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It’s easy to understand why President Biden has decided not only to make his upcoming Supreme Court appointee the first African American woman nominated for this position, but to announce this decision in public. The African American South Carolina political leader whose support he desperately needed to keep alive his badly floundering 2020 Democatic presidential primary campaign “suggested” he do so. So Mr. Biden clearly had no choice politically speaking.

But the then-candidate’s promise, and his equally public move as President to keep that promise, raise questions about how identity politics considerations should influence these kinds of personnel decisions, and especially whether they can be handled in less controversial and even more unifying ways.

My answers: At least when it comes to big population/identity groups that are significantly under-represented in U.S. institutions of government, I see strong reasons to make sure that they become better represented, but also for the appointers simply to keep quiet about checking off race and ethnicity and gender and similar boxes.

Regarding the “affirmative action” issues involved here, as I’ve mentioned here, I’m generally supportive of (the wide variety of) such programs for African Americans. But for other major ethnic groups, who simply haven’t suffered comparable official and unofficial racism and discrimination for anywhere near as long, I regard the case as significantly weaker (though not entirely invalid for every single group).

For the purposes of this post, I’m not thinking of all the legitimate legal and historical complications involved. And race isn’t the only group of categories that need to be considered. Certainly women have been greatly under-represented in these positions for the entirety of American history (though they’ve certainly achieved great catch-up in politics and in lucrative, powerful professions like medicine and law).

Instead, I’m thinking this way: In 2021, would it really be acceptable if all Supreme Court Justices or the leadership of other government agencies or U.S. Senators or members of the House of Representatives were white men, even if they were all superbly qualified? It’s hard to imagine that any fair-minded person would be happy about that situation. It’s equally hard to imagine that such a person could have real confidence that bullet-proof considerations of merit (as opposed to reliance on credentialism, which is often very different) were 100 percent responsible for this kind of racial and gender monopoly. And there’s abundant evidence (as presented in the RealityChek post linked above) that the wide range of preferences created at the federal and state levels of government, and in academe and private business, deserve much credit for that racial monopoly fading to the impressive extent that it has.

So if it’s legitimate to want these important positions to be at least somewhat representative of the population at large in terms of major demographic groups, there shouldn’t be anything intrinsically wrong for an appointer to decide to give a preference to under-represented groups, especially as long as he or she makes clear (as Mr. Biden has), when he promised to name someone “with extraordinary qualifications, character, experience, and integrity….”

But that’s where the President ideally would have stopped, and simply proceeded to identify those (in this case) African American women (of whom of course there is no shortage) who fit this description. Naturally, because he made the pledge during the campaign, the President had to repeat it. But it’s also where all future appointers should stop – with the possible exception of declaring an intent to make “an historic choice.”

Because stopping short of specifying the identity traits being sought would prevent any fair-minded person from reasonably and convincingly accusing an appointer of prioritizing race over merit. For challengers would be put in a position of insisting that, say, Leondra Kruger – and her service on the Supreme Court of the country’s largest state, and seven years as in senior U.S. Justice Department positions, and topflight education and judicial clerkships – lacks any qualifications to serve on the highest court in the land. In fact, these challengers would be put in the position of arguing that she’s less qualified than virtually everyone else who has sat on the Supreme Court of the United States, and especially all its white male members.

Clearly, some would still maintain that this kind of resume simply proves adroit use of racial preferences to rise through the nation’s legal ranks literally for decades, and that a (really) wide variety of individuals and institutions enabled her literally for decades. Let’s just say that I’m grateful that I don’t have to make that argument.

By having made and then repeating his African American women promise, however, the President has inevitably directed the spotlight toward race and given “reverse racism” ammunition to those looking for excuses to curb the place and role of minorities in American life – and who rarely expressed much concern about discrimination when the racial shoe was on the other foot. It also seems credible to me that, as some believe, Mr. Biden’s has unwittingly undermined public confidence in this and all of his future non-white male nominees.

But for politicians who don’t paint themselves into identity politics corners as Mr. Biden did, and who want to foster more progress for major demographic groups in places where they have been denied adequate opportunity, the best course of action is clear: Choose highly qualified members of these groups (as with African American women, they won’t be hard to find) and let their qualifications speak for themselves. And if asked whether identity affected the decision, they could reply something to the effect that “It’s great that past mindfulness to identity issues has done so much to bring such an unquestionably able and qualified individual to the fore.”

Now does this mean that firm quotas and targets should be set for appointing or hiring members of these groups? No – because nowadays, and especially for job and position categories that are relatively small (like “Supreme Court Justice”) such policies would deny appointers and hirers the flexibility and the consequent opportunity to exercise judgment upon which so many – even most – good decisions depend. Nor am I saying that whatever formal preferences have existed should be kept in place indefinitely, regardless of progress. When conditions change, policy and practice should, too.

And as implied by my references to “major demographic groups,” preferences simply can’t be extended sweepingly to every single category to which Americans belong or with which they identify. The numbers of these small groups are simply too high to enable them all to be accommodated – and again, especially for positions themselves that are relatively few in number.

Worse, trying to run such a system would inevitably ignite a fierce and unforgivably absurd competition among groups laying claims. Unless we really want to sponsor debates and fights (is this a forerunner?) over Muslim seats on the Supreme Court or Hindu seats or Tibetan seats or Venezuelan seats or LGBTQ seats or atheist seats? (For the record, this American Jew never supported the notion that there should be a “Jewish seat.”) When any such groups become big chunks of the U.S. population, and can credibly point to current or only recently ended discrimination, taking their members as such into account should become a significant (background) element of the process of choosing leaders.  But not until then.

If the above thinking and recommendations sound kind of muddled and fuzzy, that’s because in a sense they are. As known with anyone with any management experience, and as suggested above, sound personnel decisions can’t simply rely on hard-and-fast systems or formulae. When evaluating human beings, too many intangibles and other subjective factors that can’t readily be quantified – if at all – need to be assessed, too,

The same goes for expectations of decision-makers and efforts to judge them with neat and clean scorecards. Supporters of further progress toward more representation in top government and other leaders should therefore realize that these matters should be governed by the “less said, the better” principle, and that rather than impose on politicians and others involved in high profile appointments and hirings rigid identity politics-based standards, they should focus on ensuring that these decision-making slots are occupied by figures with long, proven records of expanding opportunity, and trust them to do the right thing.

Just as important, the less commotion raised about race, ethnicity, gender, and the like in these appointment and hiring episodes, the more confidence fair-minded Americans will be that sound judgments about merit really are in the driver’s seat. And isn’t that what most of even the staunchest backers of greater identity equity, along with their compatriots in general, have ultimately sought from the beginning?        

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