The Wrong Question For Justice Breyer’s Successor

I remember when candidate Trump, from the debate stage, announced he would appoint a Supreme Court justice who would overrule Roe v. Wade, as candidate Clinton announced she would appoint one who would uphold abortion. Both made me cringe. It’s now normal for presidential candidates to “sell” Supreme Court seats to voters as an enticement. Even Reagan did it announcing he would nominate a woman, who turned out to be Sandra Day O’Connor.

To be fair, it’s not as if seats haven’t been deemed “owned” by a demographic. The great Thurgood Marshall’s seat was reserved for a black justice, and so Clarence Thomas, whose qualifications were in serious doubt, got the nod. Of course, the only thing in common between Justice Marshall and Justice Thomas is their skin color, dispelling the myth that melanin is all it takes.

When House Majority Whip James Clyburn convinced perennial candidate Joe Biden to say aloud that he would nominate a black female justice, it was unfortunate but unsurprising. Not unfortunate because a black woman might be a justice, but that it would bear the same taint of fitting a square peg into a round hole. Once elected, would he look through his binder of black women to find someone?

Note that “binder” is singular, because the pool of potential black female justices wasn’t deep. Perhaps about 2% of attorneys in the United States fit the self-imposed requirement. How and why that was the case may be an interesting exploration in historic racism and sexism, but irrelevant to the exigent decision. If he’s going to fulfill his pledge, Biden must choose from this tiny universe, to the exclusion of the other 98% of lawyers, for his nominee. And that 2% isn’t even as beefy as it might seem, since many within that demographic lack the experience and accomplishments to make the cut. Most didn’t even go to Harvard or Yale law schools, historically the foremost qualification for the job.

By pre-gaming the pick for political gain, by choosing the narrowest of qualifications for his pool of potential nominees based on demographics, has Biden reduced whoever gets the nod to a race and gender token and left wing partisan hackery? No.

In the first place, the nomination of a black woman to the Supreme Court is overdue, if one believes that a diversity of experience, a group of lawyers with heterodox views of the law and society, will end up making the Nine a better reflection of the nation. When the justices sit to discuss their positions, they need to hear and consider all sound views and challenges to their own. You may not like the other side getting its say, but we, as a nation, are better for all voices being heard.

Granted, it’s overly simplistic and reductionist to believe that race and sex are close enough to presume a justice’s position when ruling. Justices end up surprising us all the time, and we make up stories to explain their votes to fit into our preconceived paradigms, but we lie to ourselves if we pretend that we know what’s really happening inside their heads. We know what they say in writing, but humans, and justices (who are still humans, rumors to the contrary notwithstanding), are more complex than that.

Secondly, even within this very shallow pool of potential nominees, there is serious doubt that Biden can stray too far off the beaten path. Their “lived experiences” will differ, some coming of age in Cambridge while others in New Haven. Some spending more of their life in law at Biglaw than government, while others spent more in government than Biglaw.

Should the nominee be chosen from a pool of sitting judges, most will have enjoyed the solicitude of lawyers laughing at their robed jokes and treating them as demigods. That’s not exactly the normal human experience on the street of black women, or anyone not a federal judge, to enjoy the rarified obsequiousness of those who want them to rule their way.

And how many cases did they try? Let’s not even go to the trench lawyer problem, where district judges and trial lawyers try to make sense of rulings by justices who’ve never had to decide whether to stand up and object, or hold the hand of an over-charged defendant who had to choose whether to cop a plea if he ever wanted to see his children again or fight with the extreme likelihood of dying in prison.

The Constitution gives the president the power to nominate justices, with the advice and consent of the Senate. An odd things happens these days when a president exercises his authority. Judges who were uncontroversial when confirmed to circuits are demonized when nominated to the Supremes. It happened with Trump. It will happen again with Biden. It didn’t always happen this way, but old ways are gone.

Just as Trump’s nominees were despised by left, Biden’s will likely be hated by the right for not being the justices they want or would choose. Tough nuggies. Biden’s the president and you’re not. It is entirely right and proper for Biden to pick a nominee that reflects the values and jurisprudence he believes best. That’s part of what’s chosen when a president is elected. Even so, presidents, and their supporters, are naive to believe that justices with life tenure are their puppets on the Supreme Court. They aren’t nominating proxies or henchmen, but justices. Once on the Court, the president can’t tell them what to do, much to some presidents’ chagrin.

Until Biden makes his selection, it’s a waste of time to dissect the potential nominees, even in as small a pool of candidates as black women judges from elite schools. There will be ample time once the nomination is made to consider their qualifications. And that, their qualifications, is the only legitimate focus of concern. Is the nominee qualified by experience, intellect and temperament? Any other question is ultimately the wrong question. If the nominee possesses those qualifications, then she should be unanimously confirmed, and we, as Americans, should feel confident that our system has worked as it should.

10 thoughts on “The Wrong Question For Justice Breyer’s Successor

  1. Guitardave

    Boss, I think this is the cue.
    Time to start identifying as a black woman.
    America needs you. We really do.

  2. j a higginbotham

    Wouldn’t choosing from such a small, predetermined group lead to more scrutiny from all sides?
    [For diversity, what about the third strike of atheism?]

  3. Dave Landers

    Not many comments on this post today. A tad off-topic but any thoughts on Justice Breyer’s semi-retirement and which court he intends to serve. In his retirement letter to the president he states he intends to “serve under the provisions of 28 u.s.c. § 371 (b)”.

    Could the Chief Justice prevent Justice Breyer from showing up to hearings and asking for a tenth chair to be brought in?

    1. LRB

      My understanding is that Douglas tried something similar when he retired. Burger (and everyone else for that matter) told him where to go.

      Most seem to retire under that provision, but I don’t know of anyone who has availed themselves of the opportunity recently (to sit by designation below) other than Souter on the First Circuit (to where Breyer may return of course). Happy to be corrected.

  4. Anonymous Coward

    Pre-selecting candidates based in identitarian checkboxes seems like a very narrow minded approach and no guarantee of diversity of opinion or professional experience. Justice Sotomayor also hit identitarian checkboxes for “diversity” but her Ivy League law degree and service as a prosecutor were no more diverse then her fellow justices and her record no different.

  5. JorgXMcKie

    I’d be glad to see a Baptist who didn’t attend an Ivy League, nor Chicago or Stanford. As long as she’s an intelligent, relatively clear thinker I wouldn’t care how far Left she was.

  6. Mark Hu

    If we are spoiled for choice, and it seems there are several objectively brilliant candidates. And if we are lucky enough that one of those candidates can give a certain group of people that still lack a voice on the court a voice there, i am all for that.

    Would i go for a black woman in this case? No i would go for a muslim or an atheist, female since it is still 6-3 at the moment. But qualified comes first.

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