Yesterday, the Arizona legislature approved a measure that puts a Civil Rights Initiative on that state’s 2010 ballot. If voters approve, it will outlaw racial and other group preferences in state employment, university admissions, and public contracting. The Arizona legislature’s action is unusual in that most ballot initiatives come as the result of lengthy citizen petition campaigns. This is one more benchmark in the seemingly inexhaustible debate in America over group entitlements and representation.
That debate, in fact, goes back a long way. In January of 1788, the contentious national debate over ratification of the proposed constitution had focused on the question of the federal government’s new powers of taxation. Criticisms were many and varied, although in Federalist #35, Alexander Hamilton took note of a recurrent theme among them, directed at the likely composition of the House of Representatives, where all revenue bills would originate:
One which, if we may judge from the frequency of its repetition, is that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens in order to combine the interests and feelings of every part of the community, and to produce a true sympathy between the representative body and its constituents.
In other words, blacksmiths, wheelwrights, farm hands, sailors, coopers, fishermen, etc. would only be truly “represented” if some of them actually sat as members of the popularly elected house (bear in mind that United States Senators at this time were to be chosen by state legislatures). People of similar occupational backgrounds, the reasoning went, were more likely to understand each others’ life circumstances, needs and aspirations with sympathy, in contrast with the more affluent landowning interests or learned professions who would otherwise dominate the House.
This has a strikingly contemporary ring to it, as we continue to go around and around over questions of “fairness,” “representation” and group proportionalism in the workplace, the academy or the federal judiciary, among many other venues. In 1788, the controversy centered on occupational or professional status while, for the past several decades, we’ve viewed the same issue through the enveloping, omnipresent lens of race, sex or ethnicity. Colleges and universities in particular engage in an often frantic quest to recruit members of “underrepresented” groups to their faculties, and to achieve an appropriate “diversity” reflective of the larger community (Often very large. I recently learned of a hiring committee which was charged to consider shifting global demographic patterns as it began the task of recruiting an acceptable candidate pool.)
And of course, it hardly stops there. I don’t think that a week goes by when I don’t receive glitzy email ads from consulting firms offering to “diversify” my workplace so that it more accurately approximates today’s “global” demographics and make me more competitive and, most importantly, “representative.” Then there’s the College Board which, as we noted recently in this space, decided to scrap one of its two AP Latin exams for “demographic” reasons. Even though the absolute numbers of students taking the exam had increased significantly, the “demographics” were not sufficiently “representative” of racial and ethnic minorities – “equity” as the College Board viewed the matter – so the second Latin Literature exam will be pulled after this year. Similar logic underlay the city of New Haven, Connecticut’s decision not to promote a number of qualified firefighters, even though their test scores more than justified it: the “demographics,” once again, were insufficiently inclusive of “underrepresented” racial and ethnic groups. The case of Ricci v. DeStefano, initiated by the aggrieved firefighters, is currently under scrutiny by the United States Supreme Court, and a decision is due before the end of June.
But speaking of the Supreme Court, the debate over group representation has been sharpened by President Obama’s nomination of judge Sonia Sotomayor to replace retiring associate justice David Souter on the nation’s highest judicial tribunal. Many of Sotomayor’s supporters have argued that whatever other merits her nomination will bring to the high court, it serves to correct the glaring “imbalance” of race and gender proportions, not only on the Supreme Court, but within the federal judiciary in general. As the National Organization of Women’s president Kim Gandy put it recently:
For those who say (whether they actually believe it, or simply think it’s what they ought to say) that they don’t want a particular gender or race, but only want the “best” judge or the “most qualified” person, I propose this thought: Unless you believe in the superiority of one race or gender, pure merit would result in some rough approximation of the population (at least the population of lawyers) in terms of both gender and race. Yet women are half the population, 25 percent of federal judges, and only 11 percent of the Court. Hispanics are 15 percent of the population, seven percent of federal judges, and none of the Court. White men are less than 40 percent of the population, but make up nearly 80 percent of the Court. So, unless you really believe that white men as a group are twice as qualified as the rest of the population, to make decisions about our lives, then there is an imbalance that is not based on merit or qualifications. And that needs to be rectified. (“One is Not Enough,” NOW Newsletter, May 7, 2009)
This also seems to be the view of Sotomayor herself, as she observed in a lecture presented in 2002 at the BoaltLawSchool, University of California at Berkeley:
In 1992 when I joined the bench, there were still two out of 13 circuit courts and about 53 out of 92 district courts in which no woman sat. At the beginning of September of 2001, there are women sitting in all thirteen circuit courts. The First, Fifth, Eighth and Federal Circuits each have only one female judge, however, out of a combined total number of 48 judges. There are still nearly 37 district courts with no women judges at all. For women of color the statistics are more sobering. As of September 20, 1998, of the then 195 circuit court judges only two were African-American women and two Hispanic women. Of the 641 district court judges, only twelve were African-American women and eleven Hispanic women. African-American women comprise only 1.56% of the federal judiciary and Hispanic women only 1%. No African-American, male or female, sits today on the Fourth, Sixth, Seventh or Eighth, District of Columbia or Federal Circuits. Sort of shocking, isn’t it? This is the year 2002. We have a long way to go. (Reprinted in the New York Times, May 15, 2009)
For Gandy, Sotomayor and many others, those ratios confirm prima facie that something is seriously amiss. How can the judiciary or, presumably, other institutions possibly claim to be “representative” with figures such as these? Since Alexander Hamilton addressed similar protests in 1788, it’s worth considering his response.
Although Hamilton believed that demands for proportional representation among occupational groups were misplaced and unrealistic, he also seems to have recognized their considerable potential for demagogic and political mischief:
This argument presents itself under a very specious and seducing form, and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary.
That observation also resonates with contemporary circumstances and it’s no doubt unrealistic to expect that “identity politics” could ever be wholly absent from the public square. There will always be politicians willing to pander to group resentments. Beyond this, however, Hamilton argued that advocates of proportional group membership in the House fundamentally misconstrued the concept of “representation” and how it was likely to play out in an unfettered electoral process. “The idea,” he writes, “of an actual representation of all classes of the people by persons of each class is altogether visionary. Unless it were expressly provided in the Constitution that each different occupation should send one or more members, the thing would never take place in practice.” Why is this? Well to begin with, we need to take the measure of most voters as they actually are, rather than as faceless components of an abstract a priori category. If we do, what are we likely to see?
Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are well aware that, however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly the greatest natural abilities are, for the most part, useless; and that the influence and weight and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.
Are there, to use Gandy’s term, “imbalances?” Obviously, since artisans, “mechanics and manufacturers” (skilled craftsmen or tradesmen) have no one of their specific occupations as sitting members of the House. Were they, then, “unrepresented?” Not at all, since “representation” in Hamilton’s understanding meant the opportunity to vote for candidates who would be effective advocates of one’s interests. Just as most of us today do not argue court cases pro se - at least, not if we’re interested in winning – the classes of citizens believed by some of Hamilton’s contemporaries to be getting shortchanged delegated their legislative trust to the most able or “natural” protagonists available. Thus, the group proportionalism that some at the time – and many now, of course - would have called “true” or “fair” representation might well have been regarded by this particular class of voters themselves as folly. An interesting exercise, I think, that starkly illustrates the superficial appeal of Abstract Justice in collision with the reality of its application to particular circumstances. Most telling perhaps, is Hamilton’s concluding observation:
It is said to be necessary that all classes of citizens should have some of their own number in the representative body in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free.
The only alternative, of course, was to intervene as Hamilton noted, and mandate such outcomes since the random flow of the political process itself would not produce them. In 1788, this would have meant devising a constitutional provision requiring that a minimum number of congressional seats be reserved for farmers, carpenters and assorted tradesmen. At the present time, it means denying admission to highly qualified Asian-American students in elite universities if their numbers exceed acceptable “proportions,” ludicrously prolonging faculty searches because candidate pools aren’t sufficiently “diverse,” refusing to promote firefighters or chopping AP Latin exams if the “demographics” aren’t right, and eliminating college men’s athletic teams if sufficient numbers of female squads can’t be recruited to redress the “gender imbalance.” Well what can we say about “imbalances?” Surely they must signify something? Yes, but without focusing the microscope as Hamilton did, it’s impossible to know exactly what that could be. Is it significant that there are only x African- American female judges and y Hispanic ones in the federal judiciary? Perhaps. I might also like to know why associate justice Antonin Scalia was the first Italian-American to be appointed to the Supreme Court (what took so long?), why relatively few judges of Greek lineage currently sit on the federal bench, why legislatures at all levels are disproportionately populated by lawyers or why kosher pizzerias are decidedly few in number. No doubt there’s an “answer” in each of these instances, but to find it we need to go beyond the mere numbers, which unexamined tell us very little, and “dissect [them] with attention” as Hamilton so presciently counseled in 1788. That’s because the numbers in these and many similar instances do not begin to tell us what the facts are. Unfortunately, that distinction continues to escape many bureaucrats, politicians and academic personnel directors, whose ongoing fixation with demographic statistical parity continues to inflict indefensible, needless injustices in the name of “fairness."
