Is the First State Racist for Not Having a Black Supreme Court Justice?

Change font size:  A |  A

The state of Delaware's largest daily, the News Journal, writes that the state's 'All-white court casts long shadow' and laments that there is no African-American serving on the state's Supreme Court.

A former border state whose citizens kept slaves but also supported the Underground Railroad, Delaware today has a rich tradition of black culture and achievement.

But unlike other states with such diverse populations -- and many whose residents are far more monochromatic -- Delaware has never had a black jurist on its Supreme Court, the last stop for most criminal and civil decision-making.

Got that? These are two of the first three paragraphs of the article. The clear impression is that Delaware, as a former border/slave state, is "way behind the times" despite its diverse citizenry, and probably racist. But, as is all-too often the case, the devil is in the details -- details which are usually much farther down in the article. In this case, we read:

• Delaware didn't even have a formal Supreme Court until 1950, and up until 1979 it only consisted of three people.

• For six years in a row, Delaware's court system "was named tops in the nation for fairness and efficiency" in a survey published by the US Chamber of Commerce.

• In the state, "a nominating committee reviews applicants to the Supreme Court and then submits a list of finalists to the governor, who then forwards one name to the state Senate for a confirmation vote. The process is regarded by legal experts as much less problematic than systems in operation in states such as Pennsylvania and Nevada, where judges, who are elected, solicit donations and votes from the communities they serve."

• The number of black applicants that applied for the Court have "been very few." Black attorneys make up only 3.75% of the state bar.

• Minority attorneys are "very much in demand," and as such it is very difficult to lure them away from private practice where they make much more money.

• In the last seven years, there has been only one black applicant for the Court.

These facts don't sit well with the usual suspects, including the head of the state NAACP. They imply that the state is simply racist, as they point out that states with "far greater racial divides" like Mississippi and Alabama have had blacks on their Supreme Courts. Civil rights activist and former state NAACP president Littleton Mitchell says he once "tangled with the bar years ago over the fact that blacks who passed the bar in nearby states failed in Delaware." Never mind that Delaware has one of the highest bar failure rates in the country -- regardless of race. In addition, these activists claim that the ever-nebulous notion of "diversity" is a benefit in and of itself. But they are countered by Delaware's first black state court chief justice, who, in addition to noting that the state political establishment is aware of the situation and has "reached out" to minorities, says that "diversity for diversity's sake would be a mistake if it harmed the quality of the bench in Delaware."

One may wonder why the News Journal's headline -- and initial paragraphs -- couldn't avoid the obvious [racial] implications given the many counter-factual elements in its very own article. This may be a good reason.