Affirmative Action for Juries?
An email conversation about the news of the day.
Jan. 9 2002 5:09 PM

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Dear Tony,

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You really must stop sending me letters that give me so little to quarrel with. You seem right about the president's weak commitment to civil liberties. You seem right about the alarming sweep of the original military-trials order. (Quibble: I think that it was planned from the start that detailed fair-trial rights would come later, and that the administration never intended to be executing people on 2-1 votes, and thus I don't see those rules as a mere cave-in to us critics.) And you seem right about the need for a more robust commitment of American resources to rebuild Afghanistan and help other poor countries. (Quibbles: I do hope that the administration will drive a hard bargain with Europe on sharing the Afghanistan burden. And I hope that it will avoid pouring money down rat holes and into Swiss bank accounts, which is where much of our foreign aid has gone in the past.)

You even seem right in tweaking me for ducking all of the Bush environmental policies you criticized yesterday. I confess that I have been too busy (or too lazy) to read up on them. I am inclined to agree with your view that most are probably bad environmental policy. On the other hand, I'll bet that if we dug into them, we would find that allowing more roads in national forests would create lots of new jobs, for people who need jobs, and would find no popular consensus that snowmobiles despoil national parks. For this reason I am usually hesitant to assume, when this or any other administration does something I don't like, that they must have done it as a favor for logging company fat cats (who employ lots of people) or other monied interests (ditto).

An op-ed by Professor Jeffrey Abramson of Brandeis in this morning's New York Times brings me back to race. He discusses the federal appeals court decision this week overturning the 1997 convictions of Lemrick Nelson Jr. and another African-American on civil rights charges for the killing of a Hasidic Jew during the Crown Heights violence of 1991. The appeals court faulted the trial judge for his misguided effort to engineer the jury selection process by deviating from the usual rules so as to produce racial balance in this racially explosive case. For example, to avoid having "too many" black jurors, he kept one Jewish juror on the panel as an alternate even though that juror was unsure he could be fair. Abramson writes: "It is important to remember that jurors do not, in the political sense, have constituents to represent," lest "the noble ideal of representative juries collapses into a vulgar invitation for jurors to be loyal to their own groups, and ultimately undermines all confidence in the jury system."

Right. But I sympathize with the trial judge's impulse to tweak the process to avoid ending up with an all-black (or almost all black) jury—or an almost all-white jury, in some other case—in such an interracial murder case. Our diverse racial and ethnic communities are becoming so balkanized and polarized that more and more jurors see themselves as representatives of feuding racial factions even when the judges do everything right. And I see the obsession, in academia and among civil rights groups and many politicians, with emphasizing racial difference and racial grievance rather than with finding common ground as part of the problem. If it makes sense to apportion jobs, government contracts, seats in college, professorships, congressional districts, and Supreme Court clerkships on the basis of race, why not seats on juries? This seems to me a microcosm of how the increasing pervasiveness of the racial classifications that we call affirmative action (or diversity) is poisoning our civic discourse.

In order to get beyond racism, it seems, we have become obsessed with race. Now that you have retired from writing your column and have more time for leisurely contemplation, I am counting on you to find a way out of this box.

Best,
Stuart

Stuart Taylor Jr. is a National Journal columnist and Newsweek contributor.

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