President Joe Biden’s promise to nominate a Black woman to the Supreme Court seat being vacated by Justice Stephen Breyer is being pilloried by the right. But it’s a refreshing departure from presidents who've made race-conscious nominations while asking the public to accept the lie that race never entered their minds.
"The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court," Biden said Thursday. "I made that commitment during the campaign for president, and I will keep that commitment."
Biden’s decision to openly talk about the race of his forthcoming nominee suggests that we may be past the “colorblind” nonsense that was all the rage.
Biden’s decision to openly talk about the race of his forthcoming nominee suggests that we may be past the “colorblind” nonsense that was all the rage a generation ago. You remember, don’t you, the “I don’t see color” people who with that falsehood implied that Blackness was something dirty and unmentionable or something the person thus afflicted had to overcome?
When President George H.W. Bush announced in July 1991 that he’d picked Clarence Thomas to fill the Supreme Court seat left vacant by Thurgood Marshall, he suggested it was pure happenstance that he, a virulent opponent of quotas, was replacing the court’s first and only Black justice with another Black man who would also be the only Black person on the court.
Bush also wanted the public to forget that less than a year earlier, after he had appointed David Souter to the court, his administration had, as a reporter put it, “very clearly put out the word” that Edith Jones (a white appellate court judge) would be his next nominee.
“The fact that he is Black and a minority has nothing to do with this in the sense that he is the best qualified at this time,” Bush said then. “I would strongly resent any charge that might be forthcoming on quotas when it relates to appointing the best man to the court.”
Let this column not be interpreted as an argument for Jones, whose retrograde ideas have been damaging enough coming from the 5th Circuit. But isn’t it funny that at the moment a Black justice announced his retirement, a president opposed to quotas realized Thomas was the best choice and leapfrogged him over the white woman his administration had said would be next?
Though Bush’s claim that he hadn’t considered Thomas’ race didn’t pass the laugh test, such lies are part and parcel of those told by conservatives who pretend that institutions that only included men or only included white people can be diversified without paying attention to future candidates’ race or gender.
Some of Biden’s critics are insisting that Biden play the same dishonest game. They say if he promises to pick a Black woman before he picks a Black woman, then said Black woman will be dismissed as unqualified, that she will be subjected to criticism that she only got the job because she’s a Black woman. How sweet that they’re so concerned about the yet-to-be-named nominee.
They should know there’s not a Black woman who could conceivably be considered for the Supreme Court who hasn’t already been confronted with racist, sexist or racist and sexist doubts about her qualifications. It’s unlikely that there’s one who hasn’t, at some point, been peppered with questions about her test scores or how she got into college or law school or whatever firm hired her. Whomever Biden nominates for the Supreme Court won’t fall apart because some people have doubts that she belongs there.
“What do you say to critics who say the only reason you’re being picked is because you’re Black?” a reporter asked Thomas at the July 1991 news conference where Bush introduced him as his nominee.
“I think a lot worse things have been said,” Thomas replied. “I disagree with that, but I’ll have to live with it.”
Whomever Biden nominates for the Supreme Court won’t fall apart because some people have doubts that she belongs there.
I concur with Thomas in that his being Black wasn’t the “only reason” Bush picked him. He picked Thomas because, as the late Rep. John Conyers, D-Mich., once said, Thomas is “the pugnacious conservative who didn't hesitate to espouse his hostility to traditional civil rights remedies.” By appointing Thomas, Bush could get points for not letting the court become all white again even as he appointed a justice bent on turning back the clock in more significant ways.
Nor will the facts of her Blackness or her femaleness be the only reasons Biden picks his nominee. He will pick her because he believes she will interpret the Constitution in the way he thinks it ought to be interpreted. And, yes, because of the symbolism of the pick.
Those who insist Biden pick the most qualified person for the court and only describe them as such are wrong to believe that there exists a single person in the country who can objectively be deemed most qualified for such a role, in part because the qualifications are whatever the president and the Senate decide they are. The most pressing qualification may be whether the candidate will help advance the president’s political agenda or, if applicable, aid the president's re-election.
In the same way Bush wasn’t subtle when he replaced a Black groundbreaking liberal on the court with a Black conservative, President Donald Trump was just as obvious when he replaced Justice Ruth Bader Ginsburg, a groundbreaking liberal woman, with the conservative Amy Coney Barrett. People criticizing Biden for being forthright about his desire to add diversity to the court and send a signal to Black women, the Democratic Party’s most loyal voters, aren’t to be taken seriously.
Nor should we take seriously their worries about whether she’ll be qualified. What about the words “Black” or “woman” triggers their fears that she won’t be?
