Earth to GOP: All of Biden’s top Supreme Court candidates are qualified

Earth to GOP: All of Biden’s top Supreme Court candidates are qualified

Michael Gerson — Read time: 4 minutes

From left: U.S. District Judge J. Michelle Childs, California Supreme Court Justice Leondra R. Kruger, and U.S. District Judge Ketanji Brown Jackson. President Biden is considering all of them for the U.S. Supreme Court. (Charles Dharapak, Todd Rogers, Bill O'Leary/AP, The Washington Post)

There is a mythic version of the judicial selection process in which there is one exceptionally gifted candidate — the most qualified nominee — whom a president should choose for the Supreme Court. And nothing else should matter in determining this person other than their professional qualifications and temperament. Any extraneous factors are impurities, pulling an intellectual exercise into the bubbling bog of politics.

Compare this ideal with the recent and effective use of Supreme Court nominations as a political tool. In the summer of 2016, as Donald Trump was securing the Republican nomination for president, he faced skepticism from the judicially conservative about his potential Supreme Court picks. So Trump not only released a list of prospective nominees approved by the Heritage Foundation but also said: “We’re going to have great judges, conservative, all picked by the Federalist Society.” He also issued an updated list 55 days before his reelection loss.

Having made a particularly crass political use of Supreme Court selection, Republicans who criticize President Biden’s narrowing of his first Supreme Court choice to Black women are about to test the public’s tolerance for sanctimonious hypocrisy. In Sen. Roger Wicker’s (R-Miss.) attack, the consideration of race is an instance of “affirmative racial discrimination.” “Would be nice,” tweeted former South Carolina governor Nikki Haley, “if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test.”

But just widen the historical aperture a moment. Over the centuries, U.S. presidents have selected Supreme Court nominees in part because they were Federalists, or Southerners, or from a Jewish background, or Westerners, or African Americans, or women (in the case of Ronald Reagan’s first choice), or Hispanic, or Federalist Society-approved. Now, with Black women treated this same way by Biden, some have declared the whole enterprise illegitimate. Everyone gets their day in the sun — until a group of Americans who, throughout our history, has suffered greatly from injustice and fought it mightily is about to be honored. Suddenly, the welcoming music stops.

The actual judicial nomination process is different. There is no single person most qualified to serve on the Supreme Court. There is, instead, a category of people we regard as having the background and temperament to be excellent justices. And within those boundaries, every president makes political choices. The real question is: Should presidents preface their announcements of nominees with the polite fiction that the search for a nominee had nothing to do with racial, ethnic or ideological background, even when it manifestly did?

Maybe. But this prevarication strikes me as a strange place to make an ethical stand. Rather, we should ask: Is it generally a good thing when the country’s highest court becomes more diverse in background? Of course it is. For his vigorous assertion of this point, Sen. Lindsey O. Graham (R-S.C.) deserves credit. “Put me in the camp of making sure the court and other institutions look like America,” the senator said. “You know, we make a real effort as Republicans to recruit women and people of color to make the party look more like America.”

Few would accuse Biden of considering candidates who are not qualified. Graham is partial to a contender from South Carolina, U.S. District Judge J. Michelle Childs, whom he calls a “fair-minded, highly gifted jurist” and “one of the most decent people I’ve ever met.” U.S. District Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra R. Kruger and others draw similar praise. The whole process is highlighting the Supreme Court-level achievements of Black women. Why should this immediately strike some Republicans as evidence of affirmative action and litmus tests? Isn’t that tendency itself an indictment?

Allowing diversity to matter is also allowing history to matter. It matters that the Supreme Court, led from 1836 to 1864 by Chief Justice Roger B. Taney — who wrote the decision that denied citizenship to all Black Americans — will eventually have a Black female justice. It matters that the historical legacy of the 1857 Dred Scott v. Sandford decision, which found Black people to have “no rights which the White man was bound to respect,” should die, in part, at the hand of a highly respected Black woman. It matters when the ghosts are finally exorcised and the spiritual high places of our democracy are cleansed.

None of this will be evident in the worst of the nomination process, when the culture war is revealed in its full ugliness. But what Biden promises to do in the elevation of a Black woman to the Supreme Court is not the problem.