(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.