Biden's Court Nominee

Some Observations and Questions

EDITOR’S NOTE: Many years ago, a friend and I had a private verbal conversation on a politically charged topic. My friend, a true-blue progressive, lamented that “we can’t have this conversation,” meaning that what we were discussing was verboten, kinjiru, third-rail, not-to-be-said-aloud, upon pain of public excoriation. So it often goes with uncomfortable realities regarding many social policy matters, but we do the principles a liberty a gross injustice if we succumb to the canceler’s veto. Today’s guest post echoes the thoughts I shared last month, but as always, opinions are those of the author.

---

Item: President Joe Biden nominates Judge Ketanji Brown Jackson for appointment to the Supreme Court. Inevitably the talking heads immediately said some variation of: "she had to overcome incredible obstacles to arrive at where she is today."

The point of that declaration is, of course, to put the stake in the sand saying that (1) because she's black, and (2) because she's a woman, (3) ipso facto, she had to overcome incredible odds to get to where she is today. Regardless, of course, of whether she had to overcome any obstacles in her life at all.

IMPORTANT NOTE: I need to add this disclaimer immediately: I don't know anything at all about Judge Jackson or her life. And there is no hostile intent whatsoever in this entire post. This is all informed speculation on my part, based on long observation of this nation in past decades.

That out of the way, my contention is this: For more than three generations now -- longer than Judge Jackson has been alive -- we've been in the era of: "Let's Aggressively and Actively Help Non-white People and Women Succeed and Prosper in America."

First, we know that Biden was never going to use anything as quaint as merit as the prime consideration for nomination to the Court. While this charitable instinct speaks well of Americans in general, there’s a time and a place, and a lifetime nomination to the most powerful court in the land is neither.

I’ve never been a Supreme Court nominee, but if were and I knew that I’d vaulted to the front of the line exclusively because of the various accidents of my birth (my skin color and sex) I’d have no positive reactions whatsoever… and a bunch of negative ones!

Will everyone assume that I’m an Affirmative Action appointment? Will everyone automatically question the validity, or the intelligence, or the insights of my dissents and concurrences? Will everyone consider my entire career less valid? Less impressive? Less worthy? I'd know that, certainly, many will.

So, this terrible notion of excluding all people of the wrong skin color and sex from consideration for the highest court in the land deeply harms those excluded, as well as the eventual nominee! Not to mention the fact that it transparently cheats all Americans of their right to the best possible nominees for the Court.

 Here’s a brief exploration of some numbers. Black Americans represent about 13% of the American population. If women represent roughly half of that group, or about six and a half percent of Americans, well, before he even started his explorations, Biden and his people had excluded more than nine out of ten of all Americans from consideration. Because of the color of their skin and their sex.

Meaning: Through no credit or merit of her own, Judge Jackson vaulted in front of more than 90% of all Americans! I wonder how often that sort of thing has happened in Judge Jackson’s life and career. Possibly (likely?) many, many times. 

In other words: Is it fair to say that: far from being a struggle, it's just as likely that Judge Jackson's path to "where she is today" has been eased, smoothed, leveled and flattened, with potential obstacles that all people face preemptively, aggressively removed? These would represent huge advantages – privileges if you prefer – granted to few others. And culminating, of course, in the ultimate shortcut to the front of a maximally prestigious line: the announcement by the President of the United States that -- ahead of any other considerations -- he was going to nominate a black woman to the Supreme Court.

Remember, all this comes amidst a growing torrent of black Americans coming out of what is very likely a very large closet, saying that they haven't had a particularly difficult life; haven't experienced any appreciable racism; haven't encountered appreciable hostility from white people.

---

(Important Sidebar: I’m not suggesting by any means that there is no racism in America. I merely observe that literally all of us have experienced episodes of racist or sexist discrimination in America. I'm a white dude, and at least six times of which I'm aware, I've lost a mortgage, employment possibilities and promotions because of the pallor of my skin, and the inconvenient configuration of the junction of my right leg with my left. If I were to estimate the monetary cost of all that discrimination, I can tell you that it represents a considerable sum in lost wages. Money that went to other people because... I looked wrong. More than enough, I'm quick to add, to make it possible for me to retire right now, and quite comfortably. Am I now going to complain about systemic racism and discrimination? No. Though I could make a persuasive case, since it is official American policy and law.)

---

Now, again, read my disclaimer above when you consider this: Whether it's true or not of Judge Jackson’s life and career, anyone who keeps his eyes open has wondered the very same things about the very real privilege of being non-white or a woman in America today. Many have even figured that my speculations are... probably true. At least they have a very good chance of being true.

All this is underscored when people ponder the open secret that the Vice-President of the United States of America -- the woman "a heartbeat away from the Presidency!" -- is herself an Affirmative Action hire. America knows all this and, internally at least, views Kamala Harris with far less regard as a result. Will America do the same to Judge Jackson? Answer: Many will, and it’s difficult to make the claim that it’s unjustified. And it's a damn shame on every level.