The Problems With De Facto Affirmative Action
An email conversation about the news of the day.
June 26 2002 1:15 PM

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Good morning, Walter,

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That's a pretty provocative theory for getting rid of de jure affirmative action and instituting some kind of soft, informal, social-consensus-based de facto affirmative action. Half "The Fray" will celebrate you as a hero and half will call for your summary execution. The problems I'm having with what otherwise sounds like a good theory:

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

1) Why your assumption that the time has come for a Hispanic justice, as opposed to an openly gay, or disabled, or Asian one? I agree with you that the time has come for the former to have a seat at the big table, but why not the latter? And who decides?

2) Your argument that it's high time for a Mexican-American to be on the court raises all the red flags of the zero-sum people; the people who hate Title IX for killing men's wrestling, and hate the notion that as women and racial minorities and blind people (or med-school applicants) take their places at the table, the white men are not only edged out, but reduced (inevitably) to some fixed number of slots. Your Rule of Three presupposes infinite seats at the table. But we can't confirm three Hispanics to the court in a row without leaving out three white men. I have no response to this argument, except to say that they were never any more entitled to be at that table than anyone else. But that's usually when The Fray starts to fire up their flaming torches …

3) You say that "[t]he creation of an official record seems to reflect doubt that a member of the qualifying group could ever attain the 'real' record." Thus, we should get rid of such records and tell ball players to aim higher than just their race. But isn't the opposite more true, at least in sports? There is absolutely no structural, physiological or historic basis from which to believe that a Hispanic player couldn't surpass "real" records, is there? That's the beauty of sports; why it's a great leveler. But there are structural and historical barriers to minority access to medical schools or to a seat on the high court. So if anything, your argument should cut the other way. We shouldn't gun for a "Hispanic seat" on the high court because it implies that no Hispanic would be otherwise worthy.

Of course, in an ideal world, none of these distinctions would matter. But as you and I agree, and as Justice Powell proved in Bakke, leaving the planet to just sort this stuff out hasn't worked very well thus far.

We're almost done and I am dying to hear anything at all you'd have to say about the vouchers case, which has yet to be decided, or any thoughts you might have on what this Rehnquist Court is going to be remembered for in 50 years. You will doubtless be remembered for your online journalism debut.

Best,
Dahlia

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