Estrich: Wrong for the right reasons

Is it legitimate to take into account the background of someone who is being considered for a lifetime appointment to the highest court in the land? Of course.

No matter how many times would-be justices compare themselves to the referees who simply call the balls and strikes, any examination of the pattern of Supreme Court decisions over the course of a term makes clear that justices bring their own ideologies and philosophies, products of identity and experience, to the business of judging close cases.

So it goes without saying that of course presidents take all of that into account in framing the qualifications they seek in a justice.

And it is equally appropriate for a president to look at a court of nine justices and take account of its diversity in choosing a new justice. There is certainly nothing wrong with having as one’s goal a court that looks as much like America as it can.

So I’m all for the president telling his aides to make sure that highly qualified Black women are among the candidates presented to him for consideration. I’m all for him ensuring that highly qualified Black women are among those who are making the list of candidates and vetting them for the president.

It’s announcing in advance that the only candidates you’re considering are Black women that — at least if polls are to be believed — rubs 80 percent or more of us the wrong way.

It’s the difference between setting a goal and taking affirmative action (like insisting on a diverse list of candidates) to reach it, and establishing a quota and excluding from consideration anyone whose identity doesn’t match. In short, it’s the difference between inclusion and exclusion.

There is, of course, a larger divide.

We Americans have a strong streak of individualism, a fundamental belief that unites us that we should be judged by what we do and not who we are, that — unlike almost every nation in the world — we become Americans and want to be judged the same as everyone else.

And then there is a school of critical thought that says that neutrality, at least as pertains to race, is a fantasy, that unless we act in a way that is race-conscious, unless we announce in advance that we will only consider Black women, our conscious and unconscious biases will lead us to pick yet another white male who looks and sounds just like the person doing the picking.

Biden could have shown that wasn’t true. Instead, he did just the opposite by announcing in advance that he would choose a Black woman.

The sad part, of course, is that this is being done in the hopes, and with the goal, of inclusiveness, a very good and appropriate goal, so long as it is that, not a quota of one.

And what makes it sadder is that it seems to be the mark of the Biden administration to be wrong for the right reasons.

Which, sadly, still amounts to being wrong.