From OutsideLansing.com (Chetley Zarko) I know. I know, but this is worth reading.
Folks, the name of my first blog was (still is) Power, Politics, & Money. That derives from a quote from a lawyer who once told me in reference to judges and rulings that "There is no law. Only power, politics, & money." The inference is obvious. Judges more often judge based on politics, and even occasionally are bought.
So in a lawsuit founded on the thinnest reeds of truth and the longest stretches of imagination, forces have been waiting for a local federal district judge to rule on the federal constitutionality of MCRI, which Michigan voters passed 58% - 42% in 2006. The 6th Circuit Appellate Court above this judge has already issued a ruling that the case is unlikely to succeed on its merits, but when you're a liberal appointee you owe your political career to the cause, and Judge Lawson has been giving signs in recent hearings and procedural calls that he will rule against MCRI, invalidating the will of the Michigan people because he knows better than them.
Michigan's Proposal 2 ban on affirmative-action preferences, passed by 58 percent of that state's voters in November 2006, seems somewhat likely to be ruled unconstitutional by a U.S. District Court Judge David M. Lawson in the coming weeks or months. Not only did Judge Lawson previously issue a decision--later overturned--to temporarily block the enforcement of Proposal 2, he also has made several procedural calls against advocates of the measure in handling two lawsuits (later joined into one) seeking to have it overturned. Moreover, when Judge Lawson held a February 7 hearing on whether the cases should go to trial, both his line of questioning and the procedural calls he made suggested that advocates of Proposal 2 weren't exactly on his Valentine's Day shopping list. Throw all of these tea leaves together, and it's no big leap to read them as portending that Lawson will strike down Proposal 2 in a summary judgment (without holding a trial).
If Judge Lawson does issue a summary judgment ruling Proposal 2 unconstitutional, two developments are almost certain: An appeal of his ruling to the U.S. Court of Appeals for the Sixth Circuit, and the onset of headache-inducing confusion in Michigan as state agencies try to decide whether to comply with Proposal 2 while its legality remains up in the air.
One of the lawsuits challenging Proposal 2, filed by the NAACP and ACLU, argues that it violates the Equal Protection Clause by essentially walling off racial and ethnic minorities from receiving the same sorts of admissions preferences that public colleges give to other subsets of the population, such as military veterans or the children of alumni. The other lawsuit, filed by the group By Any Means Necessary, argues that, without affirmative action, college admissions criteria irremediably discriminate against black, Hispanic, and Native American applicants, so Proposal 2 has the effect of imposing a discriminatory system.
Judges on the Sixth Circuit have already expressed skepticism toward these arguments, concluding in a December 2006 ruling that they did not see any reason to forestall enforcement of Proposal 2 because they did not think the arguments made against it will prevail in the federal courts. And similar arguments were ultimately rejected by the U.S. Court of Appeals for the Ninth Circuit--in a decision that the U.S. Supreme Court declined to reconsider--in cases challenging California's Proposition 209, a 1996 ballot measure with language very similar to Proposal 2. So if Judge Lawson strikes down Proposal 2, the setback may well only be a temporary one.