KBJ’s promise to recuse herself from the Harvard discrimination case is meaningless

Ketanji Brown Jackson made a promise in her Supreme Court confirmation hearing this week before the Senate.

KBJ is the person whom biologist Joe Biden assures us is “a black woman” in accordance with his earlier promise to nominate a person of that sex and color as a great act of noblesse oblige for which he, as a non-black non-woman, we think, should be honored in history, especially in view of his dementia. Surely he’ll now join Barack Obama, Al Gore and Yassar Arafat in receiving a Nobel Peace Prize. I wonder if he’ll deposit the check into that joint checking account he shares with Hunter.

We have to take Joe’s word for KBJ’s sex and color. Since she’s not a biologist, KBJ herself is unable to confirm that she’s a woman and it’s not clear whether she’s able to confirm that she’s black.

KBJ’s promise was that if confirmed, as appears likely, she will recuse herself from the pending case where Harvard is being sued for discriminating in their admissions process against people who are not in her demographic of black women – specifically Asian men and women who tend to have great grades and admission test scores.

For the record, Harvard’s defense to that suit is that they discriminate against Asians not because they’re Asian, but because Asians have bad personalities. The Obama-appointed non-Asian trial court judge agreed that Asians have bad personalities and so did the non-Asian appeals court in Boston, and those judges are all real smart people with sparkling personalities.

Three billion non-non-Asians could not be reached for comment on the personality of Asians. I’m guessing that if asked whether it’s true that Asians have bad personalities, they’d probably just prove the point, and in a surly way accompanied by hand gestures.

KBJ’s promise to recuse herself is because she’s a member of a Harvard governing body with the vaguely ominous name “The Board of Overseers.” Harvard’s website informs us that this board established in 1642 (not 1619?) is “one of Harvard’s two governing boards … also known as the Corporation.” (But wait, I thought corporations are bad!)

I suspect they have a secret handshake, among other secret things.

As one of “The Overseers” in “The “Corporation” which presumably signed off on Harvard’s discrimination against Asians, KBJ would have a direct conflict of interest in deciding the case challenging that. Hence her commitment to recuse herself from that case.

If you’re impressed with KBJ’s commitment to recuse herself due to a conflict of interest, don’t be. There’s less here than meets the eye.

To overturn the trial court and appellate court, the Supreme Court would need a majority of the Justices participating in the decision. As mathematician Joe Biden can figure, a majority in the usual nine-person Supreme Court is five or more. This means that to overturn the appellate decision at least five Justices would have to rule against Harvard (and I think they will).

If KBJ recuses herself, then the number of participating Justices is no longer nine, but eight. But to overturn the trial court and the Boston appellate court, the Supreme Court would still need five Justices siding against Harvard.

That’s because when a Supreme Court decision is a tie, as could happen if KBJ recuses herself to reduce the number of Justices from nine to eight, the winner is deemed the winner in the appellate court – Harvard in this case.

Two scenarios present. If KBJ participates in the case, the three liberals (the existing two plus KBJ) will need to pick up two conservative votes in order for Harvard to win a 5-4 decision. If KBJ does not participate, then the liberals are down to two, but they still need to pick up only two conservative votes in order for Harvard to win a 4-4 decision.

KBJ’s recusal is therefore entirely inconsequential. Her participation or non-participation will not affect the outcome of the case.

It will be interesting to see if she ever recuses herself from a Harvard case where her vote matters.

By the way, Justice Clarence Thomas was released from a week in the hospital yesterday. Say a prayer for him even though he is indisputably not a woman – and I dare you to contradict him on that – and, according to ethnographers on the left, is not black either.

11 thoughts on “KBJ’s promise to recuse herself from the Harvard discrimination case is meaningless

  1. Typical higher court judge. Alway trying to be as weaselly, sneaky and opaque as possible. There is yet another potential legal outcome here. The court might trim affirmative action as it has existed over two generations but still leave intact a certain amount of outreach based on race. American society cannot go back to a pure “merit” system and end up having no black representation particularly in the academic system and the careers that follow from academic participation.

    The depredations visited on other people in the name of black outreach particularly are what has to stop. Perhaps the Supreme Court will see fit to end these various depredations. If it does so, Ketanji Brown Jackson will not have to be party to the decision. If there is a majority and she joins it, she will be treated by some as having betrayed her own kind, the cause and the “struggle”.

    If she dissents and votes to keep the present rotten system intact, she isolates herself and makes herself into an instant relic. By not participating whatsoever, in subsequent cases, she case cite precedent and get out of being held accountable by her own faction. If the vote goes 4-4, in a future case, she can support minimal modification get credit for exercising the impartiality she claimed to have in her confirmation hearing. It’s a win-in-win. But not for everyone. Just for Ketanji Brown Jackson.

    There is another aspect I want to go into. Contrary to what Americans and especially the Hollywood script writers seems to think, Harvard is not only university in English-speaking North America. Nobody ever came out of a cloud and down a mountain with a stone tablet on it with the words “Harvard Rules” chiseled into it.

    What would happen if minority outreach at the undergraduate colleges of Harvard and the several other comparable institutions was deemed discriminatory and ended being limited? Well,

  2. Let me continue my comments on Ketanji Brown Jackson, relating to the issue of what would happen if minority outreach at the most selective undergraduate colleges was deemed discriminatory.

    All that would happen is that the minority students now admitted to these institutions would be scattered around other slightly lesser but nevertheless toney private universities. What it saddest part of this story is attitude of greatest number of conservative white American in this controversy and debate. They want the restoral of what they call “merit”, but if “merit” (whatever that is) is restored to their satisfaction, none of the places thus opened up will go them. The only satisfaction they will get out of it is the sense that the order of the world is what they think it should be. But comforting senses don’t feed the bulldog, open advanced education to your youth and adults or give you representation and advocacy in the halls of academe.

  3. Biologist and mathematician Joe Biden — that cracks me up! As does the characterization of KBJ as an “overseer.” Aren’t they all — all of these cancel culture control freaks? And aren’t we being incrementally “enslaved”? Once again, history doesn’t repeat itself, but it sure does rhyme.

  4. She will probably be our next Supreme Court justice, because at least three spineless Republi-Can’ts will end up voting for her.

    Sadly, however, she won’t even be our first Affirmative Action Supreme Court justice (though she will clearly be an Affirmative Action justice). That dishonor goes to the “wise Latina” — who has been a massive cluster f… (you know what) in her position!!!

  5. I suppose it’s only a matter of time before the Left, angered and resentful about hard studying Asians being disproportionately admitted into the Ivy Leagues and elite universities like UC Berkeley and/or Stanford, begin referring to Asians as … white Asians.

    The Left and the other criminal apologists wasted little time in painting George Zimmerman as a “white hispanic” after he defended himself in the Florida altercation with Trayvon Martin a decade ago during the Obama era.

    See: https://www.huffpost.com/entry/cnn-white-hispanic_n_3588744



    It’s just a prediction, especially if Harvard loses the case. The Left and it’s handmaidens in the mainstream media will undoubtedly spin, twist and likely try to portray Asians as white.

    If this occurs, will black kids with poor grades suddenly start accusing high achieving black students as “acting Asian?”

    And if they are acting Asian … then what’s is wrong with that? After all the NBA is predominantly made up of black basketball athletes. And the NBA and even it’s biggest stars seem to just worship at the altar of the Chinese Communist Party, the ruling totalitarians of the People’s Republic of China.

    So … maybe this whole damn thing might just come full circle after all!

  6. Excellent column in which Glenn points out something that the sheep who inhabit the corporate/msm would never notice or reflect upon, never mind allowing it to find its way into one of their all progressive, all of the time, stories (which is what theirs’ typically are, as opposed to reports)..

  7. Glenn, I’m not nearly as optimistic as you are that the Harvard decision will be overturned. I believe John Roberts will do everything within his power to see that it isn’t. I have very little faith in his conservative, Constitutional bona fides. I hope you’re right & I’m wrong.

    • I think Roberts will join a conservative majority on this one, if for no other reason than he wants to be the one to write the opinion. And even if he doesn’t, Harvard still loses 5 to 4, or actually 5 to 3 if the decision comes after Jackson replaces Breyer

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