Trunk, it will come as no surprise that I agree almost completely with Christoper Caldwell’s analysis of the Administration’s briefs. As to Frum’s analysis, I recommend the rebuttal contained in this National Review editorial. Frum defends the Adminstration’s briefs on the theory that they present the “nuanced” analysis (“muddled” is the word I would have chosen) necessary to sway the two key Justices, O’Connor and Kennedy. The NR editors respond that these Justices may be looking less for a brief they find congenial than for a political signal that will tell them “what position will be considered mainstream.” And now “President Bush has sent them a signal: A conservative president does not think that he can afford to stand unambiguously for colorblindness. The odds that the justices will also fudge their position have therefore increased.” I’m afraid that is true.
As much as I respect Frum, the notion that Justices O’Connor and Kennedy need a muddled Administration brief in order to strike down the Michigan plans in favor of a “nuanced” alternative strikes me as laughable. Neither Justice was ever likely to uphold the Michigan plans, which fly in the face of the jurisprudence O’Connor has fashioned in this area over the years. Moreover, O’Connor and Kennedy need no encouragement or help in dancing around issues like this. They both specialize in this sort of thing — in fact it can be argued that O’Connor has raised it to an art form. If the Administration’s briefs embody the ideal strategy for getting the best realistically attainable anti-preference result, then one would expect that Ted Olson, a fabulous lawyer with a great track record on the issue, would have pushed for these sort of briefs. But, by all accounts, he presented the White House with principled anti-preference briefs, devoid of the nuances Frum praises. I’m still not sure why the White House felt compelled to take a different approach, but I’m pretty sure it didn’t do so in order to increase the odds of minimizing the future use of race-conscious measures.
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