In all of the furore over the Biden administration’s unsurprising choice for the Supreme Court nomination, many might have missed the lesser controversy surrounding Ilya Shapiro, Vice President and Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute.
Mr Shapiro was recently positioned to lead the University of Georgetown’s ‘Center for the Constitution’. In a series of now-deleted tweets, he criticized the Biden Administration’s promise to nominate a black woman to replace retiring Justice Breyer, stating:
‘Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas, doesn’t fit into latest intersectionality hierarchy so we’ll get a lesser black woman. Thank heaven for small favours?’
He went on to add:
‘Because Biden said he’s only consider black women for SCOTUS, his nominee will always have an asterik attached. Fitting that Court takes up affirmative action next term.’
Whilst one can see that a misreading might suggest that a black candidate would be ‘lesser’, with Shapiro himself admitting the tweets were ‘inartful’, that clearly isn’t what he is saying. His argument, like that of many other critics of identity politics, is that choosing a candidate based solely on identity will almost certainly lead to an inferior candidate. He isn’t wrong.
What is being missed, however, is the real issue that resulted in both Biden’s nomination and the suspension of Shapiro from Georgetown – at the centre of all of this lies Critical Race Theory (CRT).
Critical Race Theory started with law, and it’s by no means finished with it.
As many critical race theory advocates repeatedly point out, their ideas began with the study of the law in the late 70’s and early 80’s. Legal theorist Derrick Bell is credited as the ‘intellectual architect who drafted the blueprints that guided the initial development of critical race theory’ with his belief that any and all actions taken to legally emancipate and empower black people in America were and are mere attempts by white people to preserve their power.
In his arguably seminal work The Faces at the Bottom of the Well, he argues that, where racism was once obvious, it is now cloaked in ‘unofficial practices and “neutral” standards”’ aimed at preserving a racial hierarchy with whites at the top.
His ideas continued through his protégé Kimberlé Crenshaw who coined the now-unbearable term ‘intersectionality’, referring to instances where multiple marginalized identities are discriminated against simultaneously. In doing so, Crenshaw laid the groundwork for the modern emphasis on a hierarchy of the marginalized, where merit means nothing and potential victimhood means everything. She created the truly postmodern twist that defined critical race theory as we know it.
As Jelani Cobb writes in her article on Bell’s influence, ‘the current attacks on critical race theory have arrived decades too late to prevent its core tenets from entering the legal canon’. And it has indeed spread throughout the legal profession with frightening efficiency.
The American Bar Association has a whole host of CRT-based initiatives like the ‘Coalition on Racial and Ethnic Justice’ which focuses ‘on developing and supporting initiatives and research to address social justice issues that stem from the intersection of race and ethnicity within the legal system’. At a recent panel entitled ‘Legislative Backlash: Anti-Protest Bills, Voter Suppression Laws and Critical Race Theory’, they take an openly partisan position lambasting GOP lawmakers whilst openly advocating CRT application within the law.
The influence of CRT within legal studies is alarmingly clear.
So is it any surprise that the reaction by Georgetown to Shapiro’s tweets was so very swift? After all, the Georgetown Law Center has their very own Office of Equity and Inclusion ready to crush opposition in the name of social justice. The Dean of Law himself has stated publicly that ‘the Tweets are at odds with everything we stand for at Georgetown Law and are damaging to the culture of equity and inclusion that Georgetown Law is building every day’.
The worrying implication here is that, by it’s very definition, meritocracy is at odds with everything Georgetown Law stands for.