Today, Joe Biden confirmed he would be nominating Ketanji Brown Jackson to replace Stephen Breyer on the US Supreme Court. If confirmed, Jackson, 51, will make history as the first black woman justice.
As a former editor of the Harvard Law Review and current federal judge on the prestigious D.C. Circuit Court of Appeals, there is no doubt that Jackson is qualified for the job. But it is also clear she was not selected on merit alone.
In January, after Breyer announced his retirement, the Biden team let it be known that it was only considering black female candidates for the vacancy. When conservatives like Ilya Shapiro complained that identity, rather than fitness or qualification, was driving the decision, they were predictably accused of racism. Amid the dustup, Shapiro was suspended by Georgetown Law for tweets “antithetical to the work that we do every day to build inclusion, belonging and respect for diversity”.
Perhaps in anticipation of criticisms like Shapiro’s, today’s White House press release sought to tell a different story. In a drop-down section near the bottom labelled “What criteria did Biden use to pick his nominee?”, it explains that, in a “rigorous process”, the president “studied the histories and case records of candidates” and “consulted legal experts” in search of “exceptionally qualified judicial nominees with varying backgrounds and experiences”. Notably absent from this list of criteria was Jackson’s race or sex.
Of course, we know this was not the case in reality. In February 2020, candidate Biden, who at the time was floundering in a crowded Democratic primary, made a deal with Rep. Jim Clyburn, the influential black South Carolina power broker: if Clyburn would endorse Biden before the South Carolina primary, Biden would nominate a black woman to the Supreme Court. Both sides have kept their end of the bargain.
Political horse-trading is as American as AR-15s, and no-one expects a president to come right out and say, “I picked this person to pay off a political debt.” But Biden could’ve simply said he was going to pick the best candidate no matter what and then announced Jackson at the end of an “open” search. What he did instead — boast in advance that he would pick a black woman and then turn around and insist he had engaged in a rigorous meritocratic selection process — reveals one of the main ideological contradictions in elite liberalism today.
On the one hand, justice demands equal representation for different groups, even if that means abandoning neutral selection criteria, which can at any rate be dismissed as biased. On the other hand, liberals are the experts, the meritocrats, the people who trust science and peer review and whose claim to legitimacy rests in large part on the fact that they once did well on a test. And so, rather than admit they’re choosing a candidate on the basis of race and sex, they have to do an odd sort of dance, pretending that an open-ended, expert-led search for the most qualified candidate just so happened to produce a candidate of the exact background they were looking for.
It’s not particularly convincing, but woe to the unwise Georgetown lecturer who points it out.