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Joe Biden and His “Black Woman” SCOTUS Nominee

Supreme Court Justice Stephen Breyer announced he’ll retire in late June or early July. That means President Biden will make his first Supreme Court appointment, and he wasted no time in promising that it’s going to be a “black woman.”

Biden made that pledge during the campaign trail, so give him credit for keeping his word even if it’s flawed – which it is.

For anyone who can’t figure out the difference, or pretends not to be able to, I’ll spell it out: there is absolutely nothing wrong with the next Supreme Court justice being a black woman. In fact, in the interest of demographic diversity, it is, on balance, a good thing. However, it’s absolutely horrendous for race or gender to be indispensable criteria in making such a decision. It’s just plain wrong, and it’s a problem symptomatic of Democrat leaders.

I’m the first to say that I was pleasantly surprised with Bill Clinton’s presidency. Oh, I don’t think he was anywhere close to great, but as I often said then, “for a Democrat, he’s really not that bad.” As time passes, I realize more and more that he was one of the more effective presidents of the last half century. Nonetheless, Clinton utterly disappointed me when, as president-elect, he promised to create a cabinet “that looks like America.” That means blacks, women, Latinos, gays. And that’s all well and good, except when you’re filling prominent positions based on those factors, which have absolutely nothing to do with the job.

A couple of years after Clinton took office I became the Divisional Dean of Law and General Studies at a college in New York City. We were rapidly increasing in size, and so we needed to hire more faculty to accommodate our growing student body. I spent the first few years up to my ears hiring new professors. When the NY State Education Department arrived at some point to review our programs, my division received a great deal of praise for our ‘diversity’ – based on race, gender, nationality, etc. But I never set out to build a faculty that “looks like New York City.” Instead, I hired, on a case-by-case basis, the person I believed was the best fit for the job. It just so happened that because the college was situated in multicultural New York, the hired candidates were naturally diverse. I never felt any pressure to hire a candidate based on gender or skin color.

Unfortunately, Biden’s advisors don’t have it so easy. If they come across a brilliant jurist who also happens to be a white man (like Breyer is, in both respects), he won’t even be considered. What about another Latina, like Justice Sonya Sotomayor? Nope, she’s not black. Another black superstar, like Thurgood Marshall? Sorry, not a woman. What about the second coming of William Brennan, in many respects the “Scalia of the left”? Absolutely not, because he’s neither black nor female: two strikes right off the bat.

Suppose that the college where I worked was not in New York, but in Missoula, a city in Montana where the population is over 92 percent white and blacks comprise a mere half of 1 percent. If I were to base it strictly on merit, I’d probably have a tough time choosing any black candidates.
On the other hand, at a college in South Fulton, GA, where over 93 percent of the population is black, the chances are really slim that I’d hire a white guy (or gal).

What about President Biden’s hiring pool with respect to black women candidates, is it like New York City or more like Missoula? Let’s take a look.

Let’s begin with the premise that a Supreme Court Justice ought to be an attorney. Although not a prerequisite, it doesn’t make much sense for a non-attorney to serve as one of nine ultimate interpreters of our Constitution and ensuing laws.

Keeping that in mind, consider that less than 5 percent of America’s attorneys are black. Taking into account that slightly over two-thirds of all attorneys are women, let’s be generous and say half of black lawyers are women: that accounts for 2.5 percent of the population.

Is it possible that the best possible candidate to fill Breyer’s seat is a black woman? Of course. But the odds are 97.5 percent against it. By taking a colorblind approach, Biden may in fact wind up appointing a black woman who happens to be the best candidate. Yet by pigeonholing himself into a demographic conundrum, he excludes 97.5 percent of all viable candidates.

Incidentally, one of the hardest personnel decisions I ever had to make was at another college, where I served as Dean of Criminal Justice, and I had to choose between two outstanding candidates to serve as Department Chair, my second-in-command. It was between two finalists who far outshone the rest of the field: a white guy and a black guy. The majority of our student body was of color, by the way, and most of those were black.

After much contemplation, I picked the black guy, because of diversity. Oh, not the diversity you might be thinking of; I couldn’t give a hoot about his skin color. Rather, diversity of administrative style. In terms of how I manage people, the white candidate was almost my clone. The black candidate had a different approach, and I figured the contrasting styles would benefit the department.

My supervisor – a great person to work for – was also black. I told him who I chose and why. He approved. Had I told him I chose the winner based on race, he probably would’ve rolled his eyes in disappointment.

How ‘bout them apples, Mr. President?

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