By Howard Fineman and Tamara Lipper, with Daniel Klaidman
Newsweek, January 23, 2003
He speechified to the right. He briefed to the middle. And he sought cover by trying to bring in Condi Rice. The color of racial politics.
No one in Washington can be as ominously sympathetic as Dick Cheney. He was that way last week, when he placed a call to Theodore Olson, solicitor general. President George W. Bush was preparing to take a politically explosive step, filing friend of the court briefs opposing the University of Michigan’s use of racial preferences in admissions. It was important that the “rollout” of the briefs be as careful–as Escher-like in its eye-of-the-beholder balance–as the briefs themselves. And Olson was a problem.
Here was a conservative purist, to whom preferences of any kind were abhorrent and who wanted to advise the Supreme Court to reverse the landmark Bakke case of 1978, which held that race can be “a factor” in college admissions. But Bush had decided to move surgically, making only a relatively narrow (though still potentially far-reaching) attack on the U of M procedures. Olson’s shop could draft the briefs, but final decisions would rest with the White House counsel, Alberto Gonzales. Olson was furious: it was a slap at the powers of the SG (who would normally run the show) and, in his view, a cave-in. “If you want to be SG, that’s fine!” he barked at Gonzales. Indeed, Newsweek learned, Olson even considered quitting.
Olson on a rampage could hurt the administration–big time–with its conservative base. So Cheney made his call. He told Olson that he was sympathetic to his position, but that wasn’t what The Boss wanted to say. Time to get onboard. Cheney didn’t have to add–but Olson apparently understood–the rest of the message: shut up. The SG did so, signing the brief but otherwise staying out of sight while other hard-core conservatives were in full cry. (A Justice Department spokeswoman declined to comment.)
As the administration’s own painstaking spin doctoring shows, there is no question in public life more emotional or divisive–or that presidents handle with greater care–than whether racial preferences are just, necessary or merely another form of racism. That is especially true if the preferences involve admissions to selective universities such as Michigan, where the American dream of upward mobility runs headlong into an American history of neglect for minority education and aspirations.
On such a sensitive topic, extraordinary measures are required: nothing less than a political hall of mirrors will do. Last week administration insiders labored to satisfy all sides–or at least limit the omnidirectional damage. Their public maneuver was aimed primarily at the president’s conservative base. It consisted of a late-afternoon press avail, at which Bush sternly declared that the Michigan procedures–which rely more on wholesale numbers than individualized consideration–were unconstitutional.
The rest of the effort turned into the administration’s first leakfest on a domestic issue. Staffers acknowledged Olson’s disgruntlement, admitting internal friction while telling liberal critics, in effect, “Hey, we could have gone farther.” For nervous Republicans and independents in the middle, the White House had another leak: among those in on the deliberations–and approving of the result–was Condoleezza Rice, the highest-ranking African-American on Bush’s staff and former provost at Stanford.
This last was one spin of the wheel too far. Rice was infuriated by a Washington Post story describing her as having helped “convince” Bush to take a more confrontational position than he actually had. In fact, while she agreed with Bush that Michigan’s procedures were unconstitutional, she–unlike him–is willing to support race as a factor in achieving diversity. When she read the paper, she went ballistic, seeking–and winning–the president’s approval to issue a statement clarifying her views. But even that had its political uses, allowing Bush’s allies to hint that, in fact, he secretly agreed with Rice’s view.
For any president, perhaps especially for Bush, affirmative action is a no-win issue. White voters (especially males, especially Southern) are his most fervent supporters. The Reagan Revolution he admires was built, in part, on their fears and hopes. At least in theory, the idea of making decisions on racial grounds is unpopular–especially among whites, who oppose preferences for blacks by a 73-22 percent margin in the new Newsweek Poll. (Minorities are nearly as dubious, opposing preference for blacks by 56-38 percent.) Indeed, Americans of all colors oppose admissions preferences of all kinds, whether it’s for minorities, athletes, legacies or the drumline.
But there is another side to the electoral equation. Bush’s approval rating is dropping (it’s now at 56 percent, the lowest since before 9-11). By his own polltaker’s count, he must draw at least 3 million more minority votes in 2004 to win re-election, and an assault on the Bakke case isn’t likely to help him do so. Minority voters in the Newsweek Poll have a favorable view of the phrase “affirmative action,” taking it to mean “outreach” to qualified blacks and Hispanics. (Whites tend to see it as a code phrase for “quotas.”) The president has to worry about white suburbanites, too. Well-educated independents might eschew a Republican Party that seems intolerant of racial diversity.
How to square this circle? Bush, who is not a lawyer and who doesn’t particularly like them, relied in good part on such non-lawyer advisers as Rice, political guru Karl Rove and chief of staff Andy Card. The bottom line: the president would support the goal of “racial diversity” on college campuses–a crucial step in the constitutional chain of reasoning necessary for preferences. He would oppose the race-conscious systems employed by Michigan, and suggest that the U of M try a different, race-neutral method first. But he would not say–as Bakke had–that race could be taken into account if other means failed to achieve diversity.
Unlike his administrative finding last year on stem-cell research–another no-win decision on an emotional topic–this was an issue Bush knew something about. In a 1996 case argued by Olson, the courts had invalidated the University of Texas’s minority-admissions program. Democrats in the legislature came up with a clever, superficially race-blind alternative: automatic acceptance for the top 10 percent of students from every Texas high school, many of which have almost exclusively minority enrollments. Ever cautious about alienating “the base,” Bush declined to support the measure, but signed it with considerable fanfare after it passed. It has worked reasonably well in Texas, at least so far; California and Florida now use similar systems.
Neither law nor spin protected the president from political attack last week, of course. Democratic presidential candidates were irate on cue, aiming to impress the civil-rights leaders and urban mayors who control black turnout–and whose support will be crucial in next year’s primaries. Intellectual backers of affirmative action, led by The New York Times, denounced Bush.
Not all the criticism could be dismissed as a jerk of the knee. Taking the top students from each school sounds fair. But, in fact, it allows less qualified minority students from bad schools to leapfrog more highly qualified students from more-demanding schools. That, in turn, can encourage the educational segregation–at least in secondary school–that affirmative action is supposed to end. It’s an argument Bush hasn’t rebutted. But now he can take a breather, and wait for the Supreme Court to speak before he’s forced into the hall of mirrors again.
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