by Park MacDougald
Friday, 25
February 2022
Spotted
19:33

Ketanji Brown Jackson wasn’t chosen on merit alone

The President announced his Supreme Court pick with no mention of some selection criteria
by Park MacDougald
Ketanji Brown Jackson. Credit: Getty

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.

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Andrea X
Andrea X
4 months ago

Clearly she won’t be stupid or naive, so I do wonder how she feels at being the diversity candidate. Maybe ambition makes you shrug it off, but deep down you (and the others) must know. A bit like Sonia Sotomayor, perhaps?

Mo Brown
Mo Brown
4 months ago
Reply to  Andrea X

Indeed. Still, we must celebrate her and not be too critical of any opinions she renders, however worthy of criticism they may (or may not) be.

AC Harper
AC Harper
4 months ago
Reply to  Andrea X

I rather expect that ambitious people are always going to believe in their own worthiness and consider any diversity requirements as eliminating the opposition earlier rather than later.

James Joyce
James Joyce
4 months ago

Now my 3 long-ish posts seem to have disappeared completely–no longer even “pending approval.”
I think this happened once before and I emailed UnHerd but did not get a response.
In this case, I had a thought about Justice Sotomayor and her “wise Latina” comment–certainly fair game in responding to this essay, and not it’s gone! Poof!
Wow! Even those who stridently disagree with me–fair play–shouldn’t want me cancelled on UnHerd. Isn’t the point of this site to go against the herd mentality? Please defend me–not necessarily the points I make (though that’s fine too), but my right to post them.

Galeti Tavas
Galeti Tavas
4 months ago
Reply to  James Joyce

Maybe those posts were just SO good they decided to save them for a slow day, and they will post them then.

James Joyce
James Joyce
4 months ago
Reply to  Galeti Tavas

Probably. That is, of course, the most likely explanation.

James Joyce
James Joyce
4 months ago

The worst part of this article–but also 100% accurate–is the absolutely clear horse trading between Biden and Jim Clyburn. Clyburn, with his sycophants doing exactly what he says, is responsible for Biden, and his direct influence is beyond sickening. Was politics. Of course Biden would nominate a COW (Citizen of Wakanda), but in this very public deal he has undermined the legitimacy of the court and of the nominee, but it doesn’t matter much and will soon be forgotten.
Of course she was not chosen on merit alone, and hasn’t been judged on merit alone her entire life. Like many other blacks of her generation–and make no mistake–she is part of the black elite, this woman benefited at every stage in her life from so-called affirmative action. She has never been judged on the merits in her life, because she is both black and posh.
Had he wanted to nominate a “diversity candidate,” he might have chosen someone who didn’t attend Harvard College and Harvard Law School and wasn’t to the manor born. This is perhaps the absolute worst aspect of the nomination: 9 people of extreme privilege with no diversity of thinking ruling over the plebs.
Now the US and the world has to watch the theater of the absurd while the nominee refuses to answer any questions at all. Let’s see if this COW insults the American people, as that filthy, fat, stupid pig Sandra Sotomayor did, with her comment about a “wise Latina” reaching better decisions than white males because…..well, she’s a wise Latina.
Enough already with every aspect of life being related to identity politics!

Sean Penley
Sean Penley
4 months ago
Reply to  James Joyce

I still suspect Clyburn got shafted. As I mentioned in another post, his state has a liberal judge who met Biden’s criteria, yet was supported by the state’s two Republican senators. She was not chosen. I bet Clyburn isn’t happy right now. Isn’t there an old saying about making a deal with the devil?

But at least the devil thought he was right. Biden knows he isn’t and just doesn’t care.

James Joyce
James Joyce
4 months ago

I was making an important point about the lack of “diversity” on the Supreme Court because they are all posh and almost all went to Ivy League colleges and Harvard Law School.
Hardly diverse.

James Joyce
James Joyce
4 months ago

I hope ALL my posts eventually go up so UnHerd customers can see how this censorship process works.
Yes, I use colourful language, but never threatening, never advocating violence. Yes, I call things as I see them. Yes, I engage in descriptive language of the enemies. What’s wrong with that?
The other side does it–some former high-ranking government official just called Trump a “pig” on national news? Why must people who are not politically correct always be polite?
UnHerd–I’m a customer. I pay for the privilege of posting. STOP flagging my posts because they’re not nice, or other such tosh!

Russell Hamilton
Russell Hamilton
4 months ago
Reply to  James Joyce

What’s wrong with that?”

Plenty. Use of ‘strong’ language inevitably becomes just the first provocation in an escalating war of words. From people who think that using language likes that proves how strongly they feel about something. It’s virtue signalling, and just degrades the comments section into a nasty shouting match.

James Joyce
James Joyce
4 months ago

Fair play. “Strong” language–perhaps that’s a bit vague, mate, is not your cup of tea, perhaps it even distracts from my argument. I get it. So downvote me. Don’t read me.
But isn’t UnHerd a place for different views, even if they include colourful language.
The entire woke movement has been shouting at me all my life. If I shout back, is that really wrong? Yes, I’ve been told to “talk and listen” instead of “lock and load,” but if you are dealing with essentially a religion that can’t be persuaded by facts (the woke, but also fundamentalist, the world is 6,000 years old Christians), what’s the point? Why not have a bit of fun calling them out?

Andrea X
Andrea X
4 months ago
Reply to  James Joyce

Why don’t you use asterisks and dollar signs or euro signs in strategic places to circumvent the automatic moderating system?
I find much more annoying/disturbing the censoring of comments when they get flagged n number of times. I have spotted them twice and in neither case we’re they offensive in any way. You may disagree, but they were not offensive. The problem is that it is all done automatically and not double checked by humans.
In this respect it is not dissimilar to what, say, YT or Facebook do.

James Joyce
James Joyce
4 months ago

I hardly think that anything I post constitutes virtue signalling–if you disagree, kindly provide me with an example.
Sandra Sotomayor insulted me and all Americans with her racist comment that a “wise Latina” would reach a better decision than a white male deserves to be condemned. If I condemn that, and condemn her for making that comment, believing its substance, I should be commended not censored.
Unlike many of the people responding to the woke, I’m not afraid to attack COWs where merited and do so frequently. Fair play.

Russell Hamilton
Russell Hamilton
4 months ago
Reply to  James Joyce

I was speaking in general – shouting is usually virtue signalling because it says ‘this is right and look at how much I care about it; my sense of justice is so outraged I’m deploying these powerful words’. Keyboard warriors.

Lesley van Reenen
Lesley van Reenen
4 months ago

Nah. People are entitled to be outraged given what is going on in the world and people naturally feel very strongly about their views. Unherd contributors have successfully self moderated for years. What is happening now is censorship of some sort.

Last edited 4 months ago by Lesley van Reenen
Sean Penley
Sean Penley
4 months ago

Comrade, expressions which do not validate the dictatorship of the proletariat shall not be permitted in order to ensure free speech for all deserving individuals

Pete Marsh
Pete Marsh
4 months ago

There seems to be relatively little mention of the fact that she’s a Muslim too. And Biden has committed to promoting as many Muslims as possible to high office. It’ll be interesting to see how the conflict between ‘man made’ laws and Sharia plays out.

Sean Penley
Sean Penley
4 months ago

The really funny part is that it mentions his deal with Clyburn. There was actually a black female judge from SC who is liberal, but not really progressive, who was at one point apparently on the list and even had the backing of both of the State’s Senators, who are both also Republican. I would bet anything she was the candidate Clyburn had in mind when he made that deal. Yet one more person shafted by Biden, and in this case no one could be more deserving.

Last edited 4 months ago by Sean Penley
James Joyce
James Joyce
4 months ago
Reply to  Sean Penley

Exactly right! She went to state schools, not HLS!
How about some diversity!

James Joyce
James Joyce
4 months ago

Wow! I tried to post 3x with drastic edits and still awaiting approval.
What is going on with UnHerd????

George Glashan
George Glashan
4 months ago
Reply to  James Joyce

ive had a few posts disappear the past few days, i dont think unherd host the comment thread directly its a third party. i think the auto moderation has been stepped up to red alert because of the Jazzy Truckers and the Ukraine so comments are just vanishing in to the ether. but like you say it hardly lives up to unherds mission statement,

Last edited 4 months ago by George Glashan
Lesley van Reenen
Lesley van Reenen
4 months ago
Reply to  George Glashan

I had several posts disappear yesterday and I’ve never had posts censored before.

Galeti Tavas
Galeti Tavas
4 months ago

How do you know posts have been removed? I almost never return to an old post so would not notice, but I have not seen a post of mine deleted, and I can get pretty OTT.

Lesley van Reenen
Lesley van Reenen
4 months ago
Reply to  Galeti Tavas

You probably have had loads censored then.

Cheryl Jones
Cheryl Jones
4 months ago

All I hope is that she is genuinely qualified and doesn’t start spouting about how diversity and taking the knee are more important than the Constitution.

John K
John K
4 months ago

People are never chosen for these important roles on merit alone. There is always a context.

If you think Kavenagh and Barrett were chosen on merit alone, I have a bridge to sell you.