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
The bright Yale Law students who run The Kitchen Cabinet offer a possible solution to the problem posed by my previous post in which I asked whether George H.W. Bush's nomination of Clarence Thomas to replace Thurgood Marshall violated the colorblindness principle currently at issue in the debate over affirmative action. They make the following argument:
[P]residents are "allowed" to consider a whole host of things in making judicial nominations that we wouldn't consider relevant or appropriate in an undergraduate-admissions context -- whether the president trusts and respects the candidate, whether they have personal rapport, whether the candidate stands a decent chance of being confirmed or of serving for many years, etc.
I'd consider a different set of personal characteristics in drawing up a list of invitees to a dinner party than I would in deciding whom I'd let join my Richard Posner fan club. Do I need a "principle" to do that, other than "they're two different things?"
. . . . The president's nomination of Supreme Court Justices is, at bottom, his personal choice. Ideally, we'd like his choice to reflect some national or party consensus about the kind of person we want on the Court, but if the president wants to ignore what everyone else thinks and draw a name out of a hat, he can. He's under no obligation to explain how he chose. There's no question of what's "allowed" and what's not; that's just the way the process works. (Of course, the Senate confirmation process provides a check on presidential idiosyncrasy.)
But because the University of Michigan is a public school, its admissions officers are acting as agents of the citizens of Michigan to allocate the limited seats in the class. No one believes that the criteria for that allocation should be left up to the personal whims of individual admissions officers; therefore, it's appropriate to ask what they are "allowed" to consider.
This leads to a number of interesting questions.
(1) Is the difference between the President and the University of Michigan admissions committee that the members of the admissions committee are acting as agents of the state while the President of the United States is not? That is, is the problem a failure of state action?
(2) Is the difference that when the President picks a Justice of the Supreme Court, it is essentially like choosing whom to invite to a dinner party, a purely "private" choice with no recognizable public consequences, while the choice of the entering class at the University of Michigan is a public choice with clear public consequences?
(3) Is the difference that in order to carry out his duties the President needs people around him he can trust and feel comfortable with, whereas the Michigan admissions committee doesn't have to trust or feel comfortable with the class they admit?
Suppose that the local sheriff in a small town in my home state of Missouri says: "When I pick deputies, I have to pick people I feel comfortable with, because they are the ones who will be watching my back if we get into trouble. I need people I can trust. The public safety is at stake. And I just have to tell you, I just don't feel comfortable with women or black people." Does this violate the colorblindness principle? Would it violate Title VII of the Civil Rights Act of 1964? Now suppose the Commander-in-Chief and says, "You know, I just don't trust black advisors. They are shiftless and lazy." Does this violate the colorblindness principle?
(4) Finally, suppose the President, when asked why he chose a particular person as a Justice, responds, "Well, he's white and I think that only white people should be Supreme Court Justices." Does this decision by the head of the Executive Branch of the federal government violate the colorblindness principle? Does it fall outside the ambit of the colorblindness principle as long as the President keeps quiet about his reasons? (This would be a sort of "don't ask / don't tell" solution to the problem.). If so, is this answer consistent with Washington v. Davis, which holds that facially neutral government practices violate the Equal Protection Clause if they are secretly motivated by a racial animus?
So what's the point of all these questions? Is it just to make advocates of colorblindness look silly? No, that's not the purpose. Rather, my goal is to make the following points about antidiscrimination law.
First, "colorblindness" is a provisional principle of equality, it is not equality itself. Second, although the principle seems clear and determinate, on closer inspection, it turns out that it is enormously complex and indeterminate. The concept of colorblindness cannot be implemented without a series of decisions about what constitutes actionable discrimination "on the basis of" race. Third, what sorts of private or state action are seen as properly falling within the ambit of the colorblindness principle shifts over time in response to social contestation. Some practices that previously were never considered as violations of colorblindness later become seen as paradigmatic violations, and vice versa
This fact leads to all sorts of ironies. For example, the same day the President denounced the Michigan plan, an action which was widely applauded by advocates of colorblindness, he advocated Texas's Ten Percent plan (which as I've explained in a previous post, is not colorblind). The next day he announced that he would push for increased funding for historically black colleges, which is also not really a colorblind decision. One assumes that he did this without any sense of contradiction.
But back to Clarence Thomas, and the point of my original post: The category of Presidential appointments that take race as one factor in the overall political calculation is a good example of the sort of race conscious state action that is generally not recognized as falling within the ambit of the colorblindness principle-- that is, unless the President is stupid enough to make an issue of it. George H.W. Bush did that when he said at the press conference announcing Thomas as his pick that race had nothing to do with his selection, and that Thomas was simply the most qualified candidate. Thomas is an intelligent man, and has proven to be a very interesting Justice, but it was simply not true that in 1991 he was the most qualified individual for the job, and everybody knew it. When a politician says what George H.W. Bush said, he's just begging for people to call him on what he did. If a President said publicly that he would not hire a black person as a close advisor, that would also cause people to shift their notion of how the colorblindness principle should be implemented. What was before simply swept under the rug or ignored would then become an issue of social contestation.
Advocates of colorblindness often assume that they and not their opponents have moral clarity on their side. Nothing could be further from the truth. The more you know about the history and implementation of the colorblindness principle in American antidiscrimination law, the more you come to realize that the concept of colorblindness is not as clearcut as it seems.