Prof. Richard Hasen, widely regarded (especially by Democrats) as an expert on election law, has a recent OpEd in the Washington Post demonstrating that his expertise does not extend to affirmative action. His argument is that Judge Neil Gorsuch is an “affirmative action baby,” that he “got where he is because of a form of affirmative action.”
Pointing to Justice Byron White’s preference for Coloradans in picking his Supreme Court clerks and the connections of Judge Gorsuch’s mother, a member of Reagan’s cabinet, in helping Gorsuch secure his position on the 10th Circuit Court of Appeals, Prof. Hasen argues that this “background of getting a helping hand” should lead Gorsuch to support race-based affirmative action, which he claims “offers no more advantages to its beneficiaries than the invisible helping hand that folks such as Gorsuch received.”
Prof. Hasen thus implies that it is downright selfish and uncharitable for someone who has received “a helping hand” based on any non-merit basis such as geography or family connections to oppose the state handing out benefits — and inevitably, though he doesn’t mention them — burdens based on race.
Fortunately, significant majorities of Americans have consistently rejected this false equivalence between preference based on race and other factors. I have called this false equivalence “the fallacy of fungible discriminations,” a fallacy implicit in common assertions that no one who tolerates preferences for legacies or tight ends or tuba players can, without being hypocritical, oppose preferences based on skin color. As it happens, most Americans resoundingly reject this fallacy. According to the most recent Gallup poll, showing data from 2003 to 2017, when asked if they would prefer college admission to be based on merit alone or for race to be taken into account to promote diversity, fully 7 in 10 consistently preferred merit alone.
Merit alone, of course, is not the only alternative to racial preference; all sorts of other preferences are unobjectionable. But let us hope that Justice Gorsuch, like most Americans, rejects the false equivalence fallacy repeated by Prof. Hasen and thus also rejects the state distributing benefits and burdens based on race.
For another criticism of hinky Hasen, see Edward Blum, “The Washington Post Publishes the Worst Analysis Yet of Neil Gorsuch’s Confirmation Fight.” Blum’s criticism of Hasen’s distortion of originalism is especially noteworthy and worth reading, since I didn’t mention that part of his OpEd.
Since I did not discuss Hasen’s unoriginal misreading of originalism, perhaps I should (and hence will) add here that we have encountered Hasen’s version of loose (to be charitable) construction of texts before. This 2009 post, “Good News: Rick Hasen Is Worried The Supremes May “’Kill The Voting Rights Act’”!, is one example that summarizes a few earlier ones:
In Construing Liberal Construing, Or: Construe You, for example, I discussed his explanation of why the apparently clear language in New Jersey election law specifying that a party can replace one candidate with another “not later than the 51st day before the general election” didn’t really mean “not later than the 51st day before the general election.”
In Liberals vs. Conservatives: It’s A Matter Of Interpretation, we saw Prof. Hasen creatively construe Article Two, Section One, Clause Two of the U.S. Constitution, which says in part that “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a number of electors….” As I wrote in that 2004 post,
I find it very curious, … and perhaps revealing, that Prof. Hasen’s rendition of this Article II requirement is that it “allows each state legislature to set the rules under which electors are chosen and allocated” (emphasis added). Allows? This is rather like saying that Article I allows Congress to exercise legislative powers, and allows it to consist of a Senate and House.
With this background it will come as no surprise that Prof. Hasen begins his current SLATE article on what might described, charitably, as a highly partisan note: “Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws.”
To disagree with the liberal version of voting rights, in short, is to be unfriendly to voting rights; to disagree with the liberal version of campaign finance reform (otherwise known as limiting political speech) is to be unreasonable.