Slate's Bizbox
the breakfast table: An e-mail conversation about the news of the day.

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

The Problems With De Facto Affirmative Action

Posted Wednesday, June 26, 2002, at 1:15 PM ET

Who are these people?

Good morning, Walter,

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:

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

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

The Problems With De Facto Affirmative Action

Posted Wednesday, June 26, 2002, at 1:15 PM ET
Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
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.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

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)

Washington Post
The Washington Post
OPINIONS
Assessing Sarah Palin
| Newt Gingrich, Grover Norquist, John Podesta and others weigh in.
Colbert King: She's No HillaryEditorial: Is She Ready for This?
PLUS » PostPartisan: Quick Takes from Opinions