Race, religion, and cabinet appointments

[Conkle, Daniel O.]

Thanks for the various responses so far to my question.  Eugene Volokh
suggests a "political" exception to the usual EP doctrine, and Lynne
Henderson likewise suggests that the courts would and should not get
involved.  I agree that these points might well explain how courts would
respond to this issue.  But my real question is how a President *should*
act, if the President were a "conscientious" president and assuming that
such a "conscientious" president should in fact attempt to follow existing
constitutional law.  In other words, are presidential diversity appointments
*constitutionally valid* in the fullest sense, or are they simply *immune
from judicial invalidation*?  I think this question is important for reasons
that are not entirely academic (which is not to suggest, of course, that
academic questions are unimportant!).

Sam Bagenstos's reference to the language in James v. Wallace might suggest
that a type of political discretion/diversity rationale might fully justify
a President's discretionary use of diversity appointments, i.e., it might
suggest that diversity appointments are constitutionally valid in the
fullest sense.  If so, as Mark Tushnet's post implies, then this might have
implications for other constitutional issues concerning affirmative action;
i.e., if presidential diversity appointments are constitutionally valid in
the fullest sense, then one might ask whether diversity appointments in
other contexts should be regarded likewise, by comparison to the
presidential context.  To put the point somewhat differently:  if, as far as
Equal Protection is concerned, it is perfectly appropriate for a President
to make diversity appointments at the highest levels of government, doesn't
that tend to suggest that racial diversity is a constitutionally valid
objective--even outside the context of higher education--and doesn't that in
turn have potential implications for affirmative action generally?

Dan Conkle
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Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
mailto:conkle at indiana.edu <mailto:conkle at indiana.edu>
* * * * * * * * * * * * * * * * * * * * * * *

 Original Message-----
From: Conkle, Daniel O. [mailto:conkle at indiana.edu]
Sent: Monday, March 05, 2001 2:40 PM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: Re: Affirmative action redux


I just had a student ask me about the practice of recent Presidents (and
certainly Governors and other executive officials as well) of making
discretionary appointments at least in part on the basis of race, e.g., to
increase the diversity of their cabinet.  This seems an increasingly
accepted and almost routine practice, and, until pushed by the student's
question, I would not have been inclined to think that it even raised a
constitutional issue.  But assuming that race is indeed a but-for reason for
(say) a presidential appointment to the cabinet, is such an appointment
constitutionally defensible under contemporary constitutional doctrine?
Does such an appointment not trigger strict scrutiny?  Does it trigger
strict scrutiny but somehow satisfy it, e.g., on a Bakke-type ("race as a
factor"/diversity) theory that can be extended beyond the context of higher
education?

I'm asking about contemporary constitutional doctrine, not about what the
doctrine ought to be.  Likewise, I realize that a judicial ruling of
invalidity would be exceedingly unlikely (to put it mildly), and it might be
that no one would even have standing to bring a claim in this context.  So
my question is at the level of contemporary constitutional doctrine,
assuming that the President himself were attempting honestly and in good
faith to comply with the contemporary Supreme Court's requirements.
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