Affirmative action redux

[Sanford Levinson]

Bill Funk writes:

>I can't believe that anyone thinks that Thurgood Marshall was appointed,
first, SG, second, a judge on the 2d Circuit, and third, a Supreme Court
Justice solely on the grounds of his legal talents and without regard to
his race.

Clearly Bill is right; Bob Dallek tells a classic LBJ story about why he
chose Marshall over William Hastie, whom one of his aides had recommended
that leaves no doubt about LBJ's attentiveness to the racial dimension.
That being said, I'm not sure why we say that Marshall was appointed
"because" of his race, but that Ted Olson's appointment, say, was without
regard to race.  Olson's appointment occurred against a baseline assumption
that it is normal for whites (and males) to occupy positions, so that one
literally doesn't have to think of his race anymore than one thinks of the
fact that in our society one does not normally wear hats inside (unless one
is a Sikh or an Orthodox Jew, who needs to be "accommodated" if the wearing
of hats is prohibited).  Is it unthinkable that someone inside the Bush
entourage said (something like), "We've appointed enough minorities, it's
now safe to appoint whites"?  I certainly think that similar conversations
occur, with more or less finesse, in, say, law school appointments
discussions.

Incidentally, while we're discussing Ted Olson, is there anything
problematic about the continued appearance on cable TV of his egregious
wife Barbara as one of the ultra-partisan hatchet persons against Clinton?
I thought that Virginia Thomas got a bad rap with regard to her job with
the Heritage Foundation.  She's certainly entitled to a career of her own.
But would it be perfectly acceptable if she started appearing on Hardball
to defend the opinion in Bush v. Gore and to denounce anyone on the other
side.

sandy

sandy