Clean Socks or Dirty Laundry?

Affirmative action is a necessary evil! It is necessary to uphold the de jure ideals that we supposedly hold so self-evident. These ideals must be enforced in place of the de facto paradigm of white supremacy that remains so entrenched in American society, including legal academia. In a pure democratic system, diversity of professors would naturally occur; however, our hidden-agenda system chokes democratic principles and choices to the point that correctives such as affirmative action are required to maximize the ideals enumerated in the U.S. Constitution.

Duncan Kennedy is part of the supremacy, yet is awake to the de facto state of the democratic ideals. Richard Posner, on the other hand, is so drunk in his self-righteous, self-affirming view of a democratic state, that he has fooled himself into believing the propaganda that protects the hierarchal structure. Kennedy's zen-like achievement of deconstructing the paradigm of our de facto system has enabled him to conceptualize alternate realities.

Kennedy's goal strives for a maximization of the democratic ideal. He works on the following rationalization: democratic principle dictates that there be representation, law schools are political institutions, therefore, law schools must have representation. From a democratic standpoint, representation improves quality and increases value. On this deduction, Kennedy believes (admittedly from a subjective point of view) that affirmative action will achieve this representation.

Having laid the groundwork for the maximization of democracy, Kennedy turns to legal academia, specifically law professors. He criticizes the merit system that exists as creating a dichotomy between de jure and de facto democracy. The dichotomy is represented by discrimination based on status. There is a dichotomy because the system continues under the premises of democracy while its operation is, in actuality, skewed. Kennedy submits that affirmative action will, in his opinion, best correct this skew.

Turning from his theoretical justification, Kennedy then addresses general reasons why affirmative action would be beneficial: (1) empowerment of minorities in society in general because law schools and an intellengsia are important links to general societal influence and power, and (2) benefits to legal scholarship in that new debates and perspectives will be explored. According to Kennedy, these elements are essential to a democratic system.

Kennedy then addresses the effect that such a policy, even if quotas, would have on the existing selection of professors of law. In his opinion, not much! He opines that the majority of law professors have equivalent capabilities. He states that selection by any means other than merit would be good because of the uni-dimensionality of that selection criterion. According to Kennedy, a school is going to get the same clone professor out of most candidates so the added benefit of a diverse frame of reference is a good determining factor. Thus, selecting a minority candidate over a non-minority candidate is still an adherence to the merit system because all merit is basically the same.

Implementing such a selection process is the problem. Kennedy hopes that even one law school will do so. Once this is done, the benefits will be evident to other schools which will soon follow. The barrier is convincing that first school to take the big first step. And if this process does not produce benefits: because it would be implemented locally, it could easily be reversed. Kennedy's call for change according to his described process would be well suited by the cliched phrase "think globally, act locally."

Posner attempts to refute Kennedy with a comparatively unstructured, ad hoc attack at individual parts of Kennedy's theory of affirmative action. Posner becomes bogged down in the implementation phase of such a proposal. He notes the difficulty of successful implementation and ducks the challenge of maximizing the democratic ideal.

But Posner could do nothing else! He is blind to the need of any device, whether or not affirmative action. In rejecting Kennedy's democratic rationalization, Posner is concluding that although society openly advocates the democratic ideal (in general), it's okay that it doesn't act accordingly. Posner is content to leave democracy in rhetoric and give up any attempt to maximize it.