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March 4th, 2011

Did The Commission Reverse Discriminate?

By Nathan Tucker

In addition to possible religious discrimination, it appears that the State Judicial Nominating Commission engaged in reverse racial and gender discrimination in selecting its nine nominees to the Iowa Supreme Court.

In remarks at a recent forum on the state’s judicial selection process, Guy Cook, an attorney-elected member of the Commission, told the audience that the Commission did take an applicant’s race, gender, and geography into account in its deliberations.  When pressed during Q&A on how such considerations could constitute “merit,” Cook argued that such factors were only used to distinguish between two or more equally meritorious applicants.

In his haste to maintain the appearance that the Commission was only interested in finding the very best applicants based on resume, Cook unintentionally admitted that, all other things being equal, the Commission blatantly discriminated against applicants in the name of diversity.  In other words, if the Commission could not reach a consensus on which applicant had the better resume, it would put aside a candidate’s “merit” and solely make its decision based on that person’s immutable characteristics.

In using race and gender as a tie breaker of last resort, the Commission has engaged in impermissible reverse discrimination under even the most liberal U.S. Supreme Court precedent.  Though the Court has upheld “plus-factor” affirmative action programs, it has never held that the Constitution tolerates a program that solely considers race and gender.

For instance, in Grutter v. Bollinger (2003), the Court noted:

As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Universities can, however, consider race or ethnicity more flexibly as a “plus” factor in the context of individualized consideration of each and every applicant.

In contrast, Cook admitted that the Commission used race and gender in an inflexible, mechanical manner that did not balance individual considerations.  Rather than weighing the “life experiences” of a black applicant against those of a white applicant to see which brought more “diversity” to the Iowa Supreme Court, the Commission looked no further than skin color or plumbing in reaching its decision.

Consequently, under even the most liberal caselaw, this abject failure to consider “all pertinent elements of diversity” is constitutionally fatal.  As the Grutter Court explained:

When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. The “denial … of th[e] right to individualized consideration” is the “principal evil” of the medical school’s admissions program.

As Justice Powell recognized in Bakke, without this individualized consideration, a rejected applicant “will [] have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname…His qualifications would [not] have been weighed fairly and competitively, and he would have [a] basis to complain of unequal treatment under the Fourteenth Amendment.”

The Commission has to make a choice.  It can either claim, as Cook did, that it is a “merit selection process” that only takes race and gender into account as a tie breaker, or, to avoid liability in a discrimination suit, it can acknowledge that it is a political institution that weighs such non-resume factors such as race, gender, geography, party affiliation, and “life experiences.”  In using affirmative action, the Commission cannot be both constitutional and “merit-based.”

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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