With the coming retirement of Justice Stephen Breyer, President Joe Biden is poised to fulfill his campaign pledge to nominate a black female to the Supreme Court. It is worth revisiting, therefore, a little-noticed announcement from Biden’s second month in office.
In February 2021, the Biden administration signaled its intentions to lower the standards for federal judicial appointments. Traditionally, presidents have submitted their judicial nominees to the American Bar Association for evaluation before announcing their choice in public. The ABA assigned potential candidates scores of “well qualified,” “qualified,” or “not qualified,” based on research about the nominee’s legal competence, integrity, and temperament. A “not qualified” rating, though confidential, served as a de facto veto.
The White House Counsel’s Office disclosed in February 2021 that it would not involve the ABA in preclearance. Republican presidents have also cut the ABA out of the confidential vetting process in recent years, on the ground that the association was biased against conservatives. That charge was plausible. The reason that the Biden administration gave for sidestepping the ABA, however, strained credulity: The ABA was insufficiently attuned to the need for “diversity” on the bench. Allowing the ABA to vet candidates was incompatible with the “diversification of the judiciary,” explained a member of the White House Counsel’s Office.
The idea that the ABA is indifferent to identity politics is laughable. Its leading members are obsessed with the racial and sex demographics of corporate law firms and law school faculties. This is the same ABA that gave its highest rating to Supreme Court nominee Sonia (“over 100,000 children . . . in serious condition, and many on ventilators” from Covid) Sotomayor. It is a measure of how far the Biden administration intended to stray from even a diversity-driven standard of competence that it saw the ABA as a roadblock.
The Obama years, however, had revealed that the bar association’s expectations still possessed some remaining taint of meritocracy. The ABA rated a higher proportion of Obama’s judicial nominees “not qualified” than the nominees of Presidents Bill Clinton and George Bush, and of Obama’s successor Donald Trump. Most of those deemed not qualified were minorities or females, slowing down Obama’s own drive to “diversify” the federal bench.
Biden officials attribute the Obama nominees’ low scores to racial and gender bias. A more credible reason is that the Obama administration had lowered the bar for a judgeship beyond what even the ABA was willing to stomach.
An estimated 2 percent of the nation’s lawyers are black females. The introduction of any extraneous criterion for a job search lowers the average caliber of the potential applicant pool, by putting top contenders who do not possess the irrelevant trait out of reach. Contrary to the nostrums of diversity advocates, the role of a judge is not to “look like” this or that identity-based group; it is to apply the law as accurately and transparently as possible. President Ronald Reagan ignored that fact by limiting his 1981 Supreme Court selection to a female.
Biden’s race and gender restrictions are even more draconian, rendering 98 percent of all possible candidates beyond consideration because they lack “qualifications” that have nothing to do with judging.
Maybe, nevertheless, by some statistical anomaly, Biden’s severely constricted pool of candidates contains a disproportionate share of competitively qualified potential Supreme Court justices. From everything we know about average legal skills, however, the odds are against it, individual exceptions notwithstanding.
After the first year of law school, 51 percent of black law students rank in the bottom tenth of their class, compared with 5 percent of white students, according to a study of hundreds of thousands of student records from 90 percent of all accredited law schools and comprising 80 percent of all law students. Two-thirds of black students score in the bottom fifth of their class.
The author of that study, UCLA law professor Richard Sander, attributes that unequal performance distribution to mismatch: every remotely selective law school admits black students with academic qualifications on average vastly below their white peers. Mean black and white scores on the 2013–2014 LSAT were separated by 1.06 standard deviations, the Brookings Institution has found. In 2004, only 29 blacks, or 0.3 percent of all LSAT test takers, scored 170 or above on the LSAT, the average score for the most competitive schools, reports The Journal of Blacks in Higher Education. Whites were more than ten times as likely as blacks to score 170 or above. Yet those schools all admitted what they deem a “critical mass” of black students by race-norming their admissions standards.
The resulting skills gap puts preference beneficiaries at a competitive disadvantage in the classroom; they struggle to keep up with instruction pitched to students with more advanced academic skills. The consequences linger: blacks are twice as likely to drop out of law school as whites; only 45 percent of black law grads pass a bar exam on their first try compared with 80 percent of whites. Blacks are six times as likely to fail the exam after multiple attempts.
Acknowledging—even in private—the effect of mismatch on student performance can be professionally suicidal. An adjunct professor at Georgetown University Law Center was fired for a private comment lamenting that the black students in her negotiations seminar by and large clustered at the bottom of her class. Little did she know that her confidential observations to a fellow professor were being videoed. Inevitably, her remarks were posted on Twitter. Georgetown law dean Bill Treanor thundered that her comments were “abhorrent” and sacked her.
Treanor was following the pattern established by University of Pennsylvania Law School dean Ted Ruger in his treatment of Amy Wax: if a professor dares to mention the lackluster average performance of his or her black law students, accuse the professor of racism—but never refute the allegedly racist assertion with data to the contrary.
Treanor has again found himself “appalled” at a breach of mismatch taboos. Cato Institute vice president Ilya Shapiro was to assume the directorship of the Georgetown Center for the Constitution on February 1. Last week, Shapiro tweeted out that Biden’s race and sex preconditions for the Supreme Court eliminated the “objectively best pick” for Breyer’s soon-to-be-vacated seat: Sri Srinivasan, the chief judge of the D.C. Circuit Court of Appeals. Though Srinivasan would have been the first Asian-American on the court, he “doesn’t fit the last intersectionality hierarchy,” Shapiro wrote, “so we’ll get lesser black woman.” In a follow-up tweet, Shapiro noted that Biden’s nominee would be dogged by the suspicion that she was selected on diversity rather than on merit grounds—a suspicion that conforms to all known facts.
Treanor labelled this latest mismatch infraction “appalling” as well. Though Shapiro has apologized for his “inartful” tweet, his new position at Georgetown surely is in jeopardy.
Our leading institutions—whether the bar, the American Medical Association, or universities—are fast becoming nonserious entities, frittering away our civilizational legacy in favor of the trivialities of identity. The State Bar of California is emblematic, as I discovered last week when renewing my bar membership. Lawyers licensed in the state must now take an “Attorney Census” before they can renew their license. Participation in the census is “vital in helping shape the state bar’s policies and programs for years to come,” the organization explains. Survey-takers can decline to answer the questions, but they must affirmatively opt out of each one.
So what information does the California bar seek in order to shape its legal policies: average wait time to get a court hearing? Length of trials? The rate of fee inflation and whether that inflation impedes clients’ access to due process?
No: the bar needs to know, as it puts it, which of the “following best fits with the gender identity you identify as [sic]: Female, male, gender variant/Non-conforming/Non-binary, Two Spirit, Not listed.” The bar also wants to know: “Which of the following best applies to you: Cisgender, Transgender, Intersex, not listed,” and: “How . . . you describe your sexual orientation or sexual identity: Lesbian, Gay, Bisexual, Heterosexual, Pansexual, Asexual, not listed,” among other identity-based queries.
It takes deep involvement in academic-inspired narcissism to imagine how bar policies could be affected by a survey showing that 0.5 percent, say, of attorneys in the state identify as “Two Spirit” or as “Pansexual.” What if the proportion were 2.5 percent—how would bar programs and policies change, compared with a merely 0.5 percent share? The State Bar deems such knowledge urgent, yet it denied access to its database of public records for a study of how racial preferences in California law schools affect student learning, something of much greater import to the future of law than the number of nonbinary lawyers.
The quality of our jurisprudence matters. The race, sex, and “gender identity” of judges do not. Private parties rely on an opinion’s clarity of reasoning to predict the outcomes of legal disputes. Some of the nation’s most complex moral and political questions have been addressed through the medium of legal decisions, especially from the Supreme Court. The quality of those decisions can strengthen or undermine the legitimacy of the law and of our constitutional order. Commercial matters can be nearly as complex, requiring the reconciling of competing statutes and regulations.
The law is not just about outcomes, contrary to contemporary discourse, which focuses exclusively on whether this or that justice will tip the balance on this or that policy. Under that contemporary perspective, the fact that Biden’s first Supreme Court pick will likely not change the overall ideological tenor of the court in the short term is viewed as more noteworthy than the fact that the new justice will help shape our jurisprudence for decades to come. Half of Biden’s picks for seats on the influential federal appeals courts—eight of 16 new appellate judges—have already been black females, presumably by virtue of the same irrelevant search restrictions. By making race and sex the paramount considerations for his Supreme Court nomination, Biden will likely deal another blow to the quality of our most important institutions—and with it our capacity to achieve excellence as a country and a civilization.
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