Preferred Members: Affirmative action for all, except white males.

The Bush administration has decided to support race and gender preferences, in the very first case involving them to come before the Supreme Court this year. And this decision is being greeted on the right with what can only be called wishful thinking.

The case, Adarand v. Mineta, is the latest skirmish in a long-running legal battle over a Department of Transportation race-preference program in highway construction that began, interestingly enough, under the first Bush administration. In 1989, Adarand Constructors, Inc., was the low-bidding subcontractor on a highway program in Colorado-but lost out to a Hispanic-owned company, because the DOT gave financial incentives to the main contractor to hire a "disadvantaged business enterprise" (DBE). Adarand sued on the grounds that this was a naked race preference and thus unconstitutional-and the case was shuttled back and forth among various courts, including the U.S. Supreme Court, over the ensuing twelve years.

In the most significant decision during those years, the Supreme Court ruled 5-4 that the DOT's set-aside did not meet the strict standards required of any race-conscious federal program-namely, that it be a narrowly tailored remedy for actual discrimination caused by the government itself-and sent it back for redrafting. In response, the Clinton administration assembled reams of statistical evidence purporting to show that discrimination was rife in the contracting industry and was distorting the allocation of federal contracts so that taxpayers' money was, in effect, supporting racism; it broadened the category of those automatically presumed to be "socially and economically disadvantaged" to include women and veterans alongside blacks and Hispanics; and it sought to tailor the remedy more narrowly by ruling that individuals with more than $750,000 in wealth were ineligible for "disadvantaged" status, and thus for preferential contracts.

But the courts continued to squabble, and it was not until his last full day in office that President Clinton made the final decision to defend the preferences against a final challenge from Adarand before the Supreme Court. Doubtless he was restrained by all the legal comings-and-goings, and maybe even by the calculation that defending racial preferences was a needless risk in an election year.

By doing so, he left a hot potato very strategically on George W. Bush's new desk in the Oval Office. Would Bush endorse the defense of a racial-preference program that, according to the Supreme Court itself, had not passed constitutional muster in its earlier incarnation? And if so, what arguments would he employ in doing so? Well, as we know, Bush decided to endorse the program. What is more significant is that he is employing arguments of two very different types to justify his decision.

The argument used by Bush spinners in the court of public opinion is essentially that the Adarand case is no big deal. They contend that the Bush Justice Department was bound by precedent to defend this federal program against constitutional challenge, that it would have been unthinkable to reverse the official position in mid-case; but they also assert that this decision indicates no wider administration support for preferences. (The administration is simply itching, for example, to oppose them in cases involving university admissions.)

Some conservatives accept these assurances. Tom Wood of Americans Against Discrimination and Preferences is reconsidering his early opposition in light of the argument from precedent. My esteemed colleagues Ramesh Ponnuru and John J. Miller see a "silver lining" in the decision-namely, that it will remove an obstacle to the confirmation of Gerald Reynolds to the civil-rights post at the Department of Education. And with a few exceptions like Linda Chavez, there has been a general conservative disposition not to question the president's intentions on Adarand.

But the arguments used in the Justice Department's brief are very different. In effect, they amount to a strong restatement of most of the arguments for racial preferences and race-conscious government policies that we have been hearing for more than 30 years: Statistical disparities are, per se, evidence of discrimination; quotas are prohibited by the program; goals are merely goals and cannot be enforced, or result in penalties; and the fact that disparities returned in states where preferences were suspended demonstrates that discrimination persists, and that race-conscious programs remain as necessary as ever. All of these arguments are either blatantly disingenuous ("goals," for instance, are quotas under another name) or highly questionable. The reemergence of disparities may, in fact, demonstrate that the preferences themselves were a form of discrimination-one that temporarily rigged the market but that, once halted, no longer prevented more efficient companies from outdoing their protected rivals. We cannot know which argument is correct because, despite the brief's impressive statistical scaffolding, no one knows which companies would succeed and which would fail in a market distorted by neither private discrimination nor government favoritism. Statistical models simply cannot incorporate all the factors that determine, for instance, why Jews are less likely to go into highway construction than Irishmen. And even if they could, it is possible that political or ideological fashion would prevent at least some of those factors from being taken into account.

All of these arguments are secondary, however, to the central conceit of the brief: that the criterion for receiving a contract under this program is not race, but disadvantage as a result of discrimination. Again, however, there is no reliable test for such a condition-other than an individual court case, which would be impractical, uncertain, and time-wasting as a method for allocating government contracts. So the brief reaches out for an easier method: "presuming" disadvantage and discrimination. When one examines the lists of people "presumed" to be disadvantaged, however, this turns out to be largely a series of racial categories: blacks, Hispanics, Pacific Islanders, etc. (The list has now, of course, been expanded to include women and veterans.) And to ensure that nobody makes a false claim of being disadvantaged, an applicant must present a signed affidavit testifying, under penalty of perjury, that he falls legitimately into this category-i.e., that he is black, Hispanic, a woman, or a veteran with a net worth of less than $750,000-whereupon he becomes eligible for privileged access to government contracts.

As David Tell has pointed out in The Weekly Standard, however, the list of the disadvantaged now accounts for more than 60 percent of the American people. It includes very recent immigrants, who have suffered relatively little discrimination as compared to, say, the descendants of black slaves. In a few years, it will probably cover the millions of illegal Mexican immigrants who are to be legalized if the Fox-Bush amnesty staggers through Congress.

Here, of course, the little-noticed transformation of racial preferences turns up to bite the administration. When racial preferences were introduced in the late 1960s, they exacted some sacrifice from 89 percent of Americans to bestow benefits on the 11 percent of Americans who were black descendants of slaves; even if those preferences were unjust, their injustice was spread very widely over the community. Today, however, preferences bestow benefits on something like 65 percent of Americans by exacting a sacrifice from the remaining 35 percent who happen to be white males. Their injustice now is real and concentrated. In other words, they are now plainly and undeniably an official program of negative discrimination against a minority: the sole remaining example of institutionalized racism in the United States. And that is as true of the program in the Adarand v. Mineta case as of any program of university admissions. But will an administration that has employed all the conventional arguments that favor race and gender preferences in this one case be prepared to reject the very same arguments in other Supreme Court cases involving preferences?

President Bush could remove any doubts on that score very easily. He could publicly repeat what some of his spinners have been saying behind the arras: that Adarand is a special constitutional case, that the arguments in the Adarand brief were inherited by his administration, that he remains firmly opposed to preferences as a matter of principle, and that he will oppose them in the next case before the Supreme Court. Nor, indeed, need he wait until then. The president has the power to issue an executive order removing such race and gender preferences in the government as rest on his authority rather than on statute law. As long as we are waiting for some such demonstration, however, it would be prudent to assume that Adarand represents what the president thinks and what the administration will do.