When President Joe Biden campaigned for office, and then recently when Justice Stephen Breyer announced his impending retirement, Biden stated and then reiterated that he would choose an African American woman for the U.S. Supreme Court. His right, or technically his privilege, to choose who he wants is relatively without question, and the Constitution itself provides no criteria whatsoever as to who should be chosen. Neither age, nor gender, nor even citizenship or being a member of the bar or having had legal training are required. Nevertheless, there seems to be some unease in limiting the field to one group of individuals to the exclusion of others, making the choice based on criteria that do not seem obviously to count as qualifications in and of themselves, to limit the field to the obvious detriment of any number of individuals who may be highly qualified but may be neither female or nor African American. An aspirational quality of fairness that permeates American society seems to be challenged by excluding one group, let alone most people, from consideration. We then might think that such a limitation is wrong and improper, not in the highest traditions of American jurisprudence or American political aspirations. But is that right?
Narrowing choice in the field of judicial nominees is hardly a recent innovation. In this context, political party always counts more than anything else, and if not openly stated, is too obvious to need uttering aloud. For most of its history, geographical distribution and balance was no less overt and obvious. If a vacancy occurred by the retirement or death of a westerner or a New Englander or a southerner, the replacement was more or less determined, not always 100%, and not always without exception, but generally and overwhelmingly, by an individual from the same part of the country as the retiring or dying justice. Consider William Cushing, an original justice appointed by George Washington, the last American judge to wear the British wig – the peruke – on the bench. He was a New Englander from Massachusetts, as was his successor, William Story from Connecticut, and his successor Levi Woodbury of New Hampshire, followed in that same seat by Benjamin Curtis of Massachusetts, Nathan Clifford of Maine, Horace Gray of Massachusetts and the august Oliver Wendell Holmes, Jr., again of Massachusetts. Seven straight justices from the same small area of the country, all Protestant, white males as well.
Moreover, in the 20th century, or at least for much of it, there was a Jewish seat and a Catholic seat. In 1932, Benjamin Cardozo was appointed by President Hoover as a Jewish member of the Supreme Court. He was succeeded in 1939 by Felix Frankfurter, who in turn was succeeded by Arthur Goldberg in 1965, who was then succeeded in 1969 by Abe Fortas, all Jews. In 1922, President Harding appointed Pierce Butler to be the only Catholic on the Supreme Court. He was succeeded in 1940 by the Catholic former Michigan governor, William Murphy. The first African American justice, Thurgood Marshall, appointed by President Johnson in 1967, was succeeded by Clarence Thomas, then only the second African American member of the high court. None of this history suggests that the nomination process was open to all.
Ronald Reagan famously limited the field when he was running for office in 1980. He said: “It is time for a woman to sit among our highest jurists. I will also seek out women to appoint to other federal courts to bring about a better balance on the federal bench.” He did exactly that with the nomination of the first female justice, Sandra Day O’Conner. In so doing, and in so limiting, he appeared to receive virtually no criticism for excluding not only half the potential population from the process, but, at that time, the overwhelming number of lawyers. He certainly did not receive the kind of criticism that, for example, Senator Ted Cruz leveled against President Biden when he said: “The fact that he’s willing to make a promise at the outset that it must be a Black woman – I gotta [sic] say, that’s offensive. Black women are, what, 6% of the U.S. population? He’s saying to 94% of Americans: ‘I don’t give a damn about you. You are ineligible’”. Would Senator Cruz have said that about the seat reserved for New England justices or for Jewish ones, or put differently, should we now voice that protest?
The question, then, is twofold: is it legitimate to limit from the potential pool of nominees any group, including, for example people from the wrong region, the wrong educational background, the wrong religion, the wrong gender, or the wrong race? We generally do not assume that eliminating people with the wrong political theories or jurisprudential explanation should be eliminated – originalist vs. strict constructionist vs. evolving Constitutionalist, rigorously following precedent vs. revisiting it, finding reasons for enhanced executive power vs. finding only congressional supremacy, residing authority with the individual states vs. seeing an increased role for the federal government – in large part because there is no single model agreed upon as to what counts as a good judge.
We might consider the question more broadly. What of critics or champion of doctrines drawn from past decisions, decisions that have determined the range and reach and ideology of the Supreme Court? We normally believe that critics or advocates of such cases – from Marbury v. Madison (which allowed the court to review the constitutionality of executive and congressional action), to the Dred Scott case (which allowed the court to bar protections of black citizens and former slaves), to Lochner v. N.Y. (where the court struck down workplace safety restrictions), to Brown v. Bd. of Education (which eliminated formal segregation in the South), to Roe v. Wade (which protected a woman’s right to choose), to Buckley v. Valeo and Dist. of Columbia v. Heller (which respectively struck down legislative attempts to control campaign spending and gun violence) – in providing their views give legitimate reasons to the President or Senators to assess who should be chosen. That is, an otherwise qualified lawyer or judge who suggests that a case or doctrine might need to be revisited, by that very suggestion, can be eliminated from consideration, and with that elimination passing without remark. We think Presidents should be free, within reason, to pick judges whose political theory or judicial ideology comports with theirs. Why should we allow that, but not allow restrictions which seem only indirectly to touch upon merit, such as demographics or geography?
These are large questions, ones that might require not only further thought but hundreds of pages of analysis, clearly not appropriate here. But we might say several things. First, a great deal of political choice is morally allowable, if not always morally superior. That is, we might think that it is reasonable to allow restrictions on freedom in favor of safety or we might think just the opposite, without thinking that anyone is morally pernicious but might simply have gotten the moral equation wrong. Given that, it is easy to see why the idea of being more or less liberal about precedents or regionalism or the role of the state versus the federal government is a matter of general electoral politics with the winner, that is the holder of the presidency getting to choose among legitimate if different positions. There may, however, be decisions, as for instance with the Dred Scott or Korematsu decisions, that involve not only differences that are morally allowable, but ones that present issues of fundamental qualification or disqualification for a nominee. Essentially, that is what happened with the failed nomination of Robert Bork. When all the dust settled, the fact that Bork voiced questions about the viability and correctness of Brown vs. Bd. of Education proved a step too far in the country’s quest for equality and justice.
Second, we might think that geographical diversity and racial diversity are aligned. This may seem like a strange concept, as being from Maine and being black seem to have nothing politically, morally, or in any other relevant way in common. Let us take a step back. Any elimination of individuals, whether based on geography or religion or race or gender, cannot be justified if the remaining pool of those allowed includes those lacking qualifications. That is, we would hardly want a program that advances certain individuals for college admission if those advantaged individuals – whether legacy, athletes, offspring of the elite, members of the marching band, or members of a race – would be unable to succeed at that college. One would expect groups that traditionally had not been admitted to Yale to remain out if, in fact, Yale normally required an educational achievement standard beyond what those individuals could achieve. The move from rural poverty in a community of uneducated individuals to Yale is one that might take generations. That might be unfair, as native intelligence (whatever that means), may well reside in the person of a poor, rural, illegitimate child (consider Bill Clinton), but, in that way, the world could be considered unfair. However, if there are more than enough individuals who qualify, both from various if arbitrary groups (legacy, athletes, needed members of the marching band), then it hardly seems inequitable or unfair in any way, in and of itself, to balance a college that wants a complex, diverse, cosmopolitan, and interesting student body by deliberating in its selection the inclusion of discrete groups. One could do otherwise, but it is hardly wrong to choose that method.
One initial question is, even if the number that Ted Cruz put forward of only looking to 6% of the population is true, does that 6% of individuals include members who are well-qualified to be on the Supreme Court? The answer is clearly yes. Then the question would be whether it matters whether one only looks at the 6%. As it is, one generally only considers those already sitting on a lower court (and no thoughtful observer can think that that comports with most or even a significant fraction of the most qualified individuals to serve on the Supreme Court). Worse are specific considerations. Usually now only younger individuals are considered, to serve longer, when experience, maturity and a more thorough record are clearly to be preferred. They must have an elite education, usually now double Ivy League, limiting perspectives to those eight schools (and a few honorary members), when most lawyers, including most of the best lawyers, went elsewhere, because of finances, opportunities, or just because they prefer the nearest state or religious university.
In fact, it would be hard to see anywhere else in American life this kind of implicit barrier. Of the 9 justices on the Supreme Court today, with 18 combined undergraduate and law degrees, 14 of those degrees being from 4 Ivy League schools, with another 3 degrees from the rarified confines of the University of Oxford. Moreover, these same justices have similar and narrowly drawn life experiences in elite institutions, always having clerked for an appellate (usually Supreme Court) judge, then working for the U.S. Department of Justice, and finally being a lawyer with a large corporate law firm serving corporate interests, all before serving as a lower court federal judge. Almost none have had individual clients that are not rich, tried any cases or encountered a jury themselves, or have any familiarity with the lifeblood of the legal system: criminal law, juvenile law, divorce law, probate law, the law of accidents, consumer law, landlord and workplace disputes, or the ordinary matters that Americans care about in the legal system and their daily lives.
One might wonder what is being missed when those without these qualifications are excluded. Such exclusion would have covered Chief Justice Earl Warren, a state university graduate both in college and law school, who authored Brown v. Bd. of Education, ending official segregation and Loving v. Virginia, ending the prohibition of marriages between races. The present criteria would also exclude Justice Robert Jackson, with his monumental dissent in the Japanese internment case of Korematsu and his service as the Chief Prosecutor at the International Military Tribunal at Nuremberg. Jackson not only went to state schools, he failed to get his law degree.
One might argue, and with some justification, that geographical diversity is part of the politics of the United States in a benign way, allowing groups who live under different circumstances, rural Iowa or desert Nevada or Manhattan or South Florida, to bring those experience of those circumstances to the court on the one hand, and to get approval of an often crass congress represents those diverse interests on the other. An examination of why that justification is allowable is one that is mirrored in the selection of diversity that rests on race, religion and gender. Growing up poor in the rural south is very different than growing up wealthy in a D.C. suburb. Growing up white, male, and well-off, with the ability to pick up an extra degree on the side from Oxford, is very different that the kind of background than most Americans enjoy, or if female, have historically been allowed to enjoy.
Take Thurgood Marshall, growing up in a segregated and impoverished Black ghetto of Baltimore with a father who was a railroad porter, and who naturally understood, in a profound way life, in a sector of society unfamiliar to his eventual court colleagues; or William O. Douglas, who grew up destitute in rural Washington State, but with a love of wilderness and mountainous vistas. The background of these two led to pioneering opinions from Marshall in the area of civil rights and the death penalty and from Douglas in his landmark opinions in environmental law, particularly Sierra Club v. Morton. Both were products of their early environment. Both jurists could have been chosen based on the criteria of geography or demographics, criteria that could account for the distance they had to middle-class America, let alone the power elite. What if President Roosevelt (for Douglas) or President Johnson (for Marshall) announced during their Presidential campaigns that they would appoint a member of the Supreme Court who grew up without money or prospects, in an environment at the bottom of America’s social and economic demographics, from families largely uneducated, and who had views far outside the norms of complacent, middle-class America? Should they have whispered it instead?
The Supreme Court and the nation are better served with diverse voices and distinct perspectives, with different ways of thinking about problems, with additional insights that might be found in Yakima, Washington with Douglas or even Vienna, Austria (for Frankfurter). That might be obvious, but it seems that there is a latent narrative that there is only one or maybe two (more conservative or more liberal) sets of qualifications for Supreme Court membership. Meanwhile, so goes the narrative, various other ideas drawn from life experiences to contrasting backgrounds to racial and religious and gender and geographical diversity count for nothing. This is perhaps such nonsense that it needs, at least at this point, to be treated no further. There is an equally fallacious, although more pernicious view, one that there are simply not enough qualified potential Supreme Court justices among the African American female legal community to nominate one. Given the present candidates who seem to be in contention – U.S. Court of Appeals Judge Ketanji Brown Jackson, California Supreme Court Judge Leonora Kruger, and U.S. District Court Judge J. Michelle Childs – that contention of no competent candidates, already morally pernicious, is also seen as factually ridiculous.
In a less anecdotal way, based on the ABA statistics, there are probably about 22-25,000 African American female lawyers in the United States. To put that into perspective, it was not until 1850 that that number of lawyers, approximately 24,000, practiced in the entire United States. By that time, 31 justices already been appointed to the U.S. Supreme Court. Given mean high competency with an identical sample size, there seem to be no lack of candidates available. In fact, 2 of the 6 or 7 finest Supreme Court Justices who ever served, perhaps the 2 very best, had already been chosen by that time: Chief Justice John Marshall, who shaped the basic fabric of the Supreme Court and federal jurisprudence generally (but attended no law school); and a dissident congressman too troublesome to be left in the House to criticize President Madison elevated to the Supreme Court by that same President Madison. That Justice, Joseph Story, one of 18 children (perhaps a category of experience that bears representation at the table) was a dedicated abolitionist who located the ultimate authority, not with the states or the federal government, but with the people.
Choosing, then, based on particularized criteria, at least criteria that rationally reflect the interests of a large and complex society, that is, criteria of gender and race, seems not only unexceptional, but positively beneficial. What, then, about the secondary question, that is, saying what is obvious and beneficial out loud?
The problem here is one of the sensibilities surrounding basic equality, that is, where equality is centered on the individual rather than a group. We think every single person should enjoy the right to equal opportunity to certain actions, speech, opportunities, entry, employment, membership, services, housing, and just about everything else based on their individual qualities, not on their membership in a group. Certainly, no one should be disqualified because of their membership in a racial or ethnic or religious or gendered group. We never want to think of some opportunity as one that says that, for any member of group X, group X members need not bother to apply.
This is to some extent the problem that lies at the heart of affirmative action. Even when membership is restricted, only those previously disadvantaged need applies. We think of such restrictions as odious, as impermissible, as against the fundamental notions of equality and equal opportunity. However, to a certain extent, some of the affirmative action programs might appear to have a greater justification than such a benefit in favor of a potential Supreme Court appointment. For example, when there has been widespread discrimination against certain minorities for large occupational entry, from the plumbers and electrical trades to police and fire departments, to housing in certain communities, we might think that a make-up foul is in order. That is, minorities are not given an advantage for some unwarranted reason. Rather, the program exists to correct past disadvantages, when membership in a certain group meant that one started not at the starting line, but at several yards behind it. Race is not used as an improper marker for present discrimination. Rather, if it had been improperly used as an illegitimate marker for discrimination in the past, it can now be borrowed as a concept to correct that discrimination. Quotas might then be a proxy for remedying past inequality, although they carry a high price, as explicit differential treatment and the skepticism that its beneficiaries do not entirely deserve the entry, they received leave a lingering bad taste and resentment. Is that what we have here with President Biden’s decision?
Clearly, no. There is no right by any individual to that appointment. That is, there are no aggrieved individuals who, but for some program or policy or slant or take on jurisprudential positions would otherwise have received the right. There are far too many qualified individuals for the Supreme Court, and it is relatively clear that many Supreme Court justices are not even drawn from that qualified group of many individuals but are instead chosen despite being only marginally qualified or altogether unfit. Thus, if the process of choosing is skewed, there is no one to complain about it. There are no specific victims with a claim. In that way, it is quite dissimilar from certain of the affirmative action claims. There, someone might argue that, but for an affirmative action program, they would have otherwise been promoted as a firefighter or admitted to the local state university. A real potential victim exists. When the former Chief Justice of the Massachusetts Supreme Judicial Court, Horace Gray, retired from the U.S. Supreme Court, President Theodore Roosevelt basically sought Gray‘s successor on the same Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr., to succeed Gray to occupy the Massachusetts seat on the U.S. Supreme Court. It is impossible to argue that Holmes was a bad choice, either at the time or throughout his tenure. (That is not to deny that Holmes authored the 8-1 majority opinion for the court in Buck v. Bell, a pro-eugenics decision, at once indefensible and among the worst in the court’s history). No one existed that could say that, but for Holmes, the seat would have been theirs.
Saying all this out loud, before those many whom it will incense, is a political consideration. Does it make more people jeer than cheer, or leave too many indifferent or altogether ignorant? What is true is that in so doing, President Biden did nothing at odds with what has always been done and certainly did nothing wrong. What he did do was to try to correct a stunning injustice, one that ignored the qualities, autonomy, viewpoint, wisdom, insight and humanity of black women, one that is part of an injustice centuries old. In so doing, President Biden has attempted to see these African American women as deserving to be and to belong on the Supreme Court bench. Until that happens, the outrage remains uncorrected.*
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Supreme Court columns with American flag and US Capitol.
**Since this article first appeared (12.2.2022), President Biden nominated the appellate court judge, Ketanji Brown Jackson, for the position of Supreme Court Justice. Judge Jackson, on paper, in her demeanor and by reputation, is an exceptionally accomplished lawyer and judge, with a background that includes a distinguished education, a Supreme Court clerkship, work for an elite law firm, and service on the federal bench. She has no obvious or even subtle marks against her. Nevertheless, the Senate confirmation vote, largely along partisan lines approving her, was 53 to 47. It ought to be seen as a shocking result if, in fact, the vote was to be anything other than on the merits or has anything to do with finding an erudite and prudent adjudicator of legal issues.
Of course, the vote had little to do with either. Judge Jackson was subject to long and hostile harangues by partisan Senators on a series of issues having nothing to do with her role on the Supreme Court – from critical race theory (a phantom position that has morphed simply into hostility to anything that inadequately celebrates a glossy view of American history and American exceptionalism), to her role representing Guantanamo Bay detainees in habeas corpus proceedings (acting in the highest spirit of American jurisprudence of offering representation to the unpopular and the inadequately represented, particularly when basic human rights are at issue), to whether she believed that “babies are racist“.
The Supreme Court has neither the purse, nor the force, nor the appointment power. It cannot legislate, solve major social problems or even always choose its own agenda, as the cases before them are those brought by litigators and parties, not necessarily those they would have chosen in that form (or at all). In that sense, they are, to use Alexander Bickel’s famous phrase, “The least dangerous branch”. What they have had is their integrity and credibility. Hearings like this undermine that diminishing currency, as does the now-leaked, expected overturning this spring of the decades-old right to abortion precedent - Roe v. Wade - that protects a pregnant woman’s right to choose.
The world is increasingly witnessing an attack on the independence and viability of the judiciary, already complete in dozens of countries, and now even imperiled in places once thought safe. These surprisingly include Poland (where the Law and Order Party’s so-called judicial reforms allow for dismissal of judges it finds troublesome, reforms denounced by the EU Court of Justice), Switzerland (where the Swiss People’s Party has undermined judicial independence by attacking Justice Yves Donzallaz and threatening his re-election for voting against their position on the release of UBS data to French authorities in a tax evasion case) and the Czech Republic (where former Prime Minister Andrej Babis threatened the courts during a controversy involving his personal assets). The hearing for Judge Jackson, now Justice-to-be Jackson, has already gone down that perilous road to endangering that independence and viability.
*The article was first published on Palm Beach Center for Democracy & Policy Research website on 12.2.2022.
***The article was updated by Mr. Levin for SAM Magazine 20.5.2022.
Joel Levin has been a commercial litigator and civil rights advocate, university teacher and author for 40 years. His four books include How Judges Reason; Revolutions, Institutions, Law; Tort Wars; and The Radov Chronicles. His play, Marrano Justice, is an historical drama (with music) based on the life of Justice Benjamin Cardozo. He received his B.A. and M.A. at the University of Chicago, his J.D. at Boston University, and his doctorate at the University of Oxford. In addition to founding two high-tech companies, he has taught law and philosophy in Russia, Canada and a number of American universities, including, since 1982, Case Western Reserve.