The Controversy of Ketanji Brown Jackson’s Nomination to the Supreme Court

When Biden promised to nominate a Black woman to the Supreme Court during his 2020 presidential campaign, it was a welcome and celebratory moment for the Black community. It was also long overdue. After all, in the history of our country, with 115 justices having served on the court, we have yet to see a Black woman among them.

However, perhaps unsurprisingly, the conversation around Biden’s promise—and, eventually, his choice of nominee, Judge Ketanji Brown Jackson—quickly turned to the subject of “qualification” and the notion of “filling a quota.” This debate (not to mention Jackson’s confirmation hearing) has been contentious, and problematically so. Judge Jackson is qualified on every level—one of those qualifications being her representation of a specific subset of the population not currently present on the court. After all, the court’s ability to do its job effectively, upholding laws that affect all citizens, depends on a rich diversity of perspectives of its justices.

In short, Jackson should have been considered regardless of her nomination’s historic nature, and even further celebrated because of it.

Nevertheless, after Biden made his promise to nominate a Black woman, we heard certain pundits and media outlets pounce: “It should be the most qualified candidate,” whomever that is, Black woman or not (subtextual emphasis on the not).

But there are some problems with that logic. Let’s examine just a few.

There is no singular “most qualified” candidate

Often when you’re looking for one person to fill a role, the whole notion of someone being the “most qualified” goes out the window. There is never only one person who could do a job. It’s akin to asking who would be the most qualified person to be a mayor or senator. The answer is that there are many outstanding individuals who are exceptionally qualified—not one single person.

In a similar vein, you certainly can’t make the case that there wouldn’t be one Black woman in the entire country who’s as qualified as any of the other people on the court right now. On paper, the qualifications for candidacy for the Supreme Court would give you a list of numerous individuals who would meet or exceed the bar, not just one.

As research shows, Black candidates often have to be more qualified than White candidates occupying similar positions, in order to alleviate any latent or explicit doubts about their competence. Ketanji Brown Jackson is no exception. By most traditional standards, she not only meets but also exceeds expectations. Next to the current members of the court, Jackson’s education and experience could arguably make her the most qualified of them all.

But for Black individuals, the goal post is often far higher—or is changed when White people realize, consciously or not, that a Black person has met the initial bar. As Eric Uhlmann, Associate Professor of Organizational Behavior at INSEAD, found in his research, people strategically, and subconsciously, change the rules to fit the outcome they want in a given situation.

If there’s a White candidate with a lot of experience, society says, “Great—we need someone with a lot of experience,” and they get the job. But if there’s a Black candidate with the same experience, society says, “We actually need someone with this specific educational degree,” for example, and moves the goal post. It’s a no-win situation in which plenty will never be enough for some individuals, particularly for Black people.

If Biden had promised to nominate a White man, or even a White woman, would anyone have raised the question of who’s most qualified? History gives us the answer to that question.

Representation is a qualification

So, what does it mean to be “qualified” for the Supreme Court?

When we’re talking about the judiciary, baked into the notion of being “qualified” is someone who represents the people.

We’re not talking about hiring for an executive position in, for instance, investment banking, for which we’d need someone who can compute derivatives with the best of them—and whose clients might really only represent the top 1% of the population.

When it comes to the Supreme Court, we’re talking about individuals who are deciding laws that affect everyone in the country. Every single person—not just White men. Being a representative body means it is, by nature, supposed to represent the people in its jurisdiction. It should be as diverse as its population.

But the Supreme Court has been definitively unrepresentative. In the court’s history, over 93% of the justices have been White males, and these White men have determined the laws around, for example, women’s rights to abortion, and whether or not I and Black people like me are not just free, but also classified as whole persons. White men are roughly 30% of the population, yet in addition to 93% of the Supreme Court justices, they have made up 98% of our presidents and 100% of vice presidents until the current administration was voted in. It is innately perverse and patronizing (among other things) that only, or mostly, White men have been making decisions that affect very different constituents—White and non-White, male and non-male—who make up the overwhelming majority of their fellow citizens.

Thus, part of “qualification” for the Supreme Court—if it’s doing the job that it purports and desires to do—is being a body that represents the full mosaic of society. And if we’re going to move beyond this patriarchy and White supremacy, we need to take proactive steps to ensure we see that mosaic in decision-making positions. We know that waiting passively for change to occur will only yield more of the status quo. President Biden, in my opinion, had the will and courage to be proactive with this nomination.

Filling a “quota” is not bad—or new

Selecting someone from a specific category of the population in order to have more diverse representation on the court—even filling a “quota,” per se—is not new and should not be controversial. Presidents before Biden have selected candidates based on their social group membership in order to ensure diverse representation.

In Ronald Reagan’s campaign for president in 1980, he promised to nominate a woman to the Supreme Court. And he did. In August of 1981, he nominated Sandra Day O’Connor, who was confirmed and served on the court until 2006.

More recently, following the death of Justice Ruth Bader Ginsburg in September of 2020, President Trump declared that he would nominate a woman to replace her. There was even a desire to push the representation beyond the Ivy League, recognizing that there are competent judges from non-Ivy institutions as well. His declaration was met without pushback on the point of gender, and Amy Coney Barrett was subsequently confirmed.

The pushback we’ve seen since Biden’s promise, however, comes from internalized and systemic racism.

Quotas take on a special meaning when applied to Black people. This country and its institutions were not set up for Black people to ascend into power and prosper. Africans were brought here as chattel, no different from livestock meant to generate wealth for White land bandits.

So, whenever you do have a Black person ascend to a place of such high power—especially a tenured, lifelong appointment—the effective symbolism of it unsettles White people, causing reactions we don’t see after the ascension of White individuals.

When White people are to fill a quota, it’s tolerated. When Black people are to fill a quota, it’s considered outrageous—qualifications be damned.

Controversy for no consequence

In spite of all of the controversy that erupted following Biden’s decision to nominate a Black woman, the truth is that Jackson will not dramatically change the court’s ideological balance. She will replace Justice Stephen Breyer, whose judicial philosophy approximates her own, and the balance of the court will stay conservative. For that matter, she will not have the power, on her own, to make substantive changes that would impact those most worried about her appointment.

Though judging by the line of questioning posed—or rather, flung—at Jackson’s confirmation hearing by certain Republican senators, you’d expect that she’d be positioned to change the game entirely. None of their questions actually dealt with her competence. (They knew there wasn’t anything there to question.) Instead, the conservative opposition to her nomination was a sensationalized spectacle of political posturing—more bluster than substance, with the goal of pandering to constituents.

Thankfully, in this case, it will have no bearing on the outcome. I applaud the handful of Republicans who have decided to do the right thing. And I will celebrate Judge Jackson’s all-but-guaranteed confirmation, knowing that We the People have surmounted one more hurdle on the track toward a more perfect Union.