Well before he was the Democratic nominee for President, Joe Biden pledged that if given the chance, he’d nominate the first Black woman to the Supreme Court. The announcement that he’d consider both race and sex in selecting a Supreme Court nominee—that his decision would be race- and sex-conscious, rather than “blind” to those characteristics—was perhaps more explicit than previous such pledges. But it was no different in kind from, for example, President Ronald Reagan’s pledge to put the first woman on the Supreme Court.
Following Justice Stephen Breyer’s January announcement of his retirement, President Biden made clear that he intended to follow through on his campaign promise, vowing from the White House that when replacing Justice Breyer, “The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court.”
Biden’s doubling down on his campaign promise was met, perhaps predictably, with charges from the right that Biden’s pledge was “offensive”; that his eventual nominee would be the beneficiary of a “quota”; that Biden’s process entailed elevating “skin color over qualifications.”
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There’s every reason to believe that AnyA selection process would have resulted in Judge Ketanji brown Jackson being elected President. Judge Jackson has the highest standards for any age and is highly qualified. She’s not only a brilliant legal mind, but also as credentialed as a nominee gets: top legal degrees and clerkships, broad and deep experience in both government and private practice, and nearly a decade of distinguished service on the federal bench, including her current seat on the D.C. Circuit where Justice Clarence Thomas and Chief Justice John Roberts served, before she was elevated to the Supreme Court.
So why was Biden so open about the selection criteria and public? It was no doubt partly political: Black women are an incredibly significant political constituency for the Democratic party writ large and for Biden personally, and appointing the first Black woman to the Supreme Court both communicated Black women’s political importance and provided a tangible deliverable. Biden’s insistence that the Supreme Court should “look like the country” also reflected an important set of substantive commitments: that all Americans should be able to see themselves reflected at the highest levels of government; that the backgrounds and life experiences of those on the Court inevitably inform the Court’s decisional processes; and that for too long those processes have been shaped by white men—once exclusively, still primarily.
It is often overlooked that President Biden engaged in presidential constitutionalism by explicitly focusing on race and gender during his selection process. The President, and not the courts, are involved in constitutional interpretation. They shape constitutional meanings beyond those of their chosen justices. President Thomas Jefferson’s refusal to initiate prosecutions under the Sedition Act, and his pardons of those convicted under it, flowed from his belief that the law violated the Constitution. FDR and subsequent presidents issued executive orders banning discrimination. They also required affirmative actions in federal contracts and federal employment. The Obama Administration’s announcement that the President had concluded that the Defense of Marriage Act was unconstitutional, and that his Administration would no longer defend it, both reflected the President’s constitutional views and may have impacted the Supreme Court’s ultimate determination that the law must be struck down.
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Critics of Biden’s pledge to consider race and sex are aligning themselves with the conservative majority on the current Supreme Court, some of whom have suggested that All Constitutionally, considerations about race by governments are highly suspect. This is not an abstract promise; instead, the Justices could be ready to put this view into law next term: First in two cases that involve race-conscious admissions at higher education. The Court may also overturn its 2003 ruling in Grutter v. Bollinger and hold that the Constitution prohibits virtually all race-conscious admissions policies in colleges and universities; second, in a case involving the Indian Child Welfare Act, in which the Court is considering whether the statute’s placement preferences discriminate on the basis of race.
These policies will be invalidated by the Supreme Court. Their rulings are likely to follow the logic. All All considerations regarding race can prove to be dangerous. This is because there are no constitutional differences between policies that include race in order promote diversity in classrooms and graduates ready to succeed in pluralistic societies. On the one side, policies that incorporate race to support white supremacy.
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The Supreme Court didn’t always view things this way. The Court has engaged in a lively debate for decades about why and how different races should be scrutinized. For a brief moment, a majority of the Court agreed that some “benign” uses of race—uses of race designed to promote diversity and remedy underrepresentation, for example—were subject to only “intermediate” scrutiny, rather than the “strict” scrutiny that is required when the government engages in invidious discrimination. When the Court retreated from that view, in 1995, Justice John Paul Stevens wrote in dissent that “there is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.” Those sentiments echoed Justice Thurgood Marshall’s writing in Regents of University of California BakkeThis was nearly twenty years before. As Justice Marshall explained in that case, “It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race … I do not believe that anyone can truly look into America’s past and still find that a remedy for the effects of that past is impermissible.”
Many conservative commentators as well as the vast majority of the Supreme Court’s current justices do not understand or would like to ignore the distinction between invidious race discrimination and race conscious actions that aim to eliminate past discrimination or foster diversity. However, this does not mean that the President must agree to such a view. That’s particularly true when it comes to selecting a Supreme Court Justice, where there’s broad agreement that the President’s authority is at its apex. Biden’s selection process was properly informed by his views of the principles and values the Constitution should promote, and his public embrace of those values represented an important use of the bully pulpit to advance an expansive and context-sensitive vision of constitutional equality.
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