The Supreme Court has rocketed to the top of the news cycle with two major announcements. On Jan. 24, the court announced it would decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful. Two days later, Justice Steven Breyer announced his intention to retire. What connects these two announcements is President Joe Biden’s longtime announced intention to nominate a Black woman to the court.
The reaction was swift and not unexpected. By stating that he would select a Black woman, Biden was excluding 93 percent of the population from consideration! If those using this argument truly want to make their ridiculous argument more accurate, nominating a Black woman would actually be even more discriminatory in their eyes.
According to the Pew Research Center, of the 3,843 people who have ever served as federal judges, only 70, or less than 2 percent, have been Black women. In the current court, there are 56 judges who are Black women amongst 1,395, or 4 percent, current sitting judges, according to Buzzfeed News.
Supreme Court justices are often selected from this pool and, more realistically, the appellate courts, where only 13 Black women have ever served. So, by intending to select a Black woman, well over 99.9 percent of the U.S. population is being eliminated from consideration.
Former President Donald Trump’s nominees to the federal court were 84 percent White, according to the Pew Research Center. As a result, the courts became even less diverse as the percentage of sitting judges who identified as African American, Hispanic or Asian American sat at 21 percent as of a February 2020 study by the Center for American Progress.
The courts are significantly underrepresented by minorities. And yet, under the previous administration, the courts moved in the direction of less diversity.
In the wake of Justice Breyer’s retirement announcement and Biden’s affirmation that he would nominate a Black woman, Sen. Lindsey Graham went on CBS’ “Face the Nation” and stated, “Put me in the camp of making sure the court and other institutions look like America. You know, we make a real effort as Republicans to recruit women and people of color to make the party look more like America. Affirmative action is picking somebody not as well qualified for past wrongs.” The senator continued on to say about one of the likely candidates, “Michelle Childs is incredibly qualified. There’s no affirmative-action component if you pick her.”
While I applaud the senator for affirming that the court and other institutions need to look like America, he is absolutely wrong about this not being affirmative action. Biden’s intent to select a Black woman is exactly what affirmative action is, and the court is a perfect place to demonstrate why affirmative action is needed.
The flaw in Sen. Graham’s and many people’s understanding of affirmative action is that those selected are inherently not as well qualified. Affirmative action is entirely about selecting those who are otherwise qualified but have been overlooked for selection because of inherent bias in the system.
Sen. Graham applauds Judge Childs as “incredibly qualified.” The question should not be whether Biden is selecting his nominee only because of their identification as a Black woman, but why was such a qualified candidate NOT nominated by Donald Trump?
In the cases of Neil Gorsuch and Brett Kavanaugh, their nominations in many ways retained a quota for White men on the court, yet no one makes the charge that they are affirmative-action cases or were admitted to the court to fill a quota of White men. Similarly, Amy Coney Barrett replaced a White woman — was that also a seat filled according to a quota for White women?
The reality is that the court and most every institution of power are overrepresented by White men. Sen. Graham has unwittingly revealed the truth behind why we need affirmative action. It has never been an issue of minority candidates being unqualified. It is that the White candidates still want to maintain their preference over others.
Opponents to affirmative action want us to think that it promotes unqualified individuals, when it is actually promoting “incredibly qualified” candidates— they just don’t want to call it affirmative action then. Affirmative action ensures that qualified minorities are considered.
The question to be asked of Sen. Graham and others who oppose affirmative action: “If Judge Childs is so incredibly qualified, why did Donald Trump not nominate her or another incredibly qualified non-White candidate?”
We cannot allow the false narrative to continue that affirmative action places unqualified minorities into scarce positions. The reality is that minority candidates such as Judge Childs are qualified but have not been considered because too many white candidates have been considered ahead of her.
We need affirmative action to bring her candidacy forward and highlight the excellent qualifications she and many others can bring to the court, institutions of higher learning and the workplace.
David Inoue is executive director of the JACL. He is based in the organization’s Washington, D.C., office.