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Entrenched Biases Surface for Potential SCOTUS Nominee

Feb. 14, 2022, 9:00 AM

Years ago, I attended a meeting described as a frank conversation about diversity with leaders of the legal profession. Attendees included successful lawyers whose large firms had few women and fewer minorities in their equity partner and key management ranks.

One attendee, attempting to justify his firm’s lack of diversity, referenced a nationally revered Black lawyer and lamented that they were unable to “find” lawyers of his caliber to recruit. That’s like an NBA coach justifying a largely White team by stating, “We just can’t find more Michael Jordans.”

I was sitting with a prominent Black judge who, but for centuries of embedded racism, could have been a U.S. Supreme Court nominee years ago. The fire in her eyes belied the coolness of her tone when she stood up to respond.

“Why is it,” she asked, “that whenever leaders talk about minority hiring, they insist that the problem is they cannot find the right luminary?” She then observed the likelihood that, if the attendees honestly assessed the caliber of their own partners, few could meet the superstar bar they set for minority hires.

That response captured the double standard and entrenched bias that emerges whenever a minority candidate is considered for a high-profile role. Since President Biden reiterated his campaign pledge to nominate the first Black woman as an associate justice of the Supreme Court, the hysterical outcry has demonstrated why, of the 115 people confirmed to this position, all but seven have been White men.

Bias Without Boundaries

Patterns of bias have no boundaries in this discourse. Sen. Ted Cruz (R-Texas), who passionately defended the First Amendment right of a parent to use a Nazi salute at a school board meeting, said he found it “offensive” that 94% of Americans will be ineligible for consideration. Of course, his statement looked at the wrong metric, but maybe he never took a statistics course when he attended Princeton.

Sen. John Kennedy (R-La.), who previously complained that Biden had a “woke, neo-Socialist agenda,” reportedly stated at a private Senate luncheon that he wants a nominee who can tell the difference between a law book and a J. Crew catalog.

In helping Brett Kavanaugh ascend to the Supreme Court, Sen. Susan Collins (R-Maine) ignored both credible accusations of sexual assault when he attended an elite prep school and questions about the payoff of his debts. In that light, her complaint that Biden’s pledge to nominate a Black woman politicized the nomination process was predictably clueless.

Biden has already nominated the most demographically diverse judicial candidates in history. Apparently, however, none of his picks were sufficiently qualified to receive a vote from Sen. Josh Hawley (R-Mo.), a member of the Senate Judiciary Committee, who has now decried the commitment to select a Black female as indicative that the president will do anything for power.

Perhaps the greatest jaw-dropper came from Sen. Roger Wicker (R-Miss.) during a radio show interview. Wicker disparaged the unknown qualifications of the unnamed nominee and provided a guarantee that she would be unlikely to get a single Republican vote. With the host laughing along in derision, Wicker stated it was “ironic” that the court had before it an “affirmative racial discrimination” case while “adding someone who has been the beneficiary of this sort of quota.”

Binders of Highly Qualified Women

In responding to a 2012 presidential debate question about pay equity, then-candidate Mitt Romney uttered a phrase that will live forever in debate lore. Touting his diverse cabinet when governor of Massachusetts, Romney proudly reported that when he saw that most applicants were male, he asked women’s groups to help find qualified candidates, resulting in the delivery of “binders full of women” interested in senior roles.

Romney’s facts were slightly off and awkwardly stated, but the fundamental point was correct. During the 2002 gubernatorial campaign, the Massachusetts Women’s Political Caucus led a coalition to address the under-representation of women in high level state government roles.

After both candidates pledged best efforts to appoint women in these roles proportional to their population in Massachusetts, the coalition scoured their networks and solicited applicants. The result, indeed, were binders, organized by cabinet position, of highly qualified women.

As a participant in the process, I remember the enthusiasm in this group of talented women, reading and vetting resumes for “the binders,” solely dedicated to bringing extraordinarily competent diverse voices into state government. Romney’s initial appointments proved that the effort worked.

The lessons from the binders full of women go beyond an amusing punchline. There are highly qualified diverse candidates for every position, but true inclusion requires a commitment to achievable and measurable goals, including in the recruitment and hiring process.

It was simple then, and it is now. But don’t try to tell that to those who remain firmly committed to the myth of White exceptionalism.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Lauren Stiller Rikleen is the interim executive director and member of the board of Lawyers Defending American Democracy. She is the author of “The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace,” and is also president of the Rikleen Institute for Strategic Leadership.