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from: Walter Dellinger
to: Dahlia Lithwick

Ethnic Justice

Posted Tuesday, June 25, 2002, at 6:56 PM ET

Who are these people?

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.

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 had to 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

the breakfast table
entries
12345678910111213141516
from: Walter Dellinger
to: Dahlia Lithwick

Ethnic Justice

Posted Tuesday, June 25, 2002, at 6:56 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
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Notes From the Fray Editor:

The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).

Notes From the Fray:

[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….

There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.

-- Publius

(To reply, click here.)


I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".

That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.

The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.

-- Beverly Mann

(To reply, click here.)


Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.

Besides, it's good marketing.

-- randy khan

(To reply, click here.)

(7/25)

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