One hundred and fifteen Americans have sat on the Supreme Court. Of those, 110 have been men and 112 have been White. But now that President Biden has the chance to follow through on the promise he made to appoint a Black woman to serve on the court, conservatives are aghast at the very thought.
Not all of them, of course; some Republicans are staying mum for now, and they may ultimately decide to say the nominee is a crazy communist and leave it at that. But ever since we heard Justice Stephen G. Breyer will retire, a flood of reactions from the right has been based on the premise that appointing a Black woman to the court necessarily means she will be elevated over someone more qualified, presumably a White man.
That is quite simply a racist presumption. Saying so will raise some hackles; conservatives are convinced that they are constantly being unfairly accused of racism by liberals. Sometimes they have a point; certainly some on the left level that charge at times when it’s less than justified.
So it’s important to be clear about what I am, and am not, arguing. In assessing racism, I try to stick to the “what you said, not who you are” standard. With the occasional exception, we can judge a statement racist without peering into the heart of the speaker, which ends up sucking us into distractions about how many Black friends someone has.
Let’s consider some of what’s circulating on the right. On Fox News, Gregg Jarrett said Biden is violating the Civil Rights Act by promising to appoint a Black woman (and no, a Supreme Court appointment is not like an ordinary job opening). Sean Hannity claimed Biden’s pledge “may even be illegal.” Someone is clearly being discriminated against here, and it’s White people.
Conservative legal scholar Ilya Shapiro tweeted that rather than picking a male candidate Shapiro judged to be the “objectively best pick,” Biden would succumb to the “latest intersectional hierarchy” and choose a “lesser black woman.” (He later deleted the tweet and apologized.)
Meanwhile, the Wall Street Journal editorial page said choosing a Black woman “elevates skin color over qualifications,” as though it would be impossible to find a Black woman who is also qualified. “I mean, what kind of a qualification is that, being a Black woman?” asked Fox News’s Maria Bartiromo.
“They can overtly discriminate against people,” lamented Ben Shapiro. Tucker Carlson issued a nearly 10-minute rant about the injustice of it all, concluding with the suggestion that George Floyd’s sister should be the nominee.
“She is not a judge or a lawyer or whatever, but in this case, who cares?" Carlson said. “Clearly, that’s not the point anymore.”
So what’s racist about this? Aren’t they just advocating for equality?
Think about the assumption behind these objections: That if Biden promised to choose a Black woman and then did, whoever she is, that means she must be unqualified if her race were part of the reason she was chosen, or at the very least less qualified than someone who isn’t a Black woman. Why would that be?
They look at someone such as reported leading contender Ketanji Brown Jackson — national oratory champion in high school, magna cum laude graduate of Harvard University, editor of the Harvard Law Review, Supreme Court clerk, experience as a trial and appeals court judge — and say there must be better candidates, if only Biden were open-minded enough to consider them.
Really? Like whom?
Here’s the reality of Supreme Court nominations: Hundreds of people clear the bar of qualifications and intelligence to serve. There’s no such thing as one most qualified candidate. Once a president is picking from that pool, other variables come into play: their age, their life experiences, their ideological inclinations, whether anything about them might complicate confirmation.
Every president takes those questions into consideration, and conservatives have supported some nominees precisely because of those ancillary qualities. They praised Amy Coney Barrett for being a mother of seven and for having not attended law school at Harvard or Yale like every other justice. They found that kind of diversity valuable.
One prominent conservative even wrote in 2018, “The main reason I favor Barrett, though, is the obvious one: She’s a woman.” More gender diversity among justices was seen as something Republicans should value.
Likewise, Brett M. Kavanaugh wasn’t chosen by President Donald Trump because he was the wisest jurist in the land. He was relatively young (then 53), so he could serve for a long time, and his years in Republican politics and stamp of approval from the Federalist Society assured Republicans that he’d be a reliable conservative vote. As an intellect, Kavanaugh is adequate, but no one claims he’s a generation-defining genius.
Conservatives have also conveniently forgotten that Ronald Reagan made a promise similar to Biden’s when he ran for president in 1980: He vowed to appoint the first female justice — and then did. When George H.W. Bush filled Thurgood Marshall’s seat with Clarence Thomas in 1991, everyone understood that Bush wanted to find a Black conservative.
But when a Democrat does the same thing, a noxious yet familiar narrative emerges: The true story of any advancement for a Black person, we’re told, is that White people are being victimized.
To repeat, it doesn’t matter whether conservatives expressing outrage that Biden will appoint someone with a stellar resume who is also a Black woman are genuinely motivated by racial animus. What matters is that they are quite intentionally engaged in a project of race-baiting, one that seeks to mobilize the racial fears and resentments of the Republican base.
They know exactly what they’re doing. And we shouldn’t let them claim otherwise.