Friday, January 24, 2003

Ok, so I think that I have a thought here.

First, I was thinking about Howard Bashman's post the other day that recalled Justice Stevens's position in Bakke that "race-blind" admissions were required by federal statute (Title VI, it's called). Some are wondering whether Justice Stevens will take that same view (which was rejected by the majority of Justices in Bakke) in the Michigan cases, thus giving an easy win to the AA-opponents, or whether he will have changed his views and ought to be embarrassed for having done so. To me it's quite obvious that he ought to have no embarrassment about saying, "sure, that was my view and the view of a minority on the court; but we were outvoted, and the Congress could have amended the law to adopt our 'race-blind' interpretation any time in wanted, but never did, so I take it that the Congress agrees that the majority was right and that's that, as far as statutory interpretation goes."

Second, in connection with my exchange with Ampersand on copyright (see earlier today), I was thinking about the difference between (a) trying to establish something as a constitutional principle through litigation; and (b) doing the harder and more complex work of writing a statute that says what you think would be good policy.

Third, I was thinking about an email that Marty Lederman sent me yesterday that was full of interesting points about the impact of the Administration's brief in the Michigan cases on a wide variety of federal statutes; AND

ok, ok, get to the point.

The point is this: if race-blind admissions are so central to the President's vision, and so obviously-correct from the intellectual-Republican/Federalist Society point of view, why don't they do the dirty work of amending Title VI to make it say what they want to say? After all, they've got control of the Congress and the White House. They could amend the statute at any time; if they've got the mojo to shove Federalist-Society judges down our throats, they've got the mojo to do this too. (Sure, I know that Trent Lott, who favors affirmative action across the board, would have to be brought back into the Republican fold on this issue; I imagine that could be done somehow). Why not use those branches of government, rather than the Court? The answer is that it is more politically convenient for the Administration to use the Court as a tool to achieve this political goal. It allows them to do it with less public discussion, less public input, and less accountability. It allows them to avoid actually having to say with real precision what they think the law ought to be, and to avoid taking heat for the details.

Does this, in itself, make the Administration's action constitutionally illegitimate? Not really, just makes it weaselly. And it makes it all the more clear that none of us should forget, as the Administration shoves young aggressive new judges down our throats, that the judiciary is an important tool in the politican's toolbox, and it does not behoove us to pretend otherwise.

posted by sam 11:59 AM 0 comments

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