Race, religion, and cabinet appointments

[Volokh, Eugene]

        Mark raises a great question; of course our job as lawprofs is to go
beyond our intuitions and figure out if there are logical distinctions that
underlie them.

        But let me suggest a device that might help us sort out these
intuitions:  How would we feel if we set aside the "affirmative action"
question of preferences for groups we like, and included preferences for
other groups?

        I sincerely feel that there's nothing unconstitutional in a Governor
or President preferring Catholics, whites, males, Jews, blacks, females,
Hispanics, atheists, gays, or heterosexuals for a particular post; it may be
good or bad politics, it may be right or wrong, but I think it's within his
prerogative.  Had I thought that it's OK for the Governor to prefer whites
but not blacks in this context, or vice versa, then this would lead me to
doubt that my intuition was really founded on the level of the appointment.

        Likewise, if one feels that university admissions and employment are
discretionary so that "the basic equal protection rules just don't apply" to
them, then one would have to say that preferences in university admissions
for devout Southern Baptists, whites, males, Republican women, and the like
would be just as free from equal protection scrutiny as preferences for
blacks, women, Hispanics, and the like.  But if one takes the opposite view
-- if one thinks that preferences for blacks are OK but for whites or
Christians are not -- then one isn't really operating on an intuition that
basic equal protection rules just don't apply to university admissions and
employment.

        Eugene


Mark Tushnet writes:

> Eugene Volokh clearly does describe an *intuition* lots of people
> probably have about Cabinet appointments.  But he's been among many who
> have pressed people who have the intuition that race is relevant to
> university hiring and admissions to specify the basis upon which that
> intuition can be reconciled with existing constitutional doctrine.  So,
> what is the basis for the intuition that "there are certain really
> high-level appointments to which the basic equal protection rules just
> don't apply"?  Or, more precisely, whatever the basis for *that*
> intuition is, why can't the same basis be given for the intuition that
> "there are certain really important social functions -- like university
> admissions and employment [etc., I might add]-- to which the basic equal
> protection rules just don't apply"?
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