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With the resignation of US Supreme Court Justice Stephen Breyer, President Biden is seeking to fulfill his campaign promise to appoint the first-ever black woman to the court. This promise has led to attacks suggesting that by nominating a black woman she is somehow less qualified.

It’s a brutally simple line of attack, we should want the most qualified candidate. But a much more important question is missing, what determines qualification?

The most common answers to this question are measures fraught with systemic biases in favor of maintaining the status quo, which has resulted in 108 of our 115 Supreme Court justices being white men.

Test scores are a common measure in academia, but decades of data show that standardized test scores are not a reliable indicator of academic performance. They are, however, an excellent indicator of socio-economic status. In some cases, the use of test scores in school admissions had little to do with admitting the best candidates, but was motivated by a desire to keep black students out. .

According to University of Texas at Austin records, two weeks after the Brown v. Board of Education, the University formed a four-person “Selective Admissions Committee” dedicated to weeding out black enrollment. The committee calculated by imposing a standardized test threshold of “72 would eliminate about 10% of UT freshmen and about 74% of negroes”.

In the accompanying letter to the report, they state, “We suggest that the President of the University in the near future ask other state institutions to exchange ideas on this subject and, if possible, to collaborate in the testing program. In these discussions, the admission of negroes will naturally have a preponderant place.

The year after the report, UT implemented a standardized testing requirement.

Another custody qualification is court clerkships. The last four nominees for the United States Supreme Court have worked for a former Supreme Court justice. But this process is full of bias. In 2017, 85% of federal clerks were white, 66% were male.

Test scores, internships or attendance at one of the two expensive private law schools that eight of the nine justices attended just benefit the wealthy and well-connected. Each of these “qualifications” is a smokescreen to explain the historical lack of diversity. Not only do I challenge the presumption that they produce better judges, but I propose that representing an underrepresented group is a qualification.

Take the case of Warren Demesme. Demesme was questioned by the police and said “…I didn’t so why don’t you just give me a lawyer dog because that’s not what’s happening.” No lawyer was provided and statements made during interrogation were used to arrest and convict him.

Demesme appealed, saying his Sixth and Seventh Amendment rights had been violated. A Louisiana Supreme Court judge ruled with absolute seriousness that “…the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that justifies the termination of the interview. .”

A man’s constitutional rights were violated because the judges lacked cultural competence. Anyone who knew that Demesme, who is black, used the vernacular and slang that is common in black communities would know that Demesme was not asking for a dog licensed to practice law and that “dawg” was a colloquialism addressed to the officer.

Yes, Biden should select a qualified candidate for the Supreme Court, and I hope that candidate will be a sane legal mind with an impeccable resume. And if Biden keeps his campaign promise, being a black woman will give him life experiences that will allow him to understand a group that has never been represented on the high court — and this should be considered a qualification.

Antoine Marshall is a North Carolina licensed attorney with the SCV law firm in Raleigh.