Race

Mar 08, 2022 17:26

Bunny42 commented on another thread of mine, and I promised to give her a considered response, because I think she makes her comment and asks her questions in good faith.  She wrote (in part):

Would you agree that "Whites Only Need Apply" is discriminatory and racist? If so, then why isn't "Black Women Only May Apply" discriminatory and racist, as well? From everything I've heard, Ms. Jackson is an excellent choice for the position, but her selection in this manner makes it appear that she's the best qualified black woman for the job. That's insulting to her, because she should have been nominated as the best qualified in the entire field of law, not as the best black woman. I think it demeans her. I think comparing "qualifications" to batting average is specious. There are many things that are considered qualifications. She very well may have all of them. The fact that she's a black woman shouldn't have to enter into it, although I agree that her POV as a black woman will contribute to the makeup of the court. But why couldn't she have been selected from the entire field? Making this an issue of a political promise restricts how qualified she appears to be, and I think it was unfair to her.

(I've added the bold emphasis.)

The first part I've bolded is what's called a "false equivalency."  If everyone were starting out from the same place, then of course selecting on the basis of race would be "discriminatory and racist."  But racism in America, which has effects both historical that are felt today and are still occurring, means that everyone is not starting out from the same place and with the same opportunities.  It's like a 100-yard race.  Everyone has to run 100 yards, but white runners get starting blocks, state-of-the-art running clothes and track shoes; the Black runners have to stand to start, wear business-casual dress and run in combat boots.  One can't ignore those constraints and simply say, "Well, it's fair because everyone has to run the same distance," though I fear far too many would.

There have been 115 Supreme Court Justices.  Two have been Black.  Five have been women.  One hundred and twelve (94%) have been white men.  If you agree that "white men only need apply" is "racist and discriminatory," welcome to the history of the Supreme Court.  For the first 178 years of the Republic, Supreme Court membership was only open to white men.  After 1967, when Thurgood Marshall became the first not-a-white man on the Supreme Court, 14 of the 19 Justices (74%) were still white men.  (Spoiler:  White men do not make up 74% of the population.)

So one is left with two possible conclusions:  1) White men are so inherently superior and accomplished that they are entitled to three-quarters of all Supreme Court seats, or 2) Institutional, systemic racism and misogyny continue to be barriers.  If anyone thinks it's the former, please stop reading now and go away.  There is no hope for you.  Instead, the latter being true, the remedy has to be to find women and People of Color who are as qualified (recognizing "qualified" is a holistic conclusion, not a statistical one) and given them the opportunities denied them for, literally two-plus centuries.  Here, let's consider some qualifications:

Princeton University, Yale Law School, U.S. District Judge, U.S. Circuit Judge
Princeton University, Yale Law School, U.S. Circuit Judge
Columbia University, Harvard Law School, U.S. Circuit Judge
Harvard University, Harvard Law School, U.S. District Judge, U.S. Circuit Judge
Harvard University, Harvard Law School, U.S. Circuit Judge
Princeton University, Oxford University, Harvard Law School, Dean of Harvard Law School, Solicitor General (i.e., the Government's lawyer before the Supreme Court)

Five are existing Supreme Court Justices.  One is Judge Jackson.  Looks like she's in with the right group, doesn't it?  I mean, unless you know her history, you couldn't pick her out from among this group, could you?  (BTW, the list in order is Sotomayor, Alito, Gorsuch, Jackson, Roberts and Kagan.)

So for Biden to select someone from the pool of many qualified candidates on the basis of diversifying the Court is completely reasonable.  Anyone who thinks Judge Jackson is somehow "lessened" by Biden's criteria must likewise think that all those white men must somehow have been lessened by the exclusion of women and People of Color from consideration in the past.

Actually, maybe that's not so far off -- racism and misogyny lessen all of us, directly or indirectly.

race, law

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