Wikipedia's Affirmative Action begins:

Affirmative action refers to a set of policies and practices within a government or organization seeking to include particular groups based on their gender, race, sexuality, creed or nationality in areas in which they are underrepresented such as education and employment.

which seems to be an imperfect but fairly good fit to Biden's plan and goal in some ways.

Yet in CNN's GOP senator criticized for remark about Biden's SCOTUS pick Constitutional Law Professor Gloria J. Browne-Marshall (twitter with several other accolades) seems to argue against this being affirmative action while at the same time stating that black women may be underrepresented in the highest courts and certainly in the Supreme Court, and Biden's plan would be in the remedial direction, which to me makes it sound a lot like affirmative action conceptually at least.

It's possible that I'm simply not following Browne-Marshall's arguments carefully enough, that's just my first take.

Question: What would be the fact-based arguments for and against President Biden's plan to appoint a black female to the US Supreme Court as being like Affirmative Action?


1 Answer 1


The usual term for selecting a political candidate with a different background from other candidates is called balancing a ticket, not affirmative action. Calling a Supreme Court nomination affirmative action denies the intensely partisan nature of of the process. This is no ordinary civil service appointment.

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    I believe that nominating a supreme court justice is more like nominating a congressman or senator than like hiring a teacher or a civil engineer. If it was a simple hiring process, there would be no need for confirmation hearings, which tend to be intensely political in the present climate.
    – o.m.
    Jan 30, 2022 at 11:24
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    The "ticket" in the phrase "balancing the ticket" is a set of candidates running for office together. It doesn't apply to a judicial nomination. "Balance" is certainly applicable, but I fear that "ticket" obscures the point you're trying to make.
    – phoog
    Jan 30, 2022 at 15:16
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    If anything, they're becoming far more important than the VP itself, being the lion's share of the balance of the ticket. The literal ticket, in who you directly vote for, may only include the President and VP, but in the people's minds they're voting for much, much more than that. Feb 1, 2022 at 3:33
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    @zibadawatimmy I've never heard "ticket" used to mean anything other than a slate of candidates in an election. Can you cite an example supporting your assertion? To be clear, I'm talking about the application of the word "ticket" to a president's appointments, not about the political importance of balance in selecting nominees. Certainly the Wikipedia article doesn't mention appointments.
    – phoog
    Feb 1, 2022 at 14:01
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    Similarly you can't ignore that Trump's claims and pledges of nominating anti-abortion judges and the like were a major draw to a lot of voters. People respond to the putative policies and the whole shape of the (potential) administration. Cabinet members and judges and Justices aren't just background effects that are of little relevance these days, they're major attractions for convincing voters. They don't all only care about who is P/VP, they also care about these other positions and will vote based in part on the entire picture, not simply who is literally on the ticket. Feb 2, 2022 at 6:39

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