Joe Biden’s promise two years ago during a debate in South Carolina about a future pick for the Supreme Court will create undue pressure, at least temporarily, on his nominee to replace retiring Justice Stephen Breyer.
Here’s what then-candidate Biden said: “I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get everyone represented.”
With Breyer’s announcement that he will step down, Biden now gets to perform what is arguably a president’s most important task — and to make good on his campaign promise, which he confirmed the other day. Selecting a Black liberal would be an excellent move, since conservative Clarence Thomas has been the court’s lone Black justice for the last three decades. A fourth woman would also be a welcome addition.
This all sounds good, so what’s the problem?
The problem is that selecting a nominee to serve on the highest court in the land is supposed to involve an exhaustive process to find the most qualified person, regardless of sex or race. In practical political terms that is not always the case, but for the good of the nation and the nominee it should at least appear that way.
If you flatly eliminate all men and all non-Black women, you dismiss about 93% of the population. Logically and mathematically, you can’t promise that the best justice will necessarily come from just 7% of the population. She very well might. But you shouldn’t announce that two years before beginning a search.
I’m sure when Joe Biden made his promise he had the best interests of the nation at heart. But he was also trailing in his effort to win the Democratic presidential nomination and desperately needed a win in South Carolina, where six in 10 Democratic voters are Black. Prior to the debate, Rep. James Clyburn of South Carolina urged Biden to make the promise.
Biden isn’t the first to make such a pledge: In 1980 Ronald Reagan promised to appoint a woman to the Supreme Court. A year later Reagan nominated Sandra Day O’Connor as the first female justice.
I believe that nominating justices isn’t just a matter of picking the best individual candidates, but also making sure the composition of the bench is balanced. The historical absence of women in Reagan’s era, and of Black women in Biden’s time, makes it legitimate to focus on such criteria. But with such perspective comes controversy.
Biden’s likely choices include Judge Ketanji Brown Jackson of the U.S. Court of Appeals in the District of Columbia, who clerked for Justice Breyer; Justice Leondra Kruger of the California Supreme Court, and Judge J. Michelle Childs of the Federal District Court in South Carolina. Any of them might be the best for the job, but each will be confronted by the fact that the president cut the field by 93% before making his choice. If nothing else, that’s ammunition for Biden’s opponents.
A few weeks after making his South Carolina pledge, candidate Biden said in another debate, “I commit that I will in fact pick a woman to be vice president.” His on-stage opponent that night, Vermont Sen. Bernie Sanders, wouldn’t guarantee he’d pick a woman, saying, “In all likelihood I will.”
Biden’s pledge, leading to his selection of Kamala Harris, prompted pushback from conservatives such as Washington Examiner columnist Kaylee McGhee, who wrote that Biden’s choice “will be seen as the most inclusive option, rather than the most accomplished.”
Whoever replaces Breyer, one of her first challenges will be to help decide whether affirmative action should continue as practiced in college admissions. The Court recently agreed to weigh whether race-conscious admission practices at Harvard and the University of North Carolina are lawful. Present law is rooted in a 2003 decision that said it is permissible to consider race as a factor to achieve racial diversity at schools.
The Supreme Court needs a Black woman. It’s unfortunate that she will face the unintended consequence of having to refute those who assert that a political battle in South Carolina got her the job.
Peter Funt is a writer and speaker
