Friday, July 22, 2005

# Posted 2:22 AM by Ariel David Adesnik  

STICK YOUR THUMB IN THE EYE OF DIVERSITY: In response to the nomination of John Roberts as her successor, Justice O'Connor remarked that "He's good in every way, except he's not a woman."

I would have been much happier if O'Connor said that she can't stand John Roberts, but that what's between his ears matters far more than what's between his legs. If there is one institution in this country that should be protected from affirmative action, then the Supreme Court is it.

Moreover, I think that liberals should embrace this argument just as wholeheartedly as libertarians or conservatives. Consider the case of Clarence Thomas. Thomas is living proof that skin color is only, well, skin deep. What has defined Thomas as a justice are his ideas -- which is exactly as it should be.

For affirmative action to have any meaning with regard to the Supreme Court, then minority justices must somehow "represent" the racial, ethnic or gendered constituency to which they belong. I think we can all agree that Thomas hardly represents the political interests of black America. For liberals, that is a point of frustration. For color-blind conservatives, it should be a point of pride.

The issue here is not whether you or I are opposed to affirmative action in principle, but whether it is any way productive to apply the concept of affirmative action to an institution composed of nine individuals appointed for life. What Thomas' appointment demonstrates is that both liberals and conservatives will always, if necessary, be able to find someone who fits both the demographic and ideological criteria necessary to satisfy the letter of affirmative action but not its spirit.

Why? Because nine is such a small number. Even in relatively small bodies such as the Senate and House of Representatives, Republicans have a very hard time diversifying their delegations. When they try to come up with the right color candidate, the result may be a fiasco such as Alan Keyes.

Now let's shift gears a bit. What I've been arguing up to this point is that it is extraordinarily hard, perhaps even impossible to apply the concept of affirmative action to the composition of the Supreme Court. What I want to argue now is that subjecting the court to the politics of affirmative action is both ethically suspect and bad for democracy.

One of the most important purposes of an elected, legislative body such as Congress is to fight over who gets how much from our government. Tax cuts or federal funding for healthcare? Fire houses in Baghdad or fire houses in Ohio? Subsidies for farms or subsidies for inner-city enterprise zones?

In order for such a distributive process to function, the demands of every constituency must be brought to the table. Thus if there are black congressmen who see themsleves as representing black interests, that is a good thing. But we can't have a Supreme Court that functions that way.

The purpose of the high court is not to respond to the demands of different constitutencies. If demands begin to dictate who gets on the Supreme Court, then we may eventually find ourself saddled with judges who have a very narrow and particularistic view of constitutional jurisprudence.

Admittedly, there are problems with this argument. First of all, if I've already argued that pressure for diversity on the court results in the appointment of judges such as Clarence Thomas, why am I concerned that further responsiveness to pressure for diversity will result in the appointment of judges whose skin color matters more than their ideas? Fair enough, but we may not be so fortunate next time.

A more substantive objection is that the court is already a fundamentally political body, so why not let pressure for diversity play a role? I may insist that constituents' demands should have no place on the court, but doesn't the appointment of justices on the basis of their political alignment accomplish exactly the same thing?

I have to admit, I don't have a solid answer to that question. As I've said before, law is hardly my area of expertise, so I'm still trying to figure out what I believe. Ultimately, I may be forced to fall back on my general intuition that the principle of affirmative action is problematic, rather than the more persuasive argument that the specific functions of the Supreme Court are especially threatened by calls for "diversity".

At bottom, I simply find it unacceptable for a democratic nation to judge its public officials, even in part, by the color of their skin or their possession of a Y chromosome.
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