[NOTE: This post has bee UPDATED]
I have written many times that I believe it is almost always illegitimate for the state to “take race into account,” to use the current euphemism for employing racial preferences. Indeed, the only acceptable (to me) exception to such a prohibition I’ve found is the legitimacy of assigning, say, black police officers to go undercover to penetrate a black gang. (But even that exception is not without problems; see here and here.)
But continuing reflection on the common description of Clarence Thomas, and now Sarah Palin, as affirmative action selections, as I just discussed in my immediately preceding post, leads me to conclude that more needs to be said about some nooks and crannies of our public life where the rule barring consideration of race probably does not, and should not, apply. And, where “more needs to be said,” I’m always happy to say it.
As I wrote in my previous post,
Thomas was … criticized as, in effect, an affirmative action hire by people who do not object in principle to affirmative action hires … (and defended, of course, by people who do have principled objections to affirmative action hires in most situations).
Of course being appointed to the Supreme Court is not “most situations,” and neither is being nominated for vice president….
I now believe, however, that there is less inconsistency here than meets the eye. That’s because I believe there are certain kinds of personnel decisions where there is, and should be, no bar to “taking race into account,” and appointment to the Supreme Court (and certain other appointment decisions) and the selection of a vice-presidential nominee are two examples.
Before getting to those (and other) examples, however, let me first try to establish the principle that creates these exceptions. And to do that let me begin with an extreme example: marriage. Does anyone doubt that there should be no law restricting a person’s right to choose, or reject, a marriage partner on the basis of race? Another example: voting. Liberals have been telling us incessantly that if Obama loses it will be because some white voters are racist and won’t vote for a black candidate. But presumably even they don’t believe such “race-conscious” behavior is, or can be made, illegal. Indeed, I suspect many, maybe even most, liberals would argue that a whites-only political party, a party that excludes blacks and Jews, has a right to exist and field candidates.
In short, there are some areas of life, both public and private, where civil rights protections simply do not, and should not, apply. But this is not simply a matter of there being no “rights” involved. It is true that no one has a“right” to be appointed to the Supreme Court, or selected to run for vice-president, but that’s not precisely the point. After all, no one has a “right” to be accepted to college, either. But there’s a big difference between the former and the latter: prospective Supreme Court justices or vice presidents have no “rights” in the matter of their selection whatsoever; the president, or presidential nominee, has total and unreviewable discretion regarding their selection (although that decision is subject to later review by the Senate in one case and the voters in the other).
College and job applicants, by contrast, although they have no right to be admitted or hired, do indeed have, and should have, the right to be judged in a manner that does not benefit or burden them because of their race. Or at least they would if the 14th Amendment and civil rights laws were fairly and reasonably interpreted and applied.
Thus, even if Clarence Thomas and Sarah Palin were selected because of their race or sex (and, as I argued in my last post, I don’t believe that is necessarily the case), no colorblind principle would have been violated, because such a principle does not and should not apply to those cases. Thus there is no inconsistency in conservatives lauding those appointments, although I do believe it remains inconsistent for liberals who approve of affirmative hiring across the board to denounce these two, and others they don’t like, as affirmative action hires.
UPDATE [29 Sept.]
By email, Roger Clegg demurs:
I think you make this mistake: Just because an act is not legally challengeable doesn’t mean that it’s morally right. That is, it may be a bad idea to take people to court for not honoring their father and mother, but its still a bad thing if they don’t. Same thing for voting against someone simply because that person is black and you don’t like black people.
As usual, Roger makes a good point. I of course completely agree that voting for, or against, someone because of race is wrong. The question here, however, is whether “taking race into account” in, say, appointing a judge is similarly wrong, i.e., whether it is consistent for a person who is adamantly opposed to “race-conscious” voting is inconsistent if he is not so adamant about “race-conscious” judicial appointment. Does the fact that the judge-wannabe has no right whatsoever to colorblind treatment affect the wrongness (if any) of his race-conscious treatment? I’m not certain about this.
The answer depends, at least in part, on exactly why it is wrong to “take race into account” in the situations where it is clearly wrong — it can’t be simply be because it’s illegal. Why, that is, do (or should) most people, most of the time, have a right to be treated by the state without regard to their race? I’ll get back to you on that….
As long as some folks find a need for “Black” congresscritter clubs, and “Womans”congress critter clubs, as well as voting blocks based on the same, I have no need to hear much else about “because they’re racist!”
….Blah blah blah percentage points against Obama because he’s black. (sort of). …blah blah blah percentage points against Ms. Democrat (fill in the blank) just because she’s a woman…
Where’s the assessed estimated percentage point spread amongst voters FOR a candidate just because “..just because she’s a woman. She cried
for the cameras..”? How about “..just because it’s a Negro’s turn…”?
Holy smokes Batman, this is NOT the way to win hearts and minds of the Angry White Men ™.
This post confuses me, John.
For one thing, I should think you would want to make a distinction between when racial preferences are moral and when they should be legal. For example, I would guess that you think it should be legal for private universities that do not receive government support to racially discriminate, even though you consider it immoral. I don’t know how your word “legitimate” relates to the concepts “should be legal” and “is moral”.
I will assume you are speaking in this post of moral issues (although I could be wrong). You now try to explain how you choose to distinguish between moral and immoral racial preferences, but here you lose me. It is apparently not just a distinction between private and public, but then what is “the principle that creates these exceptions”? You give examples, but you never (as far as I can see) state the principle from which they are derived.
And I don’t think I can state it for you. You appear to think it is moral for a party to choose a candidate (partially) on racial grounds, if that’s what the voters want. However, I believe you are an “old” civil rights type of guy, and so I guess you would consider it highly immoral for a Mississippi restaurant to preferentially hire white people because that’s what the customers want.
If the restaurant owner says
then I would sympathize with him. If a Party chief were to say
I would sympathize with him as well. Although I suspect there were many restaurant owners of this type, I think there are absolutely no such Party chiefs. None of them are willing to admit that their obsession with the race and sex of candidates reflects the very worst of their constituency.
Hilarious!
Apparently my arguments that there are exceptions to the color-blind principle, in the same way that there are exceptions to our right to free speech is gaining currency with Mr. Rosenberg.
Isn’t it funny, though, that this epiphany on John’s part regarding these exceptions comes about when they favor a Republican Supreme Court Justice and Vice Presidential Candidate?
I think so.
So, in ABSOULTELY no cases of employment or academic applicants shall there be an exception to the color blind principle, but in some other areas of life well . . . enh . . not so much?
Why is a selection to sit on the Supreme Court or selection to vice presidency any different than any other employment?
John doesn’t say, but he knows there is indeed a difference!
Could that difference be a need to sleep at night knowing that his party employs so-called racial preference in exactly the same way as Democrats?
Regardless, it’s nice to see you coming around to my arguments John.
This post was too funny for words, and certainly made my visit to this site worthwhile.
Thanks!
p.s. maybe Ward Connerly should write these exceptions into his civil rights initiatives? As they currently stand, I believe there are no exceptions for any form of so-called racial preference. Maybe you can slip a line in there like, “There shall be no consideration of race EVER . . . unless it favors Republicans . . . then it’s a’ight.
Hull asks:
Why is a selection to sit on the Supreme Court or selection to vice presidency any different than any other employment?
Perhaps he didn’t see my explanation of the difference:
Hull, and others of like mind, would like employers, admissions officers, etc., to have the same unrestricted discretion to hire and admit that presidents and presidential nominees have to nominate. Or rather, they act like they want that until their bluff is called. If they really believed that, all they would have to do is repeal the civil rights laws. The 14th Amendment has proved so porous they wouldn’t even have to amend that.
Let me also remind Hull that I’ve never said the colorblind principle was absolute. The Civil Rights Act of 1964, for example, specifically allows for a BFOQ (Bona-Fide Occupational Qualification), which is why selecting the Hispanic police officer for undercover work in a Hispanic gang is perfectly proper. My point about what he gleefully, but incorrectly, regards as the “exceptions” I discuss here aren’t exceptions because the would-be judges and vice presidents and political candidates and marriage partners simply do not enjoy (nor should they) the protection of the colorblind principle.
I should add that this doesn’t mean I personally like selecting such candidates based on race (and hence my use of the term “legitimate” may have been inapt); it’s just that I don’t see those decisions as illegal or immoral. My feeling about them is similar to the way I feel about legacy preferences: they may be bad policy or otherwise unappealing, but they violate no right.
“prospective Supreme Court justices or vice presidents have no “rights” in the matter of their selection whatsoever; the president, or presidential nominee, has total and unreviewable discretion regarding their selection (although that decision is subject to later review by the Senate in one case and the voters in the other).”
as opposed to:
“College and job applicants, by contrast, although they have no right to be admitted or hired, do indeed have, and should have, the right to be judged in a manner that does not benefit or burden them because of their race. ”
I’ll leave it to readers to decide whether there is any substantive difference between these catagories.