Rigged justice. (Scan).(affirmative action)(Brief Article)

What the American people most need to understand, future Supreme Court Justice Felix Frankfurter once advised President Franklin Roosevelt, is that Constitutional law often has little to do with the Constitution and much to do with the views of judges.

That is something the American people need to recognize even more today. It is illustrated by the recent decision of the Sixth Circuit Court of Appeals to uphold the racially preferential admissions policy of the University of Michigan law school. The decision is not only incorrect under existing law, but is apparently the result of questionable judicial behavior.

The suit was brought by a white woman denied admission to the school even though she would have gotten in--as the school conceded--had she been black. A federal district judge held this racially discriminatory policy un-Constitutional. On appeal by the law school, the Sixth Circuit, sitting en banc (all judges in active service rather than the usual three-judge panel), reversed the district court and held the policy Constitutional by a five-to-four decision.

So, what five federal judges find the Constitution prohibits, a different five judges find it permits. These opposite conclusions hardly arise from differences in ability to read the Constitution. They stem from who is doing the judging. Four of the five Sixth Circuit judges who voted to uphold racial preferences were appointed by President Clinton and the fifth was appointed by President Carter. The district judge and the four Sixth Circuit judges who found the preferences un-Constitutional were appointed by President Reagan (2), the first President Bush (2), and President Clinton (1).

The Sixth Circuit's decision seems incorrect on the merits because it is inconsistent with the Supreme Court's controlling decision in the famous 1978 Bakke case. In Bakke, the Court held that racial preferences may not be used in university admissions merely to admit more members of preferred groups, but could be used as a "plus" to "tip the balance" in close cases in order to achieve greater student body "diversity." The University of Michigan law school did not use race merely as a plus in close cases, but as the dominant factor in admissions. Instead of black applicants competing with white applicants for every place, as Bakke requires, they were ...