Biden’s Focus For SCOTUS Pick Is Wrong And Demeaning

By Adam Carrington for RealClearPublicAffairs

With Justice Stephen Breyer’s announced retirement, public discussion has turned to whom President Biden will nominate for the United States Supreme Court.

Unfortunately, the focus of the media, politicians, and pundits so far has been overwhelmingly on two characteristics, race and sex, as President Biden has promised to nominate a black woman.

This focus is sad for several reasons. First, it distracts us from the qualities that matter most in a judge. Martin Luther King Jr. famously said he looked forward to a time when his children would “not be judged by the color of their skin but by the content of their character.”

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Judicial candidates should be assessed not by their skin color but their judicial ability and philosophy. How learned in the law is the potential nominee? Does she show skill in the art of composing clear and thoughtful opinions that explain the law, the facts, and the reasoning in applying the case?

Does she see judges exercising “merely judgment” as Federalist 78 defined judicial power?

A judge should strive to avoid importing her own opinions in making judicial decisions. She should use an array of long-standing judicial tools to discover the lawmakers’ intent and faithfully apply it to the case at hand. This approach is essential not only because it fulfills the proper role of a judge but because, above all, it upholds the rule of law.

Moreover, questions focused on race and sex risk propping up their opposites. An undue emphasis on these accidents of birth could – whether accidentally or intentionally – encourage choosing judges who exercise their own will, not judicial judgment. Instead of following statutes and constitutional clauses, the law could become merely a matter of their own opinion.

Second, it undermines the principle it claims to further: equality. In the section of “The Federalist Papers” on the House of Representatives, Publius discussed the accusation that the House would operate as a stealth aristocracy – the rule of elites. Publius combats this claim in part by noting the eligibility requirements the Constitution lists for representatives.

These few requirements include age, the years spent as a citizen (if not natural-born), and residency in the district they represent. Other than these limitations, who is eligible to be a representative? “Every citizen whose merit may recommend him to the esteem and confidence of his country,” Publius says.

A similar situation exists for the selection of Supreme Court justices. The Constitution lists fewer qualifications for that office than the House. Rightly, we have assumed certain needed qualities, such as knowledge of the law and a proven demonstration of judicial discernment and ability. But, in those cases, we are asking who will do the best job.

We should not, as Publius said about the House, reject candidates because of the “qualification of wealth, of birth, of religious faith.” We should not – and the Constitution does not – condone selection based on a person’s wealth, family name, or confession of belief. Why, if we reject these criteria, should we not also reject a person’s sex or skin color as determinative?

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These qualities should never define who can hold a House seat. And they should never define who should hold a SCOTUS seat, even if done in the name of equality.

Third, and finally, placing such a dominant focus on a person’s sex and race risks demeaning the person selected. Less will be ascribed to the woman’s judicial abilities and philosophy and more to her sex and skin color. That is unfair to her, whomever Biden picks.

We already see this point with the current black Supreme Court Justice, Clarence Thomas. He has expressed frustration that his judicial abilities are routinely downplayed in favor of the assumption he got to his current position through affirmative action. Biden’s nominee will get similar treatment, which will cast doubt on her own relevant capacities.

We still have time to reset the discourse. Biden hasn’t revealed his nominee; Senate hearings and a vote await. Let us focus on the candidate’s relevant qualities – her judicial acumen and approach to judicial power. Within that focus, we can and should celebrate diversity.

Biden certainly can, if he so chooses, nominate a person who is a woman of color. But then we would celebrate diversity in a different way. We could celebrate the fact that a nominee of any sex or race can occupy the nation’s highest bench.

Because, in the end, the law sees us for who we are at our most fundamental level: equal human beings and citizens under the law.

Syndicated with permission from Real Clear Wire.

Adam M. Carrington is an associate professor of politics at Hillsdale College.

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