“The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.” – Ibram X. Kendi, “How to be an Antiracist”
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” – Chief Justice John Roberts, 2007
These two polar opposite points of view neatly sum up the current American debate about race, and the choice we have to make for our future. Ever since the Johnson Administration, we have veered towards racialism, to race-based discrimination (RBD) in education and hiring. Known as “affirmative action,” these are policies that are expressly designed to increase the percentages of black applicants getting jobs or school places. RBD, which Universities and many employers practice overtly, has been mostly tolerated by both parties as a necessary evil to correct a historical wrong.
However, as RBD has grown increasingly unpopular, being seen as inherently unjust, at the same time it has been mightily defended by the leftist political establishment. For example, even when California voters passed a law against racial preferences, the State’s public university system managed to circumvent the ban by using other methods of filtering college applications. Effectively, Asians and whites were punished, while blacks and Hispanics were scored higher over nebulous criteria, thus balancing out the Asians’ higher test scores and grades. Further, the Supreme Court will soon hear a case brought by Asian applicants against Harvard and other ultra-competitive schools where they allege RBD hurts them most of all the ethnic groups.
But the Supreme Court has RBD problems closer to home. With Justice Stephen Breyer planning to retire, President Biden has been handed a Supreme Court nomination, which will influence public affairs for decades. During the campaign, Biden promised that he would pick a black woman for the court, and he has recently re-confirmed that is his intention, ignoring any other pesky qualifications to play to his base and pick someone primarily on the basis of the color of their skin - just the way thing were done during the bad, old days of the Jim Crow South.
But there are also less philosophical, and more practical, problems with a racialist selection. Blacks represent about 10% of judges and black women half of those, giving Biden about 5% of the judiciary, and somewhat fewer with enough credible seniority, from which to choose. To the progressive Left, obsessed with ‘firsts’ of every intersectional category, this is as it should be. “It’s about time for a black, female judge” is a statement few Democrats would consider controversial. The political right will object no matter who Biden picks, as his choice will assuredly share Democrat views on abortion, immigration, race, and other matters where the court’s decisions have national impact.
However, some of us wonder whether this stark commitment to race and gender discrimination, in favor of black women and against all men, and all women who are not the right kind of color, is taking us down an irrevocable path away from our country’s founding ideals. An ABC News poll revealed last week that 76% of Americans wanted Biden to consider all possible nominees, while only 23% wanted him to follow through with his commitment to nominate only a black woman.
Martin Luther King’s stirring words on judging people by the content of their character and not the color of their skin have been much quoted of late, though for Democrats they are an embarrassing reminder of King’s commitment to the American Dream and not race essentialism, where one’s color is the main consideration in one’s interaction with the rest of society.
Anyone who thinks that racism is a purely black-white thing has absolutely no knowledge of other cultures. To see where this quota thing could go, one need only look to India. India’s Hindus have historically had a caste-based society that ranks priests at the top, then warriors, then traders, then the rest, with a further set of “untouchables,” now called Dalits, at the very bottom. Each caste is made up of many sub-castes, in a complexity only an Indian can understand. India’s castes have remained largely distinct over centuries, helped by the tradition of arranged marriages.
Newspapers, and now websites, advertise or solicit with great specificity as to caste, physical attributes, education, employment, and even skin color. The rigid caste system has however prevented social mobility, and it created great political discord once India became a multi-party democracy. As Indian politicians competed for the huge lower-caste vote, they eventually adopted a list of “scheduled” castes, what Americans would call ‘historically marginalized groups,’ for which they reserved school and university places as well as government jobs.
From independence in 1947 until the end of the controlled socialist economy in the early 1990s, a civil service job on the subcontinent was highly desired for its status and lifetime security. India’s growing economy has created many private opportunities since, but the allure of a government job is still strong, as evidenced by the riots last week in Bihar, India’s poorest state, in protest at alleged (and highly likely) corruption in the exam and selection process for the state railway company. As an example of the stakes, the 2018 round of hiring for Indian Railways, which employs 1.2 million, saw 19 million candidates, many of them university graduates, for only 63,000 mostly menial or clerical jobs. Quotas have become a wolf which New Delhi’s political leaders have by the ears; they can’t let go or they upset the delicate balance of class, caste, and party that barely holds the country together, but only through accepting the continued plague of ethnic, religious, and caste essentialism as necessary.
If quotas were strictly applied to the Supreme Court, then hypothetically blacks, at 14% of the population, would get at most one justice – and they already have Clarence Thomas. Asians, if one lumped them together instead of separating Chinese from Indians, Vietnamese, and the rest, might get one-half a justice. Jews would get one every 5 or so nominations, meaning that Elena Kagan would be the last for a long while. Catholics are way over-represented; they’d get to keep merely one or two. Women could get 4, men 4, and split the remainder every other time. There would be inevitable calls for the first transgender justice, but even with the grossly inflated numbers currently considered as trans, they would get a justice every century at best. Sex balance is easy, religion and race less so, but what about sexual preference? Do we need a fat judge for body positivity? And so on.
Obviously, such a mandated quota system would be absurd, but what we’re stuck with now is an informal quota system that erratically blows with the political winds. A meritocratic, blind method of choosing justices, focusing simply on their resumes and writings, would be far better, and would still allow for selection based on the political views on things like abortion, guns, or labor law sought by nominating presidents. However, it would most likely result in the selection of judges proportional to their representation on the current Federal bench pipeline, meaning more white men, and we can’t have that.
The Supreme Court RBD dilemma is only the nation’s most noticeable, as it is at the apex of our governmental structure; but the same question – discrimination, quota, or merit – is playing out in every university, company, and organization in America. Right now, RBD and sex-based discrimination are ascendant, but they are sowing seeds of discord and resentment which will only further tear our divided country apart.
With his back to the wall at the time of the South Carolina primary, Biden limited himself to Hobson’s choice for political reasons, so we will surely get a black woman justice this time round. The next Republican president will fight fire with fire, and America will turn permanently away from the hope of equal opportunity to that of ‘equity’ and managed outcomes, with a quota-based spoils system resembling nothing so much as the failed state of Lebanon. Surely, in heeding Dr. King, we can and we must do better.
—J. L. Reiter has East Coast origins but has lived and worked abroad for 25 years. He writes a regular column here, ‘The Society,’ on US domestic culture, society, and politics.