Flowers: Thomas will face affirmative action on our highest court

Published 11:28 am Friday, February 4, 2022

Exactly 10 years ago, the Supreme Court was presented with a case involving affirmative action. The majority rejected a policy employed by the University of Texas, which allowed it to consider race as one factor in its admissions decisions. A majority of the court rejected the university’s arguments that this was a good way to achieve “diversity,” and sent the case back to the lower courts to determine if “strict scrutiny” justified the use of the policy.

Justice Clarence Thomas, an avowed foe of affirmative action, filed a separate opinion. He concurred in the result, which was decided largely on procedural grounds. But he wrote separately to express his opposition to any sort of race-based policy.

Thomas has always taken the position that giving someone an advantage because of their race ends up causing what he called “insidious consequences” of “racial engineering.” That’s made him a reviled figure among the sort of folks who think that race, gender, sexual orientation, ethnic origin and a host of other immutable characteristics should be the basis for assigning honors, providing opportunities and assessing achievement.

Well, Thomas is about to get a companion on the high, and according to President Biden, it’s going to be a woman of color. In other words, Biden is going to use the litmus test of race to determine who ascends to the highest court in the land, the one that has consistently told us that discrimination is illegal.

Biden hasn’t said that race and gender will be “one of the ways” in which he chooses Justice Stephen Breyer’s replacement. He’s pretty much made it clear that this will the threshold decision, and that only after he narrows the selection pool to women of color, he can then look at other qualifications like, uh, merit.

And that’s a huge disservice to women of color, white women, men of color, and pretty much every other human being out there who wants a fair shot at showing their value. What Biden is doing is engaging in just the sort of racism that professor John McWhorter describes in his book “Woke Racism,” and that Justice Thomas described in his memoir. In a passage that breaks your heart, because you know that he is speaking from a heart that was likely broken many times over because of bigotry, Thomas writes about what he calls the “paternalistic” form of racism that buttresses affirmative action:

“At least southerners were up front about their bigotry; you knew exactly where they were coming from. Not so the paternalistic big-city whites who offered you a helping hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place.”

Biden isn’t new to this rodeo. About 15 or so years ago, before he was tapped to be Barack Obama’s running mate, he described the future president as “the first mainstream African American who is articulate, bright and clean and a nice-looking guy.” He later apologized, insisting that he was taken out of context.

Biden has been backed into a corner by the radical left wing of his party, for whom identity politics is mother’s milk. He is forced to mouth all of the appropriate platitudes about it being time to have a woman of color on the court, which he likely means “Black” woman since I’m sure the wise Latina considers herself to be a woman of color, among other things. But we all understand the game, and how it must be played these days.

To be fair, Joe isn’t the first president to play it. Presidents from the left and the right have made a big deal about appointing women, including Reagan, Clinton, Obama and Trump. It’s always been troublesome, because ovaries are not the organs that should matter when choosing a justice. Biden is just upping the ante, now, with race.

Given that Breyer is a liberal, the balance of power won’t be impacted by the new nominee. It’s going to remain a 6-3 court.

The real problem is the idea that a president can get up and actually say that he will limit his choice of nominees for one of the most crucial and important positions on the court to a specific race and gender. He may change his position in the coming weeks, although with AOC types breathing down his neck, he wouldn’t dare unless Jill provides a better defense for him than the Bucs did for Tom Brady.

So get ready for that “articulate, bright and clean nice-looking woman,” coming to a court near you.

Christine Flowers is an attorney and a columnist for the Delaware County Daily Times, and can be reached at cflowers1961@gmail.com.