Ethnic Justice
An email conversation about the news of the day.
June 25 2002 6:56 PM

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Dear Dahlia :

Your e-mail from Monday afternoon defends, even celebrates, American consciousness of gender, ethnicity, and race. You say a professor you once interviewed whose name rhymes with "Dalter Wellinger" (I love the way you journalists will go to jail to protect your sources) did not disagree. So how come I am raising a skeptical eyebrow about there being a "record" of most consecutive game hits by an Hispanic major-league player? A fuller response is warranted, and since we are talking about the Supreme Court this week, let me begin with the example of choosing justices.

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In the not distant future President Bush is very likely to nominate a Hispanic jurist. And I'll be glad that he did. Giving great weight to the fact that a prospective nominee is a Mexican-American is entirely defensible. We have never had a time in American history when a Supreme Court was filled by choosing justices without regard to general categories—never. For the first century the dominant category was geography. There had to be a Southerner on the court at all times. Then for a century there hadto be a Catholic seat, then a Jewish seat. Lyndon Johnson and Ronald Reagan correctly saw that the time had come to expand the makeup of the court further with the Thurgood Marshall and Sandra O'Connor nominations.

When is one justified in being influenced by a particular category? And how do you determine when it is time to stop considering such a factor? My answer, as you noted, is the Rule of Three: "If Nobody Would Notice if You Put Three on the Court, It's No Longer Important To Have One." The Rule reflects the fact that what constitutes culturally relevant categories changes. Take geography. Once a dominant divide in American life, and thus a dominant consideration in naming justices, it virtually ceased to matter by the time of passage of the Civil Rights Act and the nationalization of American culture. Nobody cares about "geographical balance" any more.

When Justice Kennedy was nominated, you had to read well down in the sidebar bio to learn that he would, upon joining Justices Scalia and Brennan, be the third sitting Roman Catholic justice. That no mention was made of this in the main stories shows how great has been the assimilation of Catholics into American culture as compared with the earlier time when it was thought crucial for the court to have a "Catholic seat." We may be on the verge of a similar breakthrough with justices who are Jewish.

It is time to make Americans whose people came from the Latin countries know that the highest and most honored offices are open to them. When the time comes when no one would notice if three Hispanics in a row were named to the court, then Latin background will no longer be an important consideration, just as it's no longer important to have a Southerner on the court.

But, to return to your Monday question, why do I say "yes" to considering ethnicity in naming Supreme Court justices and "no" to maintaining a record for most consecutive hits by a Latin player? Precisely because the latter is an official record.

Having an official record (official enough, at least, that the game was stopped and the ball awarded to the batsman) seems different to me than merely mentioning with pleasure the fact that Castillo's streak was the most by a Latin player. The creation of an official record seems to reflect doubt that a member of the qualifying group could ever attain the "real" record. But, more important, an official record bespeaks permanence. And it suggests the "essentialism" of ethnicity, to use the academic term. An official record entails a formal categorization of an individual as racially or ethnically "eligible" or ineligible for the designated category, which I find troubling.

My belief that this official/unofficial distinction matters is almost entirely instinctive. It is somewhat akin to Justice Powell's notion in Baake that it is permissible to take some account of race, along with a variety of other admissions factors, but that formally setting aside 10 places officially designated by race crosses a line we should not cross.

As a young professor teaching constitutional law, I ridiculed the logical flaws in the reasoning of Justice Powell's Baake opinion. Twenty-four years later, I still don't find his opinion logical, but I now see it as profoundly wise.

Yours,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.

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