Overshadowing the near certainty that Supreme Court Justice Stephen Breyer’s retirement will open the door for a justice who is marginally more liberal is President Joe Biden’s pledge to nominate a black woman to fill the seat.
“I’ve made no decision except one. The person I will nominate will be someone with 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 as Breyer stood at his side. “It’s long overdue in my mind. I made that commitment during my campaign for president. I will keep it. I will fully do what I said.”
Until the identity of that nominee is known, much of the debate will center around the propriety of race-based nominations to the Supreme Court. The confirmation fight could come as the sitting justices debate affirmative action in college admissions.
George Washington University law professor Jonathan Turley described Biden’s campaign promise as “a threshold gender and race condition that the Court itself has found unconstitutional for schools and unlawful for private businesses.”
Another legal commentator argued Judge Sri Srinivasan was the best qualified progressive and would be the first Asian American on the court, but was being excluded from consideration for the same reason racial preferences in college admissions keep out Asian American students.
The debate comes as wokeness and intersectionality become crazes on the left. But the uneasy place of Asian Americans in the lingo of critical race theory, illustrated as much by a recent spur of racist attacks that were not generally committed by obvious white supremacists as college admissions or the Supreme Court, demonstrates the inadequacy of this worldview in a country where racial diversity is not simply black and white.
Liberals, including White House press secretary Jen Psaki, have already preemptively labeled anyone raising such concerns as asserting that there are no black women who are qualified to sit on the Supreme Court. “That’s ludicrous,” Psaki said. “I mean, that’s suggesting that black women should not be a part of the most important court in our nation.”
No one this side of David Duke is suggesting this, of course. There is a legitimate to be had over whether and the degree to which combating a long history of racial discrimination requires further racial discrimination targeting or benefiting other, different groups. And as the “wise Latina” discourse during Justice Sonia Sotomayor’s confirmation demonstrated, liberal attempts to help historically disadvantaged groups can begin to employ less liberal language once starting down the path of preferences and discrimination.
Yet some nuance is also required here. There is a difference between representation and strict quotas. There is also a balance between individualism and recognizing group dynamics that play out in society. Suggesting that all efforts to accommodate or achieve diversity must necessarily degenerate into a woke version of Jim Crow is as oversimplified as Psaki’s claim about conservative views on black female qualifications.
Republicans have also engaged in similar practices. Psaki mentioned Ronald Reagan’s fulfillment of his 1980 campaign promise to appoint the first woman to the Supreme Court through the nomination of Justice Sandra Day O’Connor. But she could have mentioned Dwight Eisenhower’s desire to nominate a Northeastern ethnic Catholic when he picked Justice William Brennan or George H.W. Bush’s desire to have Justice Clarence Thomas succeed Justice Thurgood Marshall, both black men.
Brennan turned out to be a liberal — unsurprising, given his Democratic background — and O’Connor was a mixed bag from a conservative perspective. But Thomas has emerged as the leading conservative on the court. Race was a factor in his nomination, but not to the exclusion of his judicial philosophy or intellectual heft. Before him, the top conservative on the high court was Justice Antonin Scalia, whose Italian ancestry aided his nomination and unanimous confirmation.
The question of when inclusion devolves into exclusion is not answered easily. If Biden made a historic first one of his priorities, only the strictest color-blindness could be invoked to argue against him. But should it be the starting point? Wokeness might take that premise to its logical conclusion and then push it further still.
W. James Antle III is the Washington Examiner’s politics editor. He was previously managing editor of the Daily Caller, associate editor of the American Spectator, and senior writer for the American Conservative. He is the author of Devouring Freedom: Can Big Government Ever Be Stopped? You can follow home on Twitter: @Jimantle.