WASHINGTON, Oct. 31 (UPI) -- The Bush administration's top courtroom lawyer found himself in the unusual position of defending Clinton-era affirmative-action programs before the Supreme Court Wednesday.
A white-owned Colorado company is continuing to challenge how U.S. highway subcontracts are awarded.
Though then-Gov. George W. Bush criticized affirmative-action programs during the campaign, the White House is courting Hispanic-Americans, who in turn are believed to be following the case closely.
U.S. Solicitor General Theodore Olson told the justices Wednesday that the federal government "has responded to this court's guidance" in previous incarnations of the case.
"There has been no showing of bobbing and weaving" by the government to save the program from hostile court rulings, Olson said, despite allegations from the Colorado company.
The case began in 1989, when white-owned Adarand Constructors Inc. submitted the low bid on a highway guardrail project in Colorado, but the contract was awarded to an Hispanic-owned company because of an affirmative-action program.
Adrarand went to court, and the Supreme Court ruled in the case in 1994 that the highest standard of "judicial scrutiny" had to be applied to race-based government programs. In other words, government affirmative action could only survive if it fulfilled some compelling government interest and tackled ongoing discrimination.
The case was sent back to a trial court, where a judge ruled for Adarand under the principles outlined by the Supreme Court. A federal appeals court dismissed the case in 1999, ruling that because of Department of Transportation changes in the program, the dispute was moot.
Not so fast, the Supreme Court said. Without hearing argument a second time, the high court sent the case back down for a rehearing on the merits.
When the appeals court ruled for the government, the Supreme Court decided to hear the case again.
However, the Bush administration filed a brief this summer saying the Adarand challengers were attacking a program that no longer applies to Colorado.
Speaking for Adarand before the Supreme Court Wednesday, Denver attorney William Pendley said that just isn't so.
Noting that the case began in 1989 when the company lost a contract despite submitting the lowest bid, Pendley said, "In 2001, Adarand comes fore this court because it still can't compete on an equal footing."
Pendley said the affirmative-action program is not narrowly tailored, as required by the Supreme Court.
The attorney scoffed at claims the government was no longer requiring Colorado contractors to give a percentage of their government subcontracts to minority-owned firms.
During his own time before the court, the solicitor general conceded that some race-based provisions remained in government highway contracts in Colorado, but insisted they were not being enforced.
That brought a snort of disbelief from Justice Antonin Scalia, who said from the bench, "If I were the prime contractor, I'd say I'd better not take the chance" of not following the race-based contract provisions.
Olson argued that what remains of the program was serving "a compelling government interest" by ameliorating the "lingering effects of social discrimination."
He urged the justices to dismiss the case because Adarand was not affected by the program it is challenging. In at least three of the post-1989 bids cited by Adarand in its brief, Olson said, the company had simply failed to filed a low bid.
In his rebuttal, Pendley conceded that Colorado technically is not on the list of states where the affirmative action program is used because a significant portion of DOT subcontracts are going to minority-owned firms without help from the program.
That will all change, Pendley insisted, when the government conducts a new "benchmark study" to examine where such contracts are going.
"The government can't play this little shell game and deprive this court of jurisdiction" in the case, Pendley said.
"The day this case ends is the day this benchmark study comes out and suddenly Colorado comes back into the 'under-utilized' category," he said.
The justices should rule in the case sometime this fall or winter.
--
(No. 00-730, Adarand vs. Mineta et al)
