Columnist David Broder describes the recent decision of the Democratic National Committee to insert caucuses in Nevada between the Iowa caucuses and the New Hampshire primary and to add South Carolina right after New Hampshire in order to make the nominating process more “representative” as a “Democratic version of affirmative action,” which he regards as “madness.”
What they mean is that Iowa and New Hampshire, which have led the nominating process since 1976, are overwhelmingly white — and notably short of the African American and Latino voters on whom Democrats depend in the general election.
Broder, in short, is not pleased by this decision.
This Democratic version of affirmative action leaves a lot to be desired. Unions are a major source of Democratic votes and money. Maybe Rhode Island should be rewarded for being a stronghold of union activity at a time when labor elsewhere is beleaguered. And gays vote Democratic; shouldn’t the states that are home to San Francisco and Key West be allowed to vote early? And if Jewish contributors keep the party solvent, shouldn’t New York be up there with the other pacesetters?
This way lies madness, and madness is what the Democrats have wrought. When they started tinkering with their rules after the 1968 election disaster, they unleashed a fierce competition among the states to be at the head of the line, where the contests have the greatest impact on weeding the field and crowning the eventual winner.
But I’m confused. Why does Broder think “[t]his Democratic version of affirmative action” is any worse than any other version of affirmative action? Every since affirmative action morphed into racial, ethnic, and gender preferences in the 1970s critics have pointed out that it produced “fierce competition” along race, ethnic, and gender lines “to be at the head of the line” receiving governmental favoritism.
Perhaps Broder has written columns calling this everyday version of affirmative action “madness,” but if so I’ve missed them. Nor, for that matter, do I recall reading any criticism from him of the rigid quotas the Democrats have imposed on their selection of delegates.
Broder’s criticism is ironic, given that he repeatedly criticized Justice Scalia as being politically incorrect for voting to strike down a more heavily race-based affirmative action program than the one that offends Broder.
In 2003, he smugly critized Justice Scalia for dissenting against the Supreme Court’s controversial 5-to-4 decision upholding the University of Michigan Law School’s race-based affirmative-action admissions policy in Grutter v. Bollinger (2003).
A federal trial judge had found the Law School Admissions program was an out-and-out quota. This was a finding of fact entitled to deference by appeals courts and the Supreme Court under Federal Rule of Civil Procedure 52, which commands appeals courts and the Supreme Court not to disturb factual findings of trial courts unless they are not only wrong but also clearly and obviously erroneous. (The idea is that it is more efficient and accurate to have factual findings made by a trial judge, who can observe witness testimony, than by a distant appeals court or Supreme Court).
As the Justice Department pointed out, the law school admitted the same number of minority students from particular minority groups from year to year, even as overall admissions varied. This was an undisputed fact.
Thus, the number of minorities admitted was more rigidly fixed at the University of Michigan Law School than it was at the University of California at Davis, whose affirmative action plan was struck down as a quota in the Supreme Court’s 1978 Bakke decision.
Under the Supreme Court’s own precedent, the University of Michigan Law School’s admissions process obviously used a quota, even more clearly than in the Bakke case.
And even if there were any doubt or ambiguity on that score, the Supreme Court was obligated by Rule 52 to defer to the federal trial judge’s express finding that the Law School was using a quota.
Yet Justice O’Connor’s poorly written majority opinion in the 2003 Grutter case upheld the law school’s race-base admissions policy, without ever pointing to any proof that the trial judge was clearly erroneous, and without ever mentioning Rule 52 — even though one of the questions presented in the case, on which the Supreme Court itself granted review, was the applicability of Rule 52.
In prior cases such as Anderson v. Bessemer City, the Supreme Court had held that in light of Rule 52, it was not entitled to override the factual findings of trial judges just because it disagreed with them.
It’s not as if Iowa and New Hampshire aced the SATs and therefore deserves to be first, so I have no moral problem with the Democrats rearranging their primary schedule like this.
However, the practical issues of how this will affect the platform are a little more interesting, particularly in whether it will take the party closer or further from the median voter. My hunch is that giving more primary power to blacks will push the Democratic party left on foreign policy and economic issues and slightly right on sex.
More generally, there’s the strategic question. Would a party that cared about winning general elections rig the primary to favor marginal or core voters? I think the answer is obvious.
I agree with anonymous’s first comment. Of all the affirmative action efforts to be complaining about, this one seems pretty odd. There’s no compelling reason why Iowa and New Hampshire should be first, after all.
As to his second comment, I doubt it will make a significant difference. This is pandering, not substantive. Foreign policy is not going to be driven by the order of the primaries.
I hope it is clear that I was not endorsing Broder’s criticism of the Dems for fiddling with the order of their primaries/caucuses. My point was only that the particular nature of his criticism, i.e., the “madness” of “[t]his Democratic version of affirmative action,” sounds odd coming from someone who never seems to criticize any other (usually much more egregious) form of affirmative action.
Hans,
Obviously, O’Connor didn’t care about Rule 52, but I think a fair counter-argument to it would be that the determination of what is and isn’t a quota is a “mixed” question of law and fact (that the Law School admitted the same number is the fact, that it is definable as a “quota” is the question of law) that was entitled to looked at by higher courts. There is so much other garbage in O’Connor’s Grutter opinion to criticize that I wouldn’t hinge my attacks on Rule 52. The real problem is that the “deference” was given universities on interpreting the scientific value of “educational benefits” derived from “diversity” (when, indeed, that science is mixed, and mostly written by university interests), rather than application of strict scrutiny.
Have these folks ever thought of a f’ing lottery? Make an agreement with the Republicans. We take a random primary order if you do. It would be bloody fascinating to see who flinched first at the prospect. Either way it would be revealing, and entertaining.