Strengthening Constitutional Self-Government

No Left Turns

All Tapped Out

It seems that the folks at The American Prospects blog "Tapped" disagree with my latest NRO article, in which I state that the Democrats discriminate against qualified conservative minorities. Here is the core of their argument:

Accepting Alt’s theory of Democratic motivations, racism still didn’t have anything to do with the filibuster. Democrats, by his account, filibustered Estrada because Estrada was likely to become a young, conservative Supreme Court justice. Any other equally conservative nominee who was equally likely to be put on the high court would have been treated the same way.

Tapped’s arguments fail for several reasons. First, they state that any "equally conservative nominee" would be subjected to such treatment. But there is no evidence that he "unduly" conservative. In fact, that was the whole argument against Estrada: the Dems claimed that they didn’t know enough about him to make a judgment. It would be good if Tapped could keep its pretextual reasons for filibuster straight.

Next, Tapped is wrong as a matter of its interpretation of federal antidiscrimination law, which is the standard that I was applying in stating that the 45 Democratic Senators discriminated against Estrada. Note that they state that anyone equally conservative and "equally likely to be put on the high court" would have been treated the same way. Thus, because it is well known that Bush wants to place a Hispanic on the high court, the Democrats used ethnicity as a proxy for upward mobility.

But the point of antidiscrimination laws is that we don’t allow employers to look at race, ethnicity, and gender--particularly as a proxy for other characteristics otherwise unrelated to those factors. Indeed, under the Civil Rights Act of 1991, a complaining party need only demonstrate that ethnicity "was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. 2000e-2. As I explained in my article, Title VII does not apply to judicial nominees. However the reasoning is useful: just as a shopkeeper can’t refuse to hire someone who is Hispanic because he uses Hispanic heritage as a proxy for stereotypical factors, Democrats can’t hide from the charge that they discriminated by saying that they were using Hispanic heritage as a proxy for upward mobility. In both cases, Hispanic heritage is a motivating factor in the decision. In both cases, discrimination has occurred.

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