Hitting Biden on pledge historically inaccurate, racially tinged

WASHINGTON >> And so, the carping over the next Supreme Court nominee begins, historically ignorant and racially tinged.

President Joe Biden’s “campaign promise that he’d appoint a black woman to the Supreme Court is unfortunate because it elevates skin color over qualifications,” sniffed the Wall Street Journal editorial board. Just a thought here, but maybe the two aren’t mutually exclusive?

The Cato Institute’s Ilya Shapiro, soon to be executive director of the Georgetown Center for the Constitution, chimed in on Twitter, saying the “objectively best pick” would be Sri Srinivasan, an Indian American judge on the U.S. Court of Appeals for the District of Columbia Circuit. “But alas doesn’t fit into latest intersectionality hierarchy so we’ll get [a] lesser black woman,” Shapiro tweeted. He later apologized, deleting his tweet as “inartful,” but the mind-set it revealed is breathtakingly insulting.

Lesser Black woman. Think about that. One leading candidate for the vacancy, D.C. Circuit Judge Ketanji Brown Jackson, is a graduate of Harvard and Harvard Law School, where she was an editor of the law review, and went on to clerk for Justice Stephen G. Breyer; she served seven years on the D.C. district court before being elevated to the appeals court in 2021. Another, Leondra Kruger, has an equally glittering résumé: Harvard and Yale Law, John Paul Stevens clerkship, principal deputy solicitor general, California Supreme Court justice.

But that wasn’t all. “Because Biden said [he’d] only consider black women for SCOTUS, his nominee will always have an asterisk attached,” Shapiro observed in a separate tweet. Asterisk, seriously?

Does Justice Sandra Day O’Connor have an asterisk attached because Ronald Reagan pledged he would name a woman to the Supreme Court? “It is time for a woman to sit among our highest jurists,” Reagan said during the 1980 presidential campaign. She turned out to be a fine justice, but her qualifications at the time were far less than the those of the candidates on Biden’s list.

Does Justice Clarence Thomas have an asterisk attached because President George H.W. Bush felt compelled to name a Black nominee to replace civil rights icon Thurgood Marshall?

“The fact that he is Black and a minority has nothing to do with this sense that he is the best qualified at this time,” Bush asserted when he announced the pick. “I kept my word to the American people and to the Senate by picking the best man for the job on the merits.” This was, literally, incredible. Thomas had a scant 15 months of experience on the D.C. Circuit when Bush tapped him.

Does Justice Amy Coney Barrett have an asterisk attached because President Donald Trump clearly needed to pick a woman to replace Ruth Bader Ginsburg?

Biden’s pledge was categorical, he would pick a Black woman; it was explicit rather than implied. And that is a difference. “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,” Biden said at a debate in February 2020, just before the South Carolina primary, when his campaign was struggling. The promise came at the urging of South Carolina Rep. James E. Clyburn, who shortly endorsed Biden.

Many assume that identity is irrelevant. It’s not. Judges aren’t legal automatons, digesting precedents and spitting out opinions. They bring to the task, and their thinking is informed by, their backgrounds and their experiences. Somehow, that becomes a problem only for certain nominees, from certain backgrounds, from certain parties.