President Biden opened a judicial and political can of worms when he promised to appoint a black woman to the U.S. Supreme Court during his successful 2020 presidential election campaign. But since when did we start appointing people to the Supreme Court because of their gender and/or skin color?
We know former President Reagan was thinking gender when he appointed Justice Sandra Day O’Connor to the high court in 1981 as was ex-President Trump when he named Amy Coney Barrett to the court in 2020. Nevertheless, I think these kinds of gender-based decisions constitute a slippery slope because they suggest quotas for judicial appointments.
If we start establishing quotas for Supreme Court appointees, where does it end? For example, the most recent U.S. Census tells us that more than 60 percent of Americans are white, 13 percent are black and 18 percent are Hispanic. So with one African-American Justice, Clarence Thomas, already on the court, blacks will hold 22 percent of the seats when President Biden’s nominee takes her seat. Is that fair?
And what about groups that aren’t represented on the high court like Asian Americans, LGBTQIA2S+ people or transgender people? On and on it goes …
The Wall Street Journal pointed out Biden’s dilemma in a recent editorial titled “Race, Gender and the Supreme Court.” The Journal reminded us that Biden promised to appoint a black woman to the court during the 2020 primary campaign in South Carolina, which he won thanks to an endorsement from powerful African-American Congressman James Clyburn. That was the turning point in Biden’s third presidential campaign, so now it’s payback time for Clyburn.
There are several well-qualified African-American female judges who could be elevated to the Supreme Court, including Federal Judge Ketanyi Brown Jackson, who graduated from Harvard Law School, and California Supreme Court Justice Leondra Krueger, who graduated from Yale. Nevertheless, Clyburn and Sen. Lindsey Graham, an influential South Carolina Republican, are lobbying for Federal Judge J. Michelle Childs, who didn’t graduate from Harvard or Yale. Rather, she attended public schools in Columbia, S.C., and graduated from the University of South Carolina Law School.
“It’s OK to go to a public university and get your law degree,” Graham said last Sunday on “Face the Nation.” “She’s considered to be a fair-minded, highly gifted jurist.” With strong bipartisan endorsements from Rep. Clyburn and Sen. Graham, I think Childs has become the front-runner for Biden’s first Supreme Court nomination.
Many Republicans and some Democrats have warned Biden about choosing a radical far left jurist for the high court. “If he chooses a radical to replace (retiring Justice Stephen) Breyer, it will stimulate GOP turnout in November,” wrote astute Wall Street Journal columnist Kimberly Strassel. “He can pick a qualified liberal in the mold of Justice Breyer or Justice Elena Kagan and take credit for putting a substantive, thoughtful jurist on the bench,” Strassel continued, “or he can bow to progressive demands that he infuse the court with a new radicalism… If it’s the latter, watch for Republicans to hang that nominee around vulnerable Democrats’ necks in upcoming elections.” Are you paying attention, Sen. Cortez Masto?
Choosing Supreme Court justices because of “identity politics” is wrong and runs contrary to a landmark decision in the 1978 University of California vs. Bakke case in which the court declared that “preferring members of any one group for no reason other than race or ethnicity is discrimination for its own sake.” So when it comes to Supreme Court nominations, Biden should do away with discrimination and quotas and choose the best qualified jurist.
Guy W. Farmer is the Appeal’s senior political columnist.
