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SCOTUS and Affirmative Action

Biden made it U.S. policy to select jurists for its highest court on the basis of race.

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

Setting Ukraine aside for a moment: Joe Biden has abandoned the pursuit of a race-neutral society.

In choosing Ketanji Brown Jackson, whose confirmation hearings begin today, as his Supreme Court pick, Biden made it the policy of the United States to select jurists for its highest court on the basis of race. He stated that most clearly in his announcement that it was not character or skill, but race and gender that would be his starting points as he chose a replacement for Justice Stephen Breyer. It was a stunning denunciation of ideals Americans have been told to strive for since the Civil War.

There are plenty of people alive today who remember placards noting segregated toilets and white-only waiting rooms. Imagine those people realizing the signs are back, albeit turned on their heads: In 2022, white jurists, to say nothing of Chinese American or Hispanic jurists, must atone for the sin of slavery. To insist this Supreme Court nominee be of a certain race is to admit we are not all created equal, once and forever.

Here’s why discrimination disserves the United States. Of the 1,395 sitting federal judges, just 56 are black women. Only 13 have served at the appellate-court level, one step below the Supreme Court. Assume some of those women are too moderate for Biden, and you are left with a tiny handful of people who even meet Joe’s minimum qualifications. Why would anyone want to so dramatically limit the pool of candidates for such an important job? Is diversity really more important than finding the best jurist to decide critical questions for all Americans? Aren’t we trying to get past the point where a person’s having a certain skin color was the metric of their success?

One judge who reportedly counted among Biden’s top three candidates was Leondra Kruger, who would have been the first person in more than 40 years to move from a state-level court to the Supreme Court. The question of whether someone with her credentials would have even reached the final stages were she not a black woman has an obvious answer.

The thing is, Joe Biden is no crusader. He is a pandering politician. It was exactly two years to the day before he announced Ketanji Brown Jackson as his Supreme Court pick that Biden, on the debate stage in South Carolina days before a primary he could not afford to lose, first made his pledge to nominate a black woman to the Supreme Court. Biden cynically announced his pick in the midst of the Ukrainian invasion to fit it into the final hours of Black History Month.

As a panderer, the 2022-version of Joe Biden lies about being arrested during the civil-rights movement, while the 1960s-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 youths and turned around to do an Amos ‘n Andy accent in Selma as she sought the black vote.

Biden has a long history of racism, including referring to Barack Obama as “the first mainstream African-American who is articulate and bright and clean.” Anyone remember Biden’s treatment of Anita Hill? Or maybe Kamala Harris’ campaign for president, when she blasted Joe’s racism as having personally impacted her as a young girl? Democrats’ flexibility is only outdone by their hypocrisy.

And hypocrisy runs deep in the American fabric, notably in the case of affirmative action. Affirmative action, which the Supreme Court strained to declare constitutional, allowed a nation that pretended to strive toward equality to instead enact the opposite, by upholding separate standards based on skin color.

The hypocrisy began with Regents of the University of California v. Bakke, a 1978 Supreme Court case that held that a university violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 if it made admissions decisions on the “definite and exclusive basis” of race. That bit about “definite and exclusive basis” was crucial—race could be a criterion, but just 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 accept more minority applicants was constitutional. In this case, the university’s offense was being too clear; the University of California explicitly held 16 out of 100 admission spots exclusively for black students instead of just putting its thumb on the scale and—presto!—filling 16 out of 100 slots with black students.

In 2003’s Grutter v. Bollinger, the Supreme Court upheld the University of Michigan Law School’s admissions policy, which used racial preference to promote diversity. Black applicants were admitted under different standards than members of every 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 substitute for individualized review of the applicants.

The Court wordsmithed its way into declaring decisions based on race constitutional so long as the goal was diversity (good) and not whitewashing (bad). It did so even as it said, at exactly the same time, that racial-quota systems are always “odious to a free people whose institutions are founded upon the doctrine of equality.”

But Grutter in 2003 came with an interesting addendum: Affirmative action was supposed to be a short-term, temporary policy, while society worked out the larger issues. Justice Sandra Day O’Connor famously stated, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest in student body diversity.” Some 19 years in, how’s that working out?

There have been challenges to affirmative action in both schools and workplaces over the years. There are two such cases now before the Supreme Court—Students for Fair Admissions v. Harvard Collegeand Students for Fair Admissions v. University of North Carolina. The current, more conservative court, may see things differently, but to date, the Court’s answer has always been the same: Racial discrimination that favors black applicants is constitutional, as long as you use nice words like “race is a factor” and not nasty ones like “No Irish Need Apply.”

The irony is that Joe Biden’s decision to restrict his pool of Supreme Court candidates to black women would be unlikely to meet the Supreme Court’s own tests for affirmative action in academia. Biden bypasses the Court’s basic rule—race can only be one factor among many, not the decisive one—in favor of a straight-out-of-Birmingham announcement that he would only consider candidates of one race for the job. Biden’s decision clearly violates Title VII of the Civil Rights Act, which prohibits making employment decisions because of an individual’s skin color, national origin, sex, religion, or race in almost all cases. It is almost always illegal to give an applicant an advantage solely because of race. Except, apparently, if you’re Joe Biden.

No one will challenge President Biden. A Georgetown law professor who dared raise concerns about Biden’s approach found himself suspended. Barack Obama, who previously said “affirmative action becomes a diminishing tool for us to achieve racial equality in this society,” has been quiet about Biden’s criteria.

Race was once used to exclude people from schools and jobs. America now selects people by race in the cause of eliminating racism. We ignore John Roberts dictum that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Simply spinning the color wheel does not create diversity. If Biden truly wanted a diverse Supreme Court, he might try to pull a few more judges out of non-Ivy League law schools. Ketanji Brown Jackson went to Harvard, after all.

But let’s not go too hard on Joe Biden. He just said the quiet 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 just fine. Biden doubled down on the worst sin of Jim Crow: insisting that a person’s color matters. That’s racism. There’s no other word for it.

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

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