Ilya Shapiro is wrong and yes, Joe Biden should nominate a Black woman to the Supreme Court

See update for December 29, 2022, at end of post.

The lede in the Reuters story is this:

Georgetown University Law Center has placed incoming faculty member Ilya Shapiro on administrative leave while it investigates Twitter messages he posted last week suggesting President Biden’s pledge to choose a Black woman for the U.S. Supreme Court would ensure a “lesser” nominee.^[1]

Ilya Shapiro has apparently deleted the offending—he says “inartful”—tweets but denies violating university policy.^[2] I will leave the semantics of whether or not those tweets indeed violated policy to others. Shapiro is profoundly wrong for other reasons.

First, his choice of the word “lesser” suggests that competing candidates for nominations to replace Stephen Breyer on the U.S. Supreme Court suggest that such candidates can be compared on a linear scale. I do not accept such a scale with intelligence;^[3] nor will I accept it here.

The view of intelligence as measurable on a linear scale, as with the “intelligence quotient” (IQ), assumes that intelligence is reducible to a single measurable attribute. It assumes, for example, that my own intelligence, such as it is, can be compared to that of an artist or a musician or a craftsperson or to, say, Albert Einstein. This is simply not so. I have my own talents, background, and experience. Others have theirs. That I am utterly incompetent as a musician or an artist or a craftsperson or a physicist says nothing about my intelligence. Nor does that their inclinations and talents direct them in a different direction, reaching entirely different conclusions, say anything about theirs. Such comparisons are asinine, even more so than apples and oranges.

At issue with Joe Biden’s pledge to choose a Black woman is not so much what Shapiro is likely to have meant, that a Black woman will be nominated as a matter of “affirmative action” at the expense of competence, but rather that such a comparison favors a white supremacist status quo at the literal expense of Black lives.^[4] The point of nominating a Black woman is to acknowledge injustice and we should not expect that her attributes will be, in sum, directly comparable to those of other justices; indeed, such a comparison is, if anything, even more asinine than one of intelligence.

We should expect, rather, that she will be brilliant in a different way with a different background and a different life experience that I hope will better reflect the profound injustice that people who are not white face in the status quo.

Update, December 29, 2022: I have recently been inclined to attribute a rise in support for conservatives among Black people to Kanye West’s influence. Al Sharpton’s take is more interesting: He says that Black men feel left behind by the advancement of Black women:^[5]

Some of [Donald] Trump’s appeal could be put down to misogyny. I get it on my radio show. “A Black woman appointed supreme court justice? a Black woman as vice-president? what about Black men?”^[6]

I’m not going to go so far as to agree that this, in and of itself, is misogyny. Maybe it is; I haven’t listened to Sharpton’s show, haven’t heard what he’s heard. But I can see how a certain tokenization might look like checking off boxes rather than an actual search for talent when Black women are selected and not Black men.

I will never forget my formerly favorite professor’s lament that a search for a department chair yielded three white males for candidates. I think he made a mistake in attributing too much bias to race and not enough to other divisions, like class and gender. But whether he was right or he was wrong, he was reflecting a perception of discrimination and victimization among Black people that we ignore at our peril.

I endorsed Joe Biden’s promise to select a Black woman for the Supreme Court,^[7] and he ultimately went beyond that promise, nominating a Black woman who was also a former public defender, Ketanji Brown Jackson,^[8] who looks to me like an outstanding Justice, indeed, everything I hoped for.^[9] There was one seat available on the Court and, in this case, I think he did awfully well in checking off multiple boxes.

The problem is that if you’re truly interested in diversity, you don’t just pick a Black woman and say, hey, that’s two boxes, race and gender. You need to pursue actual diversity, which means you pick women, men, and non-binary folks; you pick Black people, Asian people, Latin people, white people, and people of mixed race. Sometimes, you pick people who, indeed, check off two or more of these boxes. But sometimes, you don’t.

We can safely say that Donald Trump draws a certain amount of his support from folks who feel left behind by affirmative action and by this effort to check off boxes. I don’t mean to defend that support: I understand that much of this is an attempt to redress historical and continuing discrimination, which I absolutely do not deny. But just as with my formerly favorite professor, we need to understand that some people will see it differently. And speaking for myself, I certainly don’t see any attempt whatsoever to address ageism, and that likely is a part of how I feel left behind.^[10]

I think the accusation that Sharpton is pointing to is that Democrats have been in too big a rush to check off multiple boxes^[11] and thus to be economical with representation in higher office. It ends up shortchanging both Black people and women, as one person representing subaltern groups may be selected where two or more could have been, as well as everyone else.

1. ^[1]Karen Sloan, “Georgetown Law puts new hire on leave after ‘lesser’ Black woman comment,” Reuters, January 31, 2022, https://www.reuters.com/legal/legalindustry/georgetown-law-puts-new-hire-leave-after-lesser-black-woman-comment-2022-01-31/↩
2. ^[2]Karen Sloan, “Georgetown Law puts new hire on leave after ‘lesser’ Black woman comment,” Reuters, January 31, 2022, https://www.reuters.com/legal/legalindustry/georgetown-law-puts-new-hire-leave-after-lesser-black-woman-comment-2022-01-31/↩
3. ^[3]David Benfell, “Cats are smarter than we are. Really,” Not Housebroken, April 5, 2021, https://disunitedstates.org/2019/10/30/cats-are-smarter-than-we-are-really/↩
4. ^[4]David Benfell, “Stephen Zappala’s resignation would be nowhere near enough,” Not Housebroken, January 4, 2022, https://disunitedstates.org/2021/06/03/stephen-zappalas-resignation-would-be-nowhere-near-enough/↩
5. ^[5]Ed Pilkington, “Al Sharpton warns Democratic leaders of waning Black electorate support,” Guardian, December 29, 2022, https://www.theguardian.com/us-news/2022/dec/29/al-sharpton-democratic-leaders-waning-support-black-electorate↩
6. ^[6]Al Sharpton, quoted in Ed Pilkington, “Al Sharpton warns Democratic leaders of waning Black electorate support,” Guardian, December 29, 2022, https://www.theguardian.com/us-news/2022/dec/29/al-sharpton-democratic-leaders-waning-support-black-electorate↩
7. ^[7]David Benfell, “Ilya Shapiro is wrong and yes, Joe Biden should nominate a Black woman to the Supreme Court,” Not Housebroken, February 1, 2022, https://disunitedstates.org/2022/02/01/ilya-shapiro-is-wrong-and-yes-joe-biden-should-nominate-a-black-woman-to-the-supreme-court/↩
8. ^[8]Irin Carmon, “The Other First: What it means to nominate a veteran public defender,” New York, February 25, 2022, https://nymag.com/intelligencer/2022/02/ketanji-brown-jacksons-public-defender-experience.html↩
9. ^[9]David Benfell, “Ilya Shapiro is wrong and yes, Joe Biden should nominate a Black woman to the Supreme Court,” Not Housebroken, February 1, 2022, https://disunitedstates.org/2022/02/01/ilya-shapiro-is-wrong-and-yes-joe-biden-should-nominate-a-black-woman-to-the-supreme-court/↩
10. ^[10]David Benfell, “A life worth living,” Not Housebroken, December 27, 2022, https://disunitedstates.org/2022/12/27/a-life-worth-living/↩
11. ^[11]Ed Pilkington, “Al Sharpton warns Democratic leaders of waning Black electorate support,” Guardian, December 29, 2022, https://www.theguardian.com/us-news/2022/dec/29/al-sharpton-democratic-leaders-waning-support-black-electorate↩