Affirmative Action and the Court
I don’t get angry often. No, really, I don’t. Pissed and quick-triggered, sure, but really angry. Nah!
On January 26, word slipped that Associate Justice Stephen Breyer intended to retire. The following day, Justice Breyer notified the president that he will leave the Court at the end of the 2022 Term. Of course, his departure assumes a successor gets nominated and confirmed.
Then former Vice President Joe Biden told us he would nominate a Black woman to the Supreme Court if we picked him. We did. He will.
Of course, confirming those intentions brought out the naysayers. I like, best, Senator Roger Wicker, (R – Miss.), who said, on January 28: ‘The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination while adding someone who is the beneficiary of this sort of quote.”
So, here’s the deal. The U.S. Supreme Court has existed since September 26, 1789, more than 232 years. One hundred fifteen people have served as Justices. One hundred ten have been men: only five women have served, and three of them sit now. Two of the 110 men – Thurgood Marshall and Clarence Thomas – were / are persons of color. One of the five women – Sonia Sotomayor – is a person of color.
Forgive me, please for my anger. For whom have we provided favor, over the last almost 233 years? White men. The math? The percentage of white men serving on the Court – 108 /115 – is 93.91%. Over more than 200 years, more than 9 of 10 Justices were White Guys.
It should surprise no one that, after 40 years and some months as a lawyer, I know and have known lots of judges on many courts. A few have been scary smart. Some have a problem-solving gene, while others have a knack for getting in the way of parties who want to resolve their differences. Wise defines many, even when they lack lots of knowledge. A few – and only a few, fortunately – come to the bench with a total lack of empathy, making every experience with them dreadful or … worse.
To Roger Wicker and his fellow travelers:
- After getting your way almost 94% of the time, over damn near a quarter of a millennium, you claim a woman of color only gets a seat because of her gender and color. Really? Do you think you reflect the American ideal, that no matter where you start out in life, you can work hard and achieve? Do you care, even, or do you just want a paycheck, a bit of power, and a chance to cash in?
- Your premise depends on the notion that seats at the Court belong to White Men. Any variance presupposes settling for a lesser one.
- Your bigoted, biased approach to selecting people for service shames you and stains the confirmation process.
Here’s a little bit of reality. Appellate court service suits those who think and write about legal issues. Plenty of trial judges know themselves well enough to know they will be unhappy if they serve on a higher court, for they need the daily engagement with people that comes with a motion and trial practice. As for people who are qualified to serve on appellate courts, the pool includes lots of thousands. The system self-selects, based on academic credentials, experience, politics, and the willingness to accept the drudgery associated with others – except, mostly, Supreme Court Justices – deciding what cases you will work on. Pay matters too, for many.
Lots of lawyers have the candlepower to serve on the U.S. Supreme Court. White men and women. People of color, too. That we need the best person ignores that reality and presupposes that, even if we did need or want the best person, we could ever, collectively, identify that person. No president needs to justify not considering a White Guy, when they have held 108 of 115 seats, over the course of 230+ years.
President Biden will nominate a very capable Black woman. The Senate should fulfill its advise and consent role. It should give the nominee the same favor it has given others for more than two centuries. Frankly, and with no respect for Wicker and his type, President Biden offers the country a chance to right the ship, a little, with his nominee. Senators need to step up, and get out of their cocoons. People bring their experiences to any position. For too long the Supreme Court has known, almost exclusively, one set of experiences.