The NYT says that "Black women in the legal community are bracing for the possibility that the yet-to-be-named nominee will be judged unfairly as an affirmative action appointment."
I'm reading "Black Women in Law Feel Pride and Frustration Ahead of Court Nominee As Biden prepares to nominate the first Black woman to the nation’s highest court, members of this small, elite group are watching with complicated emotions," by By Tariro Mzezewa and Audra D. S. Burch.
They quote a black female lawyer (Alisia Adamson Profit, 38): "People are going to say she only got this because she was a Black woman, and that could not be further from the truth. She would not even be considered if she wasn’t qualified, prepared and ready. There will be a segment that will discredit her ability to serve."
First: Why is the NYT — the voices sought out by the NYT and featured here — implying that affirmative action is disreputable?! I read the NYT every day, and it's my impression that the NYT strongly supports affirmative action and is especially keen to support it this year, as the Supreme Court is about to consider 2 cases challenging affirmative action in higher education admissions. So why should there be any stigma — or any recognition of stigma — to getting a position through affirmative action? To say that affirmative action devalues a person's achievement is to talk like Clarence Thomas. If you support affirmative action, say hooray for affirmative action. Isn't it wonderful that President Biden is openly committed to affirmative action and about to perform it? If your answer isn't yes, NYT, please do your soul-searching in express and clear words. Don't muddle up the discussion!
Second: Ms. Profit's statement doesn't make sense. The nominee will almost certainly be "qualified, prepared and ready" and "ab[le] to serve," but that won't negate the fact that that she "only got this because she was a Black woman." We know from Biden's express commitment that only black women will be considered. If this person who becomes the nominee were not a black woman, then it is plainly the case that she would not have received the nomination. Is the problem that "people are going to say" what is obviously true? Why can't we say it? Is it a secret? Is it shameful? But Biden is openly saying it, and as I've spelled out in the previous paragraph, you need to decide whether you are pro-affirmative action or not.
Third: Biden's advance announcement of intent prevents him and everyone else from doing what is normally done — assert that the person chosen is actually the very best judicial mind in all the land. Maybe the theater of excellence is desirable and uplifting, and maybe it's bad to single out this candidate to be deprived of the glory of that rhetoric, but she won't be the only one. It happened to Sandra Day O'Connor after Ronald Reagan committed in advance to choosing a woman. But maybe it's time to be a lot more honest, mature, and sophisticated and admit that the President is NEVER choosing the very best one. He's systematically eliminating people who are too old or who have the wrong politics, and there are surely endless other attributes that get you stricken from the President's list that have nothing to do with how wonderfully you can decide legal cases.
***
The slogan popped into my head: "Why not the best?"
Yes, whose slogan was that. I needed to remember because I believed it would make my point. Ah, here:
Isn't it pretty to think we could have the best? Oh, he's the best, Jimmy Carter.
No, he wasn't the best, but he was the one we came up with at the time, at the end of a grueling, ridiculous process that never gives us the best. We're lucky if we even get someone reasonably good and not horrible.
The Justices on the Supreme Court — now, and after one is replaced by a new one who will be a black woman — are good enough but presumably not the best. Surely, the best never even make the short list. How could they? They can't — and shouldn't — fit the needs of the President.
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