President Bush was the big winner last week in the Supreme Court's decision on affirmative action.
Sure, the 5-to-4 decision reminds everyone about how close things are on another critical issue. But things have been close on critical issues for decades now. Close doesn't create movements. It doesn't energize people to action, increase turnout, or keep people from voting their pocketbooks.
People don't vote close.
We won't go through a year in which there will be stories of all-white classes in major universities, as program after program is struck down.
We won't see the lawsuits played out on the evening news.
We won't see medical schools with no black doctors.
All of that won't happen.
A few conservatives will rant and rave about how Alberto Gonzalez isn't conservative enough for them, and there will be attention on the possibility of a Supreme Court vacancy. But unless a vacancy materializes in short order, affirmative action is gone as an issue for Bush and for the Republicans.
A decision that might have dominated America for months had it gone the other way will be forgotten in a matter of days by everyone but the lawyers because it didn't. Hooray for the lawyers, some may say. Perhaps so.
Close keeps affirmative action intact, and keeps Democrats from going out and blaming Bush for beating on blacks.
That would seem to be a victory for liberals in a conventional sense, unless you think, as I do, that the gap between races in America today should create a prima facie case for the failure of affirmative action, and not its success.
It also gives Bush an opportunity.
In what everyone acknowledges is as much a matter of orthodoxy as policy consensus, the black middle class has rallied around affirmative action in a way that has placed it at odds with an administration that includes Secretary of State Colin Powell and National Security Adviser Condoleezza Rice among its most prominent members. The court decision diminishes the flash point. The question is how the administration will follow up on it.
Had affirmative action been struck down as a means to assure diversity, there would have been meetings with congressional leaders and business leaders to discuss alternatives. There would have been black leaders at the White House. Reporters would have been in the field.
Who knows if a court decision the other way would have been enough to energize a political base or influence party politics? Could it have gotten young people to wake up, just as college towns have emptied out? Maybe not. But it surely would have created uncertainty and pressure that a popular incumbent doesn't need.
In the midst of the president's meetings with the leaders of Pakistan, there would have been pressure on the president to come up with better alternatives.
If he came up with them now anyway, think of the points he'd score. The irony is that it is the conservative, anti-Gonzalez forces making noise now when they are the last people the administration needs to mollify. They have nowhere else to go. If the administration mollifies them now, instead of telling them off, what message does that send?
If the administration critics are right that affirmative action doesn't work, what better time to reach out to the black middle class and prove it, by doing better, than right now?
Why am I, a Democrat, telling him this? Simple. It is not good for the country to have a system in which virtually all blacks are Democrats, even if it is good at this moment for the Democrats.
Susan Estrich is a syndicated columnist.