Will Judge Jackson’s Impending Appointment Help Or Hurt Civil Rights?

Picking Applicants Based On Race And Sex Sends A Bad Message To Employers

The premier civil rights law in the nation makes it unlawful for employers to fail or refuse to hire any individual on on the basis of “such individual’s race, color, religion, sex, or national origin.”

Title VII of the Civil Rights Act was passed in 1964, amid sit ins and marches, to ensure equal opportunity in employment for minorities.

Democratic President Joseph Biden ignored Title VII when he announced he would choose a Supreme Court candidate who is a black woman, and then picked Judge Ketanji Brown Jackson.

Additionally, he ignored the Fourth Amendment to the U.S. Constitution, which was adopted in the aftermath of the Civil War and prohibits states from denying to any person “the equal protection of the laws.” The U.S. Supreme Court in the landmark case of Brown v. Board of Education held that race discrimination violates the Fourteenth Amendment.

Judge Jackson, who was appointed to the U.S. Circuit Court of the District of Columbia less than a year ago, is currently the subject of nomination hearings before the U.S. Senate. Democrats say they have the votes to confirm her nomination.

A Fraction of 6%

Pres. Biden isn’t the first president to pick a justice on the basis of external characteristics.

GOP Pres. Ronald Reagan announced in 1980 that he would pick a woman for the nation’s highest court, and Sandra Day O’Connor became the first female justice.

However, Pres. Biden drastically narrowed the field of potential nominees to fill the vacancy on the Court created by the retirement of Justice Stephen Breyer.

African American women comprise around six percent of the U.S. population and, of that percentage, only a tiny fraction normally would be considered qualified to serve on the nation’s high court.

Meanwhile, Pres. Biden expressly excluded the vast majority of the U.S. population from consideration, including all men and women who are Caucasian, Hispanic, Native American, Asian, etc.

Biden may not have violated Title VII – which does not apply to the judiciary – but he certainly violated the spirit of Title VII. He did not set out to pick the best qualified candidate but the best qualified candidate of a specific sex and race. Federal judges hear lawsuits every day from job applicants seeking damages from employers who practice similar race and sex discrimination in hiring.

U.S. Sen. Cory Booker, D-NJ, on Wednesday referred to the historic nature of Judge Jackson’s nomination and told her that she “earned this spot. You are worthy.”

But others may ask whether Judge Jackson did indeed “earn” the spot.

Time of Racial Unrest

And all of this comes at a time of racial unrest in America.

There has been a steady rise in the past decade of resentment by whites over what they perceive as discrimination directed against them. A recent Gallup poll shows about 19% of the U.S. population is now Hispanic and they are increasingly dissatisfied with and leaving the Democratic Party. Meanwhile, Asian Americans are organizing to stop violence directed at them in the pandemic and challenging racial preference policies that allegedly discriminate against Asians at Harvard University.

Biden’s foray into racial politics, which advanced his nomination for the presidency, did a great disservice to Judge Jackson. He could have nominated her without signaling an intent to discriminate. Like other presidents before him, he simply could have announced that he selected the best qualified candidate.

Ultimately, Biden’s self-serving action also may exacerbate simmering racial tensions in America, and detract from the important cause of advancing civil rights for African Americans. That would be a shame.

Note: A Gallup poll of 1,000 Americans prior to the Senate nomination hearings indicated that 58% favored putting Judge Brown on the Court. This included 88% of Democrats, 55% of independents and 31% of Republicans.