Shortlisting

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Pearl River     On Wade’s World recently, I talked to two law professors Hannah Johnson and Renee Jefferson about how they handicapped the chances of various Black women judges who had been mentioned as possible nominees for the open seat in US Supreme Court. They had some interesting insights on that question.

The odds-on favorite they believed was US Appeals Court Judge Ketanji Jackson.  She’s not just an appeals court judge, but a sitting member of what most believe is the most prestigious appeals court, located in the Washington DC district.  After finishing Harvard with high honors, where she was also editor later of the Harvard Law Review, she was a clerk for Justice Stephen Breyer, whose seat is coming open upon his retirement.  There are other strong candidates.  For example a non-Ivy League judge from South Carolina is being pushed heavily by Congressman Clymer, who has a lot of stroke with President Biden, given his role in pushing forward Biden’s pivotal victory in South Carolina primary.  It’s a long list, and that, they would argue, is the point.

The professors had written a book that turned out to now be very timely called Shortlisted:  Women in the Shadows of the Supreme Court.  They had researched the vetting and nomination process over the last almost one-hundred years when the first woman was put on a list for the court right through the Obama appointees.  Where Sandra Day O’Conner was the first woman appointed on the court, we now have three there.  They quoted former Justice Ginsberg favorably who had commented that she would be happier when all nine of the justices were women.

All this is a bit out of my lane, but where the professors made an inarguable point is that the use of the shortlist has historically been more a political tactic than a lineup of candidates with an equal opportunity to win the seat.  Many of the presidents, all the way up through Richard Nixon, put women on the list, less because they were under serious consideration and more often simply as placeholders in the act of throwing up a few straws to be carried in the pollical winds.  Their research turned up too many White House reports on misogyny in and around the Oval office.  It was cringeworthy to read descriptions of some of the shortlisted women described in the most sexist way, including a New York Times comment about one esteemed judge still swimsuit-attractive

I think their point on shortlists is broader than simply the Supreme Court.  Whether book awards, Hollywood movies and actors, or candidates for National Football League head coaching positions, the shortlist seems not as much a reveal or an effort at transparency, as it is a political act and a head fake concealing true intentions and, too often, the real internal process of decisionmakers and the powers-that-be.  We know how decisions are really made, but too often we are tricked into the handicapping process and forget about the reality.  Too many participants on these lists also help enable them, because of careerism and financial benefits they believe might inure to them.  I’m not naïve.  Democracy is not coming to many selection processes, but at the least, can we demand that they not play us?