DAVID BRODER: Justice Scalia's criticism falls to smugness

WASHINGTON – During the last campaign, whenever Bush was asked what he would seek in a Supreme Court appointee, the first name he brought up as his ideal was Justice Antonin Scalia. Last week's historic rulings in the University of Michigan affirmative action cases show why he needs to find another model.

Virtually all the majority and dissenting opinions in the divided court displayed serious jurists wrestling with an issue that tests not just legal principles but fundamental social values. Justice Sandra Day O'Connor wrote for the 5-4 majority that said race may be used as a factor in university admissions – but only under careful safeguards. Chief Justice William Rehnquist spoke for a different 6-3 majority that said the bonus point system Michigan used to boost minority applicants for its undergraduate student body violated those procedural protections.

Both delineated the issues carefully and showed respect for the arguments that led some of their colleagues to disagree. But when one turned to the dissent Scalia filed to the O'Connor ruling, the tone was jarringly different. It was sarcastic, dismissive, polemical and smug – everything that one would hope not to see displayed by the judicial role model.

O'Connor's opinion readily acknowledged that, as a general and vital principle, the Constitution bars favoritism or discrimination based on race. Only if there is a “compelling state interest” can race be considered, she said, and even then, its use must be as minimal as possible.

The “compelling interest” of the Michigan law school, she found, lies in having “a critical mass” of qualified minority applicants in each class, so all students can encounter the widest variety of backgrounds, experiences and viewpoints as they prepare for their careers in a world brimming with diversity. She noted pointedly that the same interest had been asserted by many of the 300 organizations, including major businesses, unions and nonprofits, which filed briefs supporting the Michigan plan. And distinguished leaders of the American military, she reminded everyone, had said that the armed services would be badly damaged if race were ruled out as a consideration in selecting people for the military academies and campus ROTC programs.

Because the Michigan law school weighed each applicant individually, considering his or her entire background – and not just race – O'Connor and the court majority approved its plan.

Rehnquist disagreed, but in measured tones. And when it came to undergraduate admissions, where every minority applicant was given a 20-point head start toward the 100 points that guaranteed entry, the chief justice, joined by O'Connor and four others, said the arbitrary “tilt” could not pass constitutional muster.

President Bush, who earlier had sent the Justice Department out to oppose both the undergraduate and law school admissions programs, applauded the court for seeking “a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.”

And Scalia? During oral arguments, he had told Michigan's counsel that if the law school was so hell-bent on including more minorities, it should simply lower its admission standards – a stunningly patronizing and insulting comment. Having lost, he now said scornfully that the lessons of mutual understanding and tolerance Michigan was seeking to provide by building a diverse student body were more appropriately learned by “people three feet shorter and 20 years younger than the full-grown adults at the University of Michigan law school, in institutions ranging from Boy Scout troops to public-school kindergartens.”

As if that ridiculous contention were not enough, Scalia then said that the O'Connor opinion opens the way to “racial discrimination” in public and private employment, adding sarcastically that he was sure that “the nonminority individuals who are deprived of a legal education, a civil service job or any job at all by reason of their skin color will surely understand.”

That's uncomfortably close to the infamous television ad Jesse Helms ran in 1990, when the former North Carolina senator was running against Harvey Gantt, the African-American former mayor of Charlotte. Helms' narrator said, “You needed that job. And you were the best qualified. But they had to give it to a minority because of racial quotas.” Scalia's scare-tactic scenario constitutes almost as naked an appeal to racial antagonism. It's not what you expect to hear from a Supreme Court justice.

But it is becoming Scalia's pattern. Just three days later, dissenting again on the decision overturning the Texas anti-sodomy law, Scalia railed against “the so-called homosexual agenda” and declared himself on the side of those who “do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, and teachers in their children's schools or as boarders in their homes.” That, too, echoes a favorite Helms theme.

And it's not a model Bush should seek to clone.

David Broder is a columnist for The Washington Post Writers Group. His address is 1150 15th St. N.W., Washington, D.C. 20071. David Broder's e-mail address is davidbroder@washpost.com