1 OCTOBER 1977, Page 8

The legal jungle

Nicholas von Hoffman

Washington Like a summer romance, the Bert Lance affair lasted too long. After three extensively televised days of testimony before a Senate Committee, there wasn't much left of the Director of Management and Budget. Once a corpulent fellow oi orotund, southern bonhomie, the President's close friend wound up as two hands, severed at the wrists, clutching the gunwales of a lifeboat named the White House.

Although the man did have defenders, the detractors made the loudest clatter. Governor Pierre (just call me Pete) Du Pont of Delaware and Governor John D. Rockefeller IV (and they say we don't have an inherited peerage) were seen to be tisk-tisking over Lance on national television, but the silver spoons in their mouths made it hard for them to shape their lips into the customary grimace of moral disapprobation. A number of Democrats who have been loud and loyal Carter fans had no difficulty in public, however. Advisers to the President, who is reported to have prayed over the matter with God's tousled-haired messenger, the Reverend Dr Billy Graham, urged him to put his booted foot on those detached white-knuckled hands, and push downward. He did.

The charges against Lance boiled down to 'low ethical standards,' particularly in regard to enormous overdrafts of his checking account in the bank of which he was president. Lance says the reason he had low ethical standards in his dealings with the Calhoun, Georgia, bank is that he was away at Atlanta, Georgia, being Governor Jimmy Carter's public works commissioner and practising high ethical standards there. Like bi-location, it is apparently difficult to practise high ethical standards in two places at once.

From time to time, something else does happen in this country. The recent figures on Black youth unemployment are so high that even the conservatives, along with most others, are fretting over it. The President, who had been accused of ingratitude by spokesmen for Black voters who made his election possible, received the Black members of Congress and uttered alarmed sounds in unison with them.

Automation or increased productivity has long since gone past the point when an upturn in business activity yields significant increases in the industrial sectors of the economy. That's why the upturn, which has been going on for some months now in the face of reiterated predictions that it won't, has availed the young Black worker nothing. The concerned suspicion is growing, even among its liberal advocates, that well-intentioned measures like the minimum wage law may decrease the number of jobs for this unskilled group. The economically significant thing about the MacDonald's Golden Arches hamburger emporia is that they have demonstrated how even the restaurant business can be turned into a mechanised, capital-intensive activity requiring relatively few employees. It also helps if you have customers who are willing to pitch in and do some of the work like toting the food from the serving counters to the tables.

Even the gas station attendant, that ubiquitous character in American life for the past sixty years, is on his way out. The old stations are being replaced with self-service installations where you pump your own petrol and then go over to a bullet-proof booth (this system also reduces gas-station holdups) and slip the money you owe through a slit to an indifferent individual on the other side of the glass. Banks are now beginning to replace tellers with machines. The customer simply goes into a booth, many of which aren't eve ra located in a bank building, punches his code number on a key set, and then by slipping one slip of paper or another into the machine, makes deposits or cashes cheques.

As the private sector of the economy learns how to survive ruinous costs by creating fewer new jobs in relation to the tasks performed, the number of people seeking jobs grows. The percentage of women job-holders continues to rise, probably less because of the now rather vitiated women's movement than because of divorce, and because male breadwinners aren't bringing home enough bread. Now there is a move to abolish mandatory retirement. It's curious that just about the time everyone finally acknowledged that the national retirement insurance system is on its way to going broke, it was decided that older people had a heretofore unknown constitutional right to stay on the job past sixty-five. Constitutional rights or no, they may have to stay on the job if they want to eat, because the Secretary of Commerce as well as a number of Republicans is now proposing that benefits be withheld until sixty-eight in order to keep the system solvent. That should do it, since the life expectancy of the American male is around sixty-seven. If they kick the age up to seventy-two most of the women claimants will also have shuffled off and then the retirement system should show a tidy profit.

It's against this background that the country awaits the Supreme Court decision on the Allan Bakke case. Bakke is a white male of significantly better than average scholastic achievement who was denied admittance to the University of California at Davis Medical School. Several Black persons, with lower test scores than Bakke's, were admitted under what is called an 'affirmative action' programme. Since barely one per cent of America's doctors are Black, and that percentage has been dropping, it's hardly debatable that America needs more Black doctors and a lot of them, but Bakke argues that he shouldn't have to pay the price.

After being turned down a second time, Bakke sued, alleging he'd been discriminated against because of his race and that if there had been only one stan-, dard judgment for admission he would have got in. He probably is right about that, but in reality the test scores separating him from his nearest competitors are so close they aren't a measure of comparative competence. The lower courts have ruled for Bakke and said he was, in effect, a victim of what we're calling here 'reverse discrimination.' The case has meandered to the Supreme Court in the infinitely slow way of the American judicial system, if one can call a set' of institutions which work as poorly as the courts a system. With each passing month of litigation more groups have interested themselves in the outcome until there are now literally dozens of arnicus curiae briefs submitted by a range of organisations which runs from religious groups to the administration. The Carter people have been all over the ballpark on this one but, again under pressure from their Black constituents, have ended up with a modified pro-Black waffle in their brief.

The Supreme Court decision on Bakke may stand as the precedent for hiring policies as well as for admissions to schools and who knows what else. 'Unfortunately, there is no fair way to be unfair, which is what happens if you choose six people among twelve with more or less equal claims.