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Courting trouble: Congress would rather complain about life-tenured federal judges than make recalcitrant bureaucrats enforce the law.

With their compromised budget deal behind them, Republican congressional leaders turned their attention to a refreshingly soft target: the federal judiciary. In mid-May, the House Judiciary Committee's Subcommittee on Courts and Intellectual Property held a hearing on judicial impeachment. The hearing highlighted several instances of judicial misbehavior, but the impeachment advocates' poster child is clearly Northern California District Judge Thelton Henderson, who blocked the voter-approved California Civil Rights Initiative on flimsy constitutional grounds.

The troubling aspect of the impeachment movement is not the saber rattling. It is what this movement says about the willingness of Congress to lead on critical issues. One gets the feeling Congress is taking on the judiciary because, unlike President Clinton and the members of his administration, life-tenured judges tend not to talk back when they come under temporary political fire.

More important, focusing attention on individual judges deflects attention from the fact that in some very critical areas - labor law, environmental law, and civil rights - federal courts have handed down some sound opinions, only to find them all but ignored. If fully implemented, such Supreme Court decisions as Communications Workers of America v. Beck, Dolan v. City of Tigard, and Adarand v. Pena would restrict the range of federal and local bureaucrats and defund some of the interest groups whose sole purpose is to expand the state. The challenge of implementation lies not in the courts but in the bureaucracies, both federal and local.

On the issue of civil rights, the Clinton administration has done far more to stall the movement to color-blind decision making by government than Judge Henderson, whose restraining order against the CCRI, after all, was overruled by a panel of three appellate judges. (The CCRI is still not in effect though, as it is stayed pending a decision on whether the panel's decision will be reviewed by a majority of the 9th Circuit.) If Congress truly cares about this issue, it has two fronts on which to advance. It could hold oversight hearings to scrutinize the Justice Department's interpretation of recent federal court decisions. It could also pass legislation to clarify the meaning of the 14th Amendment's Equal Protection Clause.

While Henderson is certainly a speed bump on California's highway to color-blind law, in recent years the U.S. Supreme Court has supported the idea that governments should not categorize people by race. In 1989, the Court ruled in Richmond v. Croson that the city of Richmond's 30 percent set-aside for minority contractors was unconstitutional. Finding the program grounded more in power politics than past discrimination, the Court ruled that any government program using race as a decision making factor must pass the judicial test of "strict scrutiny." This means that the government must prove a "compelling interest" in using race based on past discrimination rather than unequal societal outcomes. Any anti-discrimination program must also be "narrowly tailored" to meet its ends, limited in both scope and time. Croson applies these criteria only to state and local governments.

In June 1995, a few months after Republicans took over Congress, the Supreme Court extended the principles it laid out in Croson to the federal government in Adarand v. Pena. "All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny," wrote Justice Sandra Day O'Connor for the majority. In his concurring opinion, Justice Antonin Scalia emphasized the universality of American citizenship. "Under the Constitution there can be no such thing as either a creditor or a debtor race," wrote Scalia. "We are just one race in the eyes of government."

Less than a year later in March 1996, the U.S. Court of Appeals for the 5th Circuit declared the University of Texas Law School's racial admission system unconstitutional in Hopwood v. State of Texas. In this case, the court applied the strict scrutiny test to higher education admission policy and found "no compelling justification, under the Fourteenth Amendment or Supreme Court precedent, that allows [the University of Texas] to continue to elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body." Hopwood removed the foundation on which affirmative action in higher education rests: the need for diversity. The Supreme Court refused to hear the case on appeal, making Hopwood the law in Texas.

The courts have provided Congress with both the tools and the rhetoric with which to make significant progress on restoring universal civil rights. And while Congress has done precious little with them, the White House has executed an end run around these decisions.

At the time, Adarand was seen as a major setback for the quota establishment, but the Court did not entirely rule out the possibility of racial preference programs. O'Connor wrote, "It is not true that strict scrutiny is strict in theory but fatal in fact." Nearly two years later, strict scrutiny has in fact rarely been fatal. Of the 160 programs the Congressional Research Service identified as using race preferences in February 1995, only one has been ended in the wake of Adarand. In May, the Justice Department published its proposed regulations to bring the government into compliance with Adarand. These regulations were so tepid, says Clint Bolick, director of litigation at the Institute for Justice, that they wouldn't end a single program.

It isn't surprising that Adarand spurred little change. "The notion that what the Court says is the last word is completely wrong," notes Abigail Thernstrom, senior fellow at the Manhattan Institute. "What the Court says 10 times in 10 decisions in strong language starts to become the law," but the process is faster if those who enforce the law support those decisions. Unfortunately, the Clinton administration has turned over its policy to a civil rights establishment that will fight Adarand and its progeny to the death.

When exposed to the public, Clinton's "extend it, don't end it" policy on affirmative action has been singularly unpopular. This makes Congress's lack of a broad agenda in this area - and its reticence to expose the administration's actions - all the more troubling.

Consider the resistance Norma Cantu, the head of the U.S. Department of Education Office for Civil Rights, faced when she tried to unilaterally overrule the Hopwood decision. In March, Cantu put Texas officials on notice that Hopwood was binding only on the University of Texas Law School and that other state-run schools in Texas risked losing $500 million in federal funding if they didn't maintain racial preference programs. Cantu based her edict on the Clinton administration's policy of "nonacquiescence."

William Kanter, deputy director of appellate staff in the Justice Department's civil division, described this position in a letter to an appellate court clerk: "[T] here is no constitutional requirement or any other inflexible rule that a federal agency must apply the legal principles announced in a court of appeals decision to the administration of a statutory program, either generally or in matters arising in that particular circuit." In other words, Clinton's regulatory bureaucracies appear to believe they are not bound by appellate court decisions, even in the circuit in which they are handed down. Kanter noted that the "Acting Solicitor General...agrees with the positions taken in the letter."

Cantu's attempt failed. After stories on her edict appeared in The Chronicle of Higher Education, The New York Times, and The Wall Street Journal, public outrage and attention from the Texas congressional delegation, including a promise by Sen. Phil Gramm (R-Tex.) to examine her budget, forced a reversal. On April 10, Walter Dellinger, the acting solicitor general, instructed the Office of Civil Rights that "the Hopwood panel decision is binding in the Fifth Circuit."

Dellinger's letter, however, raises a conflict that Congress would do well to look into. Kanter's position is that circuit court decisions aren't binding on federal agencies. But when Cantu applied this logic to a highly charged issue in Texas, she was instructed by Dellinger that this was not the policy. The question remains whether Dellinger's letter represents a one-time reversal or a change in policy.

In the same Wall Street Journal article that helped to expose Cantu, Terrance Pell of the Center for Individual Rights wrote of another case in Texas that indicates the Clinton administration is still following its policy of nonacquiescence.

Since 1978, Houston's Metropolitan Transit Authority of Harris Country (METRO) has maintained a preference program for minority contractors. The program set a target that 21 percent of the dollar amount of any construction project must go to firms owned by women or select minorities. The 21 percent goal was written into the terms of the contracts, and bids that didn't meet the goal could be summarily rejected. In 1993, the Houston Contractors Association, which represents road construction firms, challenged the target as unconstitutional. In April 1996, a federal district judge issued a temporary injunction halting the program.

This injunction didn't sit well with the Department of Transportation's Federal Transit Administration, which funds a portion of METRO's construction budget. FTA claims its regulations require METRO to maintain minority preferences and threatened to cut all funding unless METRO reinstated the program. Caught between two conflicting federal masters, METRO created a new program that granted preferences to small businesses, regardless of the race or ethnicity of the owners. This satisfied the judge, but not the FTA, which insists on racial preferences. To date, the FTA has withheld $326 million in federal funding for proposed METRO construction projects. So METRO finds itself in a dilemma: One branch of the federal government says it can't use race as a factor in awarding contracts. Another branch won't give METRO any money to complete the contracts unless it uses race in awarding them.

"The left hand of big government doesn't know what the right hand is doing," says Tony Rudy, press secretary to House Majority Whip Tom DeLay, who represents part of Houston. Rudy is right. But DeLay doesn't seem eager to elevate the issue, preferring instead to work for a quiet fix, possibly by putting an amendment on a transportation funding bill.

This would be a perfect opportunity to hold hearings to: a) put the ridiculous and overbearing nature of the federal government on stage; b) reaffirm the fundamental principle that all citizens should be treated equally; and c) highlight the Clinton administration's overreaching interpretation of its powers under the Constitution. After all, if a federal judge in California enjoining a voter-approved initiative warrants hearings, so too should an executive branch claiming that it isn't bound by federal court decisions with which it disagrees.

And then there's the legislative option. The Republicans do control Congress, and if they feel that Henderson has egregiously misinterpreted the 14th Amendment, they could pass a law emphasizing that the guarantee of equal protection of the law means that federal law should treat each individual equally, regardless of race or class. In the 104th Congress, as Californians were having a healthy debate over the California Civil Rights Initiative, bills to rid the federal government of preferences sponsored by Rep. Charles Canady (R-Fla.) and then - Sen. Bob Dole (R-Kans.) enjoyed on-and-off support from the congressional leadership.

Earlier this year, House Speaker Newt Gingrich (R-Ga.) took center stage at a Washington gala dinner honoring Ward Connerly, chairman of the CCRI campaign, and professed his support for the winning side in that battle. Although he spoke boldly of the evils of "affirmative racism" at this event, Gingrich later signaled he wouldn't support a federal law to end racial preferences. After a meeting in late May with Connerly, however, Gingrich backed away, indicating that he may indeed support such legislation. Canady plans to reintroduce his bill this year, but without the unambiguous support of leadership, it faces long odds.

There are signs that the Republicans are attempting to move their civil rights agenda forward in Congress. In May, the House Judiciary Committee's Subcommittee on the Constitution held an oversight hearing at which members grilled Isabelle Katz Pinzler, acting assistant attorney general for civil rights, about the Justice Department's position on the meaning of the Equal Protection Clause and the proposed regulations in response to Adarand. The subcommittee plans to hold additional hearings later this summer. On the Senate side, the Judiciary Committee is planning civil rights oversight hearings in June, and at least one committee member has written Attorney General Janet Reno, asking her to clarify the administration's position on whether government agencies are bound by federal court rulings with which they disagree.

Cornell legal scholar Jeremy Rabkin notes that politicians often like to have it both ways with the courts. "The courts are a two-sided shield," says Rabkin. "In the 1960s, the people could say that the courts made us do it, even though it was the Justice Department pushing it. Now we have Republicans in Congress saying the courts are doing it, and it becomes a way for them to excuse their passivity."

Rabkin's comments point to why the Republicans focus on the judiciary is troubling. This focus could complement a strong legislative agenda aimed at relimiting government one step at a time. But it will more likely become the second sibling in the twin excuses for the failure to move forward on such an agenda, the first being the difficulty in passing bills over Clinton's threatened vetoes.

The problem of our polity lies not primarily in the courts but with politicians. Smaller, less intrusive government is not going to come about by indiscriminately beating up on federal judges, even if more than a few deserve a good knock on the noggin. It will require congressional leadership to articulate the case for relimiting government by offering examples of how a government unrestrained by the rule of law abuses the very citizenry from which it derives its powers. Some of these examples may come from judicial overreach, but they must be tied to a broader agenda.

Speaking at the Cato Institute in May, Weekly Standard Editor and Publisher William Kristol noted that congressional Republicans seemed to be seeking a content-free politics for the next two years in the hope of holding their congressional majorities in 1998. Kristol, who was speaking on the budget deal, warned that this dream would prove elusive. He is right. Politics will be content-driven. The choice facing congressional leaders is whose content will drive politics - the agenda of those seeking to limit government or of those seeking to further its expansion. At present, for the lack of an alternative, it seems the latter is prevailing.

Michael W. Lynch (mwlynch@concentric.net) is REASON's Washington editor.
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Author:Lynch, Michael W.
Publication:Reason
Date:Aug 1, 1997
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