In a letter to President Biden last month, United States Supreme Court Justice Stephen Breyer announced his intentions to step down and retire at the end of his term. His retirement leaves an open seat on the court, which President Biden must move to fill with his own nomination. During his campaign, Biden promised his supporters that his nomination to the Supreme Court would be a Black woman, “to make sure we in fact get everyone represented”. Following Justice Breyer’s announcement to retire, Biden revisited and reaffirmed his promise, saying that it was “long overdue”. He has kept true to his promise and announced his nomination of D.C.Circuit Judge Ketanji Brown Jackson, the first Black woman nominated to the Supreme Court. But not everyone is happy.
Many civil rights groups and coalitions celebrate Biden’s move, agreeing that for too long the institution that governed American laws and therefore lives was an old boys’ club. It seems that Biden’s intention to nominate a Black woman specifically would be appreciated as a step towards more representative government. Yet, Biden is accused of attempting to corrupt and polarize the highest court in the country with identity politics.
In an opinion article by award-winning journalist Froma Harrop, she opens with “much of the good that Democrats do gets washed away in their tributes to identity politics”. She argues that too often, the public finds it much easier to be offered up someone’s race, ethnicity, or gender, instead of having to analyze their policy.
It is true that extremist identity politics haunt our government and politics today as a form of polarization.
Politicians have found over and over again that if they appeal to identity politics, they can more easily and firmly rally votes at the polls and gain support towards their policy. Like it or not, we are all too familiar with Trump’s preferred campaigning methods. And, as Harrop pointed out, the left is just as guilty as the right in giving into these approaches. It is also true that politicians can utilize identity politics to promote divisions. Partisan politics, fueled by tribalism, are continuously proving to be a threat to democracy.
But are identity politics necessary to create a more representative democracy? Are actions that center underrepresented groups not identity politics by definition?
For some, a prompt reaction to Biden’s nomination motivations is the much-to-often-used phrase “Why does everything have to be about race?” Concerns about identity politics are understandable, given how often they lead to polarized settings. But in a country where politics is pushed to be identity, and identity is made to mean race, the way to ensure a representative democracy is to make things about race.
A look at the Supreme Court’s diversity track record shows that there has been only two Black men and five women on the court. Meanwhile, there has been no shortage of white male justices – 108, to be exact. Perhaps there were more qualified candidates than Judge Ketanji Brown Jackson that were not black nor women. Or perhaps she is the most qualified candidate. But the fact remains that white men were the only Supreme Court Justices for much of American history – that intentional decision was identity politics within itself. The only way to create a representative court is to consciously play identity politics once more.
Princeton professor of politics and author Jan-Werner Muller says that democracy requires “the recognition that we need to find fair terms of living together as free, equal, but also irreducibly diverse citizens.” [1] Black women are only one minority group who have been consistently overlooked in American politics. We cannot be a democracy where every citizen is equal and free if we do not acknowledge our diversity and our roles, and take action driven by that knowledge.
[1] What is Populism, Jan-Werner Müller, 2016
Thank you for contributing to such a prescient conversation with such care and detail. I wrote a response to your piece:
In an October 2018 piece in The Atlantic, Professor Anne Applebaum places the unmerciful blade of political polarization in terms of its consequences: friendships severed in the name of political differences, state-sponsored conspiracy theories, and—as the world learned to its sorrow in 1939—genocide. [1] Could the U.S. really be on such a path—could the appointment of a Black woman as an Associate Justice of the Supreme Court so threaten our society? The above blog post, “Identity Politics Influence Supreme Court Nomination” by Brenda Garcia, assesses the nomination of Judge Ketanji Brown Jackson to the Supreme Court as a dangerous form of polarization—I dispute this assessment. The nomination of a Black woman to the U.S. Supreme Court does not contribute to polarization, but instead lessens the anti-democratic effects of ethnic heterogeneity. President Biden’s Supreme Court nomination, however, might still have imperfect consequences.
To what degree does the appointment of Judge Ketanji Brown Jackson contribute to political polarization in U.S. democracy? None at all, I argue. Politicization of identity—especially racial identity—indeed can contribute to political polarization, but remarks about Judge Ketanji Brown Jackson’s blackness is not sufficient ground to claim political polarization. Indeed, Jackson’s nomination could be characterized as politicized around her identity—President Biden did indeed cite Jackson’s race as a motivating quality in her nomination. [2] But this variety of politicization—focused on the virtues of ethnic inclusion as opposed to its dangers—does not drive polarization. In a 2015 white paper by the United States Agency for International Development, Professors Ellen Lust and David Waldner cite a body of political research to suggest that the encouragement of interethnic cooperation is not a polarizing form of identity politicization. They write, “it is not the existence of ethnic cleavages but their politicization by political entrepreneurs that is deleterious to democracy.” [3] In this respect, Jackson’s nomination does not possess the divisive populist nature which threatens democracy, and cannot be said to contribute to polarization and democratic erosion.
In his 1998 book, On Democracy, Robert Dahl lists subcultural heterogeneity—the degree to which a society is composed of diverse groups—as a factor which may hold a society back from democratic consolidation. [4] Dahl, in this work, drew on the 1959 research of Dr. Seymour Lipset. Lipset, in his paper, “Some Social Requisites of Democracy,” found the presence of cultural differences between subcultures to pose a great threat to democracy. Lipset ties subcultural heterogeneity to the concept of weltanschaaung, a political regime in which parties view each other as fundamentally opposed to each other, wherein the victory of one party is a moral threat to another [5]. Within Lipset’s framework, a correlation exists between the institutionalization of tolerance as a regime value and modernization and economic development. [6] Dahl, building upon Lipset’s research, theorizes a positive correlation between economic development and democratic consolidation. [7] Thus, an act which institutionalizes tolerance benefits, not harms, democratic consolidation. The appointment of Judge Ketanji Black Jackson to the Supreme Court, with the expressed intention to diversify the Court’s membership, is beneficial to democratic institutions under the theoretical framework of Dahl and Lipset.
Since 1967, there has been only one Black justice on the U.S. Supreme Court at a time—a fact which feeds the perception that the Court has a single “Black seat” [8]. Though one Black woman certainly does not constitute a trend, the rhetorical moves toward institutionalizing consociational diversity offer room for concern. President Biden’s remarks on the nomination of Judge Ketanji Brown Jackson highlight the notion of representing the diversity of the U.S. population through the inclusion of minorities as justices. [9] Were this trend, hypothetically, to continue, it may bode unwell for U.S. democratic institutions. In Dahl’s assessment of consociational democracies, their establishment is contingent on very rare conditions and under constant pressure of cultural conflict. [10] Institutionalizing the notion of preserving seats—the “Black seat” perception—on the U.S. Supreme Court for minority groups, though by no means establishing consociationalist rule across the land, would threaten U.S. democracy because it would enable cultural conflicts to impact democratic institutions to a high degree from within. Whether the appointment of Judge Jackson would institutionalize such a notion is yet indeterminable; the threat to the democracy lay not in the appointment itself, but the rhetorical trend.
Judge Ketanji Brown Jackson’s nomination raises no threat to democratic institutions, but instead stands to affirm their solidity. An analysis of research on polarization, taken with an assessment of political theory on democratic consolidation, reveal that the nomination, by institutionalizing tolerance, in fact benefits democratic institutions. Yet, room still exists for concern, as one nomination of an underrepresented minority judge benefits democratic institutions, but a trend of nominations threaten to elevate cultural conflicts and damage democratic institutions.
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[1] Anne Applebaum, “Polarization in Poland: A Warning From Europe,” The Atlantic, October 2018.
[2] E.g., “For too long, our government, our courts haven’t looked like America.” in “Remarks by President Biden on his Nomination of Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court” (speech transcript, Washington, DC, February 25, 2022), The White House, https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/02/25/remarks-by-president-biden-on-his-nomination-of-judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-the-u-s-supreme-court/?utm_source=link.
[3] Ellen Lust and David Waldner, “Unwelcome Change: Understanding, Evaluating, and Extending Theories of Democratic Backsliding,” Democracy Fellows and Grants Program, United States Agency for International Development, June 11, 2015, 65.
[4] Robert Dahl, On Democracy (New Haven: Yale University Press, 1998), 147.
[5] Seymour Martin Lipset, “Some Social Requisites of Democracy: Economic Development and Political Legitimacy,” The American Political Science Review 53, no. 1 (March 1959): 92.
[6] Lipset, “Some Social Requisites of Democracy,” 98.
[7] Dahl, On Democracy, 167-168.
[8] Melissa Murray, “A new kind of diversity on the Supreme Court: Two formidable Black voices,” Washington Post, February 25, 2022, https://www.washingtonpost.com/outlook/2022/02/25/brown-jackson-diversity-court-thomas/.
[9] See no. 2.
[10] Dahl, On Democracy, 154.