Commentary Magazine


The Weber Case

To the Editor:

As I write, in early July, with the echoes still reverberating from the Supreme Court’s rejection of Brian Weber’s reverse-discrimination suit against Kaiser Aluminum and the United Steelworkers, it seems like a sour compliment to say of Carl Cohen’s fine analysis [“Why Racial Preference is Illegal & Immoral,” June] that he had all the arguments on his side, but not the votes. But it is a valid point. Law, after all, is supposed to be a matter of arguments, not arbitrary political will. Yet the majority on the Court made only the most cursory attempt to reconcile its ruling with the clear wording of the statute, with previous interpretations of it, or with the congressional debate at the time of its passage. The majority made no attempt, for example, to answer Mr. Cohen’s demolition of the claim that the Kaiser program was “voluntary.” The core of its justification was that it would be “ironic,” i.e., these Justices would not like it, if the 1964 Civil Rights Act turned out to ban discrimination in favor of minorities. Consequently, they decreed that it did not.

This is government by men, not by law. In itself, that is a damning indictment of the decision. But the social policy that the Court is apparently endorsing would be equally far-reaching. It would result in the Lebanonization of America—i.e., the state-supervised distribution of benefits according to the size of various domestic factions, as in pre-civil-war Lebanon, where, of course, such a policy proved fatally inflexible and unjust.

Perhaps this abrogation of the principles of liberal pluralism can be defended. Many of its advocates certainly have the highest motives. But it should at least be announced and debated, rather than advanced by bureaucratic and judicial fiat, while politicians, intimidated by the names they might be called, avert their eyes.

I look forward to Mr. Cohen’s further comments on the issue.

[Senator] Orrin G. Hatch
United States Senate
Washington, D.C.

_____________

 

Senator Hatch and readers are referred to Carl Cohen’s article, “Justice Debased: The Weber Decision,” beginning on p. 43 of this issue—Ed.

_____________

 

To the Editor:

In his informative article, Carl Cohen writes that on Brian F. Weber’s side in the case of Steel-workers v. Weber is “the Anti-Defamation League of B’nai B’rith (with some associated non-Jewish ethnic groups. . .)”

Mr. Cohen apparently is unaware that a powerful amicus curiae brief in behalf of Weber was filed by the Committee on Academic Nondiscrimination and Integrity. Our Committee is not an ethnic group and has been fighting for many years, together with the University Centers for Rational Alternatives, against the policies of reverse discrimination illegitimately read into the programs of affirmative action by HEW and other agencies of government.

Miro Todorovich
Sidney Hook

New York City

_____________

 

Carl Cohen writes:

I was indeed unaware of the brief of the Committee on Academic Nondiscrimination and Integrity. My apologies.

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