race, religion, and cabinet appointments

[Jim Viator]

In regard to Earl Maltz's "political question" response to Daniel
Conkle's query -- I'll see Earl's "old-fashioned" self-description and
raise him by about a dozen decades in order to answer Prof. Conkle's
"real question" of "how a President should act, if the President were a
conscientious president...."  A conscientious (and well-schooled)
President could take the Lincoln-Jackson approach and point out that
making cabinet appointments is within the constitutional apparatus of
the Presidency, and therefore the President has the duty to make an
independent estimate of what the Constitution requires  vis-a-vis
decisions made within the President's constitutional domain, an estimate
that may or may not agree with the judicial gloss of the "equal
protection" component of the fifth amendment -- all of this subject, of
course, to Congress's (hence, the people's) estimation of the
constitutional requirements as expressed in the checking function of
Senatorial confirmation.  I think this approach provides the real or
fundamental separation-of-powers answer to Prof. Conkle's student who
wondered how the constitutional issues should be addressed in
race-conscious cabinet appointments.