Obviously, it goes beyond gender and race.
Obviously, it goes beyond gender and race.
W ith a Supreme Court vacancy pending and Joe Biden having painted himself into a corner by promising to nominate an African-American woman, we are back again to the arguments about racial preferences and job qualifications. Before we get into the meat of the arguments over what Biden promised and why it is a problem, it’s worth starting with the fundamental question of what it means to be qualified to serve on the United States Supreme Court in the first place.
There is, of course, no consensus on this question, which is one reason you get people accusing others of racism, sexism, and political hackery simply for applying a different standard. We really should ask three questions about a potential justice:
- Will they perform the job faithfully?
- Do they have the skills, training, and experience to do the job effectively?
- Will their experience and perspective contribute to the Court as a whole doing its job prudently?
Fidelity
The most important part of the job of a Supreme Court justice is fidelity: understanding and accepting what the job is and committing to do it. Will the justice faithfully apply the Constitution and laws of the United States as written and understood by the democratic processes that enacted them? Or will the justice act like a legislator, pursuing his or her own view of justice, empathy, right, and wrong?
This is not a question of politics as such (more on that later), but about legitimacy. Written law is the bone and sinew of democracy; if judges do not enforce it as written, democratic legislatures and popularly ratified constitutions are simply window dressing for the exercise of real power by unelected, life-tenured judges. That is why, pursuant to Article IV of the Constitution, federal judges must swear this oath of office:
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
A Supreme Court justice who is not committed to the primacy of the texts enacted by popular democracy may be skilled and personally honest and may have a heart of the purest fairness and the world’s best political opinions, but he or she is simply not doing the job. LeBron James is the most talented and skilled player in the NBA, but if he insisted that his job was to tuck the basketball under his arm and run for touchdowns on every play, all of his skills at shooting, dribbling, dunking, and passing would be useless. If you asked me to choose between a justice who had the talents of William Blackstone, Daniel Webster, and Antonin Scalia rolled into one, but intended to substitute a “living Constitution” for the written text, or a trained circus bear who threw darts at the text but always followed it as it was intended and understood, I’d go with the circus bear.
This is why, fundamentally, it hardly matters whom Joe Biden nominates. We don’t know whether he will pick someone of talent or qualification in other ways, but as a matter of judicial philosophy, nobody who makes it through the vetting process of a Democratic administration is going to be faithful to the proper role of the Supreme Court. At best, one could hope to get someone such as Elena Kagan, who professes herself to be a textualist in reading statutes and who will apply them faithfully in less politically charged cases. (Even Ruth Bader Ginsburg did this on occasion, in ways that were unintentionally revealing of the methods she scorned in hot-button cases.)
Thurgood Marshall was a heroic figure as a lawyer, one of the most accomplished and consequential advocates in American history; he was also a terrible Supreme Court justice because he made little effort to follow the written Constitution. The majority in Roe v. Wade included gifted men such as Marshall and William Brennan, hacks such as William O. Douglas, and dim bulbs such as Harry Blackmun. In the end, seven justices simply did what they wanted with open contempt for the Constitution — and based in part on bogus history — so their talents mattered less than their infidelity.
In fact, there is little in the way of a judicial philosophical debate among Democrats and liberal or progressive academics, since the entire concept of judicial philosophy that constrains judges is treated by most of them as a fraud, a cynical ruse to cover the application of power. Most progressive pundits will bluntly admit this: They can conceive of no way for a court to rule except to be political, and therefore we should dispense with the fiction that courts ever do anything else. That stands in contrast to conservatives and libertarians, who often have quite vigorous arguments about legitimacy and interpretive methods even among themselves. Chief Justice John Roberts’s approach is quite different from that of Justice Clarence Thomas, and Thomas even had long, principled arguments with Scalia about matters such as the weight of precedent.
Fidelity does not end with judicial philosophy. It also encompasses questions of integrity, fairness, and judicial temperament. The second oath taken by the justices catches that part of the job:
I, [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a justice of the Supreme Court under the Constitution and laws of the United States. So help me God.
There have been Supreme Court justices in the past who failed this second test. Douglas was an immoral, deceitful hack. James McReynolds was a nasty bigot. Abe Fortas was ethically compromised. James Byrnes was both a Jim Crow loyalist and too politically close to the president. John Catron and Robert Grier allowed themselves to be used as political pawns by the incoming president in Dred Scott. Temperament is a lesser issue on the Supreme Court than it is in a trial courtroom where a single judge can terrorize litigants, witnesses, and jurors, but it is important to have justices who can work with colleagues and decide cases on the basis of reason and reflection.
Of course, judges are human, and none have been wholly immune to the gravitational force of politics or the pull of personal opinions, but it is entirely fair for the president and, especially, the Senate to look hard at whether a candidate is honest, ethical, and committed to equal justice under law.
Effectiveness
Fidelity is the first-order job qualification. When we talk about qualification, however, we are usually talking about the second-order qualification: Does this candidate have the necessary skills, base of knowledge, training, and experience to do the job?
Like it or not, the Supreme Court is an elite, intellectual institution. By “elite” and “intellectual” I do not mean merely that it tends to be full of people with gold-plated educational credentials, but that the job itself is a specialized one. In order to reach the correct decisions, at least somebody on the Court (if not every justice) has to do the painstaking work of examining text, history, and precedent closely. Doing this properly requires a background knowledge of how law works, as well as an ability to take a consistent approach across multiple areas of law.
Voting the right way, however, is not the end of the job, which is why we don’t nominate trained circus bears even if we could. A vote is only one tool of a justice, and by itself, it only applies to the small number of parties actually before the Court in the seven or eight dozen cases the Court hears each year. Written opinions are the other major tool, and they demand skill. Published opinions serve two roles.
The most important role is that they explain what the law is. They explain what questions of law the Court has decided in a case, and what questions it has left open. They explain how judges in other cases — in lower federal and state courts as well as in subsequent Supreme Court cases — should apply the principles and analysis of this case. If the explanation is clear and coherent, it will narrow the areas for future disputes and promote the uniform application of the law. These are important considerations; if anything, they are more important in lower-profile cases. A poorly written appellate opinion can throw lower courts into all sorts of havoc and complicate the job of lawyers who counsel clients. A poorly written Supreme Court opinion, especially in an area of law the Court revisits only rarely, can throw an entire field of law into chaos for decades on end. These are not small things.
Supreme Court justices are also advocates, so they are more effective if they are persuasive. Persuasive majority opinions win respect from scholars and future justices, gaining wider acceptance and greater durability. John Marshall’s majority opinions won over generations to his side long after his political party had met extinction. Persuasive concurrences and dissents can form the basis for future majority opinions, constitutional amendments, or political platforms. We still today quote dissents and concurrences by Scalia, Robert Jackson, or Oliver Wendell Holmes. Benjamin Curtis’s dissent in Dred Scott was widely quoted by Abraham Lincoln and gave an originalist, constitutional backbone to the political resistance to the decision. Persuasive drafts and questions can also swing a justice’s colleagues on a pending case.
This, then, is what we talk about when we say “qualification.” It is sometimes identified with credentials such as prior judicial service, educational degrees, scholarly publications, prestigious clerkships, or work in the select Supreme Court bar. People who are professionally involved in a lot of these elite circles tend to treat them as synonymous with qualification for the job. They are not; the skills and the knowledge are what matter, not how you got them. But those points on a résumé are, of course, useful in identifying qualified candidates, for two reasons.
One, all of these are things that can develop a candidate’s skills and broaden his or her base of knowledge. Some form of extended exposure to constitutional and legal issues is necessary, so that the candidate is not walking in the door having to learn all the issues from scratch. The Court’s workload is too much, and at best, a new justice unfamiliar with the issues will end up becoming a blind follower of others on the court. No experience is more useful in this kind of education than prior service on a federal appeals court for some period of time, because this is the job most directly comparable to being a Supreme Court justice. Five of the nine current justices (Brett Kavanaugh, Neil Gorsuch, Sonia Sotomayor, Samuel Alito, and the retiring Stephen Breyer) spent a decade or more in that role before joining the Court.
Just as in the presidency, however, no one particular form of experience is essential. Professor Steve Vladeck, for example, notes that a quarter of the justices chosen in the past 70 years had no judicial experience at all, including Elena Kagan, who is one of the most effective members of the current Court. Of the other 21, five had been judges for less than three years, and five more for less than six years. Of course, some of those were bad choices, but the list includes people such as Scalia, Roberts, Brennan, Marshall, and John Paul Stevens, all of whom are typically viewed as being candidates of superior qualification for the job:
28 Justices have been appointed to #SCOTUS since 1950.
7 (one-fourth) had no prior judicial experience.
15 had less than 5 years of prior judicial experience.3 had served on state courts.
4 had served on trial courts.Average prior experience = 5 years.
Median prior experience: less than 3 years. pic.twitter.com/fgVxuGYP4S— Steve Vladeck (@steve_vladeck) January 30, 2022
The other reason that we look at experience is that it reveals qualification. Time on the bench produces written opinions. Time as a litigator produces briefs, arguments, and victories. Scholarship produces books and articles. The body of a candidate’s writing tells us something about his or her effectiveness, and if anything, we should hold our own side’s nominees to a higher standard in this respect, because we have a greater interest in seeing them be persuasive.
It was ultimately the poor quality of her writing skills, as much as anything, that led me to oppose Harriet Miers back in 2005, and we got a significant upgrade when she was replaced by Alito, who had a long, public paper trail. Ed Whelan has been exploring this angle by contrasting Ketanji Brown Jackson and Leondra Kruger, two of Biden’s potential choices.
The distinction between skills-based qualification and résumé-based qualification is often misunderstood (usually deliberately) by progressives seeking to attack critics of Sotomayor and call them hypocrites for praising Barrett. After all, Sotomayor had been a federal district judge for six years and an appeals judge on the Second Circuit for a decade, whereas Barrett’s judicial service on the Seventh Circuit was just under three years. But much of the support for Barrett was based on the quality of her academic work, similar to the backgrounds of Scalia and liberal heroes such as Kagan and Felix Frankfurter.
By contrast, while Sotomayor had been on the bench a long time, she was bad at her job. This was by no means an opinion limited to conservatives when she was nominated in 2009. Laurence Tribe to Barack Obama: “She’s not nearly as smart as she seems to think she is.” Jeffrey Rosen:
There are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. . . . Nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.
The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” . . . Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight. . . . Some former clerks and prosecutors expressed concerns about her command of technical legal details.
Rosen cited the fiasco of her high-handed opinion in Ricci v. DeStefano, in which her opinion throwing out a race-discrimination complaint was reversed by the Supreme Court. Rosen’s assessment was certainly my impression, as a practicing lawyer in New York, of her at the time, although like many people who stood to continue practicing in front of her, I wasn’t free to speak my mind in public. Now, having hung up my practicing-lawyer spurs, I can.
The case that made the greatest impression on me, as it was in my area of practice, was Sotomayor’s opinion in In re Visa Check/MasterMoney Antitrust Litig. (Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.), (2d Cir. 2001), which adopted (over a stinging dissent) a confusing, pro-plaintiff evidentiary standard for certifying cases as class actions, in which only “some showing” was required and a court could rely on a plaintiff’s expert’s opinion so long as it was “not fatally flawed.” Sotomayor drew both phrases from prior cases, and in both situations, applied them in ways that misread the precedents and sowed confusion. The standard clashed with those in other circuits, with the language of the class-action rule, and with approaches taken in other cases, and it proved unwieldy in practice.
Just five years later, in In re Initial Public Offering Secs. Litig. (Miles v. Merrill Lynch & Co.), (2d Cir. 2006), a panel of the same circuit had to junk the Visa Check standard. The opinion was written by Judge Jon Newman, who had written the case, Caridad, from which Sotomayor cribbed the “some showing” language, and he gallantly took some responsibility for how she had misunderstood it. The IPO court chided Sotomayor’s prior opinion for a logical fallacy: “The fact that an expert’s report was rejected as admissible evidence in [a prior case] because it was fatally flawed was not a sufficient basis for saying in Visa Check that a report suffices to establish a Rule 23 requirement as long as it is not fatally flawed.” A footnote observed that it was “not clear that the district court in Visa Check had” even done what Sotomayor’s opinion described it as doing.
In an apologetic section under the heading “Clarifying the standards for the Second Circuit,” the court then explained what a hash Sotomayor’s opinion had made of the law in that area, how it was irreconcilable with other decisions by other Second Circuit panels, and how it had resulted in more than one “valiant effort by a conscientious district judge to reconcile the conflicting messages from our Court on class certification standards”:
The foregoing discussion demonstrates the need for some clarification of a district court’s role in assessing a motion for class certification. Obviously, we can no longer continue to advise district courts that “some showing,” of meeting Rule 23 requirements will suffice and that “findings” are required, or that an expert’s report will sustain a plaintiff’s burden so long as it is not “fatally flawed,” and that the plaintiff must prove Rule 23 requirements. (Emphasis added; citations omitted).
The court then went further to explicitly “disavow” Sotomayor’s prior handiwork:
Our conclusions necessarily preclude the use of a “some showing” standard, and to whatever extent Caridad might have implied such a standard for a Rule 23 requirement, that implication is disavowed. Second, we also disavow the suggestion in Visa Check that an expert’s testimony may establish a component of a Rule 23 requirement simply by being not fatally flawed.
I attended the oral argument in IPO, in which my firm represented one of the many defendants. Sotomayor, who was on the panel, gave a deeply unimpressive performance that displayed a certain befuddlement about the whole question. That said, Judge Newman’s opinion was sufficiently compelling that even Sotomayor signed on to the disavowal of her own prior work.
I can’t say that her 13 years on the Supreme Court have done much to improve my opinion of the quality of Sotomayor’s work, but her problem was never a lack of experience; it was what that experience revealed about her capabilities.
Prudence
The third level of qualification comes into play only if you’ve satisfied the first two, but it matters as well: what a prospective justice’s experience and perspective show about how well he or she understands the practical impact of the Court’s decisions. This is not the same as saying that the justices should decide cases based on their assessments of the just outcome; the division of labor in a democracy is that justice is mainly the job of lawmakers and executives. Appellate courts are concerned mainly with law, and if they read the law correctly, the outcomes will be what the lawmakers considered to be just, not what the judges consider to be just.
Still, the court does have discretion in some things. Even its discretion over its docket, for example, requires practical assessments of which controversies are important to the nation or the legal system and which are not. Also, there are many aspects of judging that require more than just the facility to read the law — they also require, even in understanding the law, some sense of how the world works, and how government works. As I’ve explained in the case of Scalia, a certain amount of political philosophy is useful both to understand the Court’s inputs (for example, how legislative history gets made and how bills pass) and the effect of its outputs (for example, how branches of government will interpret a decision, or whether the Court is ordering a remedy that makes any sense).
Experience in various parts of the legal system and the government will give different and useful perspectives. What kinds of legal rules can be explained sensibly to juries? Is a clear rule going to be more easily administered than a multi-factorial test that spawns its own cottage industry of fact-finding? Assessments of things such as the operation of rules of evidence require a certain capacity for empathy, at least in interpreting human behavior. In this regard, it is useful to probe a judge’s worldview and values and to want a bench with some diversity of professional backgrounds and life experiences — some people who have worked in the executive branch, some in academia, some in the trial courts, some advising paying clients, some in the civil law, some in the criminal law. A famous example was the 1997 opinion in Clinton v. Jones — written by Stevens and joined by seven other justices, ranging in ideology from Thomas to Ginsburg — that compelling Bill Clinton to sit for a deposition in the Paula Jones case “appears to us highly unlikely to occupy any substantial amount of [Clinton’s] time.” Few veteran civil litigators could read that sentence without laughing.
Life experience is further down the list, and the Left is apt to overstate the extent to which things such as race and gender are, in and of themselves, valuable life experiences. They should not be treated as substitute forms of job qualification. But in looking to build a Supreme Court that is prudent in how it assesses the legal and factual material it reads and in how it crafts its rules, it is also useful to have people from differing backgrounds. There is nothing wrong with playing up a nominee’s life experiences to show that some useful perspective is being added to the Court, as when Barrett was added as the only mother on the current Supreme Court. Educational diversity seems less compelling, but it is not unreasonable to be a bit worried about the cloistering effect of having a Supreme Court whose membership has been dominated for years by just two law schools (Yale and Harvard) while no Justice in the past half century has attended a state college or law school.
Politics
Finally, of course, while it is not a qualification as such, presidents can’t and don’t ignore political considerations in choosing their nominees. Two such considerations are entirely valid. One, presidents should pick a nominee with some eye to who can actually get confirmed by the Senate. All the job qualifications in the world are pointless if you won’t be permitted to do the job. Confirmability is partly a feature of persuading senators and partly a feature of persuading the senators’ voters. A good résumé helps with that; so do a good life story and appeal to regional or demographic constituencies.
The flip side is that a president who expects his or her nominee to get shot down or roadblocked by the Senate should pick a candidate who helps the president extract a political cost from recalcitrant senators. Either way, the political nature of the confirmation process requires presidents and senators alike to consider the politics of confirmation itself.
Two, while it is certainly possible to go too far in this direction at the expense of a qualified nominee, it is entirely reasonable for presidents to prefer younger nominees to those who are old or in failing health. A life-tenured job means that a nominee who serves longer will afford the president a greater influence on the Court’s fidelity to the Constitution and to democratically enacted laws. We should not pretend that this is an illegitimate consideration.
Joe Biden and Discrimination
That brings us at last to Joe Biden’s problem: During the 2020 primaries, he promised that his first nominee to the Court would be a black woman. That is bad in three ways. One, of course, blatant discrimination on the basis of race or gender (or here, both) is a bad thing in itself. Two, excluding the overwhelming majority of potential job applicants is a very bad way to ensure that your job search gets the most qualified candidate, or particularly close to the most qualified candidate. Three, publicly advertising that you are excluding so many candidates solely on the basis of race and gender casts a cloud over the nominee: It causes people to doubt whether they were really chosen because they were (in all the ways discussed above) picked for being highly qualified for the job.
Biden’s decision was craven and politically expedient, and the American people have noticed. A recent ABC News/Ipsos poll found that 76 percent of Americans want Biden to consider “all possible nominees,” while only 23 percent want him to limit the search to black women. Roping himself into only considering African-American women is how he saddled himself with Kamala Harris, after all.
The decision itself seems to be hardly one that Biden thought through carefully, and he apparently almost forgot to mention it at the key debate in South Carolina, the state primary that saved Biden’s campaign and one in which the Democratic primary electorate was 59 percent female and 56 percent black. Biden made the pledge as a condition demanded by South Carolina congressman James Clyburn, the third-ranking House Democrat, who then formally endorsed Biden the next morning.
The pledge is a particularly bad idea because of how drastically it winnows the field of potential candidates. This is a step beyond anything any president has done before on the basis of race and gender. The fact that there are some precedents partly similar in the past is also unhelpful to Biden when his defenders are comparing his decision to bad criteria used in the past, some of which resulted in the appointment of bad justices.
Consider three examples of whataboutism and the limits in how they help Biden. First up is Ronald Reagan’s pledge during the 1980 campaign to ensure that one of his first Supreme Court selections would be a woman, a promise he followed through on by nominating Sandra Day O’Connor to replace Potter Stewart in 1981. But there are two very major differences. One, Reagan did not bind himself to fulfill that promise with a particular nomination, leaving him free to consider other applicants. Two, he did not tie his hands by race and gender simultaneously, a double limitation of the field. As Jonathan Turley recounts:
On Oct. 15, 1980, Reagan declared that “I am announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find. . . . It is time for a woman to sit among the highest jurists.” . . . Others noted at the time that Reagan was simply pledging that he would select a woman in “one of the first Supreme Court vacancies” rather than the first vacancy. Indeed, when a vacancy did arise, aides told the media that there was “no guarantee” that he would select a woman.
Reagan never pledged to only consider women and in fact considered non-female candidates for the first vacancy. One of the leading contenders was Judge Lawrence Pierce, an African-American trial-court judge. Newsweek and other media sites listed an array of males being actively considered including Robert Bork, Dallin H. Oaks, Malcolm R. Wilkey, Philip B. Kurland, and Edwin Meese III.
Nevertheless, Reagan clearly wanted a female candidate and reportedly told White House deputy chief of staff Michael Deaver to “find a woman who was qualified and come back and discuss it if that wasn’t possible.” That person was Sandra Day O’Connor.
It is worth noting two further facts here. The first is that Reagan did not have a ton of great choices. The pipeline of judges with a reliable judicial philosophy was limited. The Federalist Society would not be founded until the following year. Neither Scalia nor Bork had yet served as a judge. In attempting to turn around the federal judiciary from the legacy of the Warren Court, Reagan was working with a very shallow bench of qualified candidates. Things would be quite different a few years later.
The other fact is that O’Connor is not a particularly positive example. Few believers in an originalist constitutional philosophy would regard her nomination as a success. Conservatives are still bitter at her over Planned Parenthood v. Casey, and liberals are still bitter at her over Bush v. Gore. While she was a diligent justice, she was noted for the inconsistency of her decisions and the unwieldy complexity of the often excessively fact-bound rules she favored, especially in establishment-clause cases. Few of her ideas and insights have had a lingering persuasive effect on her colleagues and successors. Her effort to find some sort of middle ground on racial preferences in Grutter v. Bollinger failed to produce a stable equilibrium, to the point that the Court is stuck hearing the same issue all over again this term.
Next up is George H. W. Bush’s nomination of Clarence Thomas in 1991. Bush made no public promise on the race of the nominee. Unlike O’Connor, and unlike the current nomination, Thomas was not Bush’s first opportunity to shape the Court. He had nominated David Souter the previous year, and given that Bush succeeded Reagan — and that two of Reagan’s nominees had failed — this was actually the seventh Republican nomination between 1981 and 1991. Thomas had been on Bush’s short list for the Souter nomination and had impressed the president but was seen as needing a bit more time on the D.C. Circuit bench to be a plausible choice.
Now, undoubtedly, Bush saw Thomas as being more confirmable in a Democrat-dominated Senate because Thomas was black. There were two reasons for that: He was replacing Marshall, and a number of key Democratic senators were Southern moderates who depended on black voters. Thomas wasn’t just a black man; he was a product of segregated small-town Georgia.
His judicial record was limited, but that was also a feature of the “stealth nominee” strategy at the time, epitomized by Souter and that ended with the failure of the Miers nomination: Republicans burned by the Bork hearings in 1987 were afraid to have a public argument about judicial philosophy. That was a bad strategy, and it is good that it came to an end. As it turned out, the strategy succeeded with Thomas and failed with Souter, but this was not just a matter of luck; unlike Souter, Thomas was a well-known figure in Republican circles in Washington.
In any event, it is the height of hypocrisy for Democrats to cite the Thomas selection as proof that there is no problem with a race-conscious nomination. Biden, after all, voted against Thomas. At the time and for years afterward — even to this day, in some circles — progressive and liberal commentators and Democratic politicians treated Thomas as an unqualified candidate picked only as a token. Harry Reid famously claimed that Thomas was “an embarrassment” who produced “poorly written” opinions, even though Reid could not even name an opinion he had read. The cloud of questions about Thomas’s qualifications and competence has hung over him for a quarter-century, even as he has produced a deeply thoughtful and scholarly body of independent-thinking opinions.
The third “whatabout” is Donald Trump’s selection of Barrett. Turley again:
After Ruth Bader Ginsburg died, Trump announced that “I will be putting forth a nominee next week. It will be a woman.” However, he had already publicly released three lists of possible nominees of different races and genders. His staff had been working on vetting those on the list, and the process led to Amy Coney Barrett. However, the final short list included a majority of male jurists.
Indeed, Trump’s choice was unclear to the very end, and the short list included a male, Judge Amul Thapar of the U.S. District Court for the Eastern District of Kentucky, who would have been the first South Asian appointee,
Trump’s announcement at the rally came on September 19, 2020, after months of scrutiny of the public short list. That was just a week before the formal nomination and after many of us identified Barrett as a leading contender on the short list due to her conservative academic and judicial writings.
Trump’s public list was a major feature of his 2016 campaign. Barrett was also his third Supreme Court nomination, and like Thomas, she had been considered for a prior vacancy. It would seem silly to say that Trump was excluding men from the Court after he had already chosen Gorsuch and Kavanaugh. He also made no promises about race and had considered Thapar and Barbara Lagoa, a Hispanic judge, for the Barrett opening. And frankly, when Trump made that statement, he may well have already had Barrett in mind as his leading candidate — it wasn’t an unconsidered pledge made years in advance to secure an endorsement.
In how Biden’s choice narrows the list of possible candidates, it’s worth considering the demographics. Black women are approximately 7 percent of the U.S. population, so even if the demographics of the legal profession were exactly the same as those of the general population, by combining a race restriction with a gender restriction, he’d be excluding 93 percent of the potential job applicants from his pool of candidates. And as Ed Whelan notes, African Americans are 4.7 percent of all attorneys, so the proportion of candidates being excluded here is probably closer to 97 percent. Of course, it is common sense for people to question a hiring process that categorically excludes 97 percent of the applicants for no reason other than their race and gender. Of course, they will ask whether that really produced the best possible candidate. Of course, the person nominated will be saddled with a perception that race and gender got her the job, because the president of the United States admitted that it did.
Some defenders of Biden argue that it is urgent that an African-American woman be added to the Court because none has served as a justice previously. But it is one thing to make the case that the job search should pay particular attention to black female candidates on the grounds that they have been previously overlooked. It is another entirely to exclude everybody else immediately because of their race and gender. After all, there are plenty of other groups who have never been represented on the Court, some of them sizeable: No justice has been Asian, South Asian, Native American, Hispanic male, openly gay, Mormon, Orthodox Christian, Muslim, Hindu, or Buddhist. One reason that Biden’s racially and gender-exclusionary criteria have kicked up so much fuss is that one of the obvious candidates for a Democratic administration would otherwise be Sri Srinivasan, who is both Indian American and Hindu.
In a similar vein, there is the argument that discrimination is nothing new, so why not keep at it? But there are two problems with this. One, if something was bad in the past, repeating it is not a solution. Two, past discriminatory practices weren’t clear-cutting 90 percent or more of the potential applicants.
Between 1789 and 1967, for example, all Supreme Court justices were white men. This was mostly not even a conscious choice, so much as an embedded assumption and feature of the political and legal landscape. Did that keep qualified people off the Court? Yes and no. The pool of people qualified by training and experience to be Supreme Court justices for most of that period was entirely, or almost entirely, white and male. (The country itself was over 80 percent white for nearly all of that period.) The pool of people qualified by talent was always larger than that, but most of them were excluded from being Supreme Court justices by not getting the kinds of opportunities that build a Supreme Court résumé, rather than because Abraham Lincoln or Franklin D. Roosevelt promised the country that they’d pick only white men. As the demographics of the legal profession and the lower courts have changed over time, so has the applicant pool available to presidents. So nothing in that history compares with Biden’s decision to exclude the great majority of federal appeals judges from his job search.
As with so many things, Biden’s wounds are self-inflicted, and his supporters are lashing out in anger because he has painted them and himself into a corner that makes sense to nobody but the most hard-core Democratic partisans and progressive ideologues. Had Biden said that black women had been shamefully excluded from the Court, and that he would make every effort to interview female African-American candidates and try to make room for one on the Supreme Court, he would not be in this fix. He might still face the same suspicions that his side cast at Thomas, or that they cast at Trump for the fact that all three of his nominees were white, but Biden would be on much firmer ground. Instead, he hung out a giant sign announcing that no Hispanics or Asians, no men, and no white people need apply. As a result, he is getting the grief he richly deserves. And his nominee will get grief that she did nothing to deserve.