Demand for ‘most qualified’ judge means ‘no Black woman’

 

Gordon L. Weil

In the celebrated movie “Casablanca,” the police chief makes a show of exclaiming that he is “shocked” to find gambling at Rick’s bar.  He orders it closed just as an officer hurriedly hands him his winnings.

That looks pretty close to Republican criticism of President Joe Biden keeping his campaign promise to nominate an African American woman to the Supreme Court.

Some Republicans suggest his intent is shocking, overlooking anything shocking about their having blocked any consideration of one of President Obama’s nominees and zipping through the review of then-President Trump’s choice of Amy Coney Barrett.  Biden’s choice will likely be confirmed under the GOP’s own short-cut rules, so posturing is the best they can do.

They assert that Biden is playing politics with the appointment instead of picking the most  qualified person available, regardless of race or sex.  Some people are likely to swallow the line that past nominees were selected purely on merit, while Biden is playing politics.

Let’s face it. The selection of Supreme Court justices has always been political.  And throughout history, Obama aside, presidents proposed and the Senate confirmed nominations heavily favoring people like themselves – white men.  In short, sex and race have always been a factor.

Sen. Roger Wicker, a Mississippi Republican, sees it differently.  “The irony is the Supreme Court, at the very same time, is hearing cases about this sort of affirmative racial discrimination and while adding someone who is the beneficiary of this sort of quota," he told an interviewer.  He assumed that any Black woman nominee would have enjoyed affirmative action.

Contrast that statement with the remarks of GOP Sen. Lindsay Graham of South Carolina.  “We’ve only had five women serve and two African American men.  So let’s make the court more like America.”  That’s affirmative action.  Graham has usually accepted the nominees of either party’s president. 

Sen. Susan Collins, Maine’s GOP senator, has said Biden’s promise to pick a Black woman, an appointment she could accept, is unusually “political.” She’s in her fifth term in the Senate and surely knows that judicial nominations are political.  In fact, she rejected Trump’s Barrett rush.  She has merely condemned Biden for being “clumsy.”   

All Supreme Court justices are lawyers.  For most of American history, the political system kept women and African Americans from becoming lawyers. The obvious result was a small pool of possible candidates to draw from, even if there were no discrimination in judicial picks.

Dean Erwin Griswold asked each female member of Harvard Law School first year classes why they were taking the place of a man.  The late Justice Ruth Bader Ginsburg was one of those women and, having become a lawyer, she could not get a job in a law firm.

An American Bar Association report reveals the relative standing of Blacks and women among lawyers and judges.  The numbers tell a story of racism and sexism.

Of all lawyers, 85 percent are white, while 5 percent are Black.  New lawyers are joining the profession in just about the same ratio.

Women are about 37 percent of all lawyers, while 63 percent are men. In law schools today, the division between men and women is about equal.  When Ginsburg was a law student in the 1950s, less than two percent of her classmates were women.

Appointments to the federal courts lag behind the ratio among all lawyers.  In the latest three years for which information is available, 76 percent of those named have been men and 24 percent have been women.  By race, 84 percent of the appointments have been white and 4 percent Black.   

Using the latest 30-year rate of female judicial appointments, it would take about 40 more years until the number of women and men named to federal courts were equal.  Nominations of Black judges are more difficult to forecast because of their limited numbers.

The ABA data also suggest that increases in the number of federal judicial appointments of both women and Blacks have occurred under Democratic presidents Bill Clinton and Barack Obama and the rate has slowed under Republicans George W. Bush and Donald Trump.  That puts Biden’s move in historical perspective.  Elections have consequences.

Wicker forecast: “This new justice will probably not get a single Republican vote.”  Every senator should consider the merits of any nominee. But Wicker was saying that a still unnamed Black woman, whatever her record, could fail to get the support of a single GOP senator.  That’s the reverse of affirmative action.

Would such a denial of even minimal bipartisanship simply be caused by automatic Republican opposition to any Supreme Court nominee of a Democratic president? 

Or would GOP opposition amount to placing a seal of approval on a federal court system that could for many more decades feel the slowly dying grasp of the past?