Reviews | Yes, putting a black woman on the Supreme Court would be positive action. This is a good thing.

In that sense, Biden’s pledge is consistent with former presidents’ calculations to play on some political basis, for example, by promising to appoint hardline anti-abortion constructionists. But the political nature of the commitment does not negate its merits. The Supreme Court earns its legitimacy solely through the respect it commands from us, 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 have unquestionably made extraordinary contributions to the American experience and deserve to be represented.

These are all good reasons for Biden’s commitment, but there is yet another. Black women have suffered a legacy of exclusion in judicial appointments which Biden, to his credit, is trying to fix. According to Pew Research Center, less than 2% of all federal judges in the United States are black women. This is the case, even though black women make up 13% of the female population of the United States and talented black women are deans of law schools, law firm partners, public interest and rights litigators. civilians and in state courts, if willing presidents promote them. The gap in racial and ethnic representation relative to the population is worse on the Fifth Circuit of the United States Court of Appealswhich spans Texas, Louisiana, and the Wicker state of Mississippi — a region where people of color are the majority, including many black Americans whose ancestors endured slavery and Jim Crow.

Already, Biden has appointed 11 black women to federal courts. In contrast, former President Donald Trump named only two black women during his four-year presidency. Other, nearly two-thirds of Trump’s judicial nominees were white men, although white men make up only 30 percent of the American population. Meanwhile, there is no shortage of Black candidates with impressive qualifications who could serve on the Supreme Court.

Biden’s commitment and actions so far to make the justice system more representative show why affirmative action has been necessary and should be allowed in other circumstances, especially in higher education. I argued in the past that, as a selective college admissions policy, it is better to apply affirmative action to people who have had to overcome structural disadvantages or discrimination, rather than confer preferences based on phenotype. However, I believe that the Supreme Court four decades of precedent arguing that universities may consider race as one factor among others is correct in constitutional law.

The radical Republican drafters of the Fourteenth Amendment drafted it as part of an effort to rebuild former Confederate states and create new societies based on equal participation in civic and public institutions. In particular, the 14th Amendment was designed to overturn the Dred Scott decision and confer citizenship on newly freed blacks, which included the freedom to serve on juries, to vote and stand for office (for men), and to have the same civil rights as whites.

Of course, this Republican vision of racial inclusion, backed by strong federal safeguards, was destroyed and replaced by Jim Crow’s racial caste system – sadly, with the help of the Supreme Court. In the first case interpreting the “privileges and immunities” clause of the 14th Amendment, which should have granted black Americans the same protection against state oppression enjoyed by white citizens, the The court declared the clause void. In another case, the Court held that Congress had no power to prevent Jim Crow segregation; the opinion suggested that allowing black people to sit where they wanted on trains or to frequent hotels and businesses would make them a “special favourite” of the law, at the expense of white people – the 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 before Brown v. Board of Education The court’s 1954 ruling revived the radical idea that the 14th Amendment’s “equal protection” guarantee required that public institutions such as schools 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 of its students without a modest consideration of race in admissions. In deciding to consider a challenge to Harvard University’s admissions policies, the Court now appears poised to again alter the meaning of the 14th Amendment – perhaps to exclude any race consideration. This would be incredibly inconsistent with the original Radical Republican vision of allowing groups historically excluded by white supremacy to participate in state-sponsored institutions and amenities.

The backlash from Biden’s Supreme Court pledge has had a distinct tenor that often attaches to affirmative action candidates — the misconception that they are less qualified. A provocateur recently hinted that a black woman, apparently Justice Ketanji Brown Jackson of the United States Court of Appeals for the DC Circuit, would be a “lesser” choice than Chief Justice Sri Srinivasan of the same court. This blindsight completely ignored Jackson’s unique strengths. In addition to being an appellate court judge, Jackson, unlike Srinivasan, has served as a public defender, trial judge, and vice chairman and commissioner of the U.S. Sentencing Commission — all rare but highly relevant experiences for a judge. of the Supreme Court. These are precisely the kinds of automatic assumptions that black women have long faced in competing for judicial appointments and other areas of leadership.

Affirmative action, at its best, forces us to disrupt these negative or racist assumptions and question what really counts as merit. For example, choosing Supreme Court nominees almost exclusively from the rarefied environs of prestigious appeals courtrooms, or from among alumni of Harvard and Yale law schools, limits the possibilities for truly egalitarian justice. Such narrow pipelines prevent people from very diverse backgrounds from serving, while diversity would enhance the variety of perspectives that enter into the collective judging project.

Affirmative action, ultimately, is not about identity politics, but rather about making institutions better and more legitimate. It was not true in the first 200 or so years of the Supreme Court’s existence that men had a monopoly on excellence of legal reasoning and intellect, but only men were judges until President Ronald Reagan kept his campaign promise to appoint the first woman, committing to affirmative action to appoint Sandra Day O’Connor to court. Once Reagan discontinued the practice of excluding women, others were appointed and the presence of women in the field was normalized.

The lived experience of having to negotiate with institutions and people who perceive you as unqualified is also an asset for a Supreme Court nominee. The ability to relate to and understand the lives of people who typically lack power increases the likelihood that one’s legal arguments will be heard and taken seriously. When people from all walks of life can see themselves in the judges who sit on the bench, they are also more likely to agree to decisions they disagree with.

here are the advantages of affirmative action – true to the aspirations and letter of the 14th Amendment and still valid today.

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