Steve Presser is, I think, right to move away from the current low-level disputes over the Roberts nomination. When the most recent New York Times story dwells on Roberts� limited athletic skills (but excellent sense of humor) on the basketball court, we know that the political debate is largely over, and for good reason. There is no one out there who knows John Roberts who does not seem to like him. In the end, that simple fact will carry the day, or so I am na�ve enough to believe.
There will of course be many important ongoing issues that have to be faced, not only in the coming Supreme Court term, but for years thereafter. Affirmative action is one, and Steve alluded to the powerful writings of Abigail and Steve Thernstrom that go a long way to dispel some of the claims for the positive effects that affirmative action has on the institutions and people who practice it.
On this occasion, however, I do not want to deny their claims, but to admit their claims and challenge their significance. Let�s assume the claims for success from affirmative action are overblown--what next? To those of us who have a strong libertarian streak, admissions decisions by voluntary private institutions look to be just the sort of thing that they should make by themselves. They bear a faint resemblance to common carriers or modern network industries that may be saddled with universal service obligations.
At this point, the principle of freedom of association should take over, and the Thernstroms' arguments should be directed not to the folks in Washington who enforce Title VII, but to the private institutions who have to live with the consequences of their decisions, good or bad. One real downside (among many) of the civil rights acts is that they take from private institutions the power to decide whom to admit or reject. And in so doing, they make the question of whether affirmative action works a collective one. This puts much of the final responsibility on the Supreme Court, which then writes weak opinions--such as O�Connor�s in Grutter that strains credibility by applying a low-level rational basis test under the guise of the traditional strict scrutiny standards that apply in race cases.
Grutter of course deals with public institutions, but that hardly ends the question. The record, as Steve notes, on the Fourteenth Amendment is far from clear on whether race-based classifications can be used by government in dispensing with public funds. At one time, the huge social need was for a color-blind rule that ended segregation in the South. But now Brown is an obstacle to affirmative action programs in the public sphere, as state universities try to meet the demands of their constituents, and compete effectively with private institutions that are given a pass from the civil rights act. How this all plays out will require a painstaking future reexamination of decisions, like Brown, that were once thought to be unassailable. Let�s hope that John Roberts, if and when (preferably when) he is confirmed, will contribute something to the successful resolution of this ongoing American dilemma over race.