Justices go slow on Clinton-House dispute over census Quick decision unlikely; aid, political seats at stake


WASHINGTON -- With the Census Bureau hoping for speedy guidance, the Supreme Court left the impression yesterday that it may not soon settle a pitched political and legal battle between the White House and Republican congressional leaders over counting the nation's people in 2000.

A Clinton administration lawyer, making his point by talking about ways to count the crowd at an Orioles game at Camden Yards, urged the court to let the government use statistical sampling in the next census to avoid missing millions of Americans -- mainly minorities, immigrants and the poor, who tend to vote Democratic.

Arguing for sampling as the best and cheapest way to get the most accurate count, Solicitor General Seth P. Waxman said the count must be done in a short period of time to catch a snapshot of the nation's population as it exists on April 1, 2000.

"If I am told to conduct an actual enumeration of the people in Camden Yards during an Orioles game, and I'm given 30 minutes, the best means that I may have to do that is by statistical sampling of some sort, rather than trying to count the people one by one."

But the court gave no hint to Waxman and a packed audience about how it will decide the dispute between adjusting numbers by sampling -- the White House and Democratic goal -- and an actual, one-by-one counting -- the preference of congressional Republicans.

Perhaps more significantly, the justices dropped hint after hint that they may avoid a ruling on the dispute at this point, leaving President Clinton and congressional leaders in a legal limbo that could either force a compromise, or else lead to an impasse that would make the legality of the 2000 census total immersed deep in legal uncertainty.

Several of the justices expressed doubt that the disagreements of the other two branches of government were so serious that the judiciary had to step in and resolve a controversy that will not only affect the political parties through apportionment of congressional districts but also pit the nation's cities against its small towns and rural areas as they bid for federal money passed out on the basis of census figures.

Much of the 90-minute hearing was taken up by the justices questioning whether it was premature to get into the census dispute at this point, and whether anyone had a legal right to take the issue to court.

Although the Census Bureau insists that it needs guidance by next March to plan the census, Waxman, speaking for the agency and for the White House, argued to an apparently sympathetic bench that no one can yet prove that his or her interests would be harmed by sampling and so no one should be allowed to sue now.

Two lower courts, however, have allowed the House of Representatives and a group of individuals to sue, and decided those lawsuits by barring the use of sampling.

While the legal dispute focuses solely on the role the census plays in assigning House seats to the states, the outcome of the sampling dispute will also affect distribution of $180 billion in federal funds and redistricting of state and local legislatures. Sampling will reduce the number of people "missed" by the census, its proponents argue.

Congress wanted the Supreme Court to settle the issue, and ordered the court to handle any challenges to sampling on a fast-track schedule. The Republican-controlled Congress has given the Census Bureau only enough money to last until May. Republicans hope the court would act by then to strike down the sampling plan.

Among the nine justices, only Chief Justice William H. Rehnquist seemed troubled about putting off the question of sampling's legality. Noting that the Census Bureau is pressing for an answer by spring, Rehnquist said a failure to decide now would mean there would be "no definitive pronouncement on the legal questions" in time.

Waxman responded that someone perhaps could challenge the method used after the census was over. "What good does that do anybody?" Rehnquist retorted. A lawsuit later on, the chief justice said, might mean that a court, not the Census Bureau, would wind up deciding what the population was in 2000.

Opponents of sampling argue that the Constitution's command of an "actual enumeration" means an actual head count, not a partial head-count that is then adjusted to calculate the total population.

Justice Sandra Day O'Connor, in a comment echoed by others on the bench supporting that interpretation of the Constitution, said "most people think 'actual enumeration' would mean a count," not a statistical estimate. But Waxman said that no census ever taken was actually a simple head count.

The two other lawyers who appeared at the hearing after Waxman had to spend most of their time defending the right of their clients to bring the two lawsuits challenging sampling.

For example, Maureen E. Mahoney, a Washington lawyer speaking for the House of Representatives, insisted that the House has vital interests at stake -- its own composition. But she ran into sharply negative comments from several justices about forcing the court to get into the middle of a dispute between the White House and Congress.

Justice Antonin Scalia suggested that the House had turned to the courts because it did not have "the will" to "duke it out" with the White House.

Pub Date: 12/01/98

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