FW: Race, religion, and cabinet appointments

[Lederman, Marty]

Before addressing Eugene's specific hypos, I think it worth noting Eugene's suggestion that antidiscrimination norms, such as those found in the Religious Test Ban clause or the Equal Protection Clause, should (do?) apply to "formal legal rules," but "not to discretionary decisions by the appointing official."  What would be the basis for such a distinction?  Most of the cases of affirmative action that appear to concern Eugene and others so much in, e.g., the public university and public employment settings -- as well as most preferences for whites, men and other entrenched majorities -- are the result of highly discretionary, and subjective, decisionmaking, rather than formal legal rules.  For instance, a "de facto," but unannounced, requirement that employees be Christian surely would not be constitutional as applied to the discertionary hiring decisions of, e.g., a federal agency official, a Senator or an Article III judge.  Surely, then, if there were some principled basis for exempting high-level governmental appointments from constitutional antidiscrimination requirements, it would not be the fact that they are made on a discretionary and subjective basis.

As for the specific hypotheticals:

I would have thought it beyond question that the Religious Test Ban clause, if not also the equal protection component of the Fifth Amendment, would prohibit a President from deciding "that his closest advisors should share his faith."  The President can, of course, insist that they share his views on the policy issues that are likely to confront the Administration, but not that they share his "faith."

The other hypotheticals -- Eisenhower's selecting Justice Brennan "in part because of his Catholicism" and a Presidential appointment of a VP "in part based on his being an Orthodox Jew" -- involve preferences or "plus factors," rather than "Qualifications," so I am not sure whether Article VI would prohibit them.  (Does anyone know whether "Qualifications" in Article VI    encompasses preferences that fall short of formal "qualifications"?)  But, yes, I do believe that such decisions are *subject* to article VI and to the Fifth Amendment, and therefore:

-- a President may not *require* that a Supreme Court Justice or VP or Secretary of a Department be of a particular faith (Art. VI and EP violation);

-- a President may not prefer VPs or Justices or Secretaries because they are white (or men) (EP violation).

I do think the constitutional constraints on a President's preference for black (or female) appointees are much less severe, and therefore much as I deplore the Clarence Thomas nomination, I do not think it was unconstitutional.  I do, however, believe that anyone who adheres to Thomas's views in his Adarand concurrence (as I do not) should view the Thomas nomination (as well as recent GWB appointments of African Americans to cabinet and subcabinet positions) as constitutionally troublesome, if not impermissible.

Marty Lederman (in my personal capacity)



-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Wednesday, March 07, 2001 1:50 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: Race, religion, and cabinet appointments


        I agree that the question isn't justiciability or remedy, but
substantive constitutionality -- what would a President or a Governor who's
dedicated to following the Constitution do?  My sense is that discrimination
in this context would not be unconstitutional, even though it might be
unfair or unwise.

        The Religious Test example is actually quite a good one; the clause
is drafted in categorical terms, and it seems to me that within its scope it
does not tolerate any religious test, whether "affirmative action" or
otherwise.  Does it follow that Eisenhower's selecting Justice Brennan in
part because of his Catholicism was unconstitutional?  Or that a President
who faces a vacancy in the Vice-Presidency can't appoint a VP in part based
on his being an Orthodox Jew?  Or that a devoutly religious President can't
decide that his closest advisors should share his faith (or for that matter
that it would help him govern if his closest advisors were of another
faith), and choose accordingly?

        I think the answers to these questions are "no" -- those actions,
right or wrong, would be constitutionally permissible.  Again, I'm not
completely confident of my views; but my guess (and it's just a guess) is
that the original meaning of the Religious Test Clause relates to formal
legal rules, not to discretionary decisions by the appointing official, and
that this is indeed a morally and practically sound distinction.

        What do others think?  Does the Religious Test Clause make the
decisions I mentioned above unconstitutional?

        Eugene

> -----Original Message-----
> From: Lederman, Marty [SMTP:Marty.Lederman at USDOJ.GOV]
> Sent: Monday, March 05, 2001 2:12 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Race, religion, and cabinet appointments
>
> Eugene writes:  "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."
>
> Maybe I'm missing something, but I find this fairly astounding.  The
> question is not, as I understand it, whether the President's or Governor's
> decision would be justiciable, or remediable in any way other than at the
> ballot box, but instead whether it would be constitutional.  Even putting
> to one side obvious Equal Protection questions with respect to, *at
> least*, the preferences for whites and males, doesn't the religious test
> ban clause of Art. VI quite plainly prohibit the President from using any
> religious test as a "Qualification" for any "Office or public Trust under
> the United States"?
>
> Marty Lederman (in my personal capacity)
>
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
> Sent: Monday, March 05, 2001 3:46 PM
> To: CONLAWPROF at listserv.ucla.edu@inetgw
> Subject: Re: Race, religion, and cabinet appointments
>
>
>         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"?