I'm listening to Antonin Scalia question Maureen Mahoney, representing U Michigan, about affirmative action. Scalia is asking about the argument that "diversity" is a sufficiently compelling motivation to warrant setting aside the constitution prohibition of the consideration of race. Mahoney objects, claiming that we're here to decide whether this [affirmative action] is a form of discrimination. Just seconds later, Scalia points out she has used the phrase "consider race as a criteria", and thus has admitted they are disciminating on the basis of race.

Then Antonin Scalia demonstrates the problem (insufficient minority participation without the race-based points) was created by the state of Michigan itself: He points out that Michigan wanted a top-notch law school, and that it tried to achieve this goal by setting the admissions standards so high that it was difficult to find the "desired" number of qualified minority applicants using a uniform criteria. Thus Mahoney is arguing the need for "diversity" is so compelling that the constitution must be set aside, yet not compelling enough for Michigan itself to lower the entrance requirements!

Manhoney argues that the compelling need is for a high-quality law school with sufficient diversity. (At this point, I'm also not convinced the constitution is less important than a particular state's desire to possess a certain type of law school.)

Then we move on to discussion about whether a quota, which is unconstitutional, is being sought. Mahoney says no, we're just trying to achieve "sufficient mass" of minority student to ensure a diverse education. Scalia catches her saying, repeatedly, that without a "minimum number" of students diversity will not be sufficient. Scalia points out that if there is a "minimum" then we are talking about a quota in disguise.

Next Scalia moves on to ask about the "daily" reports of minority admissions -- asking if they are indeed checked daily. Mahoney objects, saying that the report isn't available on a daily basis. Scalia asks why its called a "daily" -- is it printed weekly? (Laughter in court.) No, its daily because the data is updated daily, so it can be checked at any time. (Of course, including daily... geeze.)

Scalia asks if the point isn't to check to make sure this "critical mass", this "minimum" has been met? She responds that they're just trying to track the diversity of the class. Scalia asks if other factors are being tracked in this database, such as economic background. No, gender is tracked, but economic bracket doesn't seem to be part of U Michigan's view of "diversity".

Mahoney tries to use the Dept. of Educations' definition of a quota as a "stated minimum number" to show that a quota is not being sought. Their numbers have ranged from 7% to 9%. Scalia asks if the DOE interprets the constitution. No. So it's a quota if its a specific minimum number, but it's not a quota if there's a range of two numbers within which it might vary?

I'm stunned by Scalia's perceptions. Brilliant.

I'm also wondering if anyone will get around to asking the key question: We're arguing this is all important because of "diversity", yet we're only looking at skin color, but barely considering economic bracket, and not at all looking for the most relevant type of diversity: intellectual: converative, liberal, libertarian, etc. -- the kind of diversity which is becoming increasingly rare.

This is really interesting stuff. I wish you all could hear it.

Update: Ruth Bader Ginsburg is actually trying to argue constitutional law by citing courts in other countries! What planet is this woman from??? She's a supreme court justice in the U.S. who looks to other countries to interpret the U.S. constitution? U.S. Solicitor General Ted Olson points out, in so many words, that this is the US. Good heavens.

Now U Michigan Atty. John Payton is talking about "underrepresented" minorities. Trying to explain why we grant twenty points to some minorities but not to others. Rehnquist asks how it's "underrepresentation" is determined. Payton says they use the goverment's definition. Rehnquist asks him what that definition is. Payton changes the topic and starts talking about "critical mass" again.

(Here's what Rehnquist is trying to point out: Let's say 2,1% of the population are Danes. If less than 2.1% of the people in the college are Danes, Danes are underrepresented. In other words, the number 2.1% is being used as a desired percentage of Danes to be admitted, a quota. Wow. And Payton loses points in my book for evading: never trust the guy who won't give you a straight answer.)

Later, someone explains the origins of the number twenty: The previous, quota-driven system produced certain numbers of each class. Then they examined the known demographic, and added a race-bais factor which they "tuned" to achieve the same student representation as the previous system. In other words, the number twenty was picked to produce the same results as a quota-driven system, and is thus a mathmatical re-representation of the same.