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October 10, 2012 5:03 PM The Seminar

By Ed Kilgore

So the Supreme Court’s oral arguments in the case of Fisher v. University of Texas at Austin have ended pretty much where they started, with Justice Kennedy getting to decide whether to pare back or reverse a highly qualified 2003 Court approval of the use of race as one of multiple factors in college admissions. Lyle Denniston at SCOTUSblog seems to think some further restriction in race-conscious admissions policies is very likely, though a full-fledged abolition of them is a dicier proposition:

Affirmative action is alive but ailing, the idea of “critical mass” to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive. Those were the dominant impressions at the close of a one-hour, nineteen-minute argument in the Supreme Court Wednesday. There is almost no doubt that the University of Texas’s affirmative action plan for admitting its freshman classes is in trouble with four Justices, but has at least qualified support from three others. The one most in doubt among the eight taking part: Justice Anthony M. Kennedy. He wanted to be convinced that the program does not use race at all costs, and it appeared that he was not.

But another of Denniston’s reactions interested me a lot, preoccupied as I am with the potential political exploitation of this case by the GOP:

For all of the hype that preceded this argument, with fear and loathing among supporters of affirmative action, the entire seventy-nine minutes of exchanges were subdued, sometimes highly technical, and had more of the flavor of a seminar than a grand constitutional confrontation. U.S. Solicitor General Donald B. Verrilli, Jr., in his brief stint at the lectern, essayed some soaring rhetoric about the virtues of a multicultural society, but it seemed a bit too calculated. There was no bombast, even from Justice Scalia, and the only sign of testy impatience came from the Chief Justice as he bore down on the university’s attorney, Gregory G. Garre, to give some substance to the “critical mass” idea that would tell a court when the university had made enough use of race, and could then stop.

Doesn’t sound like a good foundation for a sudden GOP attack on the Obama administration for favoring “reverse discrimination,” but then again, we’re talking about people who turned a tedious HHS circular on TANF waivers into “abolishing work requirements for welfare.”

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • Alan Tomlinson on October 10, 2012 5:32 PM:

    The choice here is between continuing a policy that makes a tiny attempt at righting an impossible wrong or claiming that everything is fine and that nothing can be done.

    Cheers,

    Alan Tomlinson

  • c u n d gulag on October 10, 2012 5:47 PM:

    One factor the right never mentions, is that their revered military WANTS students to go through the experience of going through a multicultural school system - whether it's in K-12, and/or college.

    Hmm...
    Maybe they don't want an army of racist crackers who hate on fellow soldiers who are not white Christian males.
    Yathink?

  • superdestroyer on October 11, 2012 7:22 AM:

    What is amazing is that 50 years after the Supreme Court said that separate-and-unequal is unconstitutional, progressives were in front of the Supreme Court arguing that separate-and-unequal is not only legal but good government policy.

    I loved the discussion about how the university depends upon students to self-identify as minorities who then qualify for diversity quotas and special privilege. The message should be clear that anyone who checks off the white, non-Hispanic box when applying for college, a job, a government contract is a fool.