Put a Black woman on the Supreme Court

The Jim Crow party is aghast because President Biden is nominating a Black woman to the Supreme Court. 

When Ronald Reagan announced he would appoint a woman to the Court, Republicans cheered. Now when Biden says his appointment will be a Black woman, they’re jeering.  

Partisanship? Prejudice? Or both? 

This argument was given a false imprimatur of public support by a poorly phrased ABC/Ipsos poll which found that 76 percent thought the president should “Consider all possible nominees,” while just 23 percent wanted him to “Consider only nominees who are Black women, as he has pledged.” 

When the issue is framed as “only considering” any segment of the citizenry, people will respond poorly. 

I’d wager the answer would have been different if the question had been, “President Biden promised to appoint a well-qualified Black woman to the Supreme Court for the first time. Do you think he should keep that promise or not?” 

One could reasonably argue that question is also biased. That’s part of the point: polling complex issues like these is not easy; devoting a single question to the topic is rarely informative.  

It’s a difficult question both to poll and to think about, in part because we resist dealing with two core issues: the myth of meritocracy and the objective superiority of diversity.  

Decades of debate surround the question of just how meritocratic America is, but we needn’t wade into that conflict here. 

When it comes to the Supreme Court (and lots of other positions), the first order question is about measurement. How do we even determine which individual most merits the job?

If we were hiring lumberjacks, measurement might be clear: Which job seeker can cut down the most trees per day, without injury? 

Assessing possible Supreme Court justices is much harder.  

Presumably the best candidates will be attorneys. Though the Founders did not make that a prerequisite, every justice has been a lawyer.  

You might want justices who graduated from top law schools. Eight of the current nine pursued their legal education at either Yale or Harvard, now ranked first and third. The ninth, Justice Amy Coney Barrett, holds her degree from 22nd ranked Notre Dame. No one held that against her, nor should they have. 

Maybe one should have a record as a judge, though Elena Kagan never sat on the bench yet was confirmed by 63 senators. 

But hundreds of potential candidates graduated from top law schools, clerked at the Supreme Court and even have judicial experience.

With no objective criteria for determining who’s “best,” merit is rendered useless in choosing among a large group of obviously qualified nominees of every background.  

The second impediment to rationality in this debate is the failure to recognize that diversity is not just a socially important goal. It’s now clear that diverse teams make better decisions. 

Nearly two decades ago, Scott Page and Lu Hong of the University of Michigan showed mathematically that a diverse group of able problem solvers will outperform a group of the best problem solvers.

McKinsey studied 366 companies and found those in the top 25 percent for racial and ethnic diversity are 30 percent more likely to enjoy profits above the average for their industry.  

Experiments demonstrate that diversity leads to better decisions because it brings richer information to the table, reduces the tendency to rely on ingrained assumptions, leads to more use of facts, and promotes original thinking.  

In short, diversity means better outcomes. 

Putting a Black woman in Supreme Court deliberations will mean wiser decisions, and that’s a great reason for President Biden to select his first justice from the large pool of brilliant, well -qualified, Black female judges.   

Mellman is president of The Mellman Group and has helped elect 30 U.S. senators, 12 governors and dozens of House members. Mellman served as pollster to Senate Democratic leaders for over 20 years, as president of the American Association of Political Consultants, and is president of Democratic Majority for Israel.

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