I think that Futuremark's "sticking with the standards to remain neutral" is flawed. They should optimize for all video cards, not the standards.
As a side note, I had thought that I read 3DMark03 did use DX9 HLSL to aid in writing the shaders (I believe DX9 HLSL, however, has no option to do runtime compiling, which makes for a serious flaw).
"Physics is like sex. Sure, it may give some practical results, but that's not why we do it." - Richard P. Feynman