Photo-Illustration: Intelligencer; Photo: Doug Mills/AP/Shutterstock
the national interest

Biden Didn’t Invent Affirmative Action for the Supreme Court

Conservatives attack Biden for promising to appoint a Black woman.

Photo-Illustration: Intelligencer; Photo: Doug Mills/AP/Shutterstock

President Biden has not named his choice to fill Stephen Breyer’s vacancy on the Supreme Court, but the first major talking point against her has already emerged: She is the unqualified product of affirmative action.

“Biden has unwisely limited his options by preemptively declaring during the 2020 campaign that his first Supreme Court nominee would be a black woman,” editorializes National Review. “In a stroke, he disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. This is not a great start in selecting someone sworn to provide equal justice under the law.”

The Wall Street Journal editorial page clucks, “Mr. Biden’s campaign promise that he’d appoint a black woman to the Supreme Court is unfortunate because it elevates skin color over qualifications.” Cato’s Ilya Shapiro complained, before deleting the tweet, “Because Biden said he’s only consider black women for SCOTUS, his nominee will always have an asterisk attached.” Even grosser versions of the same basic idea are already emanating from the likes of Tucker Carlson.

Somehow the idea has taken hold that, before Biden came along and junked the standards, nominations to the Supreme Court used to be awarded solely on the basis of merit. The pick would go to the finest and most accomplished jurist in the land, like a law review editorship for the entire court system.

But when exactly did this era exist? Was it before 1967, when the most qualified judges were all white men? No, there was widely held to be a “Jewish seat” and a “Catholic seat” on the Court for decades during that time.

The basis for identity representation on the Court widened after the 1960s. Ronald Reagan promised during his 1980 campaign to appoint a woman to the Supreme Court. George H.W. Bush did not openly say he needed a Black jurist to replace Thurgood Marshall, but it would take heroic levels of delusion to believe Clarence Thomas was selected on the basis of his career accomplishments.

Meanwhile, age has been openly discussed as a crucial factor in selecting justices. Unlike race and gender, which are unrelated to quality, age is a trait that runs directly in opposition to it. Neither party would choose a nominee over the age of 60, even though the most accomplished judges by definition have been honing their craft for a long time.

The absurd actuarial logic of lifetime appointments incentivizes both parties to find the youngest possible nominee who can be plausibly sold to the public as having cleared the qualification bar. If you were genuinely concerned about the qualifications of Supreme Court justices, reforming the system by ending lifetime tenure would be a high priority. But the right’s energy has been focused on beating back any reforms to the system — they have won the game and don’t wish to change the rules.

In any case, neither party has ever believed that a Supreme Court seat is rightfully awarded to the greatest super-genius in the world. They have both believed that some level of qualification is required and that, having cleared that threshold, the nominee’s identity traits are a valid reason to select them.

Donald Trump proudly noted that Amy Coney Barrett — chosen over many more qualified right-wing judges — would be the first mother to serve on the Supreme Court. “At 46, she is the youngest of the five top choices, which is a mark in her favor given that the nominee will have life tenure and Trump will want one who will leave a lasting mark on the law,” gushed National Review editor Ramesh Ponnuru before her appointment. Ponnuru added that Barrett’s non–Ivy League pedigree “would add a little welcome diversity to a Supreme Court full of Yale and Harvard alumni.”

He proceeded to say, “The main reason I favor Barrett, though, is the obvious one: She’s a woman.”

And now we learn that Biden has compromised not only the quality of the Court’s legal character but the very principle of “equal justice under the law” by promising to appoint the first Black woman to the Court. It’s enough to make you wonder whether the conservative notion of equal justice under the law is equal at all.

Biden Didn’t Invent Affirmative Action for the Supreme Court