Judging Merit by Identity

With the coming retirement of Justice Stephen Breyer, President Joe Biden is poised to fulfill his campaign pledge to nominate a black female to the Supreme Court. It is worth revisiting, therefore, a little-noticed announcement from Biden’s second month in office.

In February 2021, the Biden administration signaled its intentions to lower the standards for federal judicial appointments. Traditionally, presidents have submitted their judicial nominees to the American Bar Association for evaluation before announcing their choice in public. The ABA assigned potential candidates scores of “well qualified,” “qualified,” or “not qualified,” based on research about the nominee’s legal competence, integrity, and temperament. A “not qualified” rating, though confidential, served as a de facto veto.

The White House Counsel’s Office disclosed in February 2021 that it would not involve the ABA in preclearance. Republican presidents have also cut the ABA out of the confidential vetting process in recent years, on the ground that the association was biased against conservatives. That charge was plausible. The reason that the Biden administration gave for sidestepping the ABA, however, strained credulity: The ABA was insufficiently attuned to the need for “diversity” on the bench. Allowing the ABA to vet candidates was incompatible with the “diversification of the judiciary,” explained a member of the White House Counsel’s Office.

The idea that the ABA is indifferent to identity politics is laughable. Its leading members are obsessed with the racial and sex demographics of corporate law firms and law school faculties. This is the same ABA that gave its highest rating to Supreme Court nominee Sonia (“over 100,000 children . . . in serious condition, and many on ventilators” from Covid) Sotomayor. It is a measure of how far the Biden administration intended to stray from even a diversity-driven standard of competence that it saw the ABA as a roadblock.

The Obama years, however, had revealed that the bar association’s expectations still possessed some remaining taint of meritocracy. The ABA rated a higher proportion of Obama’s judicial nominees “not qualified” than the nominees of Presidents Bill Clinton and George Bush, and of Obama’s successor Donald Trump. Most of those deemed not qualified were minorities or females, slowing down Obama’s own drive to “diversify” the federal bench.

Biden officials attribute the Obama nominees’ low scores to racial and gender bias. A more credible reason is that the Obama administration had lowered the bar for a judgeship beyond what even the ABA was willing to stomach.

An estimated 2 percent of the nation’s lawyers are black females. The introduction of any extraneous criterion for a job search lowers the average caliber of the potential applicant pool, by putting top contenders who do not possess the irrelevant trait out of reach. Contrary to the nostrums of diversity advocates, the role of a judge is not to “look like” this or that identity-based group; it is to apply the law as accurately and transparently as possible. President Ronald Reagan ignored that fact by limiting his 1981 Supreme Court selection to a female.

Biden’s race and gender restrictions are even more draconian, rendering 98 percent of all possible candidates beyond consideration because they lack “qualifications” that have nothing to do with judging.

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After the first year of law school, 51 percent of black law students rank in the bottom tenth of their class, compared with 5 percent of white students, according to a study of hundreds of thousands of student records from 90 percent of all accredited law schools and comprising 80 percent of all law students. Two-thirds of black students score in the bottom fifth of their class.

The author of that study, UCLA law professor Richard Sander, attributes that unequal performance distribution to mismatch: every remotely selective law school admits black students with academic qualifications on average vastly below their white peers. Mean black and white scores on the 2013–2014 LSAT were separated by 1.06 standard deviations, the Brookings Institution has found. In 2004, only 29 blacks, or 0.3 percent of all LSAT test takers, scored 170 or above on the LSAT, the average score for the most competitive schools, reports The Journal of Blacks in Higher Education. Whites were more than ten times as likely as blacks to score 170 or above. Yet those schools all admitted what they deem a “critical mass” of black students by race-norming their admissions standards.

The resulting skills gap puts preference beneficiaries at a competitive disadvantage in the classroom; they struggle to keep up with instruction pitched to students with more advanced academic skills. The consequences linger: blacks are twice as likely to drop out of law school as whites; only 45 percent of black law grads pass a bar exam on their first try compared with 80 percent of whites. Blacks are six times as likely to fail the exam after multiple attempts.

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Our leading institutions—whether the bar, the American Medical Association, or universities—are fast becoming nonserious entities, frittering away our civilizational legacy in favor of the trivialities of identity. {snip}

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