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At a joint event with retiring Supreme Court Justice Stephen Breyer in late January, President Biden reiterated his promise to nominate a Black woman to the nation’s highest court, fulfilling one of the president’s campaign promises.
Biden said the candidate will likely be announced before the end of this month.
“I’ve made no decision except one: The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said at the Jan. 27 event. “It’s long overdue, in my view.”
At the heart of Biden’s choice to nominate a Black woman, as opposed to basing his decision on qualifications alone, is the common belief held by many on the left that people of different races and genders have unique life experiences that better prepare them to make policy, understand people coming from similar backgrounds, and even serve on the Supreme Court.
A white male justice, it has been argued, can’t fully understand the challenges facing racial minorities and women, and most of those who have served on the court throughout its history have been white men.
Others in favor of Biden’s view believe that more Black Americans should be appointed to the Supreme Court because African Americans have been underrepresented in decades past, and because there is an inherent value in racial diversity.
There is no denying that personal experiences, some of which are undoubtedly shaped by race, play an important role in many professions. And it is equally true that Black Americans were for most of America’s history unjustly underrepresented on the Supreme Court. But as well-intentioned as these arguments might be, there are numerous reasons they are not valid justifications for using race or gender as key determining factors when choosing a Supreme Court justice.
First, the goal of our legal system should always be to exclude race and gender from the application and analysis of the law. Many people in decades past have struggled, fought, and even died so that race and gender would not be the bases upon which laws are applied.
To insist that a specific combination of gender and race is the only one worth considering is to return to wretched ideas of the past, ones that Americans have been desperately trying to run from for many years. You can’t cure racism with more racism, however noble the cause might be, and that’s precisely what the White House claims it is doing.
Second, the current composition of the Supreme Court disproves many of these arguments on their face. The lone Black justice on the bench today is a constitutional originalist who rarely issues opinions in line with Biden’s views, which are supposedly more beneficially for racial minorities.
Similarly, another of the court’s more conservative justices is its newest member, Amy Coney Barrett, a woman with whom Biden frequently disagrees.
Why, I wonder, doesn’t the race of Clarence Thomas or the gender of Amy Coney Barrett compel them to issue the opinions Biden thinks are correct?
Suggesting race and gender help to determine how justices apply the law does not appear to be how the Supreme Court operates today, and that’s a good thing. The law should be applied without regard to race or gender, and the same ought to be true when examining the qualifications of judicial nominees.
Third, if Biden’s goal is to provide better representation for racial minorities on the Supreme Court purely because minorities have been underrepresented on the bench in the past, then why isn’t Biden planning to nominate an Asian American, since there has never been an Asian-American Supreme Court justice?
If Biden truly wants to infuse the Supreme Court with unique perspectives, as he claims, then the best way to do it isn’t to nominate a judge based in part on race or gender. Instead, President Biden should choose a justice with a unique background in the law.
For example, a good step toward helping to craft a truly diverse Supreme Court would be for Biden to choose a nominee who has served in a variety of different legal professions, and one who has not received his or her training at one of only a handful of elite law schools.
Over the past 40 years, the vast majority of the justices chosen for the Supreme Court — by Democratic and Republican presidents alike — have graduated from just two law schools: Harvard and Yale. (Harvard boasts seven of its graduates have been appointed to the Supreme Court since 1981; Yale has had four.)
Over the same period, just four justices confirmed to the court graduated from schools other than Harvard and Yale: Amy Coney Barrett (Notre Dame), Sandra Day O’Connor (Stanford), Ruth Bader Ginsburg (Columbia), and William Rehnquist (Stanford). And one of the members of that group, the late Justice Ginsburg, attended Harvard before transferring to Columbia.
And at present, every sitting Supreme Court justice, save only Coney Barrett, graduated from either Harvard or Yale.
That means in the past four decades, five schools out of 199 law schools approved by the American Bar Association have been responsible for educating the justices chosen to serve on the Supreme Court, the very opposite of intellectual diversity.
There are some who continue to insist that Biden’s emphasis on race and gender will lead to better outcomes and a more diverse court, but what is likely to have had a greater impact on a judicial nominee responsible for issuing complex legal opinions — skin color and gender, or the institution responsible for teaching him or her the law?
Justin Haskins ([email protected]) is the director of the Socialism Research Center at The Heartland Institute and the co-author of the New York Times bestselling book The Great Reset: Joe Biden and the Rise of Twenty-First Century Fascism.
Source: This post first appeared on RedState