(FORTUNE Magazine) – The brain totters, the mind boggles, the windpipe constricts, and the existential reality sinks in: Proposition 209 has been hijacked. The 54% of voters who supported the proposition, a.k.a. the California Civil Rights Initiative, and who had been under the impression that they were thereby outlawing race and sex preferences in their state and local governments, are consternatedly discovering that nothing of the sort is going to happen for a while. Enveloped in a pea-soup fog of double talk, they are now being told that the nonpreferential rules they voted for are unconstitutional. The American Civil Liberties Union, the Meiklejohn Civil Liberties Institute, and other fans of group preferences are now in court arguing that these are in fact required by the U.S. Constitution. Incredible. But so far, at least (it's early February as we click these keys), they have been winners in court. They have a judge who thinks they're great. And major media have been largely oblivious to certain details that will now be vengefully presented in the Q&A mode.

Q. Cutting directly to the most paranoia-engendering feature of this saga, how did the quotatistas manage to arrange things so that their complaint against Proposition 209 was heard by a federal judge who had served on ACLU and Meiklejohn boards?

A. No sweat. They went to Judge Thelton E. Henderson, the former board member in question, and heavily hinted that it would be neat if he assigned the case to himself.

Q. But how did they get around the district court rule that cases be assigned randomly in order to prevent "judge shopping"?

A. Nothing to it. The random-selection process had in fact resulted in the case's being assigned to Vaughn Walker, a generally conservative judge appointed by Bush. But Henderson, a 1980 Carter appointee with an affinity for "movement" causes (including affirmative action and prisoner rights), was able to grab the case from Walker. He did this by arguing that the issues raised by Proposition 209 were similar to those in the so-called Spencer case, which he was already hearing--and district court rules encourage the consolidation of similar cases.

Q. And were the Spencer and Proposition 209 cases truly similar?

A. Of course not. As lamented in the petition for writ of mandamus filed by Governor Pete Wilson and Attorney General Dan Lungren, who were asking the Ninth Circuit Court of Appeals to make Henderson turn the case back to Walker, much of the similarity was cooked up by civil rights activistas.

Q. So how did they cook?

A. Here's the drill. Henderson's challenge was to demonstrate that the two cases presented similar issues and affected similar parties. But the plaintiffs in Spencer--they were contractors complaining about a San Francisco law mandating preference for companies owned by women or minorities--had never mentioned Proposition 209. What got it into the case was a motion by a "defendant intervenor," the Coalition for Economic Equity, which was also the main plaintiff in the suit against Proposition 209 and obviously wanted Henderson to preside over it. So the coalition asked him for permission to file objections to 209 as part of the Spencer proceedings, and he used the request as evidence that the two cases involved overlapping issues and parties. Slick, eh?

Q. But shouldn't Henderson be barred anyway from taking over the 209 complaint? What about the requirement, assumedly critical to public confidence in the judiciary, that a judge recuse himself from "any proceeding in which his impartiality might reasonably be questioned"?

A. We have again a paucity of perspiration. When a pro-209 group called Californians Against Discrimination and Preferences cited those words and demanded his recusal, Henderson elected to rule on the motion himself--and ruled that there was no problem.

Q. Before we run out of space and sanity, explain how a law barring preferences can be unconstitutional.

A. Henderson served up several theories, the most fascinating being that Proposition 209 violates the Supremacy Clause of the U.S. Constitution, which bars state laws that conflict with federal laws.

Q. And which federal law was 209 conflicting with?

A. Allegedly with the Civil Rights Act of 1964.

Q. Surely you jape. As every toddler knows, both 209 and the 1964 act outlaw the same kinds of discrimination.

A. The tykes are wrong. What they keep forgetting is that in writing the Civil Rights Act of 1964, Congress insisted that voluntary race and sex preferences must be an option available to all employers, and 209 removes that option.

Q. Aargh! Where does the act say voluntary preferences gotta be protected? What Congress said is that "nothing [herein] shall be interpreted to require any employer...to grant preferential treatment..."

A. Yes, but as Henderson cagily argued, EEOC guidelines construe the "no requirement" rule to mean that Congress intended voluntary preferences to be an option for employers. And the courts keep ruling that EEOC's slanted interpretations of congressional intent must be given great deference.

Q. Notice how it rhymes--a deference to preference?

A. One hopes for better lyrics at the appellate level.