ABA president grilled on rejecting a third Black Supreme Court justice

Rep. Brandon Gill, R-Texas, put American Bar Association President Michelle A. Behnke in the hot seat Wednesday, repeatedly pressing her on whether the ABA’s diversity principles would justify rejecting a third Black Supreme Court justice.

The tense exchange came during a House Oversight Committee Task Force on Defending Constitutional Rights and Exposing Constitutional Abuses hearing examining the ABA’s role in law school accreditation. Republicans argued the organization has used its accreditation authority to advance race-conscious DEI policies throughout the legal profession, while the ABA defended its commitment to diversity, saying it strengthens the profession without supporting racial quotas.

Gill, who chairs the task force, has accused the ABA of using its accreditation power to pressure law schools into adopting race-conscious admissions policies and mandatory DEI-related coursework.

“DEI is a cancerous ideology that promotes unlawful discrimination and steals opportunities from Americans who would otherwise earn jobs and law school admissions spots on merit,” Gill said ahead of the hearing.

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During one of the hearing’s sharpest exchanges, Gill questioned Behnke about statements on the ABA’s website promoting judicial diversity. He cited the ABA’s position that judges should reflect the diversity of American society, then asked whether a racially representative Supreme Court would be beneficial.

“The ABA believes that diversity in all of its forms is important,” Behnke responded, but repeatedly declined to give Gill a yes-or-no answer.

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Gill followed up by asking whether the Supreme Court should “roughly resemble America’s racial makeup.”

“The ABA does not support quotas,” Behnke replied.

“I’m not asking about quotas,” Gill responded. “I’m asking if it should roughly resemble America’s racial makeup.”

“It should represent all of what people are,” Behnke said.

Gill responded by noting that two of the Court’s nine justices are Black, representing roughly 22% of the Court compared with about 13% of the U.S. population, and asked whether that meant the Senate should reject a third Black nominee based solely on race.

“ABA does not support quotas,” Behnke said.

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Earlier in the hearing, Gill pressed Behnke over President Joe Biden’s 2022 pledge to nominate the first Black woman to the Supreme Court, asking whether race had clearly been a factor in Justice Ketanji Brown Jackson’s nomination.

He also asked whether Biden had improperly excluded other demographic groups from consideration.

“The ABA does not support discrimination of any sort,” Behnke responded, without directly addressing Biden’s selection criteria.

The ABA holds considerable sway over legal education because, in most states, graduating from an ABA-approved law school is the main way to qualify for the bar exam. While the ABA says its law school accreditation council operates independently from the broader organization, Republicans argued the two are far more connected than the ABA lets on.

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Behnke defended the ABA’s commitment to diversity throughout her testimony, arguing that it strengthens rather than weakens the legal profession.

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“When we have diverse teams, our profession is stronger,” she told lawmakers. “It enhances our ability to solve our clients’ problems when we can tap into the varied experiences and perspectives of people from every background and every community.”

The hearing comes as several states, including Texas, Florida, Alabama and Tennessee, have explored alternatives to relying exclusively on ABA accreditation for bar eligibility.