The Republicans are already having the usual hissy fit over Biden’s decision to name a Black woman to the Supreme Court, implying that she’s an “affirmative action” hire — by which they mean they can’t possibly be the best people for the job. Because, well… you know.
I’ll just lay out the qualifications of the presumed front runner for the job: Ketanji Brown Jackson:
Jackson, who is 51, fulfills a lot of requirements for the establishment set. She has the same Ivy League credentials as the sitting justices, having earned both her undergraduate and her law degree from Harvard and edited for the Harvard Law Review. She clerked for three federal judges—including Breyer, from 1999 to 2000. If nominated and confirmed, Jackson will follow the same track as Brett Kavanaugh, who also clerked for the justice he ultimately replaced. Also like Kavanaugh—and seven other current and former justices—Jackson would be coming directly from the D.C. Circuit Court of Appeals, the second-most-important court in the country after the Supreme Court.
But Jackson would be the first Black woman to serve on the high court, offering the body a perspective that progressives, in particular, have long wanted to see represented. (Of the 115 justices who have served, all but seven have been white men.) Jackson also has strayed from the typical route of a Court nominee, which matters a lot to Democrats, who have tended to prioritize experience over ideology. After a few years in private practice, she worked as a federal public defender. Later, she served for four years as the Obama-appointed vice chair of the U.S. Sentencing Commission, during which time the commission reduced sentences for many people convicted of drug crimes. Appointing someone with Jackson’s experience to the Supreme Court “would make quite a statement,” Brian Fallon, the executive director of Demand Justice, a progressive group advocating for court reform, told me. “It would signal a new era and a shift away from the decades-long default to former prosecutors and corporate lawyers.”
I suppose they can take issue with her choices to be a public defender and work on the Sentencing Commission and her decisions as a judge. All of that is fair game for any Justice. But to imply that this obviously brilliant person or any of the others being considered aren’t as qualified as Brett Kavanaugh or Amy Coney Barrett or any of the rest of them currently sitting on the High Court is just flat-out racism.
Aaron Blake at the Washington Post runs down the right’s first salvos:
“Biden said he will make his pick based purely on race and gender,” Fox News’s Sean Hannity said. He did so while introducing arguably Fox’s favorite constitutional lawyer, Jonathan Turley, who has written multiple op-eds suggesting that Biden’s promise is unconstitutional discrimination.
Added Tucker Carlson: “It’s possible we have all marinated for so long in the casual racism of affirmative action that it seems normal now to reduce human beings to their race.”
Ben Shapiro called it “definitionally affirmative action and race discrimination.”
The editors of the National Review said, “In a stroke, [Biden] disqualified dozens of liberal and progressive jurists for no reason other than their race and gender.”
Former Trump United Nations ambassador Nikki Haley tweeted, “Would be nice if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test.”
Right. As if Haley isn’t displayed as one of the right’s token “others” all the time.
Blake points out that this is hardly the first time that a president has decalred and intention to diversify the Court:
History, though, shows this is hardly a new thing — nor have such promises been determined to run afoul of the law. And, in fact, Haley appears to have said nothing when President Donald Trump signaled just two years ago that he had his own gender litmus test for a Supreme Court nomination.
Nor is Trump the only recent GOP president to make such a pledge. In fact, two and potentially three of the last four Republican presidents did the same thing — with little sign of such conservative pushback.
Late in the 1980 presidential campaign, Ronald Reagan promised that he would appoint a woman to the Supreme Court if given the opportunity. He said he would pick “the most qualified woman I can possibly find,” adding: “It is time for a woman to sit among the highest jurists.”
George H.W. Bush arguably engaged in the same practice. When Justice Thurgood Marshall retired and Clarence Thomas was eventually picked, Bush took care to say his pick would not be based on a “quota” or anything other than the best person for the job. But administration officials noted at the time that his search just happened to focus almost exclusively on minority and female candidates.
In the first two cases in particular, the pool of potential candidates was substantially decreased by the promise. So the question becomes why eliminating a huge majority of potential picks (by promising a woman) wasn’t discrimination, or why it doesn’t assign a historical asterisk to the tenures of Amy Coney Barrett (Trump’s pick) and Sandra Day O’Connor (Reagan’s), but this one does. Or at least, why the people crying foul now didn’t also cry foul when Trump made his promise less than two years ago?
Good question. And take a look at the comparison he makes between Biden’s promise and Reagan’s in context:
In 1980, only 8 percent of lawyers were women, and only about 5 percent of federal judges were. That meant Reagan’s promise excluded about 92 percent of lawyers and 95 percent of federal judges.
Today, about 5 percent of lawyers are Black (statistics are not so readily available for Black women, specifically), and about 5 percent of federal judges are Black women. Given that federal judges are usually chosen for the Supreme Court — 12 of the last 13 confirmed justices came from federal courts — Biden pared down the pool of candidates about as much as Reagan did four decades prior.
And how about the open preference for youth?
The arguments also ignore plenty of other things that could be construed as discrimination. It’s clear that presidents have little time for considering or appointing older justices, for example — because that means they wouldn’t spend as many years on the bench. (Trump even played up the youth of his first pick, Neil M. Gorsuch, by suggesting that Gorsuch might serve for 50 years.)
In practical terms, that has meant we’ve had only one justice over the age of 55 confirmed since 1986. What are the odds that the supposed best candidate has almost always not been someone older than 55? Excluding older candidates from the search would seem to be some form of age discrimination, especially given that those older justices would have been practicing law and deciding cases for much longer.
Yes, they are blatant hypocrites. What else is new?
In case you wonder if any of them will bring this up in public hearings, here’s the list of GOP members on the Senate Judiciary Committee: Cruz, Hawley, Cotton, Blackburn and the cornpone twins, Graham and John Kennedy.
Lord have mercy.