Affirmative Action
I was listening to NPR’s Showdown on Affirmative Action yesterday, and was laughing out loud when Justice Scalia was badgering the lawyer during questioning (29:31 into the stream Nina Totenberg analysis of oral arguments, with highlights from Tuesday’s debate):
Scalia: Is two percent a critical a critical mass, Miss Mahoney?
Mahoney: I don’t think so, your honor.
Scalia: Ok, uh, four percent?
Mahoney: Uh, no your honor. What …
Scalia (interrupting): You have to pick some number, don’t you?
Mahoney: Well, actually what the…
Scalia (interrupting): Like eight? Is eight percent?
Mahoney: Your honor, …
Scalia (interrupting): Well, does it stop being a quota because it’s somewhere between eight and twelve? But it is a quota if it’s ten? I don’t understand that reasoning. Once you use the term critical mass, you’re into quota land.
Mahoney: Your Honor? What a quota is under this court’s case is a fixed number. And there is no fixed number here. The testimony was that it depends on the characteristics of the applicant pool …
Scalia (interrupting): So as long as you say between eight and twelve, you’re OK? Is that it? If you said ten, it’s bad? But between eight and twelve it’s OK because it’s not a fixed number. That’s what you think the constitution…
Mahoney (interrupting): No your honor …