Which Black Woman Will Biden Appoint to the Supreme Court?

The 46th President will follow the lead of the 40th in making a historic appointment.

With yesterday’s announcement by Justice Stephen Breyer that he’s retiring, President Biden is virtually assured that he will get to put a replacement on the Supreme Court. While Mitch McConnell would surely like to stall any nomination until such time as there’s another Republican President, the abolition of the filibuster for judicial confirmations means all that Biden needs are the 50 Democratic Senators, none of whom has voted against a single Biden judicial appointee thus far, and Vice President Harris.

All indications are that he has limited his options to Black women. He pledged to appoint the first Black woman to the Court during the campaign and several Congressional Democrats are reminding him of the pledge and demanding that he honor it, which he was surely going to do anyway and which the White House has already re-affirmed.

Yes, it’s identity politics and smacks of tokenism. Then again, Ronald Reagan did the same thing four decades ago, pledging to break the glass ceiling and appoint the first woman, which he did in short order with Sandra Day O’Connor.

This is the same situation we were in with the Vice Presidential pick. He pledged early in the primaries that he would choose a woman as his running mate and, in the wake of the Black Lives Matter protests and after vital help from Black leaders in rallying support, he was essentially limited to a woman of color.

While “Black woman” is a much smaller pool than “woman,” much less, “Democrat,” there are nonetheless a considerable number of highly-qualified, easily-confirmable options available. Indeed, there are likely more qualified Black women now than there were 41 years ago when O’Connor got the nod.

NPR‘s Deirdre Walsh runs down the prospects,

There are a couple of dozen Black women judges currently serving on the federal bench and a handful of those names are expected to be on Biden’s shortlist. But two names have emerged as frontrunners.

Federal Judge Ketanji Brown Jackson, who was also on Obama’s shortlist for the court in 2016, is regularly mentioned by Democrats. California Supreme Court Justice Leondra Kruger — who was the assistant, and then deputy solicitor general in both Democratic and Republican administrations before she was nominated to California’s highest court — is also considered highly qualified for the post. Both women are younger — Jackson is 51 and Kruger is 45 — giving either the opportunity, if chosen and confirmed, to serve for decades.

Jackson seems to be the frontrunner and was given a glowing endorsement by regular commenter HarvardLaw92 in the Breyer retirement discussion yesterday. Her age and qualifications are such that she would surely be on the shortlist even if Biden was simply looking for the best Democrat.

NYT‘s Charlie Savage has an in-depth profile:

Judge Jackson, who clerked for Justice Breyer during the Supreme Court’s 1999-2000 term, was born in Washington, D.C., and grew up in Miami. She graduated from Harvard College and Harvard Law School.

She worked several legal jobs early in her career, including as a staff member for the United States Sentencing Commission and, from 2005 to 2007, as an assistant federal public defender in Washington. In 2012, President Barack Obama nominated her to serve as a district court judge in the capital.

During her eight and a half years on the Federal District Court bench, Judge Jackson handled a number of challenges to executive agency actions that raised questions of administrative law. She also heard several cases that attracted particular political attention.

Among them, in 2019, she ruled that Donald F. McGahn II, the former White House counsel to President Donald J. Trump, had to obey a congressional subpoena seeking his testimony over Mr. Trump’s efforts to obstruct the Russia investigation.

“Presidents are not kings,” she wrote, adding that current and former White House officials owe their allegiance to the Constitution. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

[…]

After Mr. Biden elevated Judge Jackson to the appeals court in 2021, she was part of a three-judge panel that heard Mr. Trump’s challenge to a congressional subpoena for White House records related to the Capitol riot. In December, less than a month after that case was docketed before them, they ruled that Congress could see the documents. The Supreme Court this month affirmed that outcome, completing the dispute’s unusually rapid resolution.

Judge Jackson has two daughters and is related by marriage to Paul D. Ryan, the former House speaker and Republican vice-presidential candidate. Her husband, Patrick G. Jackson, is a surgeon and the twin brother of Mr. Ryan’s brother in-law. At her 2012 confirmation hearing to be a district court judge, Mr. Ryan testified in her support, calling her “clearly qualified” and “an amazing person.”

“Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, it is unequivocal,” Mr. Ryan said. “She is an amazing person, and I favorably recommend your consideration.”

By all accounts, a nomination is expected quickly with confirmation going through in short order:

Senate Majority Leader Chuck Schumer is aiming to process Biden’s nominee swiftly — within roughly a month, according to a source familiar with his thinking. This is the same timeframe Republicans followed to move Barrett’s nomination through the Senate in the fall of 2020.

“In the Senate, we want to be deliberate. We want to move quickly. We want to get this done as soon as possible,” Schumer said.

This development also gives Senate Democrats some breathing room to change the subject from recent failed efforts to advance voting rights bills and social spending legislation. The Supreme Court confirmation process will move to the front burner, and likely move priorities like negotiating a scaled-back version of the Build Back Better policy bill to the back burner. Democrats will want to secure a political win for the president, before turning back to trying to get the major climate and child care bill through ahead of the midterms.

Once Biden announces his selection, the White House will formally submit the paperwork to the Senate. The Senate Judiciary Committee requires nominees to fill out a questionnaire detailing their background, education and judicial record. The FBI performs a background check and briefs members of the Senate committee on its findings.

Jackson and Kruger would both likely sail through but Jackson is all but a shoo-in:

In Judge Jackson’s case, she has gone through a similar process recently. She was confirmed to her current position by a 53-47 vote, last June, with three Republicans — Sen. Lindsey Graham, R-S.C., Sen. Susan Collins, R-Maine, and Sen. Lisa Murkowski, R-Alaska, voting with all Democrats.

FILED UNDER: *FEATURED, Gender Issues, Race and Politics, Supreme Court, US Politics, , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Not the IT Dept. says:

    Sometimes Wikipedia comes through like a champ. Money quote:

    “For its first 180 years, justices were almost always white male Protestants of Anglo or Northwestern European descent. Prior to the 20th century, a few Catholics were appointed, but concerns about diversity of the Court were mainly in terms of geographic diversity, to represent all geographic regions of the country, as opposed to ethnic, religious, or gender diversity. The 20th century saw the first appointment of justices who were Jewish (Louis Brandeis, 1916), African-American (Thurgood Marshall, 1967), female (Sandra Day O’Connor, 1981), and Italian-American (Antonin Scalia, 1986).”

    Source: https://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_States

    The charge of tokenism is thrown at people to downplay or completely obliterate their achievements or qualifications. We don’t have to pay it any mind.

    17
  2. OzarkHillbilly says:

    The Guardian had a few more names on their short list.

    In addition to Jackson and Kruger, they also had J Michelle Childs, Wilhelmina Wright, Eunice Lee, Candace Jackson-Akiwumi, and Sherrilyn Ifill.

    (short bios at the link)

    eta: link

  3. HarvardLaw92 says:

    Being completely frank here – Katanji is imminently qualified based on who she is – the content of her character & integrity, the depth & breadth of her legal expertise, and the power of her intellect, all of which are unassailable. She’s world class from the word go.

    I get why Biden wants to appoint an African-American woman, and I applaud that rationale (first African-American woman on the court) wholeheartedly, but on some level it’s almost an insult to this incredibly bright, incredibly accomplished woman to select her because she’s African-American. Where her suitability to the court is concerned, that’s honestly IMO the least interesting thing about her. She would be an asset to the court if she were a purple skinned one-eyed cyclops.

    18
  4. Kylopod says:

    @Not the IT Dept.: I remember that after the appointment of Elena Kagan, it was noted that for the first time in history there wasn’t a single Protestant on the Court–it was three Jews and six Catholics. It remained that way until the appointment of Neil Gorsuch, who was raised Catholic but is now Protestant.

    1
  5. James Joyner says:

    @Not the IT Dept.: I get the desire to make history and right historical wrongs. The Supreme Court really should be more diverse in a lot of different ways. But my concern is that expressed by @HarvardLaw92: it will always be understood that whoever Biden picks will have been the “best Black woman” candidate, not the best candidate. Even if they were the best candidate.

    It never really dogged O’Connor, even though a man with her CV likely wouldn’t have been chosen at that point. It still dogs Clarence Thomas, who likely wouldn’t have been the choice if the vacancy he was filling wasn’t that of Thurgood Marshall.

    5
  6. Jon says:

    IIRC Reagan announced he would appoint a woman because his support amongst women was cratering, after he had support for the ERA removed from the Republican platform (among other things). Prior to him the Republican party had proudly (!) included strong support for the ERA in its platform, every year from 1940 up to excluding 1980.

    So yeah, he did it so he gets credit. But he did it to paper over his overall terrible policies with regards to women.

    3
  7. Kylopod says:

    @James Joyner:

    But my concern is that expressed by @HarvardLaw92: it will always be understood that whoever Biden picks will have been the “best Black woman” candidate, not the best candidate. Even if they were the best candidate.

    I think that ship has already sailed–people make that claim about any black person who makes it to a high position. If Biden had not said he was looking for a black woman and yet he chose one anyway, she would almost invariably be called an affirmative action pick by a lot of people.

    15
  8. HarvardLaw92 says:

    @James Joyner:

    Justice Thomas is honestly defined by his grudges, which implacably impact both his episodic & inconsistent judicial philosophy and his opinions. It’s quite unfortunate, because he’s anything but a stupid man (he’s pretty bright and intellectually curious, much more so than his sporadic questioning and output would indicate, but also very rigid. He sees the world as my side / their side). That lens (which I can’t judge, having never walked a mile in his shoes) manifestly undermines his effectiveness in his role. It’s honestly a shame. He’s his own worst enemy.

    8
  9. HarvardLaw92 says:

    @Kylopod:

    If you ever get the chance, listen to her speak. The woman can blow the walls off of brick buildings. I get that I’m coming across as somewhat of a cheerleader, mea culpa, but it’s honestly because she’s just that good.

    I fully agree with what you’ve said – some would lob that accusation at her regardless of the conditions of her nomination. I take comfort in knowing, without a shred of doubt, that she’ll put those accusations to bed simply by being who and what she is & doing her job. The accusations might fly, but they won’t stick. Not to Ketanji …

    8
  10. My Yixiao says:

    @James Joyner:

    Optics are always going to be a part of the process. You’ll never get a “Roberto Mendoza” on the bench when there are Harvard and Yale options available. The prestige of those schools just look too good.

    So Hidden just needs to lean into it when people claim tokenism and reply with some snark “She’s a black woman? I hadn’t noticed. I was looking at her résumé.”

    3
  11. Tony W says:

    @James Joyner: Meh.

    For nearly 200 years we chose the best qualified white man, rather than the best qualified candidate all up.

    I have no problem with this idea.

    6
  12. wr says:

    @James Joyner: ” it will always be understood that whoever Biden picks will have been the “best Black woman” candidate, not the best candidate”

    Really? When we talk about the right-wing ideologue Clarence Thomas do we preface it by saying that Bush only nominated him because he didn’t think he could put a white guy in Thurgood Marshall’s seat? Or are we able to judge him as a harsh reactionary partisan based solely on his opinions and his refusal to declare how much money his family takes from right-wing political actors?

    7
  13. wr says:

    @HarvardLaw92: “Where her suitability to the court is concerned, that’s honestly IMO the least interesting thing about her.”

    I understand exactly what you mean, and it’s hard not to applaud it. But I’d say that the facts of her background mean that she will also bring a different perspective to the court. Does something like racial profiling or affirmative action read differently to someone who is on the other side of it than, say, Bret Kavanaugh?

    2
  14. wr says:

    @HarvardLaw92: ” He’s his own worst enemy.”

    To be fair, he’s among the Constitution’s worst enemies as well.

    11
  15. wr says:

    @HarvardLaw92: I seem to recall that some on the Right were calling Sotomayor an affirmative action hire, as well. They seemed to give that up as soon as she was established on the court.

    This is just the first shot against any Biden nominee. Next the Republican outrage machine will invent some scandal intended to mirror the accusations against Kavanaugh and come complete with “witnesses” who will turn out to be hard-core Republican operatives.

    3
  16. mattbernius says:

    Yes, it’s identity politics and smacks of tokenism. Then again, Ronald Reagan did the same thing four decades ago, pledging to break the glass ceiling and appoint the first woman, which he did in short order with Sandra Day O’Connor.

    I’m planning to write on this topic a little later today, but I want to point out that most of the voices who are criticizing Biden’s pledge were notably silent when less than 2 years ago, Trump promised to replace RBG with another woman.

    The reality is this has more to do with a subset of our culture’s belief in meritocracy (even if in practice the reality has never matched that promise).

    4
  17. HarvardLaw92 says:

    @wr:

    Oh , no doubt. Her life experiences would unavoidably bring a different & valuable perspective to the court, I’m certain. I can’t say that we’ve ever really discussed them, not for lack of interest so much as I’ve never gotten the impression that she’s the sort of person who would allow them to define who she is. It’s just never come up to be honest. Patrick is white / they have a multi-racial family, but that’s probably the least interesting thing about that family as well. They’ve never come across as the multi-racial Jacksons really. Just the Jacksons, like it’s a non-issue, but to be fair that’s also the perspective of someone who hasn’t lived in their shoes.

    LOL, I’m going to have to dial it down or I’ll need a set of pom poms here shortly. She’s one of my favorite people in the world and I might be gushing about her a bit more than I should because of that.

    6
  18. OzarkHillbilly says:

    @Kylopod: Funny how nobody ever says that about a white person even tho for most of our history it was true. I know of several instances in my 63 years where I got a job/promotion because I was white.

    6
  19. Kylopod says:

    People are bringing up Sandra Day O’Connor, but it’s also worth noting that Reagan cited Scalia’s Italian immigrant family background as a factor in his selection–not just in terms of representation, but in terms of the perspective Scalia brought to the Court based on that background.

    2
  20. OzarkHillbilly says:

    @HarvardLaw92: She’s one of my favorite people in the world and I might be gushing about her a bit more than I should because of that.

    Nah, gush away. Nothing wrong with being on her side.

    5
  21. HarvardLaw92 says:

    @wr:

    To be fair, he’s among the Constitution’s worst enemies as well.

    I don’t know if I’d go that far. I’d say he more an enemy of a certain perspective on the Constitution that he doesn’t agree with (and I’ll vouch that his conservatism is legitimate – he really does believe in an originalist / textualist interpretation of the Constitution & that there is already a procedure in place, defined by that Constitution, for adapting it to changing times.). I don’t always agree with him on that, but there instances like the Natural Born Citizen Clause where it’s quite convenient for me to be on his side of the fence. His problem, which is honestly our benefit, is that his grudges and obstinate nursing of them has made him a far less effective advocate for his cause that he otherwise might have been. It’s a seat and a life wasted.

    3
  22. Andy says:

    I don’t have an issue with melanin and gender diversity choices as long as the result is also some intellectual diversity. Matt Bernius noting yesterday that Jackson was a public defender is a much bigger plus in that direction IMO.

    Sadly it seems the Harvard/Yale oligopoly is likely to continue.

    As far as confirmation timing goes, I don’t think Breyer has officially announced anything yet so people shouldn’t get over their skis. And some reporting indicates he is really unhappy about the leak.

    5
  23. Tony W says:

    @Andy: With all due respect, we tried “intellectual diversity” with the last POTUS, and that was a miserable failure.

    I’m all for putting qualified, educated, and accomplished people in leadership roles.

    3
  24. HarvardLaw92 says:

    @My Yixiao:

    To be honest about it, it’s more of a circular feedback loop at this point. Supreme Court justices tend to spring from Supreme Court clerks, who tend to spring from a select subset of Appellate Court clerks, who tend to spring from a select subset of District Court clerks. It’s en ecosystem that feeds itself. Once you’ve reached a more or less critical mass with respect to the composition of those lower courts, judges stick with what they know in selecting clerks, and the other ecosystem that actually produces the lists from which those names spring for nomination stick with what it knows in making the lists. In other words, it’s not necessarily that we’re more prestigious (although I acknowledge that the perception plays a role), it’s more a case that there are enough of us controlling the gates that the status quo just perpetuates itself. That’s good from an alumni standpoint, but not really so much from a broader perspective standpoint.

    4
  25. Jim Brown 32 says:

    @HarvardLaw92: Such is the burden of being first black “X”… Im sure she’s a big girl and can handle it. The more “firsts” we get out of the way–the faster we can be recognized for just being the hot shit we really are.

    Thanks to Thurgood Marshall—Clarence Thomas can enjoy being recognized for being just a dimwit—than being a black dimwit.

    13
  26. HarvardLaw92 says:

    @Jim Brown 32:

    She’ll easily handle it, and then some. She’s made of stronger stuff.

    He honestly isn’t a dimwit (I talked about him above – he’s actually pretty bright). He’s just too angry about whatever he’s angry about to see past it to the bigger picture.. It limits him.

    5
  27. Jim Brown 32 says:

    @James Joyner: It doesn’t matter what Biden said–this is what it would be understood as–She was chosen because she was Black. Hell even O’Conor had to deal with the perception of only being chosen because she’s a woman.

    Thats simply how it is in America– High achieving black people in the “first black” chair anywhere understand the process gets better for the black people that follow them—but someone has to take on this burden. Its not fair–but it is short term and necessary for a better experience for our descendants.

    4
  28. Sleeping Dog says:

    Any candidate, that is, not a white male appointed by a Dem is going to tagged as an affirmative action candidate. And likely some white males, i.e. a Caucasian with a Hispanic surname, a Muslim, etc.

    Too bad the leading candidates are Harvard-Yale.

    Kruger at least isn’t on the federal bench.

    Beyond that I really have no ability to judge either candidate.

    1
  29. Jim Brown 32 says:

    @HarvardLaw92: I actually group those tendencies and traits–into what we think of as “intelligence”. We parse them–but they are functions of human intellect. A man who undermines himself and his goals–cannot be credibly denoted as “wise” despite how “smart” he is–

    4
  30. James Joyner says:

    @Tony W: It becomes circular, though, in that a white man was almost certainly ALWAYS the best qualified by resume until maybe 30-35 years ago just because of the limited opportunities for others to obtain the qualifications.

    7
  31. HarvardLaw92 says:

    @Jim Brown 32:

    Unwise I’ll get on board with, unequivocally. He’s wasted his seat and a lot of his life nursing whatever ghosts haunt him.

    6
  32. ptfe says:

    @Jim Brown 32: It is a fact long known that straight white men succeed on merit alone – everyone else is a diversity hire.

    11
  33. James Joyner says:

    @mattbernius: Part of the problem is that people occupy these posts for so long that they become thought of us the “Thurgood Marshall seat” or the “RBG seat” and replacing them with a white or a man is just untenable. It’s silly but understandable.

    As to “meritocracy,” the Kavanaugh brouhaha caused me to rethink the presumption that brilliant legal minds who have all gone through the same set of hoops may not be the best way to stock the high court. We might ought to go back to picking a former governor or someone who has been successful outside of academia or the judiciary for some seats. Scalia and RBG remain the archetypes but 9 of them may not be best.

    11
  34. James Joyner says:

    @ptfe: It’s just silly to pretend that announcing, potentially years in advance, that the nominee will be a Black woman doesn’t mean it’s a diversity hire. Of course it is. That doesn’t mean ‘unqualified.’

    2
  35. Kylopod says:

    @OzarkHillbilly:

    Funny how nobody ever says that about a white person even tho for most of our history it was true.

    But that just gets to the point, since it’s basically a game of gaslighting: as long as they never admit they chose those people based on their being white, they can claim to be racially neutral, all the while accusing others of making race-based selections regardless of whether the others admit to doing so or not. The result is a stacked deck in which minorities and not whites are always by default held in suspicion of getting to where they were not based on merit, despite the overwhelming evidence the opposite is generally true.

    5
  36. Sleeping Dog says:

    @James Joyner:

    We might ought to go back to picking a former governor or someone who has been successful outside of academia or the judiciary for some seats.

    In 100% agreement.

    3
  37. just nutha says:

    @HarvardLaw92: Yes, it would be nice if we lived in a world where she could be selected simply as the best candidate, but we don’t. Additionally, our history continually shows that when we pretend that we are being “purely meritorious,” all the selections tend to look like each other. It’s almost as if there’s something about humanity that makes us this way. (And yes, I DO know that you realize all of this.)

    1
  38. wr says:

    @HarvardLaw92: “I don’t know if I’d go that far.”

    I wouldn’t expect you to — you’re a lawyer and are able to observe his jurisprudence with an understanding of the nuances of his argument.

    Me, I’m just an onlooker in the cheap seats and seeing the harm he has done to so many people, and the huge ethical conflicts he pretends don’t exist.

    I assume that if we were talking about writers instead of lawyers, our roles would be reversed.

    4
  39. Kylopod says:

    @Sleeping Dog: Speaking of which, isn’t it a bit ironic that the picks seem to have gotten more overtly political even as we stopped selecting actual politicians?

    1
  40. just nutha says:

    @wr: “When we talk about the right-wing ideologue Clarence Thomas do we preface it by saying that Bush only nominated him because he didn’t think he could put a white guy in Thurgood Marshall’s seat?”

    Speaking only for myself, of course, yes, I have made that observation frequently. Not every time, and I don’t find him coming up as a topic much, but when he does that factoid plays a role frequently.

  41. Sleeping Dog says:

    @Kylopod:

    That’s very true. The result of the SC being not only the arbitrator of what is constitutional, but assuming the role of interpreting legislation. We’re at the point where the losing side of a legislative/executive result runs to the courts in order to see if the philosopher kings will give them their way.

    We no longer have 3 co-equal branches of government, but a week representative one, a strong executive and an all powerful judiciary. One of these days, the courts are going to rule one way and the other branches or a state(s) will ignore it. That won’t be good, but it is a logical conclusion to judicial rule.

    2
  42. just nutha says:

    @Kylopod: “… Reagan cited Scalia’s Italian immigrant family background as a factor in his selection–not just in terms of representation, but in terms of the perspective Scalia brought to the Court based on that background.”

    Uhh… yeah. And we saw how THAT worked out in his case. 🙁

    2
  43. Jim Brown 32 says:

    @HarvardLaw92: No one is going to trip (out loud) about her spouse. Many of us have interracial family members and non-black in-laws. We accept everybody. However, there is a perception that black spouses are not good enough for high performing black people. In the organization I run, several of my black female employees stated that they were shocked (and giddy) that my wife is black.

    4
  44. Gustopher says:

    @James Joyner:

    It still dogs Clarence Thomas, who likely wouldn’t have been the choice if the vacancy he was filling wasn’t that of Thurgood Marshall.

    It’s a rare person who remembers Thomas succeeded Marshall. More remember Anita Hill, “Who put a pubic hair on my coke?”, etc.

    1
  45. just nutha says:

    @Jim Brown 32: When I was teaching comp in the mid 90s, the anthologies had an interesting essay by Richard Rodriguez about getting through school as a “scholarship boy.” His essay was a formidable discussion of the plusses and minuses of seeking out people to bestow opportunity on. Sadly, it became a philosophical movement of sorts on the right. On the other hand, I can’t remember a coherent RW argument since, so maybe it was the last of a dying breed–intellectual wing nuttery.

    1
  46. just nutha says:

    @James Joyner: Hence the notion that claiming a belief in “meritocracy” is simply support of the status quo by devious means.

    1
  47. HarvardLaw92 says:

    @wr:

    Absolutely. That makes sense to me, without a doubt. Different frame of reference.

  48. just nutha says:

    @James Joyner: For people on some parts of the spectrum, “diversity” ALWAYS means “unqualified.”

    1
  49. HarvardLaw92 says:

    @just nutha:

    I don’t disagree. I suspect that it’s because I know her personally that the concept offends me so much. It reduces someone I admire and respect (and to be honest adore as a person) to a color box. She’s so much, much more than that.

  50. HarvardLaw92 says:

    @Jim Brown 32:

    I can respect that. From my vantage point they’re just two people who are (still) head over heels for each other and that’s why they’re together, but I understand that that vantage point leaves out a lot of information & cultural perspective I’m not and really can’t be privy to. I haven’t lived it.

    2
  51. Mikey says:

    @Andy:

    As far as confirmation timing goes, I don’t think Breyer has officially announced anything yet so people shouldn’t get over their skis. And some reporting indicates he is really unhappy about the leak.

    The Washington Post reported a couple minutes ago that Breyer has now made the official announcement.

    1
  52. CSK says:

    Biden has just announced that he’ll name his pick by the end of February.

  53. Andy says:

    @Tony W:

    “Intellectual diversity” is not synonymous with whatever Trump was and that is a really bizarre comparison to make.

    I think Jonathan Adler put one angle of it well in a post at Volokh:

    In making this nomination, President Biden has the opportunity to diversify the Court in more ways than one. In particular, President Biden has the opportunity to diversify the range of legal experience on the Court, such as by nominating someone with substantial experience in state courts.

    The current justices are all extremely well-educated and smart. All but one (Elena Kagan) came to the Court with significant appellate court experience, and she had experience with federal appellate courts as Solicitor General. Only one sitting justice had been a trial court judge (Sonia Sotomayor), and none of the current justices has any meaningful experience in state courts. That is not good.

    Many of the Court’s cases arise from or directly effect state court proceedings (including habeas cases), or incorporate state law claims (as occurs in some sentencing and ACCA cases). Just as having a justice with trial court experience brings an important perspective into the room, so too would having a justice that understands the reality of state court proceedings, and how state courts can differ from their federal counterparts. Justices O’Connor and Souter had such experience, but none of the current justices do.

    @James Joyner:

    I think the problem is that “best qualified” is entirely subjective and unquantifiable. If a President had a list of specific criteria to define “best” then it would be possible to rack-and-stack the various candidates to determine which ones are really at the top by those metrics and priorities. But for obvious reasons, Presidents don’t do that.

    So this is mainly about perceptions. I don’t really like the idea of preemptively eliminating candidates on the basis of physical attributes they were born with and have no control over, but it is what it is. And even though black women represent only about 6% of the population, there are enough well-qualified candidates from that pool to choose from that I don’t think quality is being sacrificed.

  54. wr says:

    @Gustopher: “It’s a rare person who remembers Thomas succeeded Marshall”

    I don’t know. I tend to think it’s an old person who remembers Thomas succeeded Marshall, but maybe I’m just speaking for myself…

    3
  55. Jim Brown 32 says:

    @Gustopher: That comment, if true (and I believe it was), betrays how corny that guy actually is–not someone with the life experience to actually judge things that affect real people.

    I mean–that comment–and others like it was his best shot to sample some chocolate pudding? Talk about Laaaaaammmeee

  56. Kylopod says:

    Slightly tangential, but I found out recently that after Carter lost reelection in 1980, he tried to convince Thurgood Marshall to step down so he could quickly replace him–and it would have had to be real quick, given that Republicans were set to take over the Senate on Jan. 3, 1981. Of course the Dem caucus at the time included several old Southern racists, so…. But it’s an intriguing counterfactual if Marshall had agreed to go along with it.

  57. @Andy:

    I think the problem is that “best qualified” is entirely subjective and unquantifiable.

    Indeed. The reality is there are far, far more than 1 individual qualified to be the next Justice and so it is a fantasy to assert that there is some perfect meritocratic outcome in any event.

    We always talk like there is some singularly “best” choice to make here, and that is a fantasy.

    3
  58. Dude Kembro says:

    Kavanaugh has already written at least one opinion that was so sloppy Vermont’s Secretary of State forced him to correct it.

    Gorsuch has also been accused of making factual errors in his opinions. Asked in a TV interview to respond to critique of American mediocrity, Gorsuch’s response (paraphrasing) was, ‘I’d say to them, where else would you rather live?’ Your average politically-astute Zoomer teen could come up with a deeper, more intellectually curious answer.

    Alito rants and raves publicly about the press and ‘cAncEL cULtuRe’ like a two-bit right wing radio host.

    Roberts, whose judicial philosophy seems to change every few weeks, really thought racism was over. Really. I’m told he’s extremely intelligent. Okay.

    So as far as SCOTUS is concerned, I’m ready for more tokenist diversity hires.

    6
  59. Stormy Dragon says:

    Uh oh, get ready for the NO vote, everyone:

    Manchin told a West Virginia radio station he's open to supporting a SCOTUS nominee more liberal than he is."It's not going to change the makeup of the court," Manchin said of a more liberal nominee.— Daniella Diaz (@DaniellaMicaela) January 27, 2022

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  60. HarvardLaw92 says:

    @Dude Kembro:

    The vast, vast majority of the actual writing in those opinions is done by their clerks. The justices supply the conceptual and legal framework of their reasoning, but the writing isn’t something they generally do in the direct. If you weren’t so evidently consumed by hubris as to consider yourself qualified to judge them (you’re not), you’d already know that. Feel free to criticize their judicial philosophy. Say their approach to the law makes you want to throw things. All well and good, but don’t call them stupid.

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  61. Joe says:

    While I agree, HarvardLaw92, that the clerks write the opinions, the Justices sign them and take responsibility for them. I also agree about the relative roles of the Justices and their clerks, but s/he who signs the opinions needs to take responsibility for them. When I was one of two clerks for a federal judge, I am sure any minor literary analyst could tell which clerk wrote the opinion, but my Judge read them, criticized them and “requested” changes. It was ultimately on him.

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  62. MarkedMan says:

    @HarvardLaw92: My gripe against the vast majority of Supreme Court judges is that they have led incredibly sheltered and privileged lives. Yes, there are exceptions, but they are rare. Dude’s observation above about Roberts is one I’ve heard from multiple sources: he really did (and still does?) believe that racism is a thing of the past. And he really does believe that politicians can accept gifts from constituent business people and not be corrupted. If true, this speaks to a disqualifying naïveté.

    9
  63. DK says:

    @HarvardLaw92: Yes, I know. We unwashed rubes and plebes are supposed to just shut up and submit to the superiority of our white male betters in robes. Alito has said so multiple times. How dare we little people suggest they’re anything but super geniuses of infallible brainpower and 100% ironclad intellect 100% of time. After all, we serve them, not vice versa.

    If you weren’t so consumed by self-important, ivory tower condescension and arrogance to think that because your screen handle has “HarvardLaw” in it you can tell me what to do (you can’t), you wouldn’t be trying to sell laughable lie that justices aren’t ultimately responsible for their issued opinions. Not even someone at Harvard can get away with that whopper.

    You aren’t the only one who knows individuals who’ve clerked, champ. Setting aside that every judge does not have the exact same level of involvement in drafting, whether a justice is hiring sloppy clerks or failing to thoroughly read and correct their work, the buck still stops at his desk.

    I didn’t call anyone stupid. That’s your word, not mine. But stupid is as stupid does. Sorry that you don’t like hearing what your sacred cows have done.

    6
  64. Stormy Dragon says:

    @MarkedMan:

    Every time people complain about efforts to make the Supreme Court more representative, I think about the time Scalia — celebrated as brilliant and immensely qualified — couldn’t understand why police would possibly want a drug dog that falsely alerts. https://t.co/PGyR8xOryP— Radley Balko (@radleybalko) January 27, 2022

    3
  65. DK says:

    @MarkedMan:

    Dude’s observation above about Roberts is one I’ve heard from multiple sources: he really did (and still does?) believe that racism is a thing of the past.

    It’s not like this is news, cordial argument over this belief colors the Shelby opinion and dissent.

    Now, I didn’t call this belief “stupid.” I will merely cite my grandmother, the first in her family to get an advanced degree: “Degrees and credentials are no substitute for common sense.”

    But what did she know? Maybe she was just consumed by the hubris she got from growing up black and female in rural Georgia the 1920s and 1930s, certainly not qualified to judge super genius dudes in robes who obviously know so much more than her about everything.

    The more I encounter men from Harvard and Yale, the more convinced I am being a black woman is a valid qualification all its own. A black woman who survived and thrived at Harvard and/or Yale? All the better.

    7
  66. HarvardLaw92 says:

    @DK:

    I realize that melodrama is probably a natural state of being for actor/model/waiters, but it’s not a good look.

  67. DK says:

    @HarvardLaw92: Never waited a table in my life, but I’ll be sure to pass it on to those I know who have — great people who perform a critical job for our society — that trashing working class servers for being servers is what passes for liberalism among some at Harvard Law. All smug condescension, all day. Yikes!

    4
  68. HarvardLaw92 says:

    @DK:

    Of course you haven’t, “Onlooker” lol.

    As for smug condescension: pot, meet kettle. Have a wonderful day.

    2
  69. Hal_10000 says:

    This whole thing of “the best candidate” is nonsense. There are dozens of judges who are qualified to be on SCOTUS. You can’t really say that any of them are massively superior to the others. Narrowing it to black women just means which subgroup of that you’re picking from. As long as she’s qualified, I’m fine.

    And frankly, the GOP is in a glass house on this one considering their two most important criteria in recent years have been:

    1) Youth, so the judge can be on the Court for decades.
    2) Ideological reliability.

    Roberts is a much better justice than Alito. They love the latter and hate the former because Alito is a pure raging idealogue and Roberts occasionally sides with the liberal bench.

    6
  70. DK says:

    @Hal_10000: Reagan in 1981 and Trump in 2020 both pledged to pick a woman, ruling out men. O’Connor got the ‘she’s too libbarul!!11!’ treatment but tokenism, identity politics, and affirmative action concerns didn’t seem to hurt Barrett with the right (or with her liberal defenders).

    HW Bush clearly picked Thomas due to his race despite Thomas’s thin resumé, and conservatives loved him and still do.

    Andrew Sullivan, predictably, is in a tizzy now, even though he spent much of 2008 insisting that Obama’s race was his foremost qualification vis a vis optics and image. Hypocrisy and double standards, always.

    1
  71. MarkedMan says:

    @Stormy Dragon: That exchange was cringe worthy. Not just because Scalia revealed himself as incredibly unaware of the real world (essentially “I cannot even comprehend a reason for police to search people absent a compelling reason to believe a crime had been committed, and of course racism, sexism or classism would never be a reason for cops to use searches as harassment or intimidation. It’s absurd on its face to even imply such motives to the police and I have no interest in any evidence you have to the contrary”). But he was also an arrogant obnoxious prick about it. There is a special level in contempt-hell for those who are so smug and self righteous in their ignorance.

    4
  72. HarvardLaw92 says:

    @Joe:

    I clerked as well, multiple levels, and I’m well aware. If you knew who I clerked for, you’d know why. Anybody with a decent analytical set of language skills should be able to spot the ones I wrote as well. It isn’t exactly rocket science. I just didn’t care for his tone. It’s akin to the guy down at the factory presuming to critique (and presuming himself qualified to critique) Nobel laureates just because he doesn’t like their politics.

    1
  73. DK says:

    @HarvardLaw92: LOL “the guy down at the factory” With democracy itself in the balance, I hope more of us will try to hide our contempt for the working class till after 2022. It’s not helping.

    The credentials fallacy is a type of informal logical fallacy, since there is an issue with its underlying premise…

    This premise is problematic, since even though credentials should certainly be taken into account in some cases, it’s fallacious to assume that if someone doesn’t have the necessary credentials in a given field then everything that they say must be wrong.

    The credentials fallacy can be categorized as a genetic fallacy, since it focuses on the origin of the argument rather than on the argument itself. More specifically, it can be categorized as a type of ad hominem attack…

    I think most servers and factory workers learned about logical fallacies in secondary school with the rest of us. Maybe they should do a refresher for our friends that make it to the Ivies.

    Biden’s nominee will have had much experience batting away fallacious logic and tone policing from smart guys that maybe aren’t as smart as they imagine. Her mind will be more all the more nimble for it; everyone who’s ever been an overqualified diversity hire knows all about it.

    2
  74. DK says:

    @MarkedMan:

    But he was also an arrogant obnoxious prick about it. There is a special level in contempt-hell for those who are so smug and self righteous in their ignorance.

    Don’t you know Scalia was a Supreme Court justice, ergo above human flaw and foible, ergo none of his words or actions may ever be characterized as ignorant, let alone actually called ignorant? Who do you think you are with that uppity tone, a factory shift lead?

    1
  75. TJ says:

    @HarvardLaw92: he didn’t call them stupid, man.

    1
  76. Tony W says:

    @James Joyner: Representation matters. Little girls growing up today see a smart accomplished woman in the Vice President’s office.

    People who look like me have been running things forever. I think we should choose all future SCOTUS justices from the ranks of black women, but only for the next 180 years, then we can go back to diversity.

  77. HarvardLaw92 says:

    @DK:

    At what point did you fall under the delusion that I was still interested in anything further you had to say?