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In one of those delicious ironies that thrill supporters of affirmative action, the White House has leaked word that it plans to fill the next Supreme Court vacancy with a member of a minority group, probably Hispanics, whose voters the Republican Party hopes to attract in the 2004 elections. The GOP has long made a point of opposing affirmative action — by which they (and I) mean giving special weight to ethno-racial minority status in choosing among candidates for valuable jobs, college admissions, or other social goods. The president’s reported eagerness to use ethno-racial preferences in judicial nominations raises an obvious question: What principle, if any, can justify selecting Supreme Court nominees on ethno-racial grounds while condemning such preferences in other areas? The question may seem more theoretical than legal or practical. Even after the court’s stunning and unprecedented use of the equal protection clause to determine the outcome of the 2000 presidential election, it is hard to imagine that any judge would actually entertain a constitutional challenge to a high-level government nominee in which ethno-racial factors affected the choice. The interesting question is: Why not? Answering it can help to sharpen the continuing debate over affirmative action by refining our understanding of why the practice raises intense moral and constitutional issues in some contexts, but not in others. At first blush, political expediency seems like a compelling explanation of the White House plan (if that’s what it is). To paraphrase H.L. Mencken, one will seldom go wrong by underestimating officials’ fidelity to high principles. After all, successful politicians have, by definition, mastered the art of compromising principles for tactical reasons and then covering their tracks with idealistic rhetoric. And those who manage to climb the greasy pole to the White House tend to be the most shamelessly masterful of all. How else to explain the first President Bush’s insistence, with a straight face, that he was appointing Clarence Thomas not because of his race but because he was the most highly qualified candidate in the country? More recently, the Trent Lott affair has intensified many Republicans’ search for a pro-minorities fig leaf to cover the nakedness of the GOP’s civil rights agenda. Lott’s own groveling performance on TV, promising to reverse his career-long hostility to race-based preferences, followed by his resignation as Senate majority leader, prompted media speculation that the White House would soften its own opposition to preferences, and perhaps even support the University of Michigan’s defense of affirmative action in two cases before the Supreme Court. (As it turned out, the administration’s brief in Gratz v. Bollinger and Grutter v. Bollinger strongly opposed the Michigan plans.) The Republican Party has always spoken loudly but carried a small stick where affirmative action is concerned. President Richard Nixon inaugurated the policy in 1969. Since then — and despite affirmative action’s substantial and growing unpopularity among voters — subsequent Republican presidents have made few serious efforts to dismantle it. The Republicans’ last appointee to the high court, David Souter, seems to support it. Nor is the Republican-controlled Congress likely to rock the boat. Indeed, with minorities constituting swing voting blocs in many elections, and Hispanics now the largest such group, a White House determined to compete vigorously for their support will probably engage in more ethnic appeals — not fewer — all the while insisting that it favors color-blindness. Political expediency, then, may suffice to explain why President George W. Bush will make race or ethnicity a major, if not decisive, factor in his next nomination to the Supreme Court, even while denying that fact. But if we set politicians’ motives to one side and consider the matter from a loftier, more detached perspective, the question becomes whether, in principle, the rest of us can simultaneously maintain that giving points to race or ethnicity in choosing Supreme Court nominees is permissible but that using such preferences in college admissions is wrong. My answer is that one can hold both positions and still be morally and (insofar as law follows morality) legally consistent. To begin to make this case, we must examine more closely the most important concept or value that underlies the affirmative action debate: merit. Opponents of affirmative action invariably invoke merit as the appropriate principle of distributive justice, especially when it is the government doing the distributing. They usually define merit to mean some notion of excellence or praiseworthiness. This definition, of course, leaves unanswered the crucial question of precisely which characteristics signify that an opportunity or valuable resource is deserved by the recipient. Opponents sometimes try to sidestep this question by insisting that whatever worth may mean in a given context, ethnicity and race almost never constitute a valid measure of it. They cite the terrible injustices that ethno-racial preferences perpetrated in the past, particularly when used to favor whites at the expense of minorities, and the unfairness of disadvantaging individuals with the wrong skin color or surname, especially those who are no better off economically than those who would receive a preference. Opponents may also emphasize the question of incentives — that, for sound policy reasons, such opportunities should reward individual effort and achievement, not ascriptive features, like race, over which one has no control. Worse, if jobs or admissions are set aside based on race, every minority group member who is hired or admitted will be stigmatized as unworthy even if he or she can compete fully on the prescribed standards. The question of what merit means cannot be finessed so easily, however. Supporters of affirmative action seldom dispute the value of merit as an abstract ideal of distributive justice. Instead, they challenge how it is defined in practice and in context. First, they point to the many situations in which apparent deviations from merit are tolerated or even celebrated — for example, admission preferences for alumni children and athletes with inferior academic records, or job preferences for people with the right connections. These deviations, supporters argue, evidence hypocritical double standards, with society invoking the merit principle selectively to benefit the already advantaged and to exclude minorities. Such deviations, they say, imply that we do, and should, broaden our conception of merit to embrace a variety of other interests valued by particular institutions or society in general — for example, achieving a more demographically diverse student body or work force, or removing the vestiges of caste. It follows, they contend, that merit is inevitably contextual; it depends for its meaning on the values that affect the specific opportunity in question and the factual circumstances that shape those values. I have argued in the past against government-sponsored, university-administered affirmative action plans that invoke a diversity rationale. Such plans typically define diversity narrowly in order to produce not a variety of viewpoints but the “right” number of favored minorities at the expense of more academically qualified minorities or whites, thereby violating even a flexible conception of merit and equal opportunity. Government-sponsored plans that are as internally incoherent and ethno-racially stereotyped as Michigan’s probably cannot pass constitutional muster. In any event, they constitute misguided public policy. It is striking, then, that public opinion and legal elites hardly think twice before countenancing the use of ethno-racial preferences in nominating Supreme Court justices. Almost everyone seems to concede that, in principle, the president — a public official bound by the same constitutional norms that bind the University of Michigan — may legitimately base his decision on the nominee’s race or ethnicity. Needless to say, people object to particular nominees for all sorts of reasons. They may claim that the president accorded too much (or too little) weight to the nominee’s race or ethnicity, or that the nominee is not the best choice among members of the preferred group. But they seldom deny the president’s right to use such factors despite the equal protection principle. Again, the question is: Why? One reason is historical. During the 19th century, political parties routinely used ethnicity, among other factors, to balance their electoral tickets, and by the mid-20th century, party machines in Chicago and elsewhere had added race to their balancing acts. These political practices, and their private-sector counterparts, are now so common as to have become normal and even normative. These ticket-balancing traditions almost never arouse principled criticisms. (Yet the Supreme Court has rejected such historical precedent in ruling that lower-level officials may not be appointed or dismissed for ethno-racial reasons and that peremptory challenges to potential jurors may not be based on them.) The conception of merit deemed relevant to Supreme Court nominations also differs from that implicated by college admissions programs. Elite, competitive educational institutions — which is where affirmative action really matters, since most schools will accept almost anyone who applies — generally rationalize their admissions on the basis of each applicant’s relative merit, defined largely, though not exclusively, as academic achievement or promise. In the admissions process, moreover, equal opportunity and individual consideration are central values. Supreme Court nominations, in contrast, implicate no agreed-upon criterion of merit, even at the first-order, default level (such as grade point average or test scores in the admissions context). The criteria and the process are acknowledged to be exclusively political — by which I mean that the president is entitled and expected to take into account any and all considerations, while the Senate has the final say based on each senator’s idiosyncratic criteria. Merit is not defined as legal craftsmanship, superior intellect, or prior judicial experience (although this last has become much more common in recent appointments to the Supreme Court); nor are professional achievement and recognition necessarily required, at least as certified by the American Bar Association (although they are customary). Indeed, politicians have both criticized and marginalized the ABA’s findings since the Robert Bork case. For Supreme Court nominations, merit is a purely political ideal, one that is truly in the eye of the beholder. From the beginning of the republic, presidents and senators have viewed the court as a representative institution — not in the sense of being accountable to an electorate or physically resembling it, but in the sense of exemplifying the nation’s commitment to the rule of law. Accordingly, politicians have always brought to the selection process whatever values they and their constituents want the court to exemplify and advance through law — and, so far as one can tell, this was the Framers’ intent. The values balanced by politicians are too numerous, diverse, fluid, and ineffable to be assigned particular weights or otherwise controlled by law. To integrate these values into a discrete choice is an inherently discretionary, subjective task — the kind of task that the court in other contexts has characterized as “a political question” or one as to which “there is simply no law to apply.” To say that Supreme Court nominations are, and should be, “lawless” is emphatically not to say that the president is entitled to have his way. Indeed, the very opposite is true. The stakes for the nation in a life-tenured appointment to the high court are far too high, and the precedents for rejecting presidential choices far too numerous, for the Senate to adopt a posture of abject deference. Just as the president is entitled to take race or ethnicity into account, so senators are entitled to reject a choice that they think rests too heavily on those criteria or fails to weigh the ethno-racial criteria they prefer. My personal hope — unrealistic, to be sure — is that the president and the Senate may instead conclude that using ethno-racial criteria debases the ideal of blind justice. Whatever was true before the civil rights revolution, electoral considerations, and other factors placed blacks and women on the high court, the use of ethno-racial criteria today provides only a spurious form of representation and adds little or nothing to the quality of the court’s justice. Indeed, it sends the wrong signal to a society struggling to move from a law too often shaped by racial and ethnic hierarchies to one based on group-blind conceptions of merit and more-universal, inclusive social values. Peter H. Schuck is the Simeon E. Baldwin Professor at Yale Law School and author of “Diversity in America: Keeping Government at a Safe Distance” (Harvard University Press, 2003). Professor Schuck can be reached at [email protected] This article was distributed by the American Lawyer Media News Service.

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