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Where ?Taking Race Into Account? Is Not Illegitimate

I have written many times that I believe it is almost always illegitimate for the state to ?take race into account,? to use the current euphemism for employing racial preferences. Indeed, the only acceptable (to me) exception to such a prohibition I?ve found is the legitimacy of assigning, say, black police officers to go undercover to penetrate a black gang. (But even that exception is not without problems; see here and here.)

But continuing reflection on the common description of Clarence Thomas, and now Sarah Palin, as affirmative action selections, as I just discussed in my immediately preceding post, leads me to conclude that more needs to be said about some nooks and crannies of our public life where the rule barring consideration of race probably does not, and should not, apply. And, where ?more needs to be said,? I?m always happy to say it.

As I wrote in my previous post,

Thomas was ... criticized as, in effect, an affirmative action hire by people who do not object in principle to affirmative action hires ... (and defended, of course, by people who do have principled objections to affirmative action hires in most situations).

Of course being appointed to the Supreme Court is not ?most situations,? and neither is being nominated for vice president....

I now believe, however, that there is less inconsistency here than meets the eye. That?s because I believe there are certain kinds of personnel decisions where there is, and should be, no bar to ?taking race into account,? and appointment to the Supreme Court (and certain other appointment decisions) and the selection of a vice-presidential nominee are two examples.

Before getting to those (and other) examples, however, let me first try to establish the principle that creates these exceptions. And to do that let me begin with an extreme example: marriage. Does anyone doubt that there should be no law restricting a person?s right to choose, or reject, a marriage partner on the basis of race? Another example: voting. Liberals have been telling us incessantly that if Obama loses it will be because some white voters are racist and won?t vote for a black candidate. But presumably even they don?t believe such ?race-conscious? behavior is, or can be made, illegal. Indeed, I suspect many, maybe even most, liberals would argue that a whites-only political party, a party that excludes blacks and Jews, has a right to exist and field candidates.

In short, there are some areas of life, both public and private, where civil rights protections simply do not, and should not, apply. But this is not simply a matter of there being no ?rights? involved. It is true that no one has a?right? to be appointed to the Supreme Court, or selected to run for vice-president, but that?s not precisely the point. After all, no one has a ?right? to be accepted to college, either. But there?s a big difference between the former and the latter: prospective Supreme Court justices or vice presidents have no ?rights? in the matter of their selection whatsoever; the president, or presidential nominee, has total and unreviewable discretion regarding their selection (although that decision is subject to later review by the Senate in one case and the voters in the other).

College and job applicants, by contrast, although they have no right to be admitted or hired, do indeed have, and should have, the right to be judged in a manner that does not benefit or burden them because of their race. Or at least they would if the 14th Amendment and civil rights laws were fairly and reasonably interpreted and applied.

Thus, even if Clarence Thomas and Sarah Palin were selected because of their race or sex (and, as I argued in my last post, I don?t believe that is necessarily the case), no colorblind principle would have been violated, because such a principle does not and should not apply to those cases. Thus there is no inconsistency in conservatives lauding those appointments, although I do believe it remains inconsistent for liberals who approve of affirmative hiring across the board to denounce these two, and others they don?t like, as affirmative action hires.

Full post as published by Discriminations on September 28, 2008 (boomark / email).