Racists are so predictable. The prospect of a Black woman serving on the Supreme Court has them in high dudgeon, just as we would’ve expected.
Take, for instance, Mississippi Republican Sen. Roger Wicker. He said Friday that any Black female nominee will merely be an affirmative action hire – “someone who is the beneficiary of this sort of quota.” Right-wing pundit Ben Shapiro chimed in, “This is definitionally affirmative action.” Ilya Shapiro (no relation), vice president of the libertarian Cato Institute tweeted (he later deleted it) that a Black female “will always have an asterisk attached to her name,” because despite all the best-qualified people out there, “we’ll get a lesser black woman.” The Wall Street Journal editorial page said that nominating a Black woman “elevates skin color over qualifications.” Tucker Carlson on Fox News (natch) complained that “the best people aren’t being chosen.” Maria Bartiromo on Fox News fumed, “I mean, what kind of a qualification is that, being a Black woman?”
And so on. Their message is that, by definition, all Black women are unqualified because they’re Black women. Never mind the fact that the five most-mentioned people are all Ivy league grads, and one was editor of the Harvard Law Review. But that won’t matter; it’s only a matter of time before Trump demands to see their grade transcripts. Anything to gin up white grievances ahead of the ’22 midterm elections.
Last I checked, there have been 114 Supreme Court justices since the nation’s founding; 108 have been white men and none have been Black women. Since untold millions of Black women have lived here since long before the nation’s founding, it seems only fair that, in the spirit of American diversity, they should have at long last a tiny token of well-qualified representation. Especially considering that white men, whether well-qualified or not, have been so dominantly represented since 1789.
What the racists are not saying is actually what they most fear: That a Black woman will bring to the court a Black woman’s life experiences. Yes, she will weigh the facts and the Constitution, but all judges are human. David Brooks said it well in a column he wrote 13 years ago: “Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events.”
Ain’t that the truth. I’ll give you a perfect example:
In the 1896 Plessey v. Ferguson case, seven white male judges voted to validate racial segregation. It would be the law of the land for the next 58 years. They said: “We (reject) the assumption that the enforced separation of the races stamps the colored race with a badge of inferiority. If this be so, it is…solely because the colored race chooses to put that construction on it.”
In other words, the white male judges were influenced by their life experiences in a white supremacist era.
Clearly, racists are only discomfited by certain kinds of life experience. One future high court nominee had an interesting life experience as a young white guy in 1960s Phoenix, working at the polls for the GOP, challenging the voting qualifications of Phoenix blacks and Hispanics. A few years later, when he was a Supreme Court clerk, this future nominee wrote a memo declaring: “I think Plessey v. Ferguson was right and should be reaffirmed.” That was William H. Rehnquist, later a Chief Justice, but I don’t recall racists having any problems with his life experience.
And consider this more recent nominee’s remarks, during his Senate confirmation hearing: “My background and my experiences have shaped me and brought me to this point…When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”
So said Bush nominee Samuel Alito. In 2005, Republicans thought it was fine for Alito to tap into his family’s Italian experience as part of his deliberative process.
And hey, why not? Oliver Wendell Holmes, who served 30 years on the court, once said: “The life of the law has not been logic; it has been experience.” What we need on the court is more diversity of life experience – and a Black female experience (coupled, of course, with stellar qualifications) is long overdue. Senator Wicker of Mississippi said Friday that whoever President Biden nominates “will probably not get a single Republican vote,” which is obviously a shame, because, for most of us, American diversity is something to be celebrated, not smeared.
It troubles me that so many don’t seem to understand why a black judge is being sought.