Bench Memos

Law & the Courts

Antiracism Indicts Ruth Bader Ginsburg

From Coleman Hughes’s insightful critique of Ibram X. Kendi’s book How to Be an Antiracist and from other arguments in the public square, I gather that a central tenet of the ideology of so-called antiracism is that any racially disparate outcome that disfavors blacks is compelling evidence of white supremacy. I wonder, then, how the same folks who embrace, or at least pay lip service to, this antiracism ideology can also celebrate Justice Ruth Bader Ginsburg. Or am I wrong in thinking that there are many folks on the Left who do both?

Way back in 1993, as a Senate Judiciary Committee staffer to Orrin Hatch, I prepared him for Ginsburg’s confirmation hearing. As part of her submissions, Ginsburg sent in a form that revealed that over the course of her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary. Out of 57 employees, zero blacks.

I thought that Ginsburg’s own hiring record nicely illustrated the weakness of relying on statistical disparity as evidence of intentional discrimination. So I drafted a question for Hatch, which he posed to Ginsburg near the outset of her hearing:

Suppose a small business in a city that was majority black had never hired a black person, even though that business in over a decade had hired more than 50 people. Further, suppose that a disappointed black job applicant filed a discrimination suit and that she or he was unable to provide any direct evidence of intentional discrimination by the employer. Would such statistics standing alone, in your view, justify an inference of racial discrimination by the employer?

As I expected, Ginsburg didn’t say no. Worse, when Hatch pointed out to her that he was describing her own record and warned against reliance on statistics, Ginsburg, completely missing the point, instead responded, “I am going to try harder, and if you confirm me for this job, my attractiveness to black candidates is going to improve.”

As if the problem had been that black candidates weren’t sufficiently interested in clerking for her on the D.C. Circuit.

If Ginsburg has carried through on her promise to “try harder” to hire black law clerks, there is barely any evidence in the results. Over her 27 years as a justice, Ginsburg has hired only one black clerk among the more than 100 clerks she has had.

I certainly wouldn’t infer from Ginsburg’s hiring record that she is a white supremacist. She instead seems obtuse to the consequences of nondiscriminatory merit-based selection from a subpool of candidates—the highest-achieving law students—that doesn’t remotely reflect the racial composition of the general population. (A far more troubling sign of her racial outlook is her statement in a 2009 New York Times interview—see point 2 here—that Medicaid funding of abortion addressed a “concern about population growth and particularly growth in populations that we don’t want to have too many of.”)

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