There are a number of problems with the administration’s failure to make the argument that “diversity” cannot justify discrimination and its resulting argument that Michigan’s policies are unconstitutional only because the university did not try non-discriminatory alternatives. Among them are a) colleges will now fall all over themselves arguing that they have investigated alternatives and b) that if what you want is something approaching racial proportionality there is indeed probably no good substitute for giving preferences to race.
It’s already started.
UPDATE – Linda Greenhouse of the New York Times nails these briefs right between their averted eyes:
It was as if the administration had filed a brief denouncing abortion without asking the court to overturn Roe v. Wade.
UPDATE To UPDATE – For a critical view of Greenhouse’s NYT coverage of the Michigan cases, and a much more optimistic reading of the administrations briefs than I’ve offered so far, see Mickey Kaus’s comments.
Unfortunately Bush’s bold words were followed with a limp wristed attack on the quota system. He has choosen the worst of all possible courses by opening himself up to Liberal slanders and disappointing conservatives by not confronting the racial spoils system that the Left seeks to establish in this country.