This is becoming a bit of a Black History Month tradition: For the second February in a row, conservatives have narrowed the focus of their racial resentment to Black members of the federal judiciary.
Last year’s target was the then-unannounced Black woman whom President Joe Biden had pledged to appoint to the Supreme Court, and whom we now know as Justice Ketanji Brown Jackson. This year’s ire is directed at Biden’s nominees for other federal judgeships: Biden has appointed more people of color and white women to the federal bench than any of his predecessors at this point in their presidencies. As a result, Black judges now make up a greater share of the federal judiciary than ever before—a whopping 11 percent, which still falls short of Black people’s share of the U.S. population and leaves 18 states with no Black federal judges.
Tucker: Out of 97 federal judges confirmed under Joe Biden, total number of white men.. five. Twenty two are Black women. pic.twitter.com/C9iMPYLiKT
— Acyn (@Acyn) February 7, 2023
This modest increase in representation is proving too much for the conservative psyche to bear. A rotating cast of characters, including the Claremont Institute’s Jeremy Carl, Turning Point USA founder Charlie Kirk, and Fox News White Power Hour host Tucker Carlson have argued that the Biden administration is “trying to replace excellence and merit with diversity,” as a Fox News article put it, by “prizing skin color over actual ability.”
Carl has also argued that Biden is running an “anti-white discrimination regime” and creating an “affirmative action judiciary” in spite of white people’s “superior qualifications.” He even stated that diversifying the judiciary has forced white people “to go to the back of the bus”—a breathtaking assertion to make right in front of my Black History Month.
A regrettable thing about publishing databases of Biden’s judicial nominees is that morons can access it https://t.co/2xy9o4e5Jv
— Balls & Strikes (@ballsstrikes) February 9, 2023
These outlandish claims reveal the deep insecurity of right-wing elites and their desperation to rewrite history to explain away centuries of exclusion. The argument that white people are being robbed rests on the premise that those judicial seats were rightfully theirs to begin with, rather than the product of explicit discrimination on the basis of race and sex. Merit and diversity are not and have never been mutually exclusive. And yet, of the 116 people who have ever served as Supreme Court Justices, 108 of them have been white men.
The stark demographic imbalances in American government exist because the country was built on oppressive systems that continue to concentrate political and economic power in the hands of a wealthy white male minority. The onslaught of devastating court opinions that threaten the lives and liberties of marginalized people, from the gutting of the Voting Rights Act to the rescission of the right to abortion, suggests that perhaps old white guys aren’t uniquely deserving or better-suited to make decisions for everyone else.
White hegemony becomes easier to justify, though, if you imagine Black people as unqualified for full participation in democratic governance. And a mild increase in Black judges shatters that illusion. The judiciary remains overwhelmingly white and male, to be clear; 70 percent of federal judges are men and 78.4 percent are white, both of which are down from their century-and-a-half-long highs of 100 percent. Conservatives’ baseless insistence that Black people are unqualified for the judiciary only makes sense if you view whiteness as an entitlement to power, and multiracial democracy as an existential threat.
The accusations that Black judges are unqualified are dripping with irony. All of Biden’s judicial nominees have been rated as “qualified” or “well qualified” by the American Bar Association. The same cannot be said of the judges installed by President Donald Trump, whose nominees included the likes of Sarah Pitlyk, an anti-choice activist who never tried a case as lead or co-counsel. And Steven Grasz, whom the American Bar Association (ABA) found unqualified for his inability to set aside his “passionately-held social agenda,” which “appeared to overwhelm and obscure the ability to exercise dispassionate and unbiased judgment.” And Kathryn Mizelle, a 2012 law school graduate whose only participation in a trial as co-counsel came as a student supervised by a law professor. And, and, and. The conservative message that well-qualified Black people are unfit to be judges is in tension with their approval of bargain bin brains on the bench.
Lacking any real evidence supporting their allegations, conservatives grasped at bigotry-straws. On Twitter, Carl argued that Black women are unqualified for judgeships because fewer Black people break 170 on the Law School Admissions Test (LSAT) than white men. The LSAT purports to predict exam takers’ grades after their first year of law school. It has—and I cannot believe this has to be clarified—literally nothing to do with judicial qualifications. (Many lawyers don’t even think the LSAT should have anything to do with law school admissions; the ABA has considered eliminating the LSAT as a requirement for admission for over a decade.) Suggesting a judge is unqualified because not many Black women have historically crushed the LSAT is like suggesting Beyoncé is tone-deaf because not many Black women have historically won American Idol.
Finally, Carl pointed to women of color’s underrepresentation among law review editors, law firm partners, and highly-cited scholars as evidence of their lack of qualifications. These careers (and the stepping stones along the way) are often closed to women of color, who are vulnerable to implicit and explicit discrimination on the basis of both race and gender. Criticizing the appointment of Black women judges on this basis is tantamount to saying, “If people like you were systemically excluded there, you, personally, should be excluded here, too.”
Arguably even more problematic than this logic was his claim that women of color attorneys who did get the requisite feathers in their caps still weren’t good enough, because they were not held to the same high standard as white men. He’s constructed a lose-lose for women of color: You aren’t qualified, and even if you are, no you aren’t. The conservative conception of race and merit in the legal profession assumes that a white lawyer’s accomplishments are because they’re a lawyer, but a Black lawyer’s accomplishments are because they’re Black.
The profound unseriousness of this criticism calls to mind an observation made by renowned Black author Toni Morrison, who once said that racism is a distraction—not in the sense that it’s trivial, because it is often deadly serious, but because it “keeps you explaining over and over again your reason for being” and “keeps you from doing your work.” Somebody says Black people are unqualified; we have to gather proof that we are. Somebody says those qualifications don’t count; we have to show that they do. Somebody says a diverse judiciary doesn’t make a difference; we have to collect data showing that it does.
“None of that is necessary,” Morrison said, because “there will always be one more thing”—here, one more contrived insult to our intelligence that steals our attention away from the necessary work of fostering a more just society. The persistence of the argument that Black judges are unqualified is important only insofar as people committed to democratizing the judiciary recognize the argument as vapid, hollow, and a tool for conservatives to cling to the power that they’ve long held over people who don’t look or think like them, but now feel slipping away. Giving it a second thought is a waste of my damn time.