President Joe Biden’s Risky Court Pick Isn’t That Risky

Clarence Page, Tribune Content Agency on Jan 28, 2022

Ah, yes, the quota-stigma issue is a long-running argument but, as lawyers might say, highly speculative.

The notion of saving women or minorities from the “stigma” of affirmative action reminds me of the female judge in the 1980s who reportedly was asked how she felt about possibly having received her position because she was a woman. Not nearly as badly, she answered, as she would have felt if she had been turned down because she was a woman.

I understand. However someone receives their job, they have to prove themselves after they get it.

In the long-running traditions of party politics, today’s “identity politics” often went by other more acceptable labels as a “balanced ticket,” the ancient practice of endorsing candidates designed to appeal to major racial, ethnic and religious constituencies in the electorate.

In the example of affirmative action in college admissions, an issue now before the Supreme Court again, Turley quotes the court’s 1978 Regents of the University of California v. Bakke decision in which Justice Lewis Powell wrote, “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.”

Yet, the key phrase in my nonlawyer eyes is, “for no other reason.” Biden, a longtime member of the Senate Judiciary Committee, would never be so foolish as to nominate someone with no other qualifications than race. Yet, the charge sounds appealing to some of his critics, especially if they have short memories.

Over time, we have seen how one court’s “quota” can be another court’s legitimate “goals and timetables” to remedy past discrimination, for example, or to bring more diversity to the ranks of some police and fire departments.

But being qualified always matters. When President George H.W. Bush nominated Clarence Thomas to replace Thurgood Marshall, he said Thomas was the “best qualified (nominee) at this time.” He also received a unanimous “qualified” rating from the American Bar Association.

Still, there are countless critics who will argue that he was chosen because he was African American, like Marshall. As another African American — who coincidentally is named Clarence — I’ve often disagreed with his opinions. But I believe he should be judged for his performance, not his complexion.

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(E-mail Clarence Page at cpage@chicagotribune.com.)