And so, the carping over the next Supreme Court nominee begins, historically ignorant and racially tinged.
The Cato Institute’s Ilya Shapiro, soon to be executive director of the Georgetown Center for the Constitution, chimed in on Twitter, saying the “objectively best pick” would be Sri Srinivasan, an Indian American judge on the U.S. Court of Appeals for the District of Columbia Circuit. “But alas doesn’t fit into latest intersectionality hierarchy so we’ll get [a] lesser black woman,” Shapiro tweeted. He later apologized, deleting his tweet as “inartful,” but the mind-set it revealed is breathtakingly insulting.
Lesser Black woman. Think about that. One leading candidate for the vacancy, D.C. Circuit Judge Ketanji Brown Jackson, is a graduate of Harvard and Harvard Law School, where she was an editor of the law review, and went on to clerk for Justice Stephen G. Breyer; she served seven years on the D.C. district court before being elevated to the appeals court in 2021. Another, Leondra Kruger, has an equally glittering résumé: Harvard and Yale Law, John Paul Stevens clerkship, principal deputy solicitor general, California Supreme Court justice.
But that wasn’t all. “Because Biden said [he’d] only consider black women for SCOTUS, his nominee will always have an asterisk attached,” Shapiro observed in a separate tweet.
Does Justice Sandra Day O’Connor have an asterisk attached because Ronald Reagan pledged he would name a woman to the Supreme Court? “It is time for a woman to sit among our highest jurists,” Reagan said during the 1980 presidential campaign. She turned out to be a fine justice, but her qualifications at the time were far less than the those of the candidates on Biden’s list.
Does Justice Clarence Thomas have an asterisk attached because President George H.W. Bush felt compelled to name a Black nominee to replace civil rights icon Thurgood Marshall?
“The fact that he is Black and a minority has nothing to do with this sense that he is the best qualified at this time,” Bush asserted when he announced the pick. “I kept my word to the American people and to the Senate by picking the best man for the job on the merits.” This was, literally, incredible. Thomas had a scant 15 months of experience on the D.C. Circuit when Bush tapped him.
Does Justice Amy Coney Barrett have an asterisk attached because President Donald Trump clearly needed to pick a woman to replace Ruth Bader Ginsburg? “I’m saving her for Ginsburg,” Trump was reported to have said of Barrett when he passed her over in favor of nominating Brett M. Kavanaugh in 2018.
The truth is that politics — partisan, demographic, regional — has long played a role in Supreme Court nominations. Dwight D. Eisenhower chose William J. Brennan Jr. in part because he thought a Catholic Democrat from the Northeast would play well with voters in the election just a few weeks away. Reagan was so taken with the notion of naming the first Italian American justice that he opted for Antonin Scalia over Robert H. Bork in 1986.
Somehow, none of these prompted the kind of aggrieved bristling that has erupted in the aftermath of Breyer’s announcement that he plans to retire at the end of the current term. Why might that be?
One legitimate answer is that Biden’s pledge was categorical, he would pick a Black woman; it was explicit rather than implied. And that is a difference. “I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” Biden said at a debate in February 2020, just before the South Carolina primary, when his campaign was struggling. The promise came at the urging of South Carolina Rep. James E. Clyburn, who shortly endorsed Biden.
And Biden reiterated it on Thursday. “I’ve made no decision except one, the person I will nominate will be someone of extraordinary qualifications, character and experience and that person will be the first Black woman ever nominated to the United States Supreme Court,” he said.
Would I be more comfortable if Biden hadn’t been quite so explicit? Yes. Partly because it carries an aura of unfairness to announce that no one will be considered who does not meet an announced racial test. Ambiguity has its advantages. Think about the cases the court has just agreed to hear over affirmative action in higher education. Wherever you come down on the issue, letting colleges consider diversity as one of a number of factors is less problematic than allowing numerical quotas.
And partly because it opens the door to critics denigrating the eventual nominee. Of course, that’s inevitable in any event. See, for example, Shapiro on Sonia Sotomayor when she was nominated in 2009: “In picking Sonia Sotomayor, President [Barack] Obama has confirmed that identity politics matter to him more than merit. While Judge Sotomayor exemplifies the American Dream, she would not have even been on the short list if she were not Hispanic.”
This assumes that identity is irrelevant. It’s not. Judges aren’t legal automatons, digesting precedents and spitting out opinions. They bring to the task, and their thinking is informed by, their backgrounds and their experiences. Somehow, that becomes a problem only for certain nominees, from certain backgrounds, from certain parties.