In February 2020, President Joe Biden made major pledges on the campaign trail about whom he would choose for various high-level posts. “I commit that if I’m elected president and have an opportunity to appoint someone to the court, I’ll appoint the first Black woman to the court,” he declared. “Secondly, if I’m elected president, my Cabinet, my administration will look like the country. And I commit that I’ll pick a woman to be vice president. There are a number of women who are qualified to be president tomorrow; I would pick a woman to be my vice president.”
Biden followed through on the latter promise by nominating Kamala Harris as his running mate later that year. Now, with Justice Stephen Breyer’s retirement planned for this June, the president is poised to fulfill the other one. But his commitment is drawing flak from some Republican senators and others who are critical of his decision to appoint the first Black woman to the Supreme Court on two fronts. Neither of the lines of criticism hold up to scrutiny.
The first one is that Biden somehow erred or acted outside the bounds of normal judicial politics by making the pledge. Maine Senator Susan Collins, a self-styled moderate Republican who played a key role in the Trump-era Supreme Court confirmation battles, criticized the Biden administration’s actions over the weekend. “The way that the president has handled this nomination has been clumsy at best,” she said in an interview on ABC News. “It adds to the further perception that the court is a political institution like Congress, when it is not supposed to be.”
There are a few problems here. As I’ve noted before, using Supreme Court nominations for coalition-building isn’t unprecedented at all. Dwight Eisenhower nominated William Brennan for the high court in 1956 in the hope that it would garner him more Catholic votes in the Northeast in that year’s presidential election. On the campaign trail for the 1980 presidential election, Ronald Reagan pledged to nominate the first woman on the Supreme Court. “It is time for a woman to sit among our highest jurists,” Reagan told reporters. “I will also seek out women to appoint to other federal courts in an effort to bring about a better balance on the federal bench.”
Richard Nixon had previously tried to name the first woman on the high court. In 1971, when two vacancies on the court opened within months of each other, the White House planned to nominate Mildred L. Lillie, a prominent state appellate judge in California. But the plan ran into stiff opposition from the American Bar Association, which unfairly rated her as unqualified; then–Chief Justice Warren Burger also reportedly piled on, threatening to resign from the court if Nixon appointed a woman to it. The Nixon administration backed down. Less than a decade later, Sandra Day O’Connor sailed through the Senate confirmation process after Reagan nominated her.
Collins said in her interview that Biden had “politicized” the process by making his pledge on the campaign trail, perhaps mistakenly omitting that Reagan had done the very same thing. Even if Reagan hadn’t done so—and even if one could bemoan the “politicization” of this process in the year 2022 with a straight face—it’s hard to take the complaint seriously after the last administration. Former President Donald Trump not only pledged to appoint “pro-life justices” who would overturn Roe v. Wade on the campaign trail in 2016 but also released public Supreme Court shortlists to secure the backing of the conservative legal movement and evangelical Christian voters ahead of the election. It may have been one of the most successful political bargains of its kind in American political history.
A more disturbing line of attack that’s emerged from the right revolves around the nominee’s race, gender, and qualifications, and how they intersect. “The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination, while adding someone who is the beneficiary of this sort of quota,” Mississippi Senator Roger Wicker, a Republican, told a local radio host on Saturday. He predicted that the nominee would not get a “single Republican vote” and added that Biden’s choice would not be a “nice, stately, left-wing liberal type” like Breyer but someone “in the style of Sonia Sotomayor,” the court’s first Latina justice.
The implication appears to be that, by pledging to choose a Black woman, Biden will inevitably nominate a Supreme Court nominee who is either unqualified or less qualified for the job. Others have made this point more bluntly. Ilya Shapiro, a law professor and incoming administrator at Georgetown University’s law school, wrote on Twitter last week that Biden should choose Sri Srinivasan, a D.C. Circuit Court of Appeals judge who was rumored to be on Barack Obama’s Supreme Court shortlists. “But alas [he] doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman,” Shapiro claimed. (He has since apologized for the tweet.)
As it happens, there are many qualified Black women for the Supreme Court, and they appear to be on the White House’s radar. The most widely reported picks for Biden’s shortlist are Judge Ketanji Brown Jackson on the D.C. Circuit Court of Appeals, Justice Leondra Kruger on the Supreme Court of California, and Judge J. Michelle Childs on the federal district court in South Carolina. Other commentators have also suggested New York University law professor Melissa Murray and NAACP Legal Defense Fund president Sherrilyn Ifill. CNN reported that at least eight other judges and judicial nominees are under consideration, most of whom serve on state supreme courts or federal appellate courts. Those backgrounds would be entirely consistent with those of past Supreme Court nominees.
One argument, advanced recently by an ABC News poll and by some conservative pundits, is that Biden is necessarily excluding qualified nominees from the process. So has every president. The biggest hurdle for any would-be justice—and the most bipartisan one—is age. Only two justices in the last 50 years were more than 60 years old when nominated to the high court. In recent years, nominees have trended even younger: Gorsuch was 49, Barrett was 48, and Thomas was a spry 43 years old at the time of their nomination. The reason is obvious: Presidents from both parties want to secure a Supreme Court seat for as long as possible. That automatically excludes hundreds of potential nominees who simply happened to miss their window by happenstance of birth.
It’s also worth noting that the Constitution doesn’t actually spell out these qualifications; the only obvious implied one is that they have to be a lawyer. Most of the modern “qualifications” are tied to elite credentials, institutions, and power bases. Since law schools didn’t always exist, the Supreme Court had justices who were self-taught in the law, or learned it in an apprenticeship, well into the twentieth century. Now Amy Coney Barrett is the only one who didn’t attend an Ivy League law school. Congress and the Electoral College are designed to disperse political power throughout the United States. The Supreme Court has no such features, and as a result, Breyer and Gorsuch are the only sitting justices who hail from west of the Mississippi. Four of their colleagues are from New York and New Jersey alone.
The professional routes to the Supreme Court have also narrowed. Sandra Day O’Connor was the last justice, maybe ever, who previously served as an elected official when she retired in 2005. Many of the current justices worked as prosecutors or in the Justice Department; none have worked as public defenders. None have served on a state court since David Souter retired in 2009. The only real outlier today is Justice Elena Kagan. She is the sole sitting justice who didn’t serve on a federal circuit court of appeals before her nomination, though she was nominated to the D.C. Circuit by Bill Clinton in the waning days of his administration. (The Senate did not act on the nomination, and the George W. Bush administration did not renew it.) Yet Kagan’s exception still sort of proves the rule: Her last two jobs were as the Justice Department’s solicitor general and the dean of Harvard Law School, two of the most prestigious posts in all of American law.
Out of this nebulous pattern, a generic Supreme Court nominee emerges. They are a 47-year-old Harvard Law graduate, or maybe Yale if the White House is feeling adventurous. They clerked for well-respected judges and almost certainly a Supreme Court justice. They then went into a public-service job of some kind, maybe as an assistant U.S. attorney, or in the White House Counsel’s office, or something in the Justice Department if there was a presidential administration keen to give them the right leg up at the right time. (Maybe they also taught at a top-tier law school if there wasn’t.) Then they accepted a nomination to serve on a federal appellate court when the appropriate party held the White House. There are about as many lawyers in America as there are residents of Dallas, Texas, and there are maybe as many lawyers who fit that generic profile—and party alignment—as there are players, coaches, and assistants for the Dallas Cowboys.
Jackson happens to be one of them: a Harvard Law degree, a Breyer clerkship, a federal district judgeship in D.C., and a recent appointment to the D.C. Circuit. So does Kruger: a Yale Law degree, a John Paul Stevens clerkship, two high-level jobs in the Justice Department, and then the Supreme Court of California. The other potential Biden nominees have also amassed an impressive set of credentials and accomplishments, and it says more about the Mississippi senator who derides them as “quota” hires than it does about the nominees themselves. Biden is right to ensure that those who read and interpret the Constitution reflect those who live under the Constitution, just as other presidents have done before him.
