointed to court in this administration is a strong and sure opponent of racial preferences.” According to The Times , Mr. Bolick noted that “many do not believe that Mr. Gonzales fits that description”-which is another way of saying that Mr. Gonzales cannot pass the right’s litmus test.
(Instead, the right is currently boosting Janice Rogers Brown, an African-American conservative from California.)
When Bill Clinton was President, he acknowledged the difficult balancing inherent in any effort to undo the effects of past discrimination at the expense of current generations. His approach-“mend it, don’t end it”-resembled the court’s Michigan decision in rejecting numerical formulas while preserving the goals of diversity and minority advancement.
It’s easy enough for the denizens of right-wing think tanks and subsidized magazines to denounce diversity as a liberal “sacred cow.” After all, nobody cares whether the American Enterprise Institute or The Weekly Standard remain lily-white. But as the Supreme Court must have noticed in reaching the Michigan decisions, significant American institutions from the Fortune 500 to the U.S. armed forces need to look like America at all levels-and have benefited from their dedication to that ideal. The court’s majority could not ignore that “compelling interest” in deciding the Michigan cases.
The problem that Mr. Bolick and his conservative comrades consistently fail to acknowledge is the persistence of racism in American life. If their dismay about the application of ethnic criteria by universities and other institutions is sincere-and not merely an appeal to divisive emotions-they ought to be devising other, better means to eradicate inequality. Yet their feeble gestures in that direction, notably school vouchers and enterprise zones, are consciously designed to achieve other conservative goals, such as busting teachers’ unions or cutting corporate taxes.
Meanwhile, the right’s demand that merit must always rule is actually quite selective, and not only in the case of Justice Thomas. There is no right-wing movement against geographical preferences, or alumni legacies, or athletic scholarships, or favoritism toward wealthy donors. Only blacks, Latinos and Native Americans must be excluded, it seems, on the basis of their test scores.
In her majority opinion, Justice Sandra Day O’Connor laid down a challenge to the nation, and especially to her fellow conservatives. A quarter-century from today, she hopes that affirmative action will no longer be needed to realize “the dream of one nation, indivisible.” That would require a commitment to equality-and to providing the necessary resources-that this President and Congress cannot even imagine.