President Biden has announced that his nominee for the Supreme Court will be a black woman. Rather than asking, “Who is the best qualified?” he will be asking “Who has the right sex and skin color?” According to a 2019 report, only 3.4 percent of sitting judges are black women. The president is therefore limiting his search — for someone to endow with a lifetime position of great power — to just 3.4 percent of the people who are generally considered qualified. And there is good reason to doubt whether even that 3.4 percent are fully qualified.
Despite decades of recruitment and affirmative action, blacks are underrepresented in law schools: 8 percent of students vs 13.5 percent of the population. They are more likely to be in bottom-ranked law schools (16 percent of students) than in top-ranked schools (6 percent). Black first-year students are twice as likely as white first-years to drop out: 11 percent vs. 5.1 percent.
Many of the most able and ambitious law graduates go to work for law firms. In 2020, only 3.04 percent of law firm associates were black women, and only 0.8 percent of the partners were black women. Partnership in a law firm is usually a sign of ability. Why is the black-women representation on the federal bench — 3.4 percent — four times greater than their 0.8 percent share of partners? Probably because judicial appointments are political whereas partners have to be sharp lawyers who can bring in clients. Pressure to be “diverse” is already so great that a good many of the current 0.8 percent probably aren’t qualified.
A black woman justice will mean that her group is overrepresented on the court: 11 percent of justices, vs 6.7 percent of the population. This is affirmative action heaped upon affirmative action.
Public confidence in the Supreme Court has dipped below 50 percent, and has rarely been lower. Will this appointment raise confidence? The current Hispanic justice, Sonia Sotomayor, flatly rejects the idea that judges should set aside their race and sex when deciding cases: “I . . . accept that our experiences as women and people of color affect our decisions.” She then famously added, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Our president apparently thinks a black woman will decide cases better than a white man. Mr. Biden already showed his hand when he promised he would appoint a woman as vice president. Sex before competence.
Presidents have a relatively free hand in choosing running mates and make blatantly political choices. Naming a supreme court justice is — or should be — different. A bad choice can’t be fired or voted out of office. Moreover, as law professor Jonathan Turley points out, in one of its first affirmative-action decisions — the 1977 Bakke case — the Supreme Court set clear limits on affirmative action: Preferring “members of any one group for no reason other than race or ethnic origin is discrimination for its own sake,” adding that “this is what the Constitution forbids.” The President is therefore shaping the court according to criteria the court itself has forbidden. If Mr. Biden believes that non-whites and women serve the United States better than white men, let him act on that belief: Resign today and let Kamala Harris run the country.
And what are we to think of the person who will “make history” by accepting this appointment? At her Senate hearings, someone should ask her:
How will anyone be able to respect you as a justice when you were chosen after 95 percent of all the other possible candidates weren’t even considered? Wouldn’t you want to be able to say, ‘I was the best,’ rather than ‘I was the best of just 5 percent’? Shouldn’t anyone with any self-respect refuse such an insulting nomination ?