Saturday, June 02, 2007

Negative Action

A reader called my attention to an ABC News story yesterday (here) explaining that the White House has been focusing on women and minorities for the next Supreme Court vacancy should one arise. To which, of course, my reaction was to pray for the health and non-retirement of the current Justices. Sure, I'm highly skeptical of the efficacy of intercessionary prayer, but you never know, so in the spirit of Pascal's wager, why take chances?

In the event that President Bush does get another opportunity to name a Justice, my loyal reader asks, wouldn't the use of race or sex, even as a plus factor, be inconsistent with his Administration's commitment to colorblindness? The answer, I think, is almost certainly yes, but it's worth parsing why that is.

To begin, I'm betting that, in the event that Bush does name a woman or minority to the next vacancy, he will repeat his father's bold claim --- made then with respect to Clarence Thomas --- that the nominee is simply the best qualified person for the job. And depending on whom Bush nominated, that could be true. There is a decent-sized pool of female and minority judges (not to mention lawyers and law professors) who have outstanding professional qualifications. To say that any of them is the "most qualified" is somewhat arbitrary, especially given that what counts as a qualification is highly contested.

I have little doubt that a conservative judicial philosophy would count for the current Administration as a qualification, so that as between a distinguished liberal judge like Stephen Reinhardt of the Ninth Circuit and a conservative newcomer like Fifth Circuit Judge Priscilla Owen, surely a conservative Republican administration would want to say that Owen is better qualified because she better understands (what the Bush Administration regards as) the proper approach to constitutional interpretation. Of course, they couldn't actually SAY that, because in arguing for Senate confirmation, the administration would say that ideology should be irrelevant. So Owen would be selected based in part on ideology but sold exclusively based on professional qualifications.

But what about sex (or race or national origin in the case of a minority nominee)? How could the Bush Administration justify picking Owen over an equally conservative but more experienced/distinguished man, someone like former 4th Circuit Judge J. Michael Luttig, say? Here too we know what the administration would likely SAY: That Judge Owens's gender was irrelevant in the President's decision to nominate her. But is there a justification for picking her that is not inconsistent with the administration's opposition to affirmative action, even if the administration wouldn't articulate it? I don't think so.

One might be tempted to justify affirmative action in judicial selection on the ground that the Supreme Court has a unique responsibility to do justice for the nation as a whole, and it can only do so if its membership at least loosely approximates the nation as a whole. The problem, though, is that this sort of argument cannot be confined to the Court. Why can't a Court of 9 white men (or whatever) do justice for the nation as a whole? The answer would have to be that there's something about the experience of being a woman or a minority that gives one a different perspective, and if that's true for the Supreme Court, it seems equally true for police forces, university classes, etc.

Perhaps the administration could justify (if only to itself) deviating from its anti-affirmative action principles on the ground that confirmability is a legitimate consideration, and a Democratic Senate is more likely to confirm a conservative woman or minority than to confirm a conservative white male. But if so, wouldn't that make the Administration complicit in the Democrats' use of affirmative action? If this were a legal case, catering to customer preference would not (except in rare circumstances) be an answer to a charge of discrimination---and the principle seems equally applicable here.

Now I'll go back to praying for the health and non-retirement of the current Justices.