Are we seeing the death throes of affirmative action?

Charles Krauthammer writes today that the Ricci case spells a major blow to affirmative action. Would that it were so. As the Ginsburg dissent indicates, supporters of affirmative action do not accept that, after 45 years, it's time to end special consideration of race in hiring and college admissions decisions.

The defenders of the old racial order, led by Ginsburg, objected sternly, declaring that the white firefighters "had no vested right to promotion." Of course they didn't, but they did have a vested right to fairness, to not being denied promotion because of their skin color.

Of course no one has a vested right to promotion. Isn't that why they gave those tests in the first place? Isn't that why for the past, oh, 125 years we have been using objective civil service exams to allocate government jobs not on the basis of right -- or patronage or favoritism or racially discriminatory advantage -- but on the basis of merit and job-related skill?

It's the Ginsburg dissent that, in effect, grants a vested right to promotion -- to African Americans, simply because of their race -- and makes the frustration of that specious right the basis for denying promotion to white (and Hispanic) firefighters who had objectively qualified for promotion.

But we were just one Supreme Court justice away for solidifying the logic that says that any outcome where blacks don't do as well as other racial groups is, by its very nature whether or not you can prove it, discriminatory.

The major conundrum of the civil rights age remains. The 14th Amendment bans discrimination on the basis of race. But the Civil Rights Act, which bans "disparate impact" discrimination -- procedures (such as exams) that yield racially unbalanced results -- affirmatively mandates racial favoritism to undo those results. The evil day will come, writes Justice Antonin Scalia in his concurrence, when this contradiction will have to be resolved.

He is right. For decades we have been finessing the issue with a mess of compromises, euphemisms, incoherences and pretenses such as banning racial quotas but promoting racial "goals." Anyone who has ever had to make hiring or admission decisions knows that this angel-on-the-head-of-pin distinction is 95 percent a matter of appearances, gestures and lawsuit-avoiding paperwork.

And yet we have muddled our way through, permitting a large dose of intentional discrimination to ameliorate past discrimination -- and present inadvertent imbalances -- without totally abandoning the ideal of colorblindness.

The result? At the near half-century mark of the Civil Rights Act, racial minorities have seen remarkable social advancement. The younger generation is infinitely more racially tolerant and accepting. We've made great racial progress. But the fundamental unfairness that underlies the racial spoils system continues to rankle. That's what animated the Ricci case.

We're 45 years beyond passage of the Civil Rights Act. We have a black attorney general and a black president. As with every passing year we move generationally away from the era of Jim Crow, it becomes less and less justified for the government to mandate "remedial" racial discrimination.

As people celebrate the nomination of Sonia Sotomayor simply because of her ethnic background and not because of her judicial background, we know that giving people a leg up solely because of their ethnicity is nowhere near over. Justice Scalia might want to begin tangling with the whole concept of disparate impact but there will be four justices who will oppose any such reconsideration. And you know that few politicians would be courageous or foolhardy enough to introduce an end to federal laws that indicate that evidence of disparate impact is by itself proof of racism. So businesses will have to keep jumping through hoops to lay the groundwork to defend themselves against allegations that their chosen merit exam was not racially biased. And if they don't have as comprehensive a proof as the New Haven fire department had to exculpate themselves of the accusations of racial bias, then they better watch out. Even New Haven, knowing that there was no racial bias in their test, was worried enough about discrimination allegations that they gave in to the racemongers mau mauing them for the outcome of the tests. Employers in the future might have the Ricci case to back them up but they would still have to be confident enough of their promotion or hiring procedures to risk a court case. This case might be one battle in the fight over affirmative action, but I wouldn't start celebrating the end of such race-based policies just yet.