Biden Unconstitutionally Ends the Dream
Setting Ukraine aside for a moment, Joe Biden forever ended the dream of a nation where race does not determine success. His Supreme Court choice sends a clear message to all black women: you can be anything you want, as long as Uncle Joe bends the rules for you.
In choosing Ketanji Brown Jackson, whose confirmation hearings begin today, as his Supreme Court pick, Biden made it the policy of the United States to select people based on race. He stated that most clearly in his proclamation that it was not character or skill, but race and gender which would be the starting point for his replacement for Justice Breyer. It is a stunning denunciation of the ideals Americans have been told they were striving for since the Civil War.
There are plenty of people alive today who remember placards noting segregated toilets and white-only waiting rooms. Imagine those people realizing the signs are back, albeit turned on their heads to make it clear it all white, never mind say Chinese and Hispanic, jurists, must in 2022 atone for the original sin of slavery. To insist the nominee be a certain race is to admit we are not all created equal, once and forever.
Here’s why discrimination disserves the United States. Of the 1,395 sitting federal judges just 56 are black women. Only 13 have served at the appellate court level, one step below the Supreme Court. Assume some are too moderate for Biden, and you are left with a tiny handful of people who even met Joe’s minimum qualifications. Why would anyone want to so dramatically limit the pool for such an important job? Is diversity really more important than finding the best jurist to decide critical questions for all Americans? Aren’t we trying to get past the point where being one particular race (used to be white) was a threshold?
One judge reportedly in the top three was Leondra Kruger, who would have been the first person in more than 40 years to move from a state-level court to the Supreme Court. The question of whether someone like her would have even reached the final stages if she were not a black woman are obvious, as are the consequences.
The thing is Joe Biden is no crusader. He is a pandering politician. It was exactly two years ago to the day that he announced Ketanji Brown Jackson as his Supreme Court pick that Biden, on the debate stage in South Carolina before a primary that he could not afford to lose, first made his pledge to nominate the first black woman to the Supreme Court. Biden cynically announced his pick in the midst of the invasion of Ukraine so it could happen during the last hours of Black History month.
As a panderer, 2022 Joe Biden lies about being arrested during the civil rights movement while 1960s Joe would not have been not been within miles of a demonstration. Biden of course follows others down this cynical path. That’s why Hillary Clinton can help pass a crime bill directed at black youth and then turn around and get away with an Amos ‘n Andy accent when she was pimping for the black vote in Selma itself.
Biden has a long history of racism, including referring to Barack Obama as “the first mainstream African-American who is articulate and bright and clean.” He is no friend of the Negro even as he still uses that term. And anyone remember Biden’s disgusting racist and sexist treatment of Anita Hill? Or maybe Kamala Harris’ campaign for president, when she blasted Joe’s racism as having personally impacted her as a young girl? Democratic political flexibility is outshone only by its hypocrisy.
Hypocrisy runs deep into the American fabric via the Orwellian wordplay of affirmative action. Affirmative action was massaged into constitutionality, allowing a nation which pretended to strive toward all are created equal to instead acknowledge just the opposite, by having separate standards based on skin color.
The hypocrisy began with Regents of the University of California v. Bakke, a 1978 Supreme Court case which held that a university’s admissions criteria which used race as a definite and exclusive basis for an admission decision violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. But the fine print was that bit about definite and exclusive basis; race could in fact be a criteria, but just not the only one.
The Court ruled a university’s use of racial “quotas” in its admissions process was unconstitutional, but a school’s use of “affirmative action” to accept more minority applicants was constitutional. The offense was being too clear — UC overtly held 16 out of 100 admission spots exclusively for blacks instead of just putting its thumb on the scale and presto! filling 16 out of 100 slots with blacks.
In 2003’s Grutter v. Bollinger the Supreme Court upheld the admissions policy of the University of Michigan Law School to use of racial preference to promote diversity. Black applicants would be admitted under different standards than everyone else. The fudge was to again say affirmative action is constitutional as long as it treats race as one factor among many, and it does not substitute for individualized review of applicant.
The Court used wordsmithing to declare decisions based on race constitutional as long as the goal was (good) diversity and not (bad) whitewashing. It went as far as hypocritically saying at the same time racial quota systems, whether applied against whites or blacks, are always “odious to a free people whose institutions are founded upon the doctrine of equality.”
But Grutter in 2003 came with an interesting addendum: affirmative action was supposed to be a short-term, temporary thing while society worked out the larger issues. Justice Sandra Day O’Connor stated “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest in student body diversity.” Some 19 years into it, how’s that working out?
There have been challenges to affirmative action in both schools and the workplace, and two cases are now before the Supreme Court (Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina.) The current, more conservative court, may see things differently but to date the answer has always been the same: discrimination by race that favors blacks is constitutional as long as you use nice words like “race is a factor” and not nasty ones like “No Irish Need Apply.”
The irony here is Joe Biden’s decision to implement cosmetic diversity by only considering a black woman for the next Supreme Court seat would be unlikely to meet the Supreme Court’s own tests for affirmative action in academia. Biden bypasses the basic tenant — race can only be a factor, not the decider — in favor of a straight-outta-Birmingham announcement he would only consider one race for the job. Biden’s decision flat out violates Title VII of the Civil Rights Act, which prohibits making employment decisions because of an individual’s skin color, national origin, sex, religion, or race. It is illegal to give an applicant an advantage solely because of race. Except, apparently, if you’re Joe Biden.
No one will challenge Biden. A Georgetown law professor who even raised the issue of why limit the nominee to a small pool of judges found himself suspended. Barack Obama, who previously said “affirmative action becomes a diminishing tool for us to achieve racial equality in this society” has been quiet as a shadow about Biden’s decision criteria.
Race was once a criteria to exclude people from schools and jobs. America now selects people by race in the cause of eliminating racism. We ignore John Roberts dictum “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Simply spinning the color wheel does not create diversity. If Biden truly wanted a diverse Supreme Court he might for example try to pull a few more judges out of non-Ivy League law schools. Ketanji went to Harvard.
But let’s not go too hard on Joe Biden. He just said the quiet part too loud. Separate but equal when it harms blacks is bad and unconstitutional. Separate but equal when it helps blacks, in academia, job searches, and ascension to the Supreme Court, is just fine. Biden acknowledged the worst sin of Jim Crow, that color matters. That’s racism, no other word for it.
Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.
