William Raspberry A dose of judicial diversity William Raspberry A dose of judicial diversity
April 7, 2003
WASHINGTON -- You might define an optimist as an affirmative-action supporter who hopes the Supreme Court now weighing the University of Michigan admissions case won't screw it up too badly. Unlike their conservative opponents, who can smell total victory, the proponents are banking on a ruling that leaves some wiggle room for the consideration of race. This is true partly because the matter will be decided by a largely conservative court.
But it is true in larger measure for reasons that don't get talked about very much. The admissions fight is not about equity but about discretion -- less a matter of what "equal protection" requires than of what reasonableness allows. Equity considerations tend to push in the direction of either correcting discernible unfairness or hard numbers -- test scores and measurable differences. But hardly anyone will argue that the problem these days is that racist admissions officers are keeping deserving young blacks out of college. When the issue is cast as a test of individual rights, it's hard for a court to deliver an answer that makes sense.
That's why many civil rights advocates would be happy if the Supreme Court left a sliver of the 25-year-old Bakke decision -- that race may be among the factors admissions officers take into account. But if equity isn't the issue, what is? The (white) military officers who testified recently on what affirmative action has accomplished for the armed forces spoke directly to the appearance of fairness and openness and opportunity.
How effective could the military be, they asked, if the rank and file were filled with men and women (disproportionately minority) who couldn't find decent careers outside, while the officer ranks comprised, disproportionately, the sons and daughters of the educated well-off? It makes sense, they said, to take special pains to create an officer corps that looks more like America, not by promoting the unqualified but by searching out and nurturing the qualified. Universities have seen it that way as well. They simply recognize that they -- particularly the most highly selective schools -- are turning out the private-sector equivalent of America's officer corps, and that it matters whether that corps does or does not look like America.
The Supreme Court justices won't have to look far to see what I'm talking about. Hardly a member of the court would consider it irrelevant that an African American and two women now sit on a body that once routinely comprised nine white men. But the justices are also aware that the overwhelming majority of their clerks are white. About a quarter have been women. The disparity says a good deal about the importance of affirmative action and, perhaps, of the justices' attitudes toward it. Court clerkships are often a springboard to successful law or judicial careers.
Clerks are the initial screeners of appeals that come to the court and also hear oral arguments and draft and edit opinions. Nearly as important, they talk to the justices. Their effect reaches far beyond their individual careers.
When the issue was raised five years ago, Chief Justice William Rehnquist was quick to note that no one was excluded from consideration by him or his fellow justices "because of race, religion, gender, nationality or for any other impermissible reason." I believe that. I also believed him when he noted that most Supreme Court clerks were formerly clerks in the federal court system (which favors graduates of the Ivy League law schools).
What that means, of course, is that the opportunity to serve as a Supreme Court clerk depends heavily on prior opportunity. All this is legally unassailable. But is it a situation that, morally, ought to be left alone?
Mightn't the justices consider a little affirmative action themselves?
Raspberry is a Washington Post columnist. Contact him via e-mail at: willrasp@washpost.com.
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