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Jens 'n' Frens |
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I'd like to make a contribution to a discussion among Lily Malcolm, Jack Balkin, and Kate Malcolm on whether the President is allowed to take race into account in judicial nominations (and what makes it different from college admissions), but will satisfy myself with the following comment instead: I don't think the President should take race into account in nominations, because any restriction on what can influence state action has to be a restriction on its constituent parts. As a practical matter motives can be difficult to ascertain, but as a theoretical matter they are all-important for these kinds of considerations. If there is an action that, based on defensible criteria, Congress should take, but it has a disparate impact, tending to make things worse for one race (or simply not to make things as much better for them as for other races), then for Congress to take the opposite action would make things worse, relative to the alternative and relative to other races in the alternative, for the other races than for that one race. What I'm saying (since you can't figure it out from the text) is that, where action is a sequence of choices between alternatives, any "disparate impact" is a property of the whole set of alternatives, not of any one in isolation. (When it is suggested that a policy has a "disparate impact", it is usually being compared to either the status quo, or to the government deciding to do nothing in some isolated arena. Neither is necessarily appropriate.) We cannot, then, be expected to act in such a way as never to affect different races differently; it's just not possible. On the other hand, if we are at any point deliberately and systematically choosing policies because they particularly benefit one race, that's no good, either. (I have less problem with choosing an alternative in part because its benefits are spread differently from the way the benefits were distributed from previous decisions, but I can't defend that, it may change, and it's not to be quoted back to me in the future. In any case, affirmative action is different from this in that it is explicitly and deliberately racial, and not just a policy that happens to benefit certain races to the detriment of others in the process of doing something else.) |
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