Noel was extremely bright, a former clerk for Supreme Court justice Clarence Thomas, and a member of the Federalist Society. He had a reputation for being one of the most conservative lawyers on our staff. While I knew Noel would give me an excellent assessment of the cases’ merits, I also knew the Washington grapevine would soon buzz with news that Noel, a bona fide conservative, was advising me on this case. I hoped that Noel’s involvement would calm the concerns of conservatives who fretted that a Hispanic counsel—namely me—was incapable of evaluating affirmative action programs consistent with the Constitution.
Noel leaned toward the notion that the Supreme Court would invalidate the Michigan programs. Because the cases involved an issue of race, the programs would be subject to the strict scrutiny standard—that racial considerations are constitutional only if they are narrowly tailored to further a compelling government interest. Noel believed that the court would hold that educational diversity is not a compelling government interest and that the Michigan programs were not narrowly tailored.
I scheduled a meeting for December 6, 2002, in my White House office with Attorney General Ashcroft and Solicitor General Ted Olson to get their thoughts on the cases. Just days prior to our meeting, in one of our early-morning conversations, I spoke with President Bush about affirmative action. He told me, “I don’t need another mess over race.” Republicans were still dealing with fallout from comments made by Senate majority leader Trent Lott regarding Strom Thurmond’s 1948 presidential campaign, in which Thurmond had supported segregation between the races. Consequently, Lott would eventually be toppled as leader and replaced by Senator Bill Frist.
In our meeting, President Bush expressed concern about taking a position on the issue. “I’d rather steer clear of the cases,” he said. I didn’t argue, but I knew it would be unlikely that the administration could avoid taking a position on such a high-profile issue, particularly one involving racial matters.
I knew well President Bush’s long-standing concerns for disadvantaged people, especially children. I recalled that shortly after I had joined then governor Bush’s staff in Texas, I attended a budget meeting about funding for more prisons in our state. While he was definitely a law-and-order governor, I was struck by his compassion. Rather than pouring more money into prisons, he suggested, the money could be better spent on improving schools for poor Hispanic kids living along the Texas-Mexico border. So I was not surprised by his initial reluctance to weigh in on the Michigan cases if it signaled that he was opposed to hope and opportunity for minority students.
I hoped my meeting with Ashcroft and Olson would clarify whether we should encourage the Supreme Court to consider the Michigan cases. I valued their opinions. Moreover, the attorney general is charged by statute to give advice to the president and the executive branch on questions of law. The solicitor general is charged with developing and arguing legal cases on behalf of the executive branch before the Supreme Court and lower federal courts. John Ashcroft had been a US senator from Missouri, a state rife with racial tensions, and Ted Olson was one of the finest constitutional lawyers in America, so I knew their insights would be invaluable.
They presented a strong briefing about the cases, and expressed serious concerns about the Michigan admissions program in relationship to the Constitution. They did not, however, recommend whether or not the administration should ask the Supreme Court to accept the cases; nor did they suggest what the president’s position should be.
The following day, I met with Andy Card and reported my impressions of the meeting with John and Ted. Andy reiterated that the president did not want to get involved in this matter.
I understood, but I also knew that his neutral position was probably not sustainable. So I continued to discuss with various administration lawyers what the president should do. Virtually all advised me that the Michigan programs’ objective to achieve diversity did not represent a compelling government interest, nor were they narrowly tailored. Furthermore, Michigan had not even tried race-neutral alternatives that could achieve diversity, as universities in many other states had successfully done.
The consensus within the counsel’s office was that the president had four options. First, he could choose to file a brief in support of the Michigan admission programs, contending that racial diversity in our law schools and universities is a compelling government interest and that the Michigan programs were sufficiently tailored.
I sincerely doubted that would be the direction he would want to go. I could not recall a single conversation in which the president ever considered supporting the Michigan admissions programs. And contrary to press reports, nor had I ever advocated for or supported the idea of filing a brief in favor of the Michigan programs. I believed that the programs—particularly at the undergraduate level—placed too much emphasis on race.
The president’s second option was to file a brief opposing the Michigan admissions programs because racial diversity in our universities—although desirable—is not a compelling government interest. Indeed, this was what most conservative groups hoped he would do—urge the court to sweep aside the Powell opinion and end all considerations of a person’s race in the admissions process.
The third option was to file a brief taking no position on the question of whether racial diversity is a compelling government interest, but to oppose the Michigan admissions programs on the grounds that they were not narrowly tailored. This approach could contend that the Michigan programs were unconstitutional because the schools had failed to consider race-neutral alternatives. The president was well familiar with the 10 percent rule in Texas; the policy had significantly increased the enrollments of minority students in Texas universities.
While they were willing to live with this option, conservatives worried that this option might allow the court to resolve these two Michigan cases, while leaving the question of whether racial considerations in academic admissions decisions were constitutional for another day.
The fourth possible option for the president was to not file a brief at all. Some conservatives who were eager to strike down the Bakke decision preferred this option over the third.
In mid-December, a group of advisors including Andy Card, Karl Rove, and I met with the president to help him develop a position on affirmative action. I sensed that he was torn between his desire to promote opportunities for minorities and his commitment to his conservative values. He said he believed that race should be a valid consideration, and that it was a factor he considered when making his appointments. He sincerely wanted to be known as a Republican who endorsed genuine diversity. He asked us to look at university programs around the country that were successful in promoting racial diversity. As with most policies, the president encouraged us to articulate what we as an administration were for, rather than talking about what we were against.
Karl and I advised the president that opposing racial diversity because it was not a compelling interest of government would alienate some groups and please others. We further advised him that he did not have to take a position opposing racial diversity but could still oppose the Michigan programs because the university had failed to achieve diversity through race-neutral methods. We presented the four options, and he chose the third, deciding that he wanted the solicitor general to prepare a brief opposing the Michigan admissions programs because they looked too much like quotas and placed too much emphasis on race. This would leave it to the court, if it elected to do so, to answer the question of whether racial diversity in our universities is a compelling interest. I was not surprised by the president’s decision.
I recognized that he wanted to see a brief written that would not kill the hopes and dreams of disadvantaged minorities, but would reaffirm his stated opposition to quotas. This was what I believed every judge and court should do—namely, to decide each case on the narrowest grounds possible.
“I think it is important for Michigan to try race-neutral means first,” the president told me. “Then, if
that fails to produce diversity, I’m more comfortable considering race as one of many factors.” He directed me to inform the Justice Department of his position, and that he wanted a brief soon. He also emphasized that he did not want his position leaked to the press prematurely.
I met with Ted Olson in his office and delivered the president’s instructions. Ted seemed slightly surprised by the decision, and perhaps a bit disappointed. Although he disagreed with the approach, he was the quintessential professional and promised that he would write the brief.
I believed doing away with quotas was the right decision. For a university to reserve a certain number of admissions for students based solely on race was a bad idea, and our courts have never accepted racial quotas as constitutional. Consequently, the president and I both felt quotas should be opposed, even if that hurt Republican outreach to minorities.
Yet this remained a conundrum for me, and driving home from the White House one evening, the father in me wondered if I was advocating a position that would work against my younger sons in the future. Would Graham and Gabriel one day be denied an opportunity of admission into a highly select university because a school could not consider the color of their skin as one factor among others? As a father, I had questions, but as a lawyer, the answer seemed straightforward.
The president favored a moderate, middle-ground position. He could support an affirmative action program that considered race as only one of many other factors, not as the preeminent basis on which an admission decision is made. But if the court wanted to end affirmative action, that would be the court’s decision.
Unfortunately, despite the president’s admonitions about leaks, on December 18 the Washington Post reported that the president’s aides—including me—opposed the stance against affirmative action advocated by the Justice Department because it could impair the president’s efforts to woo Hispanics and other minorities to the Republican ranks. Ironically, even with my Hispanic heritage, I had not encouraged the president to support quota-like affirmative action programs.
The next day, December 19, I talked with Ted Olson by phone. Ted pushed back on the approach chosen by the president. He felt it was unrealistic and wrong to assume that racial diversity was constitutional, or to pretend that this issue didn’t matter. He felt strongly the court deserved to have our position on both issues.
I had no problem with the court deciding the fundamental questions surrounding affirmative action, but I also knew the president neither wanted to invite the court to decide the question, nor tell the court how he thought it should be decided.
Meanwhile, the New York Times editorialized that the solicitor general was eager to weigh in against the Michigan admission programs, but I was opposing such a stand, arguing that it would hurt Republican efforts to attract minority voters. That was utter nonsense. The truth is, I never argued in favor of the Michigan admission programs. Furthermore, the debate between the White House and the Justice Department centered on how best to oppose the Michigan programs, not whether or not to support them. The Times got the story wrong.
Although the president seemed to have made up his mind, the White House legal team continued to discuss the pros and cons of various options as we awaited a memo being prepared by Justice. We had recently brought in a new deputy counsel, David Leitch, another outstanding lawyer who had clerked for Chief Justice Rehnquist and was highly regarded by the conservative community. David and Noel made a good team and, I hoped, would help solidify our position among conservative groups.
The memo from the solicitor general’s office arrived at my office a few days before Christmas. The memo included a discussion of the president’s stated position, as well as a discussion of the department’s preferred position, and they were not the same. In fact, if there had been any question about the department’s unhappiness with the president’s position, the memo made clear their preferred position. Ashcroft and Olson believed the president should unequivocally oppose racial diversity as a compelling state interest. They suggested the president should ask the court to sweep aside the Powell opinion. They did, however, agree that the Michigan programs were not narrowly tailored because the university had failed to consider race-neutral alternatives.
On January 2, 2003, I received a call from Ted Olson. He continued to be unhappy with the president’s preferred position. Four days later, I had another difficult conversation with the solicitor general. He informed me that he was having serious problems writing the brief.
I met with President Bush, Vice President Cheney, Andy Card, Condi Rice, policy advisor Jay Lefkowitz, and speechwriter Mike Gerson to again discuss the options. The vice president seemed sympathetic to Justice’s suggestion, but the president decided to stay the course. He wanted the solicitor general to file a brief opposing the Michigan admission policies based on the narrow tailoring grounds, but not take a position on whether racial diversity is a compelling interest. Perhaps because he knew that Ted and I were already at odds over this matter, the president asked Vice President Cheney to call Ted with his instructions. I wasn’t privy to the call, but apparently Ted asked permission to present both arguments and the president agreed so we could compare both options.
The Wall Street Journal wrote that day, “We’re told that White House counsel Alberto Gonzales is afraid if the administration comes down against racial quotas, he won’t get the smooth Senate passage he wants if he is nominated to the Supreme Court to fill any opening later this year.”1 I didn’t know where the newspaper got their information, but the Journal, too, was wrong. I had always opposed quotas. Additionally, I had never advocated for supporting the Michigan programs. Nor was my advice ever affected by any concerns about my being a potential nominee to the Supreme Court. The allegation was ridiculous. Besides, it was the president’s position being debated in-house, not mine. I began to wonder if opponents to my going on the court were leaking false stories to intensify opposition to me.
The following day, January 7, I had a quiet conversation alone with the president in the Oval Office. He told me he wanted to go on record as being for the rights of minorities. “I don’t want to be known as the president who did away with affirmative action,” he said.
I reminded him that Ted would have to make some persuasive arguments before the Supreme Court, and that the views of the Department of Justice were important. He nodded, but I could tell, based on our conversations and what I knew of him, he had not been persuaded to change his mind. I sensed that he did not feel that doing away with affirmative action, other than quotas, was in the best interests of the country—at least not at that time.
A steady stream of stories and editorials in the press reflected the strong interest in the president’s decision. Commentators drew lines in the sand, for and against affirmative action. The Knight Ridder/Tribune News Service reported that Hispanic leaders planned to ask the president to support the race-based policy at the University of Michigan. “White House officials reportedly are lobbying Bush on both sides of the issue,” the Washington Post printed. “Solicitor Ted Olson is said to be eager to file a brief opposing the University’s policies while White House Counsel Alberto R. Gonzales is urging Bush to support the policies.”2
Around noon on the ninth, the first full draft of the brief arrived at the White House from the Department of Justice. Our circle of advisors met briefly with the president to discuss it. We also informed Press Secretary Ari Fleischer for the first time about the case.
I spent a long evening reviewing the brief with my lawyers. At 6:00 a.m., I was back in my West Wing office preparing for an early meeting with the president. Once again that morning, Andy Card, Karl Rove, Condi Rice, Jay Lefkowitz, Dick Cheney, Mike Gerson, and I discussed with the president in the Oval Office what might be his best approach. No one disagreed that the University of Michigan programs at the undergraduate level and the law school should be opposed because neither the university or law school had attempted to find race-neutral alternatives. The tactical q
uestion—and the one implicating social policies, not to mention politics—was whether racial diversity as a societal matter or educational diversity in our universities was a compelling government interest. At the conclusion of the discussion, President Bush said that he still preferred not to take a position on those issues, and that he would oppose the Michigan programs based on the fact that they were not narrowly tailored.
The attorney general and the solicitor general were not included in that meeting. In retrospect, I wish I had encouraged the president to invite them. Of course, their opinions were reflected in their brief and were advocated in that meeting by the vice president. But it may have been helpful for the president to have heard from them directly in the presence of his other advisors.
I doubt it would have made a difference. Ashcroft and Olson wanted the president to take a position opposing racial and educational diversity as a compelling interest. They wanted him to declare that race could never be considered in making admissions decisions, unless to rectify past discrimination, and only after exhausting race-neutral means. Essentially, they wanted the president to say that admissions programs that considered race in any way at institutions anywhere in the country—including our military service academies—would have to be redefined. President Bush simply was not going to move that far right.
Nevertheless, I should have encouraged more direct communication between the president, John, and Ted. If I had been the attorney general at that time, I would have insisted to the chief of staff and to the counsel that I be present, and I would have been angry if excluded from the White House discussions. I would have wanted to speak directly to the president. On the other hand, nothing prevented the president from reaching out to the attorney general, of course, and the president has the final say on who is in an Oval Office meeting.
No doubt, some people at Justice may have wondered if the department’s positions were being fairly presented to the president. They were, and we also had the written brief in front of us in all of our deliberations. I understand how the media stories may have generated resentment and jealousy, and this entire episode further damaged my relationships with conservatives within the Department of Justice. In turn, that fed the anger and suspicion toward me among conservatives outside the government. Certainly I would have preferred they not be mad at me, but I had a job to do.
True Faith and Allegiance Page 24