How not to select a Supreme Court justice

By Matthew Gagnon

Roughly two years ago, former Vice President Joe Biden was in trouble. He had just been walloped by both Bernie Sanders and Pete Buttigieg in the first three states in the 2020 Democratic primary. 

At this point, Biden’s campaign was running on fumes, his support was thin, and very few people believed in his ability to win the nomination anymore. To stay alive, Biden needed something dramatic to happen: He needed to win in South Carolina.

If he was able to prove that he could win there, it would be a powerful signal that his campaign was not over and that he was a viable candidate for the Democratic establishment to rally around in their desperation to find a candidate that could defeat Donald Trump in the general election. 

Winning South Carolina, though, would not be easy. He would need on-the-ground institutional support from the most important Democratic constituency in the state: African American voters. There was no more important figure in this group than Rep. James Clyburn, the U.S. House majority whip. Getting his endorsement, Biden surmised, would help deliver Black voters and ultimately win the state. 

Clyburn, though, was unwilling to give his endorsement unless Biden made a very specific promise. Clyburn wanted Biden to pledge — publicly — to appoint a Black, female justice to the Supreme Court. 

Biden was supposed to make his pronouncement at a debate in Charleston, South Carolina, prior to the primary, according to journalist Jonathan Allen.  As the evening wore on and Biden kept avoiding it, Clyburn became visibly angry, eventually leaving his seat in the debate hall to confront Biden and demand the promise be made publicly. “Don’t you dare leave this stage without doing it,” he reportedly told Biden.

Seeing little choice, Biden got back on the stage, and made his promise.

Flash forward to today, and this promise now looms large over the appointment to fill a new Supreme Court vacancy left by Justice Stephen Breyer. Biden has already reconfirmed that his selection will be a Black woman. 

There is nothing wrong with the eventual nominee being either Black, or female of course. Indeed, such an eventuality would be something to celebrate and look forward to, were it to happen. Attempting to find individuals that possess a diverse background, and then elevating those individuals is a societal good worth striving for.

But how to do it effectively, without becoming a race-obsessed culture of categorical demographic beancounters?

The promise Biden made, made out of political desperation to save the political future of a politician who badly wanted to be president, shows us exactly the wrong way to go about doing this. 

This is a monumentally important post that requires a deeply serious legal mind who reveres the Constitution. That is why writing off more than 90 percent of federal judges without even considering them is so tragically foolish. 

Restricting the possible pool of candidates to only one narrow demographic means that we are not even considering most of the highly qualified candidates in the judiciary. That includes, by the way, a number of other diverse candidates, including Sri Srinivasan, a deeply progressive justice who was actually considered by Barack Obama in 2016. 

There are a massive number of judges like Srinivasan, almost none of whom I would agree with philosophically, that would merit consideration. But because Biden now needs to engage in a political act of racial tokenism, none of those candidates will receive said consideration. 

Biden’s appeasement of an inappropriate promise isn’t just bad because it discounts most of the qualified candidates, though. The worst thing about it is that it sends a signal to the American people that the things we need to be most concerned with and see in each other begin with things like race.

We once strove, in this country, to stop seeing color, and instead judge people strictly on their merit. Now, we are instead told that we must see color first, and most importantly, with all other considerations second.

It isn’t that Biden can’t find a qualified Black woman to fit the post. He most certainly can and he will. But in all likelihood, the very same candidate he chooses could have been chosen with no consideration given to who they were or what their heritage was, and that would have made their selection carry far more weight. 

That — a country that gives equal opportunity to all, and considers not the color of one’s skin but the content of their character — should be the America we strive for.

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.