Is Ketanji Brown Jackson qualified to sit on the Supreme Court? This is a no-brainer, right? After all, she is a graduate of Harvard and Harvard Law School; she clerked for retiring Justice Stephen Breyer, became a judge on the D.C. District Court, and currently serves on the D.C. Circuit Court. On paper, how could anyone possibly be more qualified? And indeed, she may well be as qualified as they come.
But one thing we know for certain is that President Biden pledged that his next Supreme Court nominee would be a black woman. Seen differently, Biden publicly committed to nominate his next Supreme Court pick based on gender and race is essentially affirmative action – or “diversity, equity and inclusion” (DEI) by another name.
But here’s the problem, and why these policies may end up doing no favors to minorities, especially those who are “qualified” on their own merits: When a minority person, such as an African American, “advances” in their career, how can we ever be sure whether it is partly because of skin color as opposed to pure merit? And how do we know where the balance lies with Judge Jackson?
It is certainly possible that every advancement made by Jackson in her life was solely based on merit and nothing else. Perhaps she got really high scores on her SAT in high school and her LSAT in college. She was possibly a straight-A student, and perhaps her clerkship with Justice Breyer and her judgeship appointments had absolutely nothing to do with the color of her skin.
As such, is it unfair (or, as some would say, racist) to even wonder about the question in the first place? I say no. You cannot, on one hand, constantly tell America that affirmative action and diversity, equity, and inclusion are necessary to redress the evils of slavery and other forms of racism that have existed in America ever since, but then, on the other hand, assure us that all theoretical beneficiaries of affirmative action (such as Jackson) got where they did solely because of merit.
In his best-selling book, Woke Racism, John McWhorter (who is African American) makes the point that it makes no sense to argue (as anti-racists do) that “black students must be admitted to schools via adjusted test-score standards to ensure a representative number of them,” but to simultaneously also argue that “it is racist to assume that a black student was admitted via racial preferences.” One could easily broaden McWhorter’s reference to school admissions to entire professional careers.
Not only has the SAT often been criticized as racist, but virtually every type of graduate school exam has been also called racist, including the LSAT for law school, the MCAT for medical school, and the GMAT for business school. When accusations of racism on standardized testing become sufficiently prevalent, it is a small step to call for the elimination of standardized testing altogether.
The movement to aid minorities by eliminating standardized test scores has broadened to even include grades themselves. There have been some voices who have advocated stoppage of the grading system on the theory that the very concept of grading is racist because it inherently benefits non-minorities.
Speaking closer to home, let’s consider the legal profession specifically. Studies show that the LSAT is limiting black enrollment in law schools. A possible solution could be to make the LSAT optional, which is exactly what some prestigious law schools are now doing. The same trend is happening between high school and college when it comes to the SAT or ACT. Many colleges are not requiring those anymore either.
Notwithstanding efforts to increase the number of minorities both in college and law school, it remains the case that minorities remain underrepresented in the legal profession in proportion to the size of their population. In light of this, many companies will not hire law firms unless those firms can demonstrate a sufficient commitment to hiring diversity. But if there is a lack of diversity, is that due more to racism or a lack of available talent?
Given that firms stand to lose significant revenue without a demonstrable commitment to such hiring diversity, it seems implausible that firms would willingly forego such revenue. This would also apply to higher education and corporate America writ large. The incentive for colleges and graduate schools to admit minority candidates is enormous, and that incentive continues after graduation and right into the professional world.
By extension, it is reasonable to think that this also applies to judgeships, and President Biden has been explicit on this point – both as a candidate and as President – culminating in his famous (or infamous, depending on one’s perspective) promise to nominate an African-American woman to fill the vacancy created by Justice Breyer’s retirement.
There are many examples of how the specter of affirmative action can have a detrimental effect on the populations that it is meant to serve. In an article in The Atlantic titled “Affirmative Action Seemed to Tarnish My Achievements,” one black student who attended an Ivy League school stated:
“I was actually in the top 10 percent of my class when I was applying to college. I took the second hardest course load in my school, had a 2250 SAT, and pretty much knocked the Verbal section out of the park by getting a cool 800. But the same classmates I went to school with, spoke to, and beat in competitions grumbled behind my back: ‘It was affirmative action.’ That cut me deeply.”
Such frustration is understandable, and one feels for this person, especially to the extent that his classmates simply assumed that his attendance at the Ivy League school was due to affirmative action.
However, there is a big difference between assuming affirmative action and merely contemplating the question. And to be a living, sentient human being in America, makes it virtually impossible not to contemplate the question, including when it comes to President Biden’s nomination of Ketanji Brown Jackson. Not only is it a question fairly asked, but unfortunately, for the reasons stated above, it’s not an answer to argue: “Of course she is qualified! Look at her resume!” If affirmative action is applied cradle-to-grave, then her sterling background does not lay the question to rest.
The point of this article is not to question whether making grades, college entrance exams or graduate entrance exams optional is a bad idea or even to argue that we should abolish affirmative action – even though many black conservatives, such as Shelby Steele, Thomas Sowell, and Jason Riley, have done exactly that. The point is that so long as there are diktats in this country year after year, from every power base in our society, that we need to advance more minorities in this country at every stage of life simply because of the color of their skin, one always has to wonder about the extent to which any of their advancements in life are merit-based, and that is the silent price we all pay for affirmative action.
In other words, simply following current developments about affirmative action and the diversity, equity, and inclusion movement makes it impossible to at least not wonder whether any minority individual or collective advances might be due, either in large or small degree, to the color of their skin. The question is unavoidable to all but those with the thickest blinders, or those who are willfully obtuse.
Professor McWhorter points out the absurdity of simultaneously arguing that we must advance the careers of minorities based on affirmative action but being labeled racist if you ask whether we are doing exactly that with respect to any beneficiaries of this policy. To have to wonder about this at all is depressing, especially to all those minorities who would have advanced in their careers solely based on merit, which may well include Judge Jackson herself. However, so long as the status quo continues, it is an unavoidable question.
Peter Meltzer is a lawyer in Philadelphia, specializing in commercial litigation, real estate and creditors’ rights. He is also an author about both legal and nonlegal topics, and has been a frequent guest on the Michael Smerconish program. His nonlegal books include: “The Thinker’s Thesaurus”, which has sold over 100,000 copies, “So You Think You Know Baseball? A Fan’s Guide to the Rules”, named one of the top baseball books of the year by ESPN, and books about the presidents of the United States and about rock and roll music from 1965-1975. His legal articles have been cited by courts from around the United States.