From the Hall of Fame to affirmative action
By Saul Levmore
Many baseball fans are uneasy about the recent disinclination of baseball writers to muster the necessary 75 percent vote in favor of any Hall of Fame candidate. Barry Bonds, perhaps the greatest hitter in the history of the game, is widely understood to have been passed over because of his association with steroids. Drugs, whether banned by baseball or by the law, improve performance in many sports, and the players who are most closely connected to these drugs, including Bonds and Roger Clemens, will probably never become Hall of Famers under the current voting rules.
The problem is that drug use was so widespread that we are unsure whom to taint. Lance Armstrong is finally admitting to doping, but fans of cycling are also unsure whether any top cyclist was drug-free. In baseball the taint is attached to any player whose muscles appeared to fructify with age. If we had some way of knowing who used and who did not, it would be defensible to exclude from competition and from post-career recognition those who did. But in the absence of such knowledge, the best players of the generation will be excluded even though some of their remarkable performances predated their presumed drug use.
What if we were to change the terms of admission to the Hall of Fame by deploying a modest quota? If we want to identify the best players, one way to remove disagreement, bias or incomparability (as the rules of the game and its ballparks change over time) is to agree on a minimum number of players to be elected in each era. Historically, 10 to 20 players have been elected per decade. A new rule should begin in 2014 and provide that in 2018, and every five years thereafter, the five players with the most votes in that year or any of the preceding four years will automatically be elected. This will promise at least 10 players per decade. The message will be that the Hall should include the best players of each era, and perhaps the voters will mark their ballots accordingly.
The same argument for a kind of quota can be associated with affirmative action. An employer who finds that hiring decisions on the basis of credentials and interviews always produce white males might consider the possibility of conscious or subconscious biases in favor of this group or against others. It makes sense for the employer to combat this risk. And we are familiar with laws that encourage diversity or even insist that employers change their hiring patterns.
Those who hire should try to identify the very best candidates from previously underrepresented groups. It seems quite unlikely that the best employees are all of one race and gender, and one way to overcome flaws in credentialing or interviewing is to deploy a quota, or minimum. For legal and public relations reasons, no one identifies these tools as quotas, but it makes sense for the introspective interviewer to think as follows: “Given that minorities constitute 20 percent of the applicant pool, I should be sure that at least 10 percent of my recommended candidates come from this group. I might find 15 percent or even 30 percent in a given year, and that would be fine, but given my history I should impose a modest quota in order not to miss the very best minority applicants who are, after all, likely to be among the best applicants overall.” Whether this common-sense approach is encouraged or is inconsistent with recent U.S. Supreme Court rulings is a separate subject. There are many important differences between hiring and Baseball Hall of Fame cases, but they share the goal of seeking the best candidates in a pool.
Quotas require common sense. I might decide on a quota of charitable giving equal to 5 percent of my income, because I know that otherwise I might be too critical of all charities and give too little. But it would be absurd to think that I must vote for a fringe political party “x percent” of the time. The exclusion of Barry Bonds and other tainted stars is one obvious case for modest quotas. So let’s identify the five or 10 best players of the steroid period, and that decade will be punished enough by not having many more of its number in the Hall of Fame. More important, we should look at our own decisions, and then correct for possible biases with self-imposed quotas.
Saul Levmore is a University of Chicago Law School professor and former dean of the school.
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