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

VIEW ALL ENTRIES

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.

Advertisement

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

TODAY IN SLATE

Frame Game

Hard Knocks

I was hit by a teacher in an East Texas public school. It taught me nothing.

There Are New Abuse Allegations Against Adrian Peterson

After This Merger, One Company Could Control One-Third of the Planet's Beer Sales

John Oliver Pleads for Scotland to Stay With the U.K.

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

Jurisprudence

Don’t Expect Adrian Peterson to Go to Prison

In much of America, beating your kids is perfectly legal. 

The Juice

Ford’s Big Gamble

It’s completely transforming America’s best-selling vehicle.

I Tried to Write an Honest Profile of One of Bollywood’s Biggest Stars. It Didn’t Go Well.

Here’s Why College Women Don’t Take Rape Allegations to the Police

The XX Factor
Sept. 15 2014 1:51 PM Here’s Why College Women Don’t Take Rape Allegations to the Police
  News & Politics
Weigel
Sept. 15 2014 8:56 PM The Benghazi Whistleblower Who Might Have Revealed a Massive Scandal on his Poetry Blog
  Business
Moneybox
Sept. 15 2014 7:27 PM Could IUDs Be the Next Great Weapon in the Battle Against Poverty?
  Life
Outward
Sept. 15 2014 4:38 PM What Is Straight Ice Cream?
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Tv Club
Sept. 15 2014 11:38 AM The Slate Doctor Who Podcast: Episode 4  A spoiler-filled discussion of "Listen."
  Arts
Brow Beat
Sept. 15 2014 8:58 PM Lorde Does an Excellent Cover of Kanye West’s “Flashing Lights”
  Technology
Future Tense
Sept. 15 2014 4:49 PM Cheetah Robot Is Now Wireless and Gallivanting on MIT’s Campus
  Health & Science
Bad Astronomy
Sept. 15 2014 11:00 AM The Comet and the Cosmic Beehive
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.