Are racial preferences good for America?

Ruth Marcus is the Washington Post’s go-to writer for the left-liberal take on law-related matters. The Post gave her page after page to write this piece offering John Roberts dubious advice on how to curry favor with historians. The Post also published her lengthy and confused attack on originalism.

Now, Marcus has turned to the matter of race-based preferences. Like me, she noticed that during oral argument in the Harvard case, Justice Kagan asked counsel for the victims of Harvard’s discrimination whether race-preferences in selecting judicial clerks are lawful. Like me, she also noticed a survey of 50 federal appeals court judges, mainly Democratic appointees, that found many judges do take race into account when making clerkship hiring decisions.

Tying these two facts together, Marcus has written an op-ed decrying the likelihood that the outcome of the Harvard and UNC cases will put an end to the apparently widespread use of race-preferences in the selection of high-level law clerks. She notes that “depending on the level of clerkship, elite law firms pay bonuses to former clerks approaching $500,000 — on top of six-figure salaries.” Apparently, Marcus wants blacks to get a proportionate share of this money, as well as top jobs in the legal profession, and thinks these goals should override race-neutral evaluation of credentials.

Maracus ends her column this way:

Just when the numbers show judges are doing too little on clerk diversity [note: i.e. they are discriminating enough in the selection of clerks, but not enough], the Supreme Court appears poised to tell them the opposite. If those challenging race conscious admissions win, Fogel [co-author of the study on race-preferences for clerkships] said in an interview, the consequences could be drastic. “The judges are going to be told you’re not supposed to consider” race, he said. “How can a judge do something that is illegal for other people to do? I think it will have a significant chilling effect on efforts to diversify.”

If so, the pipeline into the top echelons of law firms, government and academia will get whiter. How is this good for America?

The better question, I think, is this: How is a racial spoils system — what Chief Justice Roberts called “this divvying us up by race” — good for America?

It isn’t. A racial spoils systems is, as Roberts said, a “sordid thing” It is unfair to those who lose opportunities because of it. It exacerbates racial divisions.

It ensures that, for the most part, opportunities won’t go to the individuals best able to take best advantage of them and that jobs, including very important ones, won’t go the individuals best able to perform them.

It removes some of the incentive for members of low-performing groups to take the steps needed to compete successfully with members of higher-performing groups. Why is taking these steps urgent if you’re really just competing with members of your own, lower-performing group for the portion of the “spoils” allocated to it?

Turning directly to Marcus’ question, how is it good for America if the pipeline into top jobs in law firms, government, and academia “gets whiter”? It’s good because if that’s the outcome of fair, color-blind selection practices, the evils of a racial spoils system are avoided.

As long as selection processes are fair, I’m indifferent about whether the individuals selected are black, white, or some other color. It doesn’t bother me that most NBA players are black. It doesn’t bother me if a disproportionate percentage of judicial clerkships and jobs in high-power legal positions go to whites.

I recognize that many fair-minded people are bothered by the latter phenomenon. I also understand that you can’t argue with people about what should bother them.

Fortunately, the Constitution is on my side, as the Supreme Court will probably explain next year. The Constitution doesn’t care which members of various racial groups get jobs. The Constitution does care about racial discrimination by state actors.

American public opinion also cares about this. Even in states as Blue as California, the electorate almost always rejects racial preferences by the government.

America’s elites are on the other side. They have run roughshod over both public opinion and, as I see it, the Constitution. Thus, it’s no surprise where the Washington Post comes down on this issue.

I want to make one more point. The pipeline into top jobs in law firms, government, academia, etc. need not remain disproportionately white under a system of merit selection. Marcus presents no reason to assume otherwise.

Clearly, some things will have to change if blacks as a group are to compete successfully with whites and Asian-Americans for these kinds of jobs. Among the changes that would help are more “school choice” and better black family structure.

Abandoning what George W. Bush called “the soft bigotry of low expectations” would also help, I believe. Low expectations are baked into the system of racial preferences that Marcus claims is good for America.