Racing Right: Reflections On the O’Connor Resignation
When Supreme Court Justice Sandra Day O’Connor was nominated to the court by former President Ronald Reagan, she showed up on the ideological radar as a conservative. In one of her early opinions, Croson v. Richmond, she rather derisively wrote about the legitimacy of minority business set-asides in an opinion I satirized as “show me your chains.”
Writing about a modest set-aside plan that was developed in the cradle of the confederacy, O’Connor said that people had to “prove” specific past discrimination, and proposed a complicated mathematical formula to measure the extent of discrimination in particular industries.
Essentially, she suggested that if the number of businesses in a certain industry doing business with a city were proportional, there might not be discrimination, ignoring the fact that historical discrimination may have impeded the process of business formation in the past, thus affecting the denominator, understating the numerator and also the amount of past discrimination. Yes, I know this is a cumbersome sentence, but work with me here.
What I’m saying is that O’Connor’s inclination was to understand the extent of discrimination by looking only at the universe of businesses that existed, not the universe of businesses that might have existed.
In any case, cities rushed to change their rules because of Croson, and those who justifiably supported affirmative action and set-asides counted O’Connor out in the fight for justice. That was a mistake. The quality that she is being touted for on the heels of her resignation is her “moderate conservatism,” or her ability to see both sides of an argument and to try to find some common ground. It is amazing to consider that the same woman whose decision seriously challenged minority business set-aside programs was later touted as the savior of college affirmative-action programs.
O’Connor is not the only conservative that ended up sounding like she had good sense when you looked at her views in context. Two other Republican choices for the Supreme Court, Anthony Kennedy and David Souter, have offered a “moderate” balance that might not have been expected from their pre-Supreme Court records. Is there rarified air at the Supreme Court that encourages people to leave ideology and embrace good sense? Probably not. Actually, I think conservative moderates like Kennedy, Souter and O’Connor seem so reasonable these days because our country is racing to the right.
Bush partisans champion “privatization” options for education, Social Security and everything else. They attack a series of pivotal rights, including the right to free speech in their opposition to flag-burning, the right to choice in their attacks on Roe v. Wade, their attacks on compulsory education with the imposition of “zero tolerance” and their attacks on simple human decency with their support of torture in Guantanamo Bay. Am I overreaching? Ask the folks who live with the changes that have been made by this administration. Bottom line — a decade ago we might not have imagined an unjustified attack on Iraq, a ballooning budget deficit initiated by tax-cutting Republicans, or the current assault on the United Nations. And we might not have anticipated a day when conservative looks liberal and when even Richard Nixon emerges, for liberals, as a president who had considerable redeeming social value.
Nixon would engineer the break-in of an office in a heartbeat. He was also the father of affirmative action. He signed Executive Order 11625 in 1971, authorizing the development and coordination of a program for minority business enterprise. The executive order begins by saying, “The opportunity for full participation in our free enterprise system by socially and economically disadvantaged persons is essential if we are to obtain social and economic justice for such persons and to improve the functioning of our national economy.” When have you last heard the words “social and economic justice” used by a Republican, or even a Democrat for that matter? If Richard Nixon is using executive order language that, arguably, Bill Clinton would not, is it no wonder that Sandra Day O’Connor was perceived as more moderate than conservative.
I don’t write this to excoriate O’Connor. Like most progressives in higher education, I am grateful that Justice O’Connor put her finger in the dam to stave off, at least temporarily, attacks on affirmative action in higher education. Instead, I write to raise a series of questions about our nation’s ideological continuum and the many ways that it has shifted right. “Fair and balanced” debate now seems to mean a conversation between moderates and conservatives, forget about liberals or progressives.
Scholars can’t do much about the political reality. Republicans own the House of Representatives, the Senate, the White House and possibly the Supreme Court. But those who teach and write can be clear about the ideological continuum and the parts of it that are missing in public discourse. “Liberal” should be neither a bad word nor an endangered species, but a dynamic concept that is studied and discussed, even when liberals are in the minority.
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