Legal Affairs – Gore-Lieberman: Racial Preferences Forever?

National Journal

Here’s what Sen. Joseph I. Lieberman, D-Conn., said in 1995 about group preferences and affirmative action:

"You can’t defend policies that are based on group preferences as opposed to individual opportunities, which is what America has always been about…. They’re patently unfair…. Not only should we not discriminate against somebody, we shouldn’t discriminate in favor of somebody based on the group they represent." (March 9)

"Affirmative action is dividing us in ways its creators could never have intended, because most Americans who do support equal opportunity, and are not biased, do not think it’s fair to discriminate against some Americans as a way to make up for historic discrimination against other Americans…. Two wrongs … don’t make a right." (July 19)

"The current system of group preferences has to end. They were only intended to be temporary, aimed at combating racism. But it’s actually fueling division between the races." (Aug. 3)

Here’s what Lieberman said a few weeks ago, on Aug. 13, when Tony Snow of Fox News Sunday asked, "Isn’t it true that for your convention you have quotas?"

"Well, I like to think of that as an acceptable affirmative action program, which actually works to make our convention delegates much more reflective of the American people than the Republican convention was."

And here’s what he said on Aug. 16 (to the Democratic Black Caucus):

"I have supported affirmative action. I do support affirmative action. And I will support affirmative action."

Does Lieberman’s evolution suggest that he is not the man of character that many of us thought? Not unless you are prepared to say the same about former President Bush. In 1980, Bush flip-flopped even more dramatically on abortion rights and "voodoo economics" than Lieberman has done on racial preferences. Both are men of character. But both are politicians. And no politician who is unwilling to bend on principle for reasons of expediency will ever win a vice presidential nomination.

The larger significance of Lieberman’s capitulation to Al Gore’s militant embrace of race-based affirmative action preferences is to dramatize how completely the Democrats have become the party of preferences, and the far-reaching impact that the coming election could have on racial policy. The New Democrats and their Democratic Leadership Council (which Lieberman has chaired since 1995), once vocal critics of preferences, seem to have abandoned that field to the Jesse Jackson-Maxine Waters wing of the party, at least until the end of any Gore Administration.

This means that if the Gore-Lieberman ticket wins, the regime of racial preferences that started 30 years ago as a "temporary" remedy for past discrimination-and that now permeates our society-will become much more deeply entrenched. And if Gore replaces one or more of the Supreme Court’s more-conservative Justices with pro-preference liberals, the government-sponsored rationing of opportunities and pursuit of racial proportionality in all walks of American life could become the norm for generations to come.

If George W. Bush wins, on the other hand, we may see such preferences give way to programs that help socioeconomically disadvantaged people of all races. The process would be gradual, both because most Republicans are far from absolutist (or even principled) in their opposition to race-based programs and because the Supreme Court could not unilaterally end such programs, even if it tried.

With all respect for Lieberman-who in my view would make a better President than either Al Gore or George W. Bush-his efforts to reconcile his past and current statements don’t wash. His retreat began in 1995, soon after Jesse Jackson assailed him as a "Demo-publican" for questioning some affirmative action programs. Lieberman soon clammed up on the issue.

He and the DLC ultimately declined to endorse Proposition 209-the California ballot initiative to ban governmental preferences based on race, sex, color, ethnicity, or national origin-which Lieberman had praised in March 1995 as an unassailable "statement of American values." (California’s voters adopted the proposal in 1996.) Lieberman voted to retain federal contracting preferences in 1995 and 1998. Meanwhile, the anti-preference movement lost political clout when the surging economy pacified the "angry white males" who had helped elect a Republican Congress in 1994. And the DLC focused its energies on issues such as trade and education.

But the Jackson-Waters wing had neither forgotten nor forgiven Lieberman’s 1995 apostasy. After Gore had chosen him for his ticket, Maxine Waters (an ultraliberal Democratic Representative from Los Angeles) issued an ultimatum: "If there is no modification by Lieberman on vouchers and affirmative action, I’m not selling the ticket."

On bended knee, Lieberman said what Waters (and Gore) wanted to hear. Indeed, rather than simply saying that he would publicly support Gore’s policies even when he disagreed (as he did in the case of tuition vouchers), Lieberman said he agrees with Gore on race, and that thanks to President Clinton’s " `mend it, don’t end it’ approach … I think we are just about where we should be now."

But Lieberman is smart enough to know that Clinton’s "mending" of affirmative action has been almost entirely cosmetic; that Clinton and Gore aggressively champion "group preferences" and actively maneuver to circumvent preference-curbing court decisions; and that federal laws and regulations are still honeycombed with hundreds of preferences.

Meanwhile, like many a politician, Lieberman has taken refuge in the dodge that he is (and always was) for "affirmative action" and against only "quotas." And the man who once so forcefully rejected "preferences" now prefers to avoid that word-as do most preference supporters, including many news organizations.

A terminological digression helps explain why: Few leading politicians, Democrat or Republican, broadly condemn affirmative action these days, and none endorses quotas. The reasons are that affirmative action has a warm-and-fuzzy connotation, largely because it includes nonpreferential recruitment and outreach programs that hardly anyone opposes. Quotas, on the other hand, have been narrowly defined and stigmatized as rigid numerical formulas allocating coveted opportunities even when not enough qualified minority-group members are available to fill them.

The most descriptive and neutral term for what is in dispute, then, is preferences: programs that give advantages to African-Americans (and Hispanic-Americans, and American Indians, and Alaskan natives, and often women) on account of their race (or gender) in competing for jobs, promotions, contracts, or university admissions, even when that means passing over whites (or Asians, or males) who are equally or better qualified.

"Preferences"-not all affirmative action programs-are what Lieberman so roundly condemned in 1995, and what voters have consistently and lopsidedly opposed in polls. Preferences are the only kind of affirmative action that is under attack in the courts, and the only kind that Californians voted to ban when they adopted Proposition 209. And preferences are what the Clinton-Gore Administration championed (under the "affirmative action" rubric) in unsuccessful attempts to stop Proposition 209 and, after its adoption, to get the courts to strike it down.

That’s right: Almost unnoticed by the news media, the Clinton-Gore Justice Department urged the courts in 1996 and 1997 to rule that California’s voters had violated the U.S. Constitution when they added a statewide ban on discrimination against white people and Asians (preferences) to the long-established federal, state, and local bans on discrimination in favor of whites. That seemed Orwellian to many New Democrats-but not to some of the creative legal thinkers who will be in line for federal judgeships if Gore wins.

So now, Lieberman, who in 1995 called preferences "patently unfair" and "un-American" and praised Proposition 209, says he has no disagreement with Gore, who has worked mightily to perpetuate preference programs, has savaged opponents as "morally blind," and would have the courts preserve preferences rejected by the voters.

Is there anything left of the Joe Lieberman who used to say, "the current system of group preferences has to end"? Well, in July he did sign the DLC’s Hyde Park Declaration, a broad statement of New Democrat principles. It included the rather tepid assertions that "we should resist an `identity politics’ that confers rights and entitlements on groups" and should, by 2010, "shift the emphasis of affirmative action strategies from group preferences to economic empowerment of all disadvantaged citizens."

Will Lieberman now have to eat those words to satisfy the Jackson-Waters wing? Unclear. But the message the Gore-Lieberman ticket has been sending its liberal base is clear enough: Preferences now. Preferences tomorrow. Preferences forever.