JB

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?