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News Affirmative Action and the USSC

  1. May 14, 2009 #1


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    CNN has a commentator who focuses a lot on racial issues and he posted the following article on CNN.com.

    I posted this response to it:

    You spent so much time on irrelevancy that though you mentioned the crux of the issue in the last line of the article, I don't think you actually understand the implications of the usage of the word. The point of emphasizing the word "qualified" is to draw a distinction between "qualified" and 'best'. If someone is "obliged" to hire a woman or a minority, then they are no longer looking for the best person for the job, but the best woman or minority for the job.

    Fortunately, the USSC doesn't have a lot of job openings and though the field of women and minority candidates is pretty thin, there are no doubt good candidates for the job. And though he likely won't get the best candidate for the job if he tosses 90% (99%?) of the resumes of potential candidates straight in the trash, he'll likely still get a good one. The same situation exists when you get thousands of applicants per job at WalMart.

    The trouble occurs when you start looking to fill most other skilled jobs. It isn't possible to get a ratio that matches the demographics of the nation when the demograpics of (for example) engineers is tilted heavily toward white males. The problem is therefore less about looking for qualitfied alternatives to a white male, but is actually about trying to fill a quota when there simply aren't any alternatives to a white male. That's how you end up with cases where meeting a quota requires absurdities like throwing out testing of fire fighters because it doesn't produce the right demographics of promotable people.

    Affirmative action is unConstitutional precisely because it forces people to take such blatantly racially discriminatory action to try to follow it. I too long for the day when such wording as "qualified woman or minority" is eliminated, but that day cannot come until people stop demanding that someone be "obliged" to exclude most of the qualified candidates for a job based on their race.
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  3. May 14, 2009 #2


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    I think it is a mistake to confuse appointments to the Supreme Court with some idea of best qualified. Because best appointment is like art, it is an eye of the beholder kind of thing. Qualified is possibly the only quantifiable dimension to it. For instance, Thomas and Alito and Roberts aren't my idea of "best". They may be best for the political purposes of a particular ideology trying to affect decisions that would come to the court. But that doesn't make them necessarily the "best".

    A President might choose an appointment for a wide ranging array of reasons. Certainly Taft and Warren were chosen not necessarily on the basis of their being the best at interpretations of jurisprudence.

    Given that we are a nation of diverse factions it seems that "best" isn't necessarily who writes the most erudite decision, but may be whoever contributes to the work of the whole finding bridges of consensus and interpreting the Constitution to the benefit of the Nation as a whole, or whoever may just suit the purposes of the President that nominated them.

    To look at any appointment then through the lens of some supposed affirmative action isn't really relevant, without understanding the exact considerations and political climate that faced the President at the time any particular decision presents.
  4. May 15, 2009 #3


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    Good point - the appointments are political in nature, so "best qualified" is not typically part of the selection criteria. Similar things also apply in other jobs, though: that would be the chemistry between you and your boss. But even as I accept that as true, I have a tough time basing the decision on a criteria that when applied in other places is unconstitutional. Picking a USSC judge with similar beliefs is fine. Picking one based primarily on their race or gender is not.

    As it pertains to the editorial, one wouldn't title an article 'Obama to pick the most qualified liberal judge' because it goes without saying that Obama is going to pick a liberal judge and there isn't anything newsworthy about that because there is nothing wrong with that. But 'Obama to pick the most qualified woman/black judge' is - in other settings - illegal discrimination.
  5. May 16, 2009 #4
    I think you're entirely missing the point. I could make some split-second assumptions about your own background that makes you unable (or unwilling) to see this issue from an alternative perspective but I won’t....

    Firstly, you're assuming that the person's sex or cultural background doesn't have any benefits with regard to how effectual they'll be in the job - is this particularly sagacious? I would argue nay....
    If you take a look at any rudimentary level work on neuroscience, particularly in the past several years, you'll see that more and more, it’s being proven that people very rarely "see" the world as "it is" they see the world as "they are" (and of course I don’t need to point out how this bit of information would affect one’s role in an important job, where apt decision-making about people from many different backgrounds is critically tied to being successful in a high profile role….)

    But don't take my word for it since it's a science forum - have a read of academic literature at your leisure here:

    Perception and the Brain: http://wwwcsi.unian.it/educa/inglese/brownrob.html [Broken]
    (RMIT University, Australia)

    Brain Maps Perception NOT Reality: http://exploration.vanderbilt.edu/news/news_roe.htm
    (Vanderbilt University)

    Getting back to my point…..The demographics of America have changed tremendously and WILL change even further still – with 50% of the population being female and within a few years 50+% being “minorities”, this is clear to see for anyone who has eyes to see or ears to hear…

    We need people in decision-makers roles who have a different perspective, who bring a different set of perceptions and can therefore do a BETTER job because they are in fact BETTER QUALIFIED to make decisions about many different kinds of people.

    Time and time again, I see opponents of affirmative action discounting this subtle though critical point....

    If you owned a private urology practice located in say New Canaan, Connecticut, would it be “unconstitutional” for you to hire a disproportionate number of say White men, from upper income brackets with cultural knowledge of that community for the job?

    While some feminist extremists or very left-of-centre minority activists might say yes, I would argue no.

    Given the nature of your likely clientele, and given how intimate a professional position it is, it’s perfectly reasonable to assume that to do the job well, your doctors’ unique perspective on the male body (vis-à-vis that of a say a woman) and their cultural perspective on the men of that community (given the nature of the job, it absolutely helps your clients “loosen up” when they feel they’re talking to someone from their own background…) you make certain hiring decision as stated above. And, as well you should.

    As the leader of an organization, you understand how your employees’ perspectives make them better able to relate to the people whom they’re serving and the decisions they’ll make about them…

    An organization should be "obliged" to hire individuals who, among other things, have enhanced social intelligence derived from a broad(er)/different/unique/varied set of experiences which ultimately leads to BETTER DECISIONS BEING MADE OVERALL (ceteris paribus of course….).

    Anyone who’s managed effectively knows that if you find yourself at a boardroom table and everyone's seeing the same thing and saying the same thing, something's awry. In layman's term, it's often called a need for "a fresh set of eyes...".

    A diversity of perspectives is absolutely crucial to successful decision making.

    You wouldn’t suggest that a man's perspective on the world is the same as a woman's would you?

    You wouldn’t suggest that a person of color's perspective on the world is the same as someone from a European-American background would you?

    Is either perspective more important than the other? Of course not! That's why you need them ALL present, in a well-balanced fashion such that you can meet the needs of the country's increasingly diverse citizenry.
    Last edited by a moderator: May 4, 2017
  6. May 16, 2009 #5
    Russ's point is (to me) that many "qualified" white individuals will not be considered because they are white and, probably male to boot. Swat4life seems to makes the point that because we are so "diverse" nowadays that maybe white males are no longer qualified. At least that's what this thread looks like to me so far.

    Personally, as long as we are looking at race/religion/background in order to make decisions about what our Judicial Branch looks like, we are going to continue to have issues related to "race/religion/background". But, I don't see this changing, 3var. That seems to be the tension that is built into our Constitution. It makes me wonder if it was intentionally so. Regardless, the highest Executive Branch chooses the highest Judicial Branch. Keeps the coals burning.
  7. May 16, 2009 #6
    Hi swat4life!

    You've posted a very clever and lengthy argument for diversity and racial and gender equality, but the only point of yours vaguely touching on the OP is where you mention the following

    However, you also mention that

    In other words, you're arguing that a person's view of the world is subjective rather than objective. Extrapolating, we can reason that person A has perspective A and that that perspective is based on A's background, personal experience and biological make-up (from which there is no escaping, right?).

    So why would person B or C then be able to do a BETTER job than person A since their perspectives are also defined by their backgrounds etc...based on your reasoning and quoted articles, we still do not necessarily have an objective decision-maker who will be fair on all issues relevant to all parties concerned.

    If you were thinking of applying your reasoning to all possible scenarios, then I think you might have inadvertently negated your own argument.

    Russ is perfectly capable of defending himself, but I must say that he did not once mention anything against equality or diversity. His "beef" is with affirmative action and there I support his views completely. I am fully for gender and racial equality, yet completely against affirmative action.

    Personally I think that the two are mutually exclusive.
  8. May 16, 2009 #7
    Hello there,
    Firstly, if those are the "central" points that you interpreted from my post than this is a clear, unequivocal Q.E.D. of what I contended in the first place.

    Do you consider yourself open-minded? If so, could you take just 2 mili seconds and ponder this. How is it that, you and I read the same thing and your impression of what I wrote is so vastly different from mine??

    Where did I ever mention the concept of "equality" for instance? Does balance = equality??
    Did I not mention in line 30 of my argument that the "diversity quotient" is an important factor.......CETERIS PARIBUS??

    I did state quite specifically, ALL THINGS BEING EQUAL. How can you judge the added benefit of a different perspective -ALL THINGS BEING EQUAL - if you INTERVIEW women or minorities ONLY??

    I bet not one person who answered this took a look at the scientific research I posted. This is an absolute clear case of how the reticular activating systems and other workings of the brain filters information based on pre-existing mental perceptions and not what was written.

    Do a CTRL+F and see if you can find where I wrote the word "equality" anywhere in a post. Also, do a CTRL + F and see if you can find anywhere where I stated anything close to "only interviewing/hiring" minorities or women....

    Let me quote from: http://wwwcsi.unian.it/educa/inglese/brownrob.html [Broken]

    Perceptions and Interpretations

    Information received by the eye is pre-processed in the eye before transmission to the visual cortex. Ongoing processing extracts, for example, edges, movement and colour. The eye has 100-200 million photoreceptors but the optic nerve connecting the eye to the primary visual cortex, has only a million nerve fibres [7].

    After processing in the visual cortex, the information is coded and stored in different parts of the brain. [3], [8] In short, the visual information is not simply stored as in a computer memory, but is highly processed and compressed before storage. Further, if we accept that the brain tends to store interpretations and impressions of incoming information, then it is not surprising that, in terms of a lecture presentation for example, students register widely different interpretations of what was presented.

    Now a reasonably curious person might ask the question - how often does this occur? If this very exchange here doesn't give you some indication of the importance of having decision-makers with different perspectives - ALL THINGS BEING EQUAL (i.e. if you want everyone to have ABs from Harvard, JDs from Yale, 10+ of experience at Skadden Arps to make sure they are all qualified fine by me)...well, I don't know what will.....


    At any rate, Russ may not like the decision to be made or "Liberals" (he wouldn't do well at all in Europe where even democrats are seen as right of centre but that's another story).

    Unfortunately he'll have to get used to it. It's not the 1950s and it's never going back....

    There are more people in America (minority and non-minority, man and woman, gay and straight, atheist and believer, disabled and well) who see the danger of a monolithic perspective and the value of a social-intelligence enhanced one. Fortunately, we live in a democracy (again) where majority rules.

    If you're not interested in taking the time to see someone else's perspective (how many women or minorities has he discussed this issue with openly and honestly? I would bet you a flat in St. Tropez not very many from the tone of his response).

    So the options are a)try to understand someone else's perspective and compromise or b) stay at home fuming and/or calling up Rush Limbaugh and Faux news or c)write emotionally charged online responses that are more reactive than responsive

    It seems that conclusions were already drawn from the start, so why waste anyone's time?

    Hej då!
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  9. May 16, 2009 #8
    The underlying premise of affirmative action is equality. If everyone in the past had received equal opportunity in the work place, affirmative action would probably never have come into existence. Without the "concept of equality", there would be no "concept of affirmative action" in the first place.

    Again, nobody here is arguing that balance should not be actively promoted, the issue here is whether or not it should be enforced regardless (which is what affirmative action is all about). If you look again at Russ's closing paragraph:

    I think you are still off-topic, but you got hold of this idea now and you'll cling to it regardless. I'll say it again: nobody is arguing the "importance of having decision-makers with different perspectives". Not once (unless I missed something here) did anyone say: "Hey! We don't want different perspectives!"

    You're dead keen on linking a dislike of affirmative action to narrow-mindedness aren't you?

    Perhaps I can refer you to the following:

    From http://wwwcsi.unian.it/educa/inglese/brownrob.html [Broken]

    This comment is truly a two-edged sword if I've ever seen one :wink:
    Last edited by a moderator: May 4, 2017
  10. May 16, 2009 #9


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    Sounds like you already have!
    In that case, the writer of the op-ed misses the point too - he didn't say it in the article and I was only responding to what was in the article.

    However, since this is a new claim you are making, please substantiate it: tell us exactly how a person's race (don't say "cultural background" - thats a smokescreen: AA is about race) or sex could be beneficial in the scenarios presented and how that could actually pas a test of constitutionality. Your claim, your obligation to substantiate it.
    That's all very interesting and fine, but it has nothing to do with the article I posted and commented on.
    Different persepective on what the constitution means (for a USSC judge)? Different perspective of thermodynamics (for an engineer)? Based on their race/sex? How does that work?
    Supporters of AA would say yes, it is unconstitutional to hire so many white males.
    That's a good example, but one that would not pass an AA test. You are arguing against your point.
    No, I'm saying except for some rare exceptions (and doctors performing exams on those of the same sex is one of very few rare exceptions), race/sex do not provide an advantage that trumps the constitutional requirement for equality. Again, in terms of the exmples already given, an engineer and a USSC justice are examples where implimentation of AA would be disastrous (in the first case) and unhelpful (in the second) and unconstitutional in both.

    Another stark example is firefighters. Racial discrimination has led to the promotion of firefighters who had lower exam scores than those with higher - and in some cases to the discarding of exam results altogether - in order to manipulate the racial diversity of the leadership corps. But a fire doesn't care what race you are - the only thing that matters is how good a firefighter you are.

    Lets put a finer point on it, though: give me an example of an issue the court might face where a differing perspective would yield a different outcome to the case while still maintaining consitutionality.
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  11. May 16, 2009 #10


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    On judge famously remarked, with respect to AA, something to the effect of (I'll see if I can find the exact quote) 'the way to stop discrimination on the basis of race is to stop discrimination on the basis of race'.
  12. May 16, 2009 #11


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    If you want to focus on such things, then you are simply ignoring the point of the thread. If everything else really is equal, then there is no problem. But we know that that is not how AA works and is not the issue put forth in the article we are discussing. AA can only function by specifically elevating people with lower qualifications. And that is how it works in practice. In the starkest cases, those of city workers whose hiring and promotion is based on test scores, people who are most decidedly not as qualified are chosen over those who are more qualified specifically to fill an artificial racial quota.

    The article I posted was about the issue of qualifications only.
    Before accusing others of ignoring your points, try addressing the points that this thread is about!

    Stop trying to hijack the thread by changing the issue to something different from how it was presented.
  13. May 16, 2009 #12

    Do complex HUMAN judges or MECHANICAL machines interpret the law?

    Let's take the issue of the firefighters for instance. You've stated "Another stark example is firefighters. Racial discrimination has led to the promotion of firefighters who had lower exam scores than those with higher - and in some cases to the discarding of exam results altogether - in order to manipulate the racial diversity of the leadership corps. But a fire doesn't care what race you are - the only thing that matters is how good a firefighter you are."

    The subtle implication here is that a test score alone should and does determine who makes the better firefighter.

    First of all, who made the test?? Virtually every standardized test that's made in America is culturally biased - gender biased as well. You'll immediately object to this of course. So I won't even present pier-reviewed research for you to have a look at yourself because you won't read it.

    But aside from the test, tell me, do people put out fires in isolation or in communities of other people - DIVERSE COMMUNITIES?

    How many friends of color do you know who can tell you first hand accounts of calling the fire department and not having anyone show up or, if they showed up it was hours late because the firefighters wouldn't go in 'certain' neighborhoods??

    Are you suggesting that this doesn't happen?

    Of course you'll probably contend that "no it doesn't" because in your mind, if you haven't experienced it, if no one you know hasn't experienced it, it couldn't POSSIBLE be the case.

    Contrary to what you may believe, there are many citizens in this country who would rather have a firefighter who scored lower on a flawed test but who knows the neighborhood he's working in, who's more sensitive to the needs of the people he's serving, who can communicate in the dialect of the people he's protecting - and who ULTIMATELY SAVES MANY MORE LIVES as a result - this more than someone who simply "scored higher on a test".

    But let's get back to the issue of the judges...

    Is your contention that one's cultural background has nothing to do with how one makes INTERPRETATIONS OF THE LAW. And let's be clear we are talking about "social" laws and NOT NATURAL LAWS as you tried to suggest above. Judges don't retreat to chambers and say "1+1 =2" or "2+2"=4 - TA DAH, "THERE'S YOUR VERDICT".

    That's not how it works love....

    Or, let's take the issue of clerkships. Do you know the roles that clerks play when it comes to how laws are set in this country? Clerks play a MAJOR AND POWERFUL role in which cases ultimately get reviewed by the court. Much of what these clerks do is use alot of personal interpretations (note: almost all "interpretations" will have some level of subjectivity) when reviewing cases to recommend to the court.

    It is a matter of verifiable fact that more diverse judges have been positively correlated with the number of diverse clerks you see. Just read the late, great Thurgood Marshall's work....

    Ultimately this means more diversity with regard to cases that get reviewed which many feel is something that needs to be rectified.

    But let me just get to the heart of my argument - and view shaped by science in addition to my own personal experiences.

    I've pointed to scientific research that states quite clearly HOW THE HUMAN BRAIN OPERATES (you do agree without dispute that the judges use their brain/mind to do the job necessary correct? In other words physical strength is not a major factor in decision making, hence my emphasis on the brain/mind...)

    What is conceived of as facts consists of 1) information [what you would call objective inputs input from the 5 senses and 2) PAST EXPERIENCES.

    This is how each individual conceives of "reality". Read the research.

    Therefore, it is absolutely clear to see how individuals from different backgrounds can look at the very same set of "facts" and come up with two very different set of "objective conclusions" because they have different PAST EXPERIENCES. You could almost say in some ways they are seeing different "facts" (thus the need for reviewing with colleagues and looking at final results from different angles mentioned below).

    It sounds to me that you want to believe in the fallacy of strict "objectivity" which isn't at all supported by empirical DATA.

    Or, are you trying to suggest that the what the brain produces in relation to an observation of the "law" will always be the same because it is "The Law"?

    You claim this research has NOTHING to do with the issue at hand but in fact it provides, "objective", "scientific" evidence which buttresses my point.

    Let me quote for clarity from the research,
    "We think we know what's out there in the physical world, but it's all interpreted by our brains."

    Got that? INTERPRETED. Are you suggesting that one's "race" (ugh) won't affect how one INTERPRETS the law??

    Is it your contention that one's cultural and social background has nothing to do with how one "perceives" objective "facts"?

    I am pointing to research here that shows clear evidence that one's pre-existing perceptions actually affects how the BRAIN IS PHYSICALLY WIRED as well.

    "In short, our perceptions have a great deal to do with the way our brains are wired." Neuroconnections among other things....


    My contention is that a Supreme Court should be made up of individuals from a diversity of backgrounds who will THEREFORE create more equitable and insightful INTERPRETATIONS of the LAW even laws that are written to be as "objective" as possible.

    And that is exactly what happens - THE LAW IS INTERPRETED.

    Let me round out another point GROUNDED IN SCIENTIFIC RESEARCH. There are differences between the female and the male brain as well. See research here:

    Hormones that are present during a baby's development will affect the brain and determine whether the brain will be female or male. Studies that have looked at differences in the brains of males and females have shown difference with regard to:

    1. Total Brain Size (mens' brains are larger on average than womens' but nothing conclusive and verifiable suggests this difference in size equates to "more" intelligence)

    2. The Corpus Callosum - The primary function of the corpus callosum is to integrate motor, sensory, and cognitive activity between the left and right hemispheres.
    (Question: if you are "reading" up on the constitution, how do you draw conclusions? You collect sensory data along with pre-existing memory data and combined develop an interpretation/reality/output based on that input)

    3. The Hypothalamus - This part of the brain has many functions of significant import. Crucial here is the RAS - Reticular Activating System.


    Stated another way,


    I'm making these points here and backing them up with cold, hard, scientific research because for alot of people they are stuck on this notion of "objectivity" even though scientific research points to the fact the MIND/BRAIN is far more complex than that...

    Yes. Not just the "mind" as in psychology and nebulous consciousness, but the TANGIBLE BRAIN as well - something physical that can be measured, observed, etc.

    If 50% of the population is female and female brains have relevant DIFFERENCES from those of male brains, could might those different brains have some impact on how the Law IS INTERPRETED?

    To sum up my points:
    1. People from different backgrounds (culture and gender) WILL not MAY interpret the Law and "objective" facts differently

    2. This difference in interpretation is due to physical factors and psychological factors that have been OBSERVED BY SCIENCE

    3. An effective court is one where the law - specifically the constitutionality of the law - is interpreted as accurately and fairly
    as possible (ex: this is why cops don't just interview the victim, but the alleged victimizer as well - as they say, at minimum there are 3 sides to the story...yours, mine and the TRUTH....)

    4. By ensuring that the court is made up of 9 judges with a balanced set of perspectives, you increase the likelihood that the law is INTERPRETED BETTER. It's no different from sending an appraiser out to a house with an "objective" set of points on a checklist - you always send several. Why? Because two people can look at the VERY SAME THING and see something COMPLETELY DIFFERENT. Since each assumes what they are seeing is "the facts", "objective", etc. none will question his or her judgment. Thus the benefit of several judges and several different perspectives all considered together when making a final decision.

    Lastly, I'm going to give you the example that you asked for with regard to the constitutionality of a law and any impact "diversity" might have.

    The 13th amendment says the following:

    Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    Section 2. Congress shall have the power to enforce this article by appropriate legislation.

    Now, you asked for an example above so let's look at this. How much time has this amendment ever been discussed in for instance your household, in schools that you went to, or amongst your friends and family???

    Someone white (ugh...still don't know where "whiteland" is but whatever.....) reads the 13th amendment and sees "slavery is illegal" - I'll bet you virtually anyone you ask about this would probably say that in your circle of acquaintances....

    Someone black (ugh) looks at THIS VERY SAME STATEMENT and says, "hang on a minute, this amendment says that slavery IS NOT ILLEGAL *FULL STOP*. It actually says, it still can be used "AS PUNISHMENT FOR A CRIME".

    Now, Who's "right" and who's "wrong" here???

    How much do you want to bet that if the Surpreme Court were more diverse, this amendment, which still affects the deep psyche of many African Americans wouldn't be changed?

    In any case, I believe I have provided reasonable evidence that cultural or gender differences can affect a judge's interpretation of the law - in this case the crucial goal being an interpretation of constitutionality. I have argued that:

    1) culture and gender affect both life experiences (memory input in the brain) as well as the physical brain itself - how the brain is hard wired, neuro connections, the reticular activating system, the corpus callosum, etc

    2) These differences affect how the brain ULTIMATELY processes and interprets information >>>which therefore affects a judge's decision in any case he/she reviews and votes on.
    Last edited: May 16, 2009
  14. May 16, 2009 #13

    Ivan Seeking

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    I agree with LowlyPion: There is no such thing as "the best candidate". In fact the point is irrefutable simply because there is no absolute criteria for the job that defines the best candidate. Therefore, the use of the word "qualified" is redundant and implicity racist and sexist, which is the objection of the author.

    Perhaps. I do see your point that hiring quotas help to showcase the issues of race and sex. However, race and sex should be considerations when making appointments to the Supreme Court. The court should reflect the diversity of the country. Therefore, selecting the "best candidate" requires the consideration of both sex and race.

    The question is, if Obama chooses a black candidate, for example, can he do so without being accused of racism? Many people will assume that because the candidate is black, or female, or almost anyone but a white male, his choice was a compromise.
    Last edited: May 18, 2009
  15. May 17, 2009 #14


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    It seems a bit of a leap to me to jump from a USSC appointment to affirmative action in hiring engineers (or any other field).

    Though, living in a state where there really isn't much diversity, and working at a university where the majority of students are in-state, so also don't offer much diversity, I'm really noticing that there is something missing when you lack diversity. And, by diversity, I don't just mean skin color. I'm talking about political views, sexual orientation, religions, cultural background, etc.

    I tend to think that the Supreme Court really does require diversity in order to remain fair. I don't think it's enough to just label people as liberal or conservative on the Supreme Court, but to bring in a range of viewpoints within those categories. If all of the judges are alike, come from similar backgrounds, and have similar interpretations of the Constitution (it is not always cut and dry, which is why the court is needed), then I don't think the court can do its proper job. I think the best case scenario would be for the judges to each be so different from one another that they bicker and quarrel in deliberation in order to challenge one another to really consider all aspects of a case before making a final decision.
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