Sandra Day O’Connor’s retirement from the Supreme Court should make us ponder affirmative action. Her most influential piece of writing might well be the 2003 court opinion allowing the University of Michigan Law School to continue race-based admissions for the time being—so long as there were no racial quotas. It was the first time the court had ever endorsed race-based university admissions.
And of course, O’Connor herself was the first woman on the Supreme Court. When President Reagan nominated her in 1981, affirmative action was fairly new; O’Connor made it look good. She was superbly qualified, yet presumably would have been overlooked had Reagan not searched expressly for a female.
But that was long ago. Today, affirmative action is ripe for the junkyard. There’s dramatic evidence in President Bush nominating a garden-variety white male to O’Connor’s seat. He said something important by doing so. Consider the fact that for much of the 20th century, the “Jewish seat” was a Supreme Court convention. To have one Jew on the court (no more, no less) seemed proper and fitting. But in time Jews went mainstream and the single “Jewish seat” quietly disappeared. (There are now two Jewish justices).
Bush has delivered a comparable message to women and minorities: Welcome to the mainstream! We don’t need a “woman’s seat” on the court. There are no more outsiders in American life.
Now let’s get rid of affirmative action.
In practice, affirmative action means cheating in a good cause. (But all cheating, for any cause, gnaws at a nation’s moral innards like termites.) Affirmative action means a plus factor in university admissions, job hiring and promotion for candidates from protected groups, in the interests of “diversity.” (But why should “diversity” mean official “minorities” and women but not libertarians, farmers, Mormons, Texans, children of soldiers, aspiring Catholic priests, etc.?)
Affirmative action is highly unpopular: A 2003 Washington Post-Harvard-Kaiser Family Foundation survey found that 92% of the public (86% of blacks) agreed that admissions, hiring and promotion decisions “should be based strictly on merit and qualifications other than race/ethnicity.” Only bureaucrats and intellectuals (species that are more closely related than they seem) love affirmative action.
Is it really “cheating”? In 2003, Linda Chavez, the head of the Center for Equal Opportunity, described University of Michigan freshman admissions as they stood in the mid-1990s: “We found that the odds ratio favoring admission of a black applicant with identical grades and test scores to a white applicant was 174 to 1.” The high court struck down that admissions procedure, but it’s a frightening reminder of what people can do in the name of fairness.