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In his 1993 book on the history of Black lawyers in America, J. Clay Smith Jr. wrote that the work “cannot be categorized exclusively as either legal or social history: it is about the black lawyer, whose personhood has never fit neatly into either category.”
That snippet from “Emancipation: The Making of the Black Lawyer, 1844-1944” is a great summary of the relationship Black American lawyers have with the United States: They are stewards of a system that is woefully imperfect, yet they see promise in it. It’s why I’ve always found Black lawyers audacious. I respect the nerve in citing edicts that were never meant to serve you in a court of law, and demanding that they do.
The very notion of being Black and practicing law in a way that liberates — or could liberate — other Black people is a radical act.
That legacy has been on my mind since news broke that Supreme Court Justice Stephen Breyer plans to retire this year. The news, and its implication that President Joe Biden will fulfill his promise to seat a Black woman on the court, sent Republicans into a frenzy. I wrote about that last week, and since then, Sens. Ted Cruz of Texas and Roger Wicker of Mississippi have added their names to the list of Republicans decrying Biden’s pick as a form of affirmative action.
White people complaining about affirmative action is nothing new — and Black lawyers, like Smith, have been defending its merits for years.
In a 1996 essay, the famed Black lawyer Lani Guinier and her colleague Susan Sturm rebutted critics of affirmative action and argued that effective diversity isn’t achieved if you just “add women and stir.” I suspect most Republicans might agree with that on its face. But here’s where they’d lose their minds:
Taking seriously the voices of women and other underrepresented outsiders is necessary to open our minds to the ways in which a single-minded focus on so-called objective criteria skews the results of our selection process and denies opportunity to many potentially excellent candidates. This is not about substituting a set of rigid numerical quotes. This is about the ways in which a commitment to diversity and innovation can help us better understand and fulfill our commitment to genuine merit.
Lani Guinier and Susan Sturm
Guinier, who died last month, knew all about the value of diversity, what it truly looks like, and white opposition to it. In 1993, then-President Bill Clinton nominated her to become assistant attorney general for civil rights, but Clinton yanked the nomination after conservatives criticized Guinier’s writings on voting rights and Black political power.
Instances like that are a helpful reminder that the very notion of being Black and practicing law in a way that liberates — or could liberate — other Black people is a radical act.
And that radical act has been met with all sorts of blowback throughout history. That includes Thurgood Marshall, who years before he became a Supreme Court justice was tailed by police and an angry mob in 1946 after helping dozens of Black men elude jail time following a racial uprising. And scholars like Lani Guinier, who dare think of new ways for U.S. law to benefit the underprivileged.
And now, it includes the potential nominees Biden is considering for the Supreme Court, whose race alone seems to have sparked Republicans’ suspicion.
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