Republican Hypocrisy And Democratic Essentialism

In his New York Times Magazine article today Jeffrey Rosen hits a couple of nails right on their heads. One of them is Republican hypocrisy.

Republican hypocrisy on affirmative action has become painful. The familiar Republican position is that gender, like race and ethnicity, should be used at most as a tiebreaker to choose among equally qualified candidates. In that spirit, Senator John Cornyn, Republican of Texas, said in September, “I don’t know whether John Roberts has a twin, perhaps a sister or, uh, someone with a Hispanic last name.”

In fact, a superbly qualified Republican woman – a female John Roberts – could have been appointed to the court. Like Roberts, Maureen Mahoney is a former clerk for William Rehnquist and deputy solicitor general who is widely respected as one of the top Supreme Court advocates of her generation. According to news reports, however, Mahoney was a hard sell inside the Bush administration because she successfully argued on behalf of affirmative action in a pivotal Supreme Court case two years ago. So Bush, after imposing a gender quota on himself, preferred a less qualified woman who has no published views on affirmative action to a better qualified woman who was paid to defend affirmative action. In the debate about meritocracy versus diversity, Republicans have painted themselves into a nice corner.

But, according to Rosen,

the Democratic position on gender and the court is equally unsatisfying. Many Democrats embrace a version of the essentialist argument that it’s important to have women on the court because they will provide a uniquely female perspective, rooted in their personal experiences as women. On a narrow range of issues related to women’s rights, there may be some correlation between a justice’s experiences and her judicial perspective…. But women’s issues make up a tiny percentage of the court’s docket, and in most cases, there is no correlation between gender and judicial philosophy.

O’Connor, as Rosen points out, voted with fellow female Ruth Ginsburg less often than she did with any other justice except Stevens.

So far so good, but in much of the remainder of the article Rosen hammers his thumb more often than the nail. He doesn’t explain, for example, why he continues to support racial preferences in law school admissions if “essentialism” is such an unappealing position. If blacks don’t “provide a uniquely [black] perspective,” then how can “diversity” justify their preferential admission?

Similarly, Rosen argues that

it’s a sign of maturity, at this particular moment in the culture wars, that liberal and conservative groups are now focusing chiefly on the nominee’s credentials and substantive views…. That Republicans and Democrats now have the political confidence to distinguish among different types of women on the bench is a sign of progress, for women and men alike.

Does Rosen then think that liberals remain immature on race, where their concentration on skin color alone continues to rest on the “essentialist” assumption that blacks are fungible?

Hypocrisy on affirmative action has indeed painted Republicans into a corner, but at least they have company — liberals who reject “essentialism,” celebrate the liberating ability “to distinguish among different types” of women (and presumably blacks), but who nevertheless continue to support racial preferences.