Squires: Biden Reaps the Benefits of Nominating Ketanji Brown Jackson to the Supreme Court, but She Pays the Costs

Joe Biden’s first appointment to the Supreme Court was guaranteed to be controversial for reasons outside his nominee’s control. 

The issue isn’t Ketanji Brown Jackson’s academic background or LSAT scores. The issue is that Joe Biden announced the deciding factors for his candidate were skin color and sex. 

Doing so was yet another reminder that the people and institutions that claim to care the most about diversity are motivated by self-interest, not altruism. 

Many people made the case that saying he would only consider black women meant that he would not get the best candidate, but that’s not necessarily true. A person who wants to do a documentary on a basketball icon but only considers someone who went to the University of North Carolina, played for the Chicago Bulls, and wore the number 23 could still end up with the best interview subject.

Determining the “best” in areas in which a relatively small number of people all possess the minimum qualifications is a highly subjective exercise. Very few people follow lower courts or legal scholarship closely enough to provide a substantive opinion on any potential Supreme Court pick. At best we’ll learn the nominee went to law school at Harvard or Yale – the case for all but one justice on the current court – and how long they have served as a judge. That is why Joe Biden’s campaign pledge should have been to select the best person for the job, even if he still intended to select a black woman.

He chose not to do so to further his political ambitions, thereby subjecting his candidate to the “identity stigma” that is attached to this opportunity, regardless of her actual qualifications.

Justice Clarence Thomas noted the role of self-interest in the landmark 2003 affirmative action case Grutter v. Bollinger. Thomas opens his dissenting opinion by quoting Frederick Douglass and affirming his belief that black people can achieve in every area of life without meddling from self-interested benefactors. Then he said the following:

“No one would argue that a university could set up a lower general admissions standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admissions standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.”

The perception of lowered standards in a particular field for favored individuals or groups inevitably taints the accomplishments of the beneficiaries and makes true equality impossible. It also threatens social cohesion in a large, diverse country. When the most influential institutions in our society explicitly advocate for allocating resources based on race, sex, and gender identity, no one should be surprised by pushback from anyone who feels they are being denied opportunities based on characteristics outside their control. 

No one is arguing that Ketanji Brown Jackson lacks the legal pedigree or experience for the Supreme Court. Her nomination is nothing like that of Harriet Miers in 2005. President Bush selected Miers to replace Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court, even though she had never served as a judge on any level and had close personal ties to the president. 

Jackson’s nomination is also unlike that of Brett Talley, a man President Trump selected for a federal judgeship in Alabama even though he had never tried a single case. Talley’s wife, Ann Donaldson, also happened to be chief of staff to White House counsel Don McGahn. Both Miers and Talley withdrew their names from consideration after intense public scrutiny. 

That is exactly what should happen to candidates who lack the basic qualifications for a high-profile position. Instead of arguing about Ketanji Brown Jackson’s judicial philosophy, opinions on polarizing issues like abortion, or whether she believes in a “living Constitution,” the entire debate about her nomination has been focused on her identity. The blame for that rests squarely on President Biden.