Ketanji Brown Jackson is the first black woman nominated to SCOTUS. Recently ratified as a judge for the D.C. Court of Appeals, Jackson comes with a Harvard Law degree, a clerkship with Justice Breyer, and the support of Paul Ryan, her brother-in-law. The paucity of black women in the federal judiciary – only seventy black women ever have been appointed to Article III courts– offered Biden a limited pool of qualified candidates who had auditioned their judicial temperament, analytical methods, and ideological predispositions on the bench.
I write neither to praise Jackson nor to bury her (she is an honorable judge), but to count her. The diversity count has become the chief consideration in awarding power and influence, so citizens need to ask how the Jackson nomination affects diversity on the Court. Apart from whether or not diversity, in ideal form, is a good thing (we are skeptical), it would be worthwhile to know whether the diversity machine really promotes diversity. Perhaps it just provides cover for whatever identity politics may be convenient at the moment.
We begin with the assumption that diversity ideology seeks to represent identity groups, especially oppressed ones, roughly in proportion to their numbers in the national census. Thus, if 50% of the general population is female, then 50% of the justices should be female — admittedly, an ideal difficult to achieve for an odd-numbered bench absent either a hermaphrodite or the wisdom of Solomon. When an admissions committee at, say, U.C. Davis, offers admission according to a pre-determined racial quota, the process is not quite legal. But Presidential appointments intended to impose quotas on the Supreme Court are just fine.
From this understanding of “proportionate” diversity, how equitable is the Supreme Court today and how equitable will it be after Jackson becomes Associate Justice Jackson? Currently, among nine justices, one is black (Thomas), one is Hispanic (Sotomayor), three are women (Barrett, Kagan, and Sotomayor), and seven are non-Hispanic whites (Alito, Barrett, Breyer, Gorsuch, Kagan, Kavanaugh, and Roberts). Six are Catholic (Alito, Barrett, Kavanaugh, Roberts, Sotomayor, Thomas), and two are Jewish (Breyer and Kagan).
A single justice, Neil Gorsuch, is Protestant. This is surely a diversity oversight. How can SCOTUS sustain its reputation on the left as a white supremacist organization promoting systemic racism with only one WASP? Indeed, hasn’t the WASP always been the quintessential bigot, the chief beneficiary of slavery, the author of Jim Crow, the man below the pointy white hat? Gorsuch must be lonely as the only WASP on the Supreme Court: he cannot even invite a colleague to a private golf club, let alone assemble a militia.
But let’s not get bogged down by white privilege. Worrying about white people is passe.
| Diversity on Scotus with and without Justice Jackson | Supreme Court Now and w/J. Jackson [# Justices (% of Court)] | Diversity Index4 | ||||||
| Diversity ID | Percent in US Population | Ideal1 | Court Now | Court w/ Jackson2 | Court w/ Ideal3 Nominee | Court Now | Court w/ Jackson | Court w/ Ideal Nominee |
| Black (non-Hispanic) | 12% | 1.1 | 1 (11%) | 2 (22%) | 1 (11%) | -2.30 | +17.04 | -2.30 |
| Hispanic | 19% | 1.7 | 1 (11%) | 1 (11%) | 1.5 (17%) | -14.20 | -14.20 | -3.73 |
| Non-Hispanic White | 58% | 5.2 | 7 (78%) | 6 (67%) | 6 (67%) | +17.2 | +7.97 | +7.97 |
| Asian | 6% | 0.5 | 0 (0%) | 0 (0%) | 0.5 (6%) | -23.57 | -23.57 | 0 |
| Protestant | 47% | 4.2 | 1 (11%) | 1 (11%) | 2 (22%) | -46.78 | -46.78 | -29.45 |
| Catholic | 21% | 1.9 | 6 (67%) | 6 (67%) | 6 (67%) | +48.63 | +48.63 | +48.63 |
| Jewish | 2% | 0.2 | 2 (22%) | 2 (22%)5 | 1 (11%) | +40.45 | +40.45 | +24.34 |
| Men | 49% | 4.4 | 6 (67%) | 5 (56%) | 5 (56%) | +16.54 | +6.52 | +6.52 |
| Women | 51% | 4.6 | 3/9 (33%) | 4 (44%) | 4 (44%) | -19.35 | -6.82 | -6.82 |
| Average Deviation from Zero for Nine Diversity Scores6: | 25.45 | 23.55 | 14.42 | |||||
1: The number of justices from this identity group that is proportional to numbers in the population as a whole.
2: “Court Now” includes Justice Breyer, without Justice Jackson; “Court w/ Jackson” includes Jackson, without Breyer.
3: The ideal nominee would be a biracial, Hispanic/Asian Protestant Female.
4. The Diversity index, invented for this article, produces a number between -100 and +100, with “0” a perfect match between composition of the Court and the U.S. Census. Positive numbers indicate that there are too many of a group and negative numbers mean there are too few. Upon request the author (jdbeeswax@gmail.com) can supply further details about the index.
5: Even Wikipedia cannot tell us Jackson’s religion, but it appears to be Jewish.
6: Lower scores mean greater diversity as a whole.
In the table above, we offer a glimpse of how well the current Court, a Jackson Court, and a third court, with a hypothetical justice appointed on the basis of an optimized diversity profile, serve the purpose of diversity.
The table shows that the addition of Jackson has little impact on diversity overall, improving the representation of women but inflating the representation of blacks.
If, on the other hand, Biden had nominated a biracial, Hispanic/Asian, protestant female, he could have achieved roughly a 40% improvement in diversity (scores) compared to today’s court or to the anticipated Jackson court.
Biden evidently has other ideas about diversity, a term once denoting “varied” or “heterogeneous.” After Bakke, it came to mean “sort of quotas, but we won’t call them that.” More recently, however, it has developed a third meaning, viz., “lots of black folks.” Thus, a ghetto, which, by definition is not diverse in the traditional sense, now is described as “extremely diverse.” The left doesn’t really care about diversity except as a label justifying arbitrary preferences according to the political imperatives of the moment. The appointment of Ketanji Jackson serves that definition of diversity only.
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To get to her “Diversity” the left had to cover up thousands of court documents to keep her record as a judge “diverse” enough. If she is such the great candidate, a question needs to be asked about her record, which is the product of an attempt to keep this about her skin color, more than her ability to adjudicate along the lines of the Constitution.
That alone, should disqualify her for the bench.