Discrimination in selecting ambassadors

[Mark Graber]

Notice that while Presidents may decide ambassadors on the basis on reasons that might constitutionally discriminate if used for the other positions, the Senate has two related rights.

1. The Senate may decide that in this case a discriminatory criteria should not have been used.

2.  The Senate may decide that the President should not discriminate on certain grounds, even if the Supreme Court would not recognize that discrimination as constitutionally forbidden.

With respect to Ashcroft, this means the Senate could decide that it is morally wrong to oppose a person for an ambassidorship on the grounds of sexual orientation and that no person who has used sexual orientation should be appointd Attorney General.  I.e.,  just as I suspect Eugene would agree that the president could use this criteria for making an AG appointment, so a senator could when decided to confirm an appointment.

Mark A. Graber
mgraber at gvpt.umd.edu

>>> VOLOKH at mail.law.ucla.edu 01/28/01 10:35 AM >>>
   Do the standard rules related to discrimination really carry over to the
selection of ambassadors?  True, customer preference is generally not
considered an acceptable justification for discrimination in most jobs; but
is it really the case that the President couldn't prefer, say, a
Swedish-American when choosing an ambassador to Sweden?  Would a President
who's trying to build better relations with Iraq have to ignore a potential
ambassador's being Jewish?  Must a President send a Turkish-American as an
ambassador to Armenia if the person is otherwise the most qualified for the
job?

   It seems to me the answer is no:  Both normative equal treatment
principles and constitutional equal protection principles have to be
understood differently for high-level foreign policypositions, and I
suspect for high-level political appointments generally.  I don't claim to
know the exact boundaries of this principle, or its precise moral and
constitutional justifications -- I think this is a fascinating question that
the Court has largely managed to avoid.  But my tentative sense is that the
rules really do have to be different here.

   Of course, I acknowledge that sometimes a President might intentionally
appoint an ambassador without regard to race, ethnicity, religion, sex, or
sexual orientation, precisely to send a message that these criteria are
irrelevant no matter what the host country thinks; or that sometimes a
President might intentionally appoint an ambassador of a particular race,
ethnicity, religion, sex, or sexual orientation precisely because he knows
the host country would dislike such a selection.  I just think that the
President has no constitutional duty, and generally no moral duty, to do so.

   Eugene





Susan Bandes writes:

. . .
It seems as if (despite his earlier denial that he had opposed Hormel based
on sexual orientation) Ashcroft is now claiming that the discrimination was
justified. Certainly discrimination based on race would not be justified
based on the fear that others may share it. Is the argument now that since
gays are not a protected class, heterosexuality is some sort of legitimate
BFOQ (or some sort of effort to protect Luxembourg's free exercise of its
religious beliefs) when dealing with Roman Catholic audiences? . . .