Arguing with the Right and the "Left" About Identity Politics

Monday, 23 September 2024

Demand Equal Outcomes? No! Ignore Unequal Outcomes? No! Oppose Discrimination? Mostly. Identity Politics? Mostly Not.

Ed Buckner

Let me start by throwing out some close to cliches about what I support firmly on the record:

Outcomes are not always equal, and that may matter

Short guys and tall guys are not equally likely to make it in the men’s National Basketball Association. As a pretty short guy (and getting shorter, damn it), I never once felt this was unfair. Speed, agility, thousands of hours of practice, grit, intelligence, determination—many things affect who makes it in the NBA. But being closer to the height of the basket when you’re standing (or jumping) helps—and pretending that’s irrelevant would be silly.

But if chief executive officers of corporations are disproportionately men vs. women or white vs. hispanic, etc., those unequal outcomes matter—and should have consequences—but nothing should be done just to equalize outcomes. Instead, careful analysis of why the outcomes are unequal needs to be undertaken. And if mistreatment and discrimination is the cause, take steps to correct.

Equal opportunity is worthwhile, nearly always

Opportunity for what? If it’s for power, control, economic advantage, better food, and the like—then opportunity needs to be equal as far as irrelevant crap like sex (nearly always), skin color, etc., is concerned. But if the “opportunity” is to get cooler looking seashells or the like, never mind.

Discrimination is usually bad

This is pretty much the mirror image of the opportunity bit above. Discriminate regarding irrelevant stuff? No problem. Arbitrary discrimination impeding reaching desirable goals? No.

Elect or appoint the person who is best qualified, who most closely expresses ideas and policies you prefer—not someone who is the “right” identity: ethnicity, gender, race, height, or from the right state or went to the right university

Yep. But exceptions may be needed. Read on.

A Case in Point: Appointing United States Supreme Court Justices

When the President of the United States has the chance to appoint a US Supreme Court Justice, how many people can he choose from? Must he choose a judge? A lawyer? A college graduate? A man? A caucasian (“white”)? Someone over 30? A smart person? An American citizen?

Here’s what the US Constitution (Article II, Section 2, Clause 2) directs:

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

So the prez has essentially the whole world—billions of people—to choose from, assuming he can get the Senate to go along. He (and so far it’s always been a male prez—may that change soon!) can hardly start riffling through the resumes of billions of people, so he has to discriminate—to make sweeping decisions about who to consider at all even before he chooses who to seriously consider and then who to nominate.

An obscure subsistence farmer in France, even a brilliant one, won’t have any chance of getting Senate approval, of course, but what about state governors and US Senators? What about a prominent thinker about the US Supreme Court like Edward Tabash? Or a smart philosopher like Keith Parsons?

Is choosing a younger person—to spread out the influence over more expected years—justifiable? If he wants to name someone who didn’t graduate from college, is that politically OK—or might it be (or be seen as) affirmative action for the formally less well educated? By the way, the Justice I hold in highest esteem, Robert H. Jackson, appointed by Franklin D. Roosevelt in 1941, was not a college or law school grad.

Whatever else a President does when a vacancy arises, he must winnow the field quickly from a few billion to a manageable few. US citizen?—that drops it by well over 95% right away. Judicial experience? Not always required—but usually—another chunk. Protestant Christian—surely not required, but historically, the overwhelming majority of Justices were. (And arguably are way underrepresented now.) An open atheist? None to date, so way, way underrepresented. Benjamin Cordoza (1870—1938) was Jewish, but a secular Jew, identifying as an “agnostic.”

Identity Politics—the Good, the Bad, and the Ugly

Time to discuss a fascinating case in point for identity politics: Ketanji Brown Jackson.

Justice Jackson was born in 1970, the same year as our son, Michael. Justice Jackson’s father, Johnny Brown, was born at almost the same time I was (only a few months before me) and—prepare to be astonished—he was born in the very same pretty obscure southern Georgia small town as I was: Fitzgerald, Georgia! This is relevant because . . . well, OK, it’s not. But it seems cool to me and I never heard of anyone else, famous or not, being born there, so I knew you’d want me to mention it.

For a bit of background that may be relevant: there have been, including the current nine, 116 Supreme Court justices in the history of the US. (The Court has not always had nine justices.) Counting Ketanji Brown Jackson, three of these have been/are African American (that’s 2.6%). Also counting Ketanji Brown Jackson, six have been/are female (that’s 5.2%).

Does that mean identity politics—”Gotta find a suitable white guy!”—have been in play throughout most of American history? Probably not literally—just instead in effect, based on unconscious presumptions, prejudice, and thoughtlessness. The Presidents have all been white (except Barack Obama) guys (so far, at least) and probably most of the people they knew, trusted, and liked were, too. And no one probably even said, “Boss, how about Harriet Tubman?”

Joe Biden was not the first President to make a campaign promise based on these kind of things, by the way—Ronald Reagan pledged that if elected he’d appoint a woman to the Supreme Court. When he got the chance—in 1981—Sandra Day O’Connor got the nod and became the first woman on the Court. It only took 192 years.

So, is it just a matter of now making up for past stupidity? I mean, can 115 wrongs be corrected by making another one—by appointing someone based on irrelevant factors instead of based on meaningful qualities?

Remember, the President—any President, not just Joe Biden or Ronald Reagan—has to winnow that field quite dramatically before he can even start to seriously weigh which person to pick. Once upon a time, geographic diversity—need someone from the Northwest on the Court to balance out the Easterners and Southerners—was an important part of it. Why not make up for a couple of hundred years of bad consideration by giving preference based on race and sex in the opposite direction?

Wouldn’t it be wiser, say those on the right, to quit making bad choices and just pick the best person, period? One possible problem with that is that the pool of really good possible appointments probably includes thousands of people and there is no meaningful way to rank the ones in that elite group.

Quite possibly the best case for identity politics in these matters I’ve ever heard came from US Senator from New Jersey Cory Booker at Ketanji Brown Jackson’s confirmation hearings. He had millions of Americans, especially African American women, especially KBJ’s family, in tears. Here’s some of what Booker said:

And I want to tell you, when I look at you [KBJ], this is why I get emotional. I’m sorry, you’re a person that is so much more than your race and gender. You’re a Christian, you’re a mom, you’re an intellect, you love books. But for me, I’m sorry, it’s hard for me not to look at you and not see my mom, not to see my cousins, one of them who had to come here and sit behind you. She had to have your back. I see my ancestors and yours. Nobody’s going to steal the joy of that woman in the street, or the calls that I’m getting, or the texts. Nobody’s going to steal that joy. You have earned this spot. You are worthy. You are a great American.

And—

You and I and everyone here, generations of folk who came here and said, “America, I’m Irish. You may say no Irish or dogs need apply, but I’m gonna show this country that I can be free here. I can make this country love me as much as I love it.” Chinese Americans – forced into near slave labor building our railroads, connecting our country – saw the ugliest of America. But they were going to build their home here, saying “America, you may not love me yet, but I’m going to make this nation live up to its promise and hope.” LGBTQ Americans from Stonewall, women to Seneca, hidden figures who didn’t even get their play until some Hollywood movie talked about them and how they were critical for us defying gravity. All of these people loved America. 

And—

Harriet Tumban is one of my heroes because the more I read about this person, the more – I mean, she was viciously beaten. Her whole life she used to fall under spells, cracked skull. She faced starvation, chased by dogs. And when she got to freedom, what did she do? She rested? No, she went back, again and again and again. The sky was full of stars, but she found one that was a harbinger of hope – for better days. Not just for her and those people who were enslaved, but a harbinger of hope for this country. She never gave up on America. She fought in – led troops in the Civil War. She was involved in the suffrage movement. And as I came back from my run, after being near assaulted by someone on the street, I thought about her and how she looked up, she kept looking up. No matter what they did to her, she never stopped looking up. And that star was a harbinger of hope.

Today, you’re my star. You are my harbinger of hope. This country is getting better and better and better. When that final vote happens and you ascend onto the highest court in the land, I’m gonna rejoice. And I’m gonna tell you right now: The greatest country in the world, the United States of America, will be better because of you. Thank you.

Am I convinced? Should we make compensating choices, choices to try to balance destructive past discrimination?

I don’t think Reagan or Biden should’ve pandered for political gain by promising to choose “a woman” (Reagan) or “a Black woman”(Biden). That inevitably meant that the women they chose carried, for some people, at least a dismissive hint of “Oh, just an affirmative action choice. Too bad.” Senator Booker’s slightly defensive words reflect that.

I think both Presidents should have said, “I’ll name the best person in America to the Court if I get to appoint.”

And then Reagan should have appointed O’Connor.

And of course Biden should have named Ketanji Brown Jackson. And if anyone said to him, “Mr. President, you named a Black Woman,” then he could have replied, “About damned time.”

---

Note: Anyone may copy and publish what I or my guests write, provided proper credit is given, that it’s not done for commercial purposes, that I am notified of the copying (you can just leave a comment saying where the copy is being published), and provided that what we write is not quoted out of context or distorted.

---

Thanks again for reading Letters . . . . Subscribe for free (always) to receive new posts and support my work.