New justices in Trenton and Washington
Sometimes there’s a confluence of events at the state and federal levels that speak to the ways in which the country is undergoing significant change. With Justice Stephen Breyer announcing his retirement from the U.S. Supreme Court on Thursday, and with President Joe Biden’s pledge to appoint a Black woman to the court, the movement to have America’s political institutions reflect the changing racial demographics in the country could not be more evident. That is, unless one looks at a similar phenomenon in New Jersey, where just last year, Gov. Phil Murphy’s 2020 appointment of Justice Fabiana Pierre-Louis came to fruition, with her taking the bench on the state’s Supreme Court in September.
Affirmative action abroad
Assuredly, not everyone is happy with such diversity-minded appointments. Yet, for whatever arguments some make about the erosion of “meritocracy” and the need to end affirmative action — a matter to be taken up by the Supreme Court very soon — they may be conveniently forgetting America’s imposition of identity-based quotas elsewhere in the name of democracy. I am thinking of the gender- and ethnic-based quotas the United States imposed in Iraq beginning in 2004. By the end of that decade, the Iraqi parliament could boast a greater percentage of women representatives than our Congress. Presumably, President George W. Bush and those in his administration would tout this as a form of progress for the region made on their watch.
Progress for women, but still a minority
But what about here? Those opposed to affirmative action’s continuation point to the notion that racial and other forms of identity-based progress over the years has rendered such state-sponsored efforts passé. But are they? Take Murphy’s efforts to reappoint civil rights attorney Rachel Wainer Apter to the state Supreme Court: Should her nomination be confirmed by the state Senate, Wainer Apter would be the third woman on the seven-member court. That would reflect considerable progress, but as is the case with the U.S. Supreme Court, even if Biden’s appointment were to be confirmed, the four women would still represent a minority on the nine-member court — despite the fact that women represent slightly more than half of the American population.
Ideology over identity
For Murphy, the trouble has been less about Wainer Apter’s gender than the fact that she would tilt the court slightly to the left. New Jersey governors have tended to keep a partisan balance on the court (and Murphy has all but pledged to appoint a Republican if there is a next time), although there is no constitutional requirement to do so. In this way, at least, New Jersey’s politics reflect less of a concern about identity than the ideological persuasion of the holder of said identity. Still, for all its diversity, New Jersey’s Supreme Court now has one Haitian American in Pierre-Louis, and one Cuban American in Justice Faustino J. Fernandez Vina. One Black and one Latino Justice on a seven-member court is hardly affirmative action run amok — and this in one of the nation’s more progressive states.
What’s good for Kabul …
To wit: Many overestimate the power of affirmative action to change the face of America’s institutions, even as they may applaud such efforts in Iraq or Afghanistan. Indeed, a walk through any of America’s elite colleges and universities (not to mention corporate boards) will demonstrate that the face of America — both in the classroom and in the faculty lounge — remains predominantly white, and its leadership all too often male. That there are long-standing efforts afoot to change this, however painfully slow, should be celebrated, rather than remaining a source of opprobrium or fear. After all, what’s good for Kabul or Baghdad, ought to be good for Washington or Trenton.