Appointing a successor to Senator Clinton: Governor Paterson's opportunity to distinguish between the end of 51 Percent and the means of affirmative action

(Cross-posted from Founder's Blog, 51 Percent)

Governor Paterson has an instructive opportunity when he appoints a successor to Senator Clinton. If he chooses, he can illustrate beautifully why moving the baseline of representation of women toward 51 percent has nothing to do with affirmative action - at least not affirmative action based on gender. Since affirmative action remains a contentious instrument of social engineering, and because shifting the baseline to 51 percent women in every sphere of public life is a contentious project, it would be useful were Governor Paterson to take the opportunity to make the distinction clear in practice, especially in such a high profile appointment. One contentious matter at a time, please.

In a world where the baseline was proportional representation of women in every sphere of civil, social, and political life, women would occupy just over half the places in public spheres. For the Senate, which has 100 members, the goal would be to have slightly more women than men overall, or consider per state, one woman and one man from each, leading to a 50/50 split. Pause here. Really picture that: a Senate with 50 women and 50 men working alongside one another. Think about how much misogyny and sexism would fall by the wayside simply because of the change in the men's club feel of one our country's most visible political institutions. Think about how strange it is that we are not already at the point where this is not the gender proportion in that institution. Think what it would mean for the women of each state if they could reliably assume that one of their Senators would naturally enough be a woman - even a woman with very different political views than some of her women constituents, a woman whose life experience would almost certainly be more representative of the women citizens in her home state in at least a few significant ways.

Even if this vision appeals to you, there might be a shadow cast over it. There is a tendency to conflate the idea of shifting the baseline of representation in public life to reflect the representation of women in the population with an endorsement of affirmative action, a term with multiple meanings. Many people have strong doubts about affirmative action under any interpretation. Some have qualms about its justness; others worry that it stigmatizes all members of a group who are perceived to have been its object.

In its strongest version, affirmative action accomplishes a particular state of representativeness in some area - a college entering class, a profession, a club, a team - by awarding positions to less qualified or competent candidates when more qualified or competent ones are available because the lesser candidates possess some feature irrelevant to qualifications or competency but because one has reasons unrelated to these considerations for seeking the desired representativeness. Strong affirmative action elicits the most discomfort and criticism even from those who urge the virtues of diversity in settings where it is a necessary means to achieve the desired outcome.

Purely on statistical grounds, strong affirmative action will be most instrumentally necessary when there are very few qualified or competent persons with the extra or additional characteristic desired or when there are simply very few persons with that characteristic. Because 51 percent of the population consists of women there is no sheer shortage of women to fill positions. Indeed because of this fact, a shortage of women will rarely be the obstacle to the baseline shift to 51 percent representation. In New York state at present, with regard to Senator Clinton's soon to be vacant Senate seat, neither is there a lack of qualified, competent women candidates. At least two women on the radar screen seem to have qualifications and competencies that would serve an appointed Senator and her or his constituents well: Carolyn Maloney and Kirsten Gillibrand, for example. For purposes of brevity, I am not going to delve deeply into the questions of which competencies and qualifications matter uniquely when a public servant - in this case the Governor - is appointing somebody to fill a position usually filled by election. Suffice it to say that while an individual voter may, arguably, reasonably cast her or his vote for any candidate on any basis, a public servant who is filling the seat in trust for the electorate must have reasons, and to be satisfactory those reasons should answer to the requirements of getting the job of the office done. Just as Andrew Cuomo or Jerrold Nadler would seem to meet this threshold so too do Maloney and Gillibrand.

So, why does the impending appointment present any question of affirmative action at all? The short answer, it does not.  In these circumstances, there is no question of whether there are available qualified woman for appointment to the seat. If one accepts our starting premise - the good of shifting the baseline toward proportional representation according to gender - that, it would seem, to be that.

But life is rarely so tidy. There is another woman would-be candidate on the horizon, who IS seeking affirmative action to gain the appointment.  Caroline Kennedy. Ms. Kennedy is not seeking affirmative action on grounds of her gender, though. She is seeking a form of affirmative action more usually seen in admission to elite institutions of higher education, where some applicants are favored over others because their forebears went there. In academia, these students are known as "legacies".  I cannot know for sure, but I am comfortable hypothesizing that President George W. Bush was the beneficiary of some form of affirmative action, possibly strong, when he was admitted to Yale University for his undergraduate degree. George W. Bush's great great-grandfather, grandfather, and father all attended Yale, so his chances of admittance regardless of his qualifications and competencies were fairly high. Indeed at the time George W. Bush was admitted to Yale, I doubt if much consideration was given to the question of whether favoring him over a more qualified candidate even counted as any kind of affirmative action. Even now, paying attention to whether other family members have attended a particular college or university is rarely put in terms of affirmative action, even though such attention clearly counts as affirmative action if it advantages a candidate over others more qualified for the spot.

The most common minimally credible justification given for the legacy system in college or university admissions is that gaining a family's loyalty to the institution may pay off in terms of monetary contributions to the college or university. I do not take up the ultimate soundness of this justification here.

When it comes to gubernatorial selection to the U.S. Senate, one rarely hears the precisely equivalent justification offered so bluntly.
Although, this argument might credibly be made if one believes that other Senators or the Obama administration would be more likely to make appropriations to New York at Ms. Kennedy's behest than they would for those Senators whose parent and uncles have not served in high federal office, let alone been victims of horrifying assassinations while in office or seeking election to it. Pundits and commentators have bandied similar justification for Ms. Kennedy's appointment, however, when they discuss "electability." If whoever is appointed to fill Senator Clinton's seat now chooses to run for it in 2010 and wins, that person will have year of seniority over non-incumbents from other states, and seniority secures benefits for a Senator and hence for her or his state. Some think that based on her family history and related ability to raise funds for election in 2010 and then again in 2012, this makes it a good idea to appoint Caroline Kennedy to the Senate now.

These arguments from potential influence or eventual seniority might seem like arguments based on qualification rather than arguments from affirmative action.  The problem is that in this case the advantage of influence and possible future seniority turn on a first step based on affirmative action. If a candidate who is not a legacy is appointed now, and she or he gains influence and wins seniority on the merits of (relatively) non-accidental attributes (the family into which one is born is an accidental attribute), affirmative action plays no role in the benefits that accrue to New York state. But if the Governor appoints a legacy because he believes she or he can bring these benefits but has no other particular qualifications or competencies, especially compared to available alternatives, the Governor is rewarding an accidental attribute of birth - family - and, he is not doing so to secure the baseline of proportional representation for women, but for some of the more traditional rationales used for political exceptionalism.

I cannot take the time here to fully explore the questions surrounding affirmative action for legacy appointments to government in a democracy. Perhaps the simplest way to point out the chief problem is that a populist democracy aspires to assign political office on the basis of election not heredity. In practice, it is not so simple, but that's the ideal and outright relying on a candidate's heredity to gain a leg up for one's state runs straight up against it.

What must be made clear here is the consistency in wanting Governor Paterson to contribute to proportional representation for women while objecting to him appointing Caroline Kennedy. Governor Paterson is in the lucky position of having various qualified, competent women to consider for the appointment. He need not cloud the issue with considerations of affirmative action based either on gender or family background. Thus, he can illustrate the way in which the end of proportional representation for the 51 percent of the population that are women has nothing to do with the means of affirmative action of any kind.

Comments

[allimom99]

Heidi, thank you again for your thoughtful posts. It is often disheartening to see the sexism in the political world brushed aside. In the case of Mrs. Schlossberg, I have been at a loss through this whole ordeal to see how Paterson appointing here because of perceived "benefits for NY" or "fundraising advantages" is one whit different from the allegations against Gov. Blagoevich.

I also wonder about the flip side of that, i.e, did Sen. Kennedy and/or Mayor Bloomberg imply that such things would NOT be forthcoming if Mrs. Schlossberg were NOT chosen. How is this not influence peddling? I seriously want to get a straight anwer on this.

[Stray Yellar Dawg]

Paterson did his job well!

And, how dare that Uppity Bluedog! "Nobody even likes her!"

http://syd4.blogspot.com/2009/01/how-dare-that-uppity-bitch-nobody-even.html

Well, wah, wah, effin wah.