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Biden Far From First to Consider Identity in Supreme Court Pick

Feb. 2, 2022, 4:53 PM

Republicans have criticized President Joe Biden’s pledge to put a Black woman on the Supreme Court, but taking identity into account is nothing new when appointing justices.

Race, sex, religion, and other demographics have long been considered in high-court appointments.

Presidents have picked nominees with typical professional experience while also “focusing on a unique aspect about who they are,” said Renee Knake Jefferson, a University of Houston law professor and co-author of “Shortlisted: Women in the Shadows of the Supreme Court.”

“Demographic factors have always been part of the process,” said judicial-politics expert David Yalof, a University of Connecticut professor who noted that there have been Catholic and Jewish “seats” on the court, effectively designated for justices of those faiths.

Richard Nixon, who won the White House in 1968 in part by making inroads among southern whites, looked for southern nominees to replace Abe Fortas in 1969. Clement Haynsworth of South Carolina and Harrold Carswell of Florida were both rejected by the Senate, with George McGovern (D-S.D.) calling Carswell’s record, which included resisting desegregation, “distinguished largely by two qualities: racism and mediocrity.”

As a presidential candidate in 1980, Ronald Reagan vowed to appoint the court’s first woman. He followed through by nominating Sandra Day O’Connor, who was confirmed in 1981.

Donald Trump, too, said he’d nominate a woman, to replace Ruth Bader Ginsburg after the women’s-rights-lawyer-turned-justice died shortly before the 2020 election. Trump selected Amy Coney Barrett, who was confirmed.

But Republicans have deemed Biden’s pledge improper. Susan Collins (R-Maine) said it “adds to the further perception that the court is a political institution.”

Ted Cruz (R-Texas) called it offensive and insulting. “He’s saying if you’re a white guy, tough luck. If you’re a white woman, tough luck, you don’t qualify,” Cruz, who sits on the Senate Judiciary Committee, said on his podcast.

Loyola Law School professor Yxta Maya Murray said Collins’ and Cruz’s arguments ignore “that the Supreme Court has been built along the lines of male dominance and white supremacy since 1789.” That year’s Judiciary Act established the tribunal staffed by white men until Thurgood Marshall, the first Black justice, was confirmed in 1967.

“When race and gender are described explicitly, and the idea that a Black woman—who of course is only going to have the most insanely impeccable credentials—is going to get elevated, then all of these really noxious accusations start getting bandied about,” said Murray, who wrote a play based on Brett Kavanaugh’s confirmation hearings, “Advice and Consent: A Play in One Act.”

Affirmative Action

Another Republican senator, Roger Wicker of Mississippi, said Biden’s pick would be an affirmative-action beneficiary.

George H.W. Bush bristled at the notion when he nominated the second Black justice, Clarence Thomas, to replace Marshall in 1991. Bush called Thomas “the best man at the right time—or the best person at the right time, because other—women were considered as well.”

Announcing Marshall’s selection in 1967, Johnson called it “the right thing to do, the right time to do it, the right man and the right place.”

Johnson “didn’t say out loud ‘I’m going to put the first African American on the court,’ but he made a very big deal afterwards that he had done that,” Yalof said. “Subsequent presidents realized that there was something to gain in making those kinds of pronouncements and judgments,” he said.

In that vein, Reagan appointed another “first” in addition to O’Connor: the first Italian-American justice, Antonin Scalia.

Senate Judiciary Committee Chair Strom Thurmond (R-S.C.) said at Scalia’s 1986 confirmation hearing that the nominee “is now cast in the role of a symbol. Certainly, he creates great pride by being the first Italian-American who will sit on the Court.”

Scalia “also serves as a symbol in an even larger context,” Thurmond added. He said the nominee, “a first-generation American and the son of an immigrant,” stood “as proof of the vitality of the American dream.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com