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The Nomination of an African American Woman to SCOTUS Is More Than a Promise

photograph of Supreme Court facade "equal justice under law"

Now that Justice Breyer has announced his retirement, President Biden has decided to fulfill his promise to nominate an African American woman for the Supreme Court of the U.S. (a.k.a. SCOTUS). Many Republicans and conservatives have criticized his decision, offering one or more of the following reasons. For example, libertarian scholar Ilya Shapiro contends that the president is not committed to nominating the “objectively best person” for the job but rather a less qualified African American woman. Others criticize the president’s decision by focusing on a poll indicating that about 76% of Americans wish the president considers “all possible nominees,” and only 23% prefer that he follows through on his promise. Still, others, be they liberal or conservative, might claim that by committing himself to nominating an African American woman, he is discriminating against better qualified candidates.

I will argue that President Biden has not only the right to nominate an African American woman for SCOTUS, but, if he chooses a suitable candidate, he will be doing a great service to our country. The appointment of an African American woman to SCOTUS will offer a neglected but important perspective to help our nation grapple with present and forthcoming challenging decisions. Since Supreme Court Justices address highly controversial and politically sensitive issues that affect everyone, I maintain that a suitable candidate must possess, above all, moral integrity and good judgment for doing the job right.

Unlike our elected officials whose moral integrity, while desirable, is not necessary for performing well in office, we expect Supreme Court Justices to transcend their personal biases and prejudices in rendering impartial and fair decisions. Regrettably, oftentimes they fail to do so. Despite these failures, the justices abhor being perceived as politicians because presumably they do not aim at promoting policy outcomes to benefit most citizens or the interests of some. Instead, they justify their decisions by recognizing people’s political rights as found in the letter and/or the spirit of the constitutional text.

How can the president, his advisers and the Senate ascertain whether a nominee possesses moral integrity and good judgment? If the nominee be a judge, which in fact she need not be, those doing the vetting can look into her past judicial record. Also, they might go about querying those who have known the nominee in her different social roles to ascertain her moral character. Given the polarized nature of the Senate, lawmakers – especially Republicans – will try to find fault with a candidate’s moral standing, question her judicial decisions, and scrutinize her judicial philosophy. Despite its shortcomings, I can think of no better approach because, like our adversarial legal system, more often than not it works. For some, such a partisan and inquisitorial approach might not live up to their ideal for selecting “the objectively best candidate,” but we are not living in an ideal republic. We are living in an imperfect, but still perfectible democracy.

Some insist on what they conceive of as “the objectively best Supreme Court candidate.” Their conception, however, is just a sham. There are only better or worse candidates. In what sense could we claim that a person is a better candidate than another? In the sense of someone having a superior educational pedigree, for example, by having graduated summa cum laude from a prestigious law school. Or she might have clerked for a reputable judge. Or she is a prolific legal scholar. Or she possesses an envious intellectual IQ. But “better” could also mean having an exceptional emotional intelligence evidenced by exercising good judgment in her legal decisions and/or in her legal scholarship. Or she might have shown exemplary moral integrity in her different roles in society. Or she has demonstrated commitment to living up to the ideals expressed not only in the Constitution but also in the Declaration of Independence to make this a better world for all.

Of course, some might argue that the above is a false dilemma. The president could nominate a person who meets all of the already-mentioned conditions: better credentials, exceptional moral judgment, and integrity. Perhaps, but our moral judgments and integrity are conditioned, in part, by who we are and by our lived experiences. And the unique voice of African American women has been conspicuously absent from SCOTUS.

Suppose that we need to select between two candidates for SCOTUS. One has an extraordinary intellectual IQ with an exceptional educational pedigree. However, one candidate has shown substantive moral failures, such as having engaged in ubiquitous plagiarism while in law school, or having expressed racist, misogynist, or xenophobic views, or having supported special interest groups at the expense of the greater good. The other candidate has an average intellectual IQ with a solid, but not necessarily extraordinary educational pedigree. Yet she is known for having impeccable moral integrity and good judgment in her public and private life. Whom should we choose for SCOTUS? I would choose the latter because extraordinary intellectual virtues do not guarantee having moral integrity and sound moral judgment.

Next, I argue that those who prefer that the president listens to how most Americans feel about considering “all possible nominees” rather than an African American woman are not offering a compelling argument. First, they could be mistaken about their beliefs, or they might be biased against selecting an African American woman. The president’s advisers and members of the Senate are in a better position to determine who the suitable candidate would be for the greater good of the nation. Since the president has the right to nominate any candidate for SCOTUS that he thinks would be best for all, he can reasonably use race and gender, among other criteria, to narrow the pool of suitable candidates. He can justifiably do so by offering the following two reasons. He might argue that by selecting an African American woman for SCOTUS he is remedying past wrongdoings, and that by having a diverse composition of SCOTUS that mirrors our cultural milieu he is promoting the greater good of an inclusive society. 

To those who argue that, by having made such a promise, the president is politicizing and discriminating against other better qualified candidates, I will offer the following two responses. First, nominating a Supreme Court candidate has always been political. And second, in approving any nominee, one would be discriminating against other potential nominees who were not considered or selected. Discrimination is unavoidable. The issue is whether such a discrimination is justified for our greater good. Part of the greater good is to try to correct past injustices against members of excluded groups, such as African American women, who have been substantively harmed. The president and members of the Senate have not only the legal right to try to overcome past wrongs against any unfairly treated groups but, more importantly, they have the moral duty to do so. 

Lastly, one would be ill-informed to suggest that there is an insufficiently large pool of African American women from which to choose a suitable candidate for SCOTUS. I have reason to believe that such a pool exists. Also, I am sure that there are other potentially well deserving nominees who could represent the rich and diverse cultural experience of our nation, such as Native or Asian Americans, Latinx, or members of the LGTBQ+ community, to mention only a few.

An African American woman will bring a unique experience to SCOTUS to address many of our pressing legal and political issues for generations to come. To those who are skeptical about considering race or gender for membership in SCOTUS I can only say that, given our racist and misogynistic history, race and gender have mattered for the wrong reasons in the past. I can only hope that both might matter for the right reasons nowadays: to bring an important and neglected voice to SCOTUS for the benefit of all. Even if we were to accept that our Constitution is race- and gender-blind, those who have the power to interpret it are not.

Freedom and the 2016 Electoral Season

‘Tis the season for politics, once again, in the United States of America. And while some surprising new topics, like the size of candidates’ hands, have cropped up in this cycle, some of the mainstays of American political rhetoric are also at the rendez-vous.

Take Donald Trump, for instance.

In January, one of his campaign rallies featured the following performance:


While it features somewhat dated nationalist lyrics (including verses like “Come on boys, take them down!”), slightly updated for promoting Mr. Trump’s bid in the 2016 presidential contest, it also highlights a theme that is about as central to American political rhetoric as apple pie is to American cooking: freedom.

Whether freedom has been invoked as an empty rhetorical trope, as in this case, or whether it has been used more substantitvely, it has so completely permeated electoral discourse as to become inescapable.

Whether they have talked about government regulation, trade, national security, tax reform, education, abortion, or immigration, freedom has been Republican candidates’ preferred frame of reference.

Meanwhile, on the left of the political spectrum, Hillary Clinton and Bernie Sanders have been quite as single-minded. While Clinton has spent a great deal of her time trying to square away her commitments to free trade and to an equalitarian progressive politics, Sanders has explained his commitment to democratic socialism as meaning “that we must create a vibrant democracy based on the principle of one person one vote.” “True freedom” according to Sanders, “does not occur without economic security. People are not free, they are not truly free, when they are unable to feed their family.”

And yet, these invocations are largely based on outdated conceptions of what freedom is. The idea at the back of Sanders’ viewpoint, that economic independence is the necessary precondition for democratic citizenship harks back to Thomas Jefferson’s glorification of the yeoman farmer, as historian Eric Foner was already noting in his book, The History of American Freedom. And as sociologists have been observing since the 1950s, such an ideal of economic independence is woefully inadequate to the corporate economy in which we live.

But it is just as true that the thesis that deregulation of international trade or of the labor market will result in greater individual freedom is based on the idea, first defended by classical liberals like John Stuart Mill, that government power threatens individual liberty. Mill’s disciples in the twentieth century, intellectuals like Friedrich von Hayek and Milton Friedman, argued that the crux of liberal freedom consists in the absence of coercion of the individual, either by private monopolies or by government power, so that the smaller the size of the government is and the less active it is in citizens’ lives, the greater will their freedom be.

But as early as the 1960s, the American social psychologist Stanley Milgram actually found, in a series of now famous experiments, that most people do not need to be coerced into doing things they don’t want to do, including engaging in actions which they are convinced will most likely result in the death of an innocent person: they will do these things of their own free will – a situation that suggests that “free will” and freedom may not be the same things after all.

In fact, a growing body of evidence has been produced in the human sciences over the past 40 years that suggests that the notion of a free-willing individual, who can make decisions independently of social and cultural contexts is a figment of our imagination. What this research reveals is that it is not the absence of context that enables individuals to act freely (whether it be the absence of a monopoly or the absence of a state bureaucracy), but on the contrary the presence of one.

This scientific research reveals several very surprising things about human nature that directly contradict the vision of human beings as rational, egoistic individuals, driven by an unquenchable lust for pleasure, money, or power, which we inherited from classical liberalism. The most recent of the great apes, it turns out, is a hypersocial being, whose subjective experience of the world is profoundly shaped by its empathetic openness to others, an openness that is not premised on any sort of fundamental or primitive goodness, but rather on the evolutionary mechanics of communication. Social psychologists, for instance, have discovered that in order to understand what someone else is saying we have to imitate the motion of their vocal chords (though in a much reduced fashion). We have to, in other words, become them. Neuroscientists have also found a specific type of neuron which corresponds to this process in the brain itself, the so-called “mirror neuron.”

Our identities, and therefore our desires, are profoundly affected by our cultural, social, and political contexts. To be free thus necessitates participating in the formation of the communicational contexts that affects and form us all. Freedom requires not only the freedom of expression cherished by classical liberals, but a certain freedom of connection – the power to shape the contexts in which this free expression happens. The freedom of choice advocated by classical liberals and their twentieth century followers confuses the fruit of freedom, the will, with its root. Likewise, those social liberals and socialists who emphasize economic independence while ignoring the other complex dimensions and processes involved in the creation of a free personality seem to be missing a significant component of the reality of the process of freedom.

This conception of freedom, if we examine it closely, suggests that democracy is not just a matter of elections or of constitutional rights (though it undoubtedly includes those concerns). Nor is the issue that of how “big” government bureaucracy will be. More fundamentally, political freedom consists in individuals and communities having the power to mutually affect each other and form each other. Democracy, understood from this perspective becomes a way of life rather than a formal mode of government, one that has consequences not only for the way in which ownership of the media of mass communication is organized for instance (a frequent complaint of the Sanders campaign is that this ownership structure is creating a bias in its coverage of politics), but also for every aspect of our lives, from the workplace to the bedroom, its fundamental principle being “equality of participation.” The aim of a “politics of freedom” in this context would be neither decreased regulation of the economy or increased government intervention but the creation of increased opportunities for participation by all members of society in both economic and political decision-making, regardless of their wealth or income level. Beyond the public funding of elections, one might imagine this agenda including decreased mediation of the mechanisms of political representation. Currently, for instance, the average ratio of representatives to represented in the US House of Representatives is something like 1: 290,000, making it extremely difficult for any but the most powerful interests to gain a hearing, regardless of the way elections are funded. And yet, there seem to be few technical impediments to cutting that ratio in half for instance. Any number of other reforms could be proposed that would enable greater citizen participation in the polity, from making congressional office-holders into recallable delegates in order to increase accountability, to instituting worker and consumer co-management councils in private corporations, legally entitled to raise concerns about the social and environmental consequences of business policies (corporations being legal entities to begin with, there seems to be little weight in the argument that this would be “undue government interference”).

Now, wouldn’t the transformation of everyday life from the standpoint of such a principle of “equality of participation” be the basis for a genuine “political revolution”?