Rich Tucker
When he was running for president, George W. Bush frequently held up Antonin Scalia and Clarence Thomas as his ideal Supreme Court justices. They are excellent choices, because they read the Constitution and interpret what is actually there. That, of course, is what Supreme Court judges ought to do.

But Washington Post columnist David Broder doesn’t think so. Broder took Scalia to task on June 29 for not seriously considering social issues in his decision-making. Scalia had taken issue with the majority opinion in Grutter v. Bollinger, the decision that will allow the Michigan law school to continue using affirmative action in admissions. He correctly pointed out that it will lead to racial discrimination.

Broder wrote: “Virtually all of the majority and dissenting opinions in the divided court displayed serious jurists wrestling with an issue that tests not just legal principles but also fundamental social values.”

Scalia’s dissent, however, was, “was sarcastic, dismissive, polemical and smug.” How so?

Broder writes that during oral arguments, Scalia “had told Michigan’s counsel that if the law school was so hellbent on including more minorities, it should simply lower its admission standards -- a stunningly patronizing and insulting comment.”

But how is that patronizing? Isn’t that the whole idea behind affirmative action?

Minorities say they can’t compete unless affirmative action gives them a hand up. John Payton, the lawyer for the university, admitted as much during oral arguments. “We have very small pools of African Americans that are qualified to the extent that we require students to be qualified to do the work at the University of Michigan,” Payton said. Jesse Jackson admitted it, too, when he lauded the Court’s ruling: “Today’s historic decision confirms the wisdom of leveling the playing field for all Americans.”

 As my Heritage Foundation colleague Dana White observed, these days black tell other blacks they’re not good enough to compete without assistance from affirmative action. That’s sad. But it’s not patronizing or insulting to point it out.

 Justice Scalia also wrote that the lessons the university is seeking to provide by building a diverse student body are best 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.”

Rich Tucker

Rich Tucker is a communications professional and a columnist for