an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Suppose it could be shown that one factor in George H.W. Bush's nomination of Justice Clarence Thomas in 1991 was that Thomas was black. (I realize that this is difficult to believe, but bear with me). Suppose that Bush said to himself, "When Thurgood Marshall retires, I need to fill his seat with another African-American and Thomas is the most conservative African-American I can find with the requisite experience in law and necessary degree of legal talent." In 1991 there were more qualified and experienced legal scholars, particularly among conservatives. But Thomas met at least the minimum requirements of legal skill and experience, and he was African American, and therefore more likely (at least judged ex ante) to win confirmation.
Some questions for the class:
(1) Was the nomination of Clarence Thomas consistent with the principle of colorblindness?
(2) If the answer to question (1) is no, did George H.W. Bush violate his oath of office to uphold the Constitution when he nominated Thomas?
(3) If the answer to question (2) is no, then what principle allows presidents to take race as one factor among many in nominating Supreme Court Justices but does not allow the University of Michigan to take race as one factor among many in selecting a student body?
(4) Suppose that the reason why Presidents or other executive officials may take race into account in nominating judges and Justices, or in selecting cabinet members or National Security Advisors is that these are political appointments and that one is permitted to use race to secure political support. Is this practice consistent with the Supreme Court's statement that using race in government decisionmaking should be subjected to strict scrutiny because it is divisive and reinforces racial identities, and fosters the racial division of American society?
(5) Is the use of race as one factor in Presidential appointments in order to please potential voters more or less praiseworthy than the use of race to produce a diverse student body from which students might learn from each other?