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Biden Is Wrong About His Supreme Court Pledge — And So Were Reagan And Trump

Picking a Supreme Court justice based on superficial traits like race and sex is racist and sexist, even when Republican presidents do it.

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When news broke about the imminent retirement of Supreme Court Justice Stephen Breyer,  President Joe Biden quickly reiterated his pledge to consider nominating only black women for the vacant seat. Biden first made that promise during the 2020 campaign, and it appears he’s going to keep it.

Anyone with any sense knows Biden is wrong to do this. Imposing race-and sex-based criteria, whether in hiring a janitor or nominating a Supreme Court justice, is straightforwardly racist and sexist. It doesn’t matter if the ultimate goal is to get a more “diverse” Supreme Court. We need to call this what it is. By announcing that he will consider only jurists of a particular race and sex, Biden is engaging in blatant racial and sex-based discrimination.

When conservatives point this out, the frequent rejoinder is: but Ronald Reagan and Donald Trump did this, too, they pledged to nominate women! Both sides do it! Indeed, Reagan and Trump each made some sort of commitment to nominate a woman to the Supreme Court.

But you know what? They were wrong, too. Conservatives need to be honest about that. Simply put: race and sex and other incidental characteristics should have absolutely no bearing on whether someone is nominated to the Supreme Court. A president, Democrat or Republican, should pick the best person for the job, regardless of race or sex. Period. 

Some on the right, like legal scholar and Fox News contributor Jonathan Turley, have argued that it was different when Reagan and Trump did it, that it was in fact perfectly fine because their pledges were more attenuated. In Reagan’s case, he at least considered men alongside women before eventually choosing Sandra Day O’Connor in 1981.

In Trump’s case, after Ruth Bader Ginsburg died, he announced bluntly, “I will be putting forth a nominee next week. It will be a woman.” But, argues Turley, Trump had already released three lists of possible nominees, including both men and women of various races, and Trump’s final short list included some male jurists in addition to his eventual nominee, Amy Coney Barrett.

As my colleague Mollie Hemingway explained in her recent book, “Rigged,” upon Ginsburg’s death Trump had already decided he was going to name Barrett, whom he had wanted to nominate to replace Justice Anthony Kennedy in 2018 but didn’t have the votes then. And it’s worth noting that all three of Trump’s potential nominee lists were chosen for the most part based on quality, not identity politics.

But in the end it doesn’t matter. Reagan and Trump were both wrong to signal publicly that they would nominate a woman, whatever their behind-the-scenes deliberations might have been. They should have resisted the pull of identity politics — already exerting a malign influence on American society in the early 1980s — and declared that they would nominate whomever they thought was the best person for the job, regardless of race or sex. Instead, they pandered to the liberal consensus that things like a nominee’s race and sex matter a great deal in choosing a Supreme Court justice, and proceeded with their nominations on that basis — or at least they appeared to.

Some argue, as Sen. Lindsey Graham did over the weekend, that considering race and sex is important because the Supreme Court should be diverse and reflect the diversity of America. But that, too, is totally wrong. We’re not talking about an incoming freshman university class here, we’re talking about a lifetime appointment to a nine-person supreme judicial body that cannot possibly reflect the diversity of a nation of 330 million people.

The Supreme Court is in some ways an extra-democratic institution, and that’s by design. It is and should be insulated from the vicissitudes of democratic politics, including our compulsive desire for every public institution to exactly reflect the makeup of our body politic, usually in superficial and meaningless ways. We don’t need Supreme Court justices whose race and sex and ethnicity and “lived experiences” mirror our own; we need justices who understand the Constitution and will defend it at all costs.

Seen in that light, Reagan’s commitment to nominate a woman for the court in 1981 may have been a grave mistake. Yes, Reagan was able to claim bragging rights for nominating the first woman to the court at a time when, through no fault of their own, there were not very many qualified female jurists in America. But at what cost?

Conservatives who abhor our abortion regime might reflect with dismay at O’Connor’s role in saving Roe v. Wade and, through cases like Planned Parenthood v. Casey, grafting abortion rights onto the Fourteenth Amendment. As the late, great columnist Charles Krauthammer wrote in 2005, O’Connor seemed to have no guiding judicial philosophy on major philosophical questions about the Constitution:

That is what made O’Connor so unpredictable. Sure, she was headed for what she judged to be socially a stable settlement. But you could never know what empirical judgments she would make to get there. Would she decide that the long-term stability introduced by returning abortion to the elected branches of government would outweigh the short-term instability it would produce? You could not be sure. What you could be sure of was that she would come up with some ad hoc constitutional principle to justify her empirical judgment.

Biden is being swept along by the woke tide that has washed over and consumed the Democratic Party. Just as he pledged during the campaign to pick a woman as his vice presidential running mate (and was pressured into considering only black women), Biden was always going to pick a Supreme Court nominee based on superficial markers of identity politics.

It hardly needs to be said that this commitment to identity politics over actual qualifications is what gave us the manifestly incompetent and deeply unpopular Vice President Kamala Harris. That’s what happens when you refuse to consider qualified people because they happen to be a certain race or sex: you tend not to get the best people.

Conservatives should be able to criticize Biden for this while also being honest about the failures on our own side in this matter — even the failures of a president as revered as Reagan or as popular as Trump. The more willing we are to grapple with those failures and own up to them, the more likely it is that a future Republican president will avoid them when the time comes.