Given President Bush’s long-standing opposition to the use of quotas in affirmative action, it’s ironic that so many people expected him to use just that when he eventually named his Supreme Court nominee. Of course, no one used the word “quota.” But the expectation was strong that at the end of the day, a woman would be the nominee. That expectation was fueled by no less a White House insider than First Lady Laura Bush, who said in a television interview that she hoped her husband would choose a woman to replace Justice Sandra Day O’Connor, the first woman on the nation’s highest court.
If not a woman, then perhaps Bush would pick a minority, pundits said. Maybe it would be his friend and fellow Texan Atty. Gen. Alberto Gonzales, who would make history as the first Hispanic named to the court.
Overall, there was a sense of inevitability that Bush’s choice would be a woman or a minority.
In the end, the conservative president, a sworn enemy of quotas, nominated federal judge John Roberts Jr. If Roberts is confirmed, which seems very likely, he will be the 105th white male justice out of 109 who will have sat on the court since John Jay, the first chief justice, convened the court’s first session in 1790.
Put another way, the class portrait of the justices taken at the start of the fall term was far whiter and more male than the country has ever been.
Roberts’ selection disappointed many, including O’Connor, who–taking a break from Idaho fly-fishing–said the man nominated to succeed her is “good in every way, except he’s not a woman.”
That sense of thwarted expectation was evident in the questions White House reporters asked presidential spokesman Scott McClellan.
Reporter: “So were there no qualified women?”
McClellan: “There were a number of qualified women that the president considered. He considered a diverse group of individuals. The president believes that Judge Roberts is the best person to fill this position, and that’s why he nominated him.”
Reporter: “And what made him more ideal than the women the president considered?”
McClellan: “I think you should look at the qualities that he possesses. He is someone of unquestioned integrity who believes in faithfully interpreting our Constitution and our laws. He is someone of high intellect and great legal ability, and he is–“
Reporter: “And there weren’t women who met that standard?”
McClellan: “No, I didn’t say that.”
What many missed was that they were dealing with a deeply conservative president who believes advancement should be based on merit. Last year, in a speech to the National Association of Black Journalists, he even renounced the sort of legacy admissions program that helped him get into Yale University, his father’s and grandfather’s alma mater.
In the nearly five years of his presidency, Bush has gone to great lengths to avoid even uttering the words “affirmative action,” which he appears to believe is synonymous with quotas in the minds of many.
Supporters of affirmative action deny it is a code word for quotas. They say affirmative action merely refers to compensating minority applicants for the overwhelming disadvantages they face, perhaps by weighting their applications a little more heavily. That is a far cry, they say, from dictating that, say, 10 percent of an incoming class be minority.
In 2003, Bush delivered a short speech to explain why his administration would submit a Supreme Court brief opposing a University of Michigan program giving minorities bonus points in the admissions process. Bush managed to navigate a speech about affirmative action without once using the term.
The word he used repeatedly in that speech, however, was quota–as in, “Quota systems that use race to include or exclude people from higher education, and the opportunities it offers, are divisive, unfair and impossible to square with the Constitution.”
In his public utterances, Bush has made clear that he believes the use of quotas is a version of two wrongs not making a right. On one hand, jobs or college admissions are reserved for members of groups that have faced historic discrimination. On the other, innocent members of historically advantaged groups are punished.
In the American context, that latter group would be whites, and specifically white men.
Thus, if Bush had selected a woman for the court as a response to the widely held view that since it was a “woman’s seat” being vacated, the nominee had to be a woman, he might have readily been seen by some as having violated his own principles.
Indeed, taken to an extreme, those who support having women on the Supreme Court might argue that at least four and perhaps five of the nine seats in what is one of the world’s most exclusive clubs should go to women, based on their representation in the overall population.
The choice of Roberts sent the message to anyone who didn’t know it by now that the president plays by rules that won’t ever be mistaken as politically correct.
That’s a very different approach from that taken by the first President Bush. When Justice Thurgood Marshall stepped down from the court, former President George H.W. Bush clearly assumed there was a “black seat” on the court, and in 1991 he nominated Justice Clarence Thomas to assume it.
“The fact that he is black and a minority has nothing to do with this sense that he is the best qualified at this time,” the former president said in introducing Thomas to the nation. “I kept my word to the American people and to the Senate by picking the best man for the job on the merits.”
To many, those words didn’t ring true. Thomas’ appointment seemed the consummate affirmative action selection: a jurist with barely a year on the federal bench and a so-so fitness rating from the American Bar Association being given a lifetime appointment to the nation’s most important court simply because the man he replaced was black.
Because Bush chose the affable and brainy Roberts for O’Connor’s seat, Roberts avoided becoming that figure in American life who has achieved near-epic stature: the qualified white male who loses the competition for a job or academic seat to a woman or minority.
He won’t, in other words, be the Allan Bakke of our time. Bakke was the medical school applicant whose lawsuit was decided by the Supreme Court in 1978, leaving the status of affirmative action programs uncertain.
Bakke sued the University of California-Davis because he was denied admission to the medical school, while minorities with lesser academic credentials were admitted through an affirmative action program.
Political campaigns have been won and lost because of the backlash from white males who believe themselves to be affirmative action victims or fear that fate.
Just ask Harvey Gantt. The former mayor of Charlotte lost his challenge to then-North Carolina Republican Sen. Jesse Helms, a staunch conservative, in 1990.
Just before the election, Helms’ campaign aired a television ad of a pair of white hands crumpling a rejection letter. “You needed that job. And you were the best qualified,” the narrator intoned. “But they had to give it to a minority because of a racial quota. Is that really fair?”
While those who had hoped the president’s choice would maintain the court’s minimal diversity are disappointed, many are willing to give Roberts a chance.
“If there were a woman or minority, and their views made them operate in a way that was inimical to the interests of equal opportunity, I think we’d be far more concerned,” said Shirley Wilcher, an African-American and affirmative action expert who was in the Labor Department under President Bill Clinton.
“He [Roberts] seems qualified, and that’s one of the first issues,” Wilcher said. “Clearly we would like to see more diversity on the court, but we’re more concerned with what he’s going to do and decide.”
Roberts, viewed as reliably conservative, could end up being the decisive fifth vote if the court should decide to strike down affirmative action programs.
