Do my ears deceive me or do I hear a certain grumbling among conservatives about President Bush's intervention in the University of Michigan affirmative-action case?
Conservatives were surely pleased by the decision to intervene itself. Bush condemned the University of Michigan's racial preferences as unconstitutional--and announced that his administration would file a friend-of-the-court brief saying so. The final word in the case, formally known as Grutter v. Bollinger, will of course be pronounced by the Supreme Court. But solicitor general Theodore Olson has an awfully good win-loss record before this court. By ordering Olson to go argue against the university, Bush has made it just that much more likely that the good guys will win this fight. So why the grumbling?
Well, first there was the statement Bush issued. In twelve paragraphs, he managed to use the words "diverse," "diversity," and their cognates ten different times. "Diversity" is one of those words (like "compassion" or "infrastructure") that are often used as code for something ugly (racial quotas, in the case of "diversity," welfare-state spending in the case of "compassion," public-works boondoggling in the case of "infrastructure"). Very understandably, conservative ears twitch when they hear such words coming from the mouth of a Republican president. Conservatives wonder whether they aren't hearing the preamble to a sell-out.
Even more alarming, to some, was the argument in the brief that the Bush administration filed in the case. It argued that Michigan did not need to use racial preferences to achieve "diversity" because there were race-neutral ways to achieve the same result--such as the "10 percent plan" used in Texas. This plan grants automatic admission to the state university system to any student who graduates in the top 10 percent of his high-school class regardless of SAT scores.
Many principled opponents of quotas have condemned automatic-admission plans as quota schemes in disguise. The administration's seeming endorsement of them in its brief is, for such critics, simply an unusually roundabout way of staging a sell-out.
But look at what the administration has actually done--not what critics fear it might do--and you see a very different and far more encouraging picture.
It is indeed true: The administration has not called on the Court to throw out the system of state-enforced "diversity" with one mighty judicial heave. And for good reason. Briefs to the Supreme Court are not exercises in self-expression. They are arguments intended to persuade judges to vote one way rather than another.
Of the nine justices on today's Court, seven are probably unpersuadable by even the most brilliant brief. Four judges (Breyer, Ginsburg, Souter, and Stevens) can be counted on to favor almost all racial-preference schemes; three (Rehnquist, Scalia, and Thomas) can be counted on to oppose them. So everything turns on the opinions of just two people: Anthony Kennedy and Sandra Day O'Connor. It would do no good at all to hand in a brief that delighted the readers of National Review if it alienated the two of them.
As it happens, both these judges are extremely cautious people, and O'Connor in particular is famous for her dislike of abstract legal principles. Many conservative legal writers have criticized O'Connor for her "I know it when I see it" approach to the law. Those criticisms may be valid. But the solicitor general has to take his judges as he finds them. If they tend to issue ad hoc, not-very-principled rulings that leave their options open for future cases, that tendency is a fact with which he must cope. He has to show them how they can reach the result he wants using the mode of legal reasoning they prefer.
Which is precisely what the administration's brief in Grutter v. Bollinger does. Again and again it assures the Court that it can strike down the University of Michigan's racial-preference system without laying down any broad new principles about what universities may and may not do about race. It only asks them to say that the universities may not do what the University of Michigan has done--and that already would be a fine beginning.
The brief does not ask the Supreme Court to order universities to adopt the Texas plan. It cites the plan simply as an alternative that states can adopt if they wish to increase minority enrollment without violating the Constitution. The plan may be educationally lousy. But it is unquestionably legal. And without the show of such a legally valid alternative, this court and these justices could not be persuaded to strike down the Michigan plan at all.
There's a lesson in the conservative unease about the Bush brief, and it is a lesson that extends far beyond this case and far beyond even the large subject of race.
Bush almost always adopts conservative policies, but he almost never uses conservative rhetoric. He does what conservatives would wish, but he seldom does it in the way conservatives would wish. He writes a supply-side tax cut--and sells it with old-fashioned Keynesian arguments about getting people spending again. He stiffens America's internal security--while refusing ever to name the enemies he is securing the country against. It can be maddening. And yet it works.
It's very likely that the Supreme Court will accept the Bush administration's reasoning and strike down the Michigan racial-preference plan. It's very unlikely that the ruling will insist on the principled racial neutrality in which conservatives believe. It will probably be imperfect. But it will be progress. Which is exactly what you'd say about the Bush administration as a whole.
David Frum is a resident fellow at AEI.