Howard Levitt: Biden does a disservice by selecting a Supreme Court pick based solely on race and gender, rather than merit

U.S. President Joe Biden has made it clear that, although he does not yet know who he will select to replace retiring Supreme Court Justice Stephen Breyer, it will be a Black woman.

Senate Majority Leader Charles Schumer quickly compounded that error by stating that whoever the president selects will be confirmed by the Senate. Since the Senate is controlled by the Democrats, he likely can make good on that promise, but it would make a mockery of the Senate’s legal requirement of deliberating on, and confirming, a candidate only after consideration of her (or his) merits.

Biden’s promise, and Schumer’s reaction, is no surprise in our era of identity politics. But is it proper, or even constitutional?

Biden presumably thinks that doing this will boost his popularity with key demographics. But not so fast. A recently released ABC News/Ipsos poll found that 76 per cent of Americans wanted their president to consider “all possible nominees,” and only 23 per cent agreed that he should exclude everyone but Black women from consideration.

Biden should have learned from the Democrats’ recent thumping in the previously Democratic strongholds of San Antonio, Virginia and the suburbs in New Jersey and New York, as well as from polling suggesting that they will lose their majorities in both houses of Congress in the upcoming mid-terms, largely because people view them as being too woke.

He might get a few extra votes from Black females, albeit not all of them, but how will Latinos react, let alone Asians, southeast Asians, Aboriginals and other minority groups, along with anyone else who thinks that such an important position should be awarded based on merit?

And will he be doing any favour to the incumbent, who will then permanently labour under the stain that she was selected not because she was the most qualified jurist, but because she was the most qualified of the roughly six per cent of the general population who are Black women?

There are constitutional issues, too. Although I do not purport to be a scholar of U.S. constitutional law, it is trite that announcing he would only appoint, say, a Protestant or a white male, or an Arab or a Jew, would run afoul of that constitution (as it would here). There is no jurisprudential difference.

Historically, more Protestant white men have been appointed to the bench, but those days have long since passed and there is not a single one amongst today’s nine judges.

Ninety years ago, there was another issue of race surrounding the appointment of a U.S. Supreme Court judge. Sen. William Borah was given a list of potential appointments by President Herbert Hoover, with Benjamin Cardozo’s name at the bottom.

He responded, “Your list is alright, but you handed it to me upside down.” When the fact that Cardozo was a Jew was raised by the attorney general, Borah responded, “Anyone who raises the question of race is unfit to advise you concerning so important a matter.”

Does that statement still hold true, in the United States or in Canada? Is it of assistance to historically disadvantaged groups to hire them even if none of the specific candidates from that group are the most qualified, or will hiring by quota diminish the perceived status of all minority employees, whether they obtained their jobs based on merit or not? And does hiring employees who are less qualified simply set them up for failure?

It is within my parent’s memory that Jews were discriminated against in Canada, in terms of their ability to gain employment and admission to professional faculties. Yet they did not ask to obtain preferential admission over others to redress that historic inequity. They would have viewed that as unfair, just as many BIPOC groups do today.

It is obviously in the interest of employers to have the best people they can attract and it is equally obvious that it is a violation of the human rights of any employee to be excluded from positions or promotions, because of that person’s race. Indeed, Canadian human rights codes, both provincial and federal, prohibit discrimination in employment by reason of race or gender.

Although every human rights code is slightly different, Ontario’s allows for a special program to be authorized by the Ontario Human Rights Commission “to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of their right to be free of discrimination.” I always have concern with government bureaucrats handing such a program, partly because of competence and party because too many of them are ideologically driven.

By all means, all barriers to accomplishment for groups that are disadvantaged should be eradicated and no one should be disadvantaged in employment. But the idea of “employment equity” turns that upside down, violating human rights and perpetrating discord between groups. Is there any substantive difference between disadvantaging candidates for employment based on their gender or race and advantaging them? To suggest that there is, is mere sophistry.