Once again, affirmative action is front and center in our ongoing national debate about the shared value of equality and how to achieve it — specifically, who merits a nomination to the Supreme Court or acceptance to selective colleges?
After President Joe Biden confirmed that he would nominate a Black woman to replace retiring Justice Stephen Breyer on the nation’s highest court, Sen. Roger Wicker (R-Miss.), at one extreme, claimed that whoever Biden picks will be a “beneficiary” of affirmative action, which Wicker casts as “affirmative racial discrimination.” Sen. Lindsey Graham (R-S.C.), meanwhile, said he supported “making sure the court and other institutions look like America,” but argued that Biden’s pledge to nominate a Black woman is not an example of affirmative action, as long as the president picks someone who is “incredibly qualified.” In their own way, both senators maligned affirmative action, which their party has used as a wedge issue for decades to stoke division and appeal to white voters.
In reality, Biden’s pledge is a classic example of what affirmative action should be — a proactive effort to include “incredibly qualified” people from groups that have endured a history of exclusion — and why this benefits American society. The president is modeling how such programs work to disrupt systemic exclusion, while still honoring the letter and spirit of the 14th Amendment’s original purpose of guaranteeing equal citizenship to all, particularly historically subordinated Black Americans. In doing so, Biden also reminds us why affirmative action in college admissions should be upheld in a pending Supreme Court case.
Biden’s pledge to nominate a Black woman, originally made during the 2020 campaign, makes transparent the reality that when a president nominates someone to the Supreme Court, it is unavoidably a political act. It is fair to speculate that he feels beholden to Black women because they made it possible for him to be elected president and for Democrats to have a bare governing majority in the Senate. Black women also are the subgroup that is most loyal to Biden — 90 percent of Black female voters supported him in 2020. And he probably wants to energize this group again to avoid a Democratic shellacking in the 2022 midterms.
In this sense, Biden’s pledge is consistent with past presidents’ calculations to play to certain political bases, say, by promising to nominate anti-abortion, strict constructionists. But the political nature of the pledge does not negate its merits. The Supreme Court gains its legitimacy solely by the respect it commands from we, the people, and at a time when the court’s credibility is fraying, it is even more important that the full spectrum of Americans be represented on the bench. Black women inarguably have made extraordinary contributions to the American experiment and deserve representation.
These are all good reasons for Biden’s pledge, but there is yet another. Black women have suffered a legacy of exclusion in judicial nominations that Biden, to his credit, is trying to correct. According to the Pew Research Center, less than 2 percent of all federal judges in the United States have been Black women. That’s the case even though Black women make up 13 percent of the female U.S. population, and talented Black women serve as law school deans, law firm partners, public-interest and civil rights litigators and on state courts, if willing presidents will promote them. The discrepancy in racial and ethnic representation relative to the population is worst on the Fifth Circuit U.S. Court of Appeals, which covers Texas, Louisiana and Wicker’s state of Mississippi — a region where people of color are a majority, including many Black Americans whose ancestors endured slavery and Jim Crow.
Already, Biden has nominated 11 Black women to federal courts. In contrast, former President Donald Trump nominated only two Black women over the four years of his presidency. Otherwise, nearly two-thirds of Trump’s judicial nominees were white men, though white males make up only 30 percent of the U.S. population. Meanwhile, there is no absence of impressively qualified Black female candidates who could serve on the Supreme Court.
Biden’s pledge, and his actions so far to make the judiciary more representative, illuminate why affirmative action has been necessary and should be permissible in other circumstances, especially higher education. I have argued in the past that, as a matter of policy in selective college admissions, it is best to apply affirmative action to people who have had to overcome structural disadvantages or discrimination, rather than to confer preferences based on phenotype. However, I believe the Supreme Court’s four decades of precedent holding that universities may consider race as one factor among many are right as a matter of constitutional law.
The Radical Republican framers of the Fourteenth Amendment drafted it as part of an effort to reconstruct former Confederate states and create new societies premised on equal participation in civic and public institutions. In particular, the 14th Amendment was designed to overrule the Dred Scott decision and confer citizenship on newly freed Black people, which included freedom to serve on juries, vote and run for office (for males), and to have the same civil rights as white people.
Of course, this Republican vision of racial inclusion, backed by strong federal guarantees, was destroyed and replaced by the racial caste system of Jim Crow — sadly, with the assistance of the Supreme Court. In the first case interpreting the 14th Amendment’s “privileges and immunities” clause, which should have given Black Americans the same protection from state oppression that white citizens enjoyed, the Court rendered the clause a nullity. In another case, the Court ruled that Congress did not have the power to prevent Jim Crow segregation; the opinion suggested that allowing Black people to sit where they wanted on trains or to patronize hotels and businesses would make them a “special favorite” of the law, at the expense of white people — the very same argument often made about affirmative action today, with similar indifference to the realities of systemic exclusion. Then, in 1896, the Supreme Court encouraged the proliferation of Jim Crow laws by endorsing the fiction of “separate but equal” in Plessy v. Ferguson.
Not until the Brown v. Board of Education decision in 1954 did the court breathe life back into the radical idea that the 14th Amendment’s guarantee of “equal protection” required public institutions like schools to be racially integrated.
In higher education, the University of Texas convinced the Supreme Court in 2016 that it could not achieve the educational benefits of racial diversity for all its students without modestly considering race in admissions. In deciding to review a challenge to Harvard University’s admissions policies, the Court now seems poised to change the meaning of the 14th Amendment again — possibly to exclude any consideration of race. That would be staggeringly inconsistent with the original vision of the Radical Republicans to enable groups historically excluded by white supremacy to participate in state-sponsored institutions and amenities.
The backlash to Biden’s Supreme Court pledge has had a distinct tenor that often attaches to affirmative action candidates — the false idea that they are less qualified. One provocateur recently implied that a Black woman, apparently Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit, would be a “lesser” choice than Chief Judge Sri Srinivasan of the same court. This blinkered view completely overlooked Jackson’s unique strengths. In addition to being a court of appeals judge, Jackson, unlike Srinivasan, has served as a public defender, a trial judge and vice chair and commissioner of the U.S. Sentencing Commission — all rare but highly relevant experiences for a Supreme Court justice. These are precisely the kinds of automatic assumptions Black women have long faced in the competition for judicial nominations and other realms of leadership.
Affirmative action, at its best, forces us to disrupt such negative or racist assumptions and to interrogate what truly counts as merit. For example, choosing Supreme Court nominees nearly exclusively from the rarefied environs of prestigious appellate court chambers, or among alumni from Harvard and Yale law schools, limits the possibilities for truly equal justice. Such narrow pipelines prevent people from a wide array of backgrounds from serving, when diversity would enhance the variety of perspectives that go into the collective project of judging.
Affirmative action, ultimately, is not about identity politics but about making institutions better and more legitimate. It was not true in the first 200-odd years of the Supreme Court’s existence that males had a monopoly on excellent legal reasoning and intellect, yet only men served as justices until then-President Ronald Reagan followed through on a campaign promise to nominate the first woman, engaging in affirmative action to name Sandra Day O’Connor to the court. Once Reagan disrupted the practice of excluding women, others were nominated, and women’s presence on the court was normalized.
The lived experience of having to negotiate institutions and people who perceive you as unqualified also is an asset in a Supreme Court nominee. The ability to relate to and understand the lives of people who don’t typically have power enhances the possibility that one’s legal arguments will be heard and taken seriously. When people of all walks can see themselves in the justices who sit on the bench, they are also more likely to accept rulings they do not agree with.
These are the benefits of affirmative action — true to the aspirations and the letter of the 14th Amendment and still valuable today.
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By: Sheryll Cashin
Title: Opinion | Yes, Putting a Black Woman on the Supreme Court Would Be Affirmative Action. That’s a Good Thing.
Sourced From: www.politico.com/news/magazine/2022/02/10/supreme-court-affirmative-action-black-woman-good-thing-00007442
Published Date: Thu, 10 Feb 2022 04:30:00 EST
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