President Biden has promised to nominate a Black woman at the same moment when the Supreme Court is likely to ban most race-conscious selections.
, “If he came and said, ‘I’m gonna put the best jurist on the court’ and he looked at a number of people and he ended up nominating a Black woman, he could credibly say, ‘OK, I’m nominating the person who’s most qualified.’ He’s not even pretending to say that.” The conservative lawyer Ilya Shapiro tweeted that the “objectively best pick for Biden is Sri Srinivasan,” a judge on the District of Columbia Circuit appointed by President Barack Obama.
The implication that the nominee will be “lesser” because of Biden’s commitment to appoint a Black woman is plainly contrary to observable facts—but it is part of a tradition of portraying identity- and merit-based criteria as opposing interests. When President George H. W.
Biden’s statements about his Court nominee have put into relief the fight over questions the Court will confront next term about what “discrimination” is: to what extent do our anti-discrimination laws permit officials in government and in private institutions to take race into account when selecting people for desirable spots? Only days before Breyer’s retirement announcement, the Court agreed to hear a pair of cases that will decide whether consideration of a person’s race in university...
In the voting-rights area, a related development is brewing: the Court has signalled that it is open to reconsidering a precedent that permits, indeed requires, states to consider race in drawing electoral districts to avoid diluting minorities’ votes, creating “majority minority districts” that enable Black voters to elect representatives of their choice.
Biden’s nominee will be in the peculiar position of undergoing a process that publicly and intentionally considers her race and gender, only to sit on a Court that is engaged in undermining, if not eliminating, the lawfulness of such race-conscious approaches. We are entering a time when those who take steps to insure racial diversity will have to find new methods and new language to describe those efforts.
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