SCOTUS and Affirmative Action – The American Conservative


WASHINGTON, DC – MARCH 02: Senate Majority Leader Chuck Schumer (D-NY) meets with Presidential Supreme Court nominee Wednesday, March 2, 2022 on Capitol Hill in Washington, DC Joe Biden, Judge Ketanji Brown Jackson. Judge Jackson will meet with members of the Senate leadership prior to her confirmation hearings. (Kent Nishimura/Los Angeles Times via Getty Images)

Putting Ukraine aside for a moment, Joe Biden has given up on the pursuit of a racially neutral society.

In electing Ketanji Brown Jackson, whose confirmation hearings begin today, as his choice for the Supreme Court, Biden made it United States policy to select jurists for its highest court on the basis of race. He explained this most clearly in his announcement that race and sex, rather than character or ability, would be his starting points in selecting a replacement for Judge Stephen Breyer. It was a startling condemnation of the ideals Americans have been striving to aspire to since the Civil War.

There are many people today who remember posters stating separate toilets and waiting rooms for whites only. Imagine those people realizing the signs are back, albeit on its head: In 2022, white lawyers, let alone Chinese-American or Hispanic lawyers, will have to atone for the sin of slavery. To insist that this Supreme Court nominee is of a certain race is to admit, once and for all, that we are not all created equal.

Here’s why discrimination deserves the United States. Of the 1,395 sitting federal judges, just 56 are black women. Just 13 have served at the Court of Appeals level, one level below the Supreme Court. Suppose some of these women are too moderate for Biden, and you’re left with a tiny handful of people who meet even Joe’s minimum qualifications. Why would anyone want to limit the pool of candidates so drastically for such an important job? Is diversity really more important than finding the best lawyer to decide critical issues for all Americans? Let’s not try to get past the point at which a person’s specific skin color was the measure of their success?

One judge reportedly among Biden’s top three candidates was Leondra Kruger, who would have been the first person to move from a state court to the Supreme Court in more than 40 years. The question of whether anyone with her credentials would have even made it to the final stage if she weren’t a black woman has an obvious answer.

The thing is, Joe Biden is not a crusader. He’s a pandering politician. It was exactly two years to the day before he announced Ketanji Brown Jackson as his Supreme Court nomination that Biden first appeared on the debate stage in South Carolina days before a primary he could not afford to lose on his promise submitted to nominate a black woman the Supreme Court. Biden cynically announced his election in the middle of the Ukrainian invasion to fit into the closing hours of Black History Month.

As a pimp, the 2022 version of Joe Biden lies about being arrested during the civil rights movement, while the 1960 version would not have been caught within miles of a demonstration. Biden, of course, follows others down this cynical path, like Hillary Clinton, who helped pass a crime bill that led to the incarceration of scores of black youth, and reverted to do an Amos ‘n Andy accent in Selma when she was looking for the black voice.

Biden has one long History of racism, including reference to Barack Obama as “the first mainstream African American who is articulate and bright and clean”. Everyone remembers Bidens Treatment of Anita Hill? Or maybe Kamala Harris’ presidential campaign, when she denounced Joe’s racism as personal influenced her as a young girl? The flexibility of the Democrats is matched only by their hypocrisy.

And hypocrisy runs deep in the American fabric, especially in the case of affirmative action. Affirmative action, which the Supreme Court struggled to declare constitutional, allowed a nation that professed to strive for equality to instead enact the opposite by maintaining separate standards based on race.

The hypocrisy started with Regents of the University of California against Bakke, a 1978 Supreme Court case that found it to be a university Violate the Equal Protections Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act 1964 when eligibility decisions are made on the “clear and exclusive basis” of race. That bit about “distinct and exclusive basis” was crucial – race could be a criterion, but not the only one.

The court ruled that a university’s use of racial “quotas” in its admissions process was unconstitutional, but a school’s use of “affirmative action” to admit more minority applicants was constitutional. In this case, the university’s offense was too clear; the University of California specifically reserved 16 out of 100 admissions for black students only, instead of just putting their thumb on the scale and—hey presto!– Fill 16 out of 100 slots with black students.

In 2003 Grutter v. Bollinger, The Supreme Court upheld the University of Michigan Law School’s admissions policy, which used racial preferences to promote diversity. Black applicants were admitted under different standards than members of any other group. The fudge was again to say that affirmative action is constitutional so long as it treats race as one factor among many and does not replace individual scrutiny of applicants.

The court has worked its way into making decisions based on race constitutional as long as the goal was diversity (good) and not whitewashing (bad). It did so while saying at precisely the same time that racial quota systems are always “hateful to a free people whose institutions are founded on the doctrine of equality.”

but grutter 2003 came with an interesting addition: Affirmative Action was intended to be a short-term, temporary policy while society worked out the larger problems. Judge Sandra Day O’Connor famously said, “We expect that in 25 years, the use of racial preferences will no longer be necessary to encourage interest in the diversity of the student body.” About 19 years old, how’s it going?

Over the years there have been challenges to positive action both in schools and in the workplace. There are now two such cases before the Supreme Court –Fair Admissions Students vs. Harvard Collegeand Students for Fair Admissions vs. University of North Carolina. The current, more conservative court may see it differently, but so far the court’s answer has been the same: Racial discrimination in favor of black applicants is constitutional as long as you use nice words like “race is a factor” and not nasty words like “No Irish need apply.”

The irony is that Joe Biden’s decision to limit his pool of Supreme Court nominees to black women would likely fail the Supreme Court’s own tests of affirmative action in science. Biden sidestepped the court’s basic rule – race can only be one factor among many, not the determining one – in favor of a direct announcement from Birmingham that he would only consider candidates of one race for the job. Biden’s decision is clearly a violation Title VII of the Civil Rights Act, which in almost all cases prohibits making employment decisions based on a person’s skin color, national origin, sex, religion or race. It almost always is illegal to give an applicant an advantage on the basis of race alone. Except apparently if you’re Joe Biden.

Nobody will challenge President Biden. A Georgetown law professor who dared to voice concerns about Biden’s approach found himself exposed. Barack Obama, previously called “Affirmative action is becoming a diminishing tool for us to achieve racial equality in this society,” Biden’s criteria has been silent.

Race was once used to exclude people from schools and jobs. America is now racially selecting people to eliminate racism. We ignore John Roberts dictum that “The way to end racial discrimination is to end racial discrimination.” Spinning the color wheel does not create diversity. If Biden really If he wanted a diverse Supreme Court, he could try to pull a few more non-Ivy League law school judges away. Ketanji Brown Jackson eventually went to Harvard.

But let’s not be too hard on Joe Biden. He just said the soft part too loud. “Separate but equal” when it harms black Americans is bad and unconstitutional. “Separate but equal” when it helps black people in academia, the workplace and the Supreme Court is fine. Biden doubled down on Jim Crow’s worst sin: insisting that a person’s color matters. This is racism. There is no other word for it.

Peter Van Burenis the author of We Mean Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of World War II Japan, and Ghosts by Tom Joad: A History of the 99 Percent.

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