Americans seem to be turned off by Joe Biden’s Supreme Court nomination strategy.
In a new ABC News/Ipsos poll of U.S. adults, more than three-quarters of respondents said Biden should “consider all possible nominees” to replace retiring Justice Stephen Breyer, rather than “consider only nominees who are Black women, as he has pledged to do.” Even 54 percent of Democrats said they’d prefer Biden take the wide-net approach.
This may come as an unwelcome surprise to the White House, but it makes perfect sense to those of us who’ve been following Biden’s blundering attempts to discuss race and gender in politics over the past two years.
Though public support for affirmative action programs is on the rise, with 62 percent of U.S. adults in favor, the way Biden has talked about the value of diversity in political institutions is remarkably crass. It’s no wonder that the vast majority of Americans, including a majority of his own party, are chafing at it.
The White House’s current conundrum began during Biden’s 2020 campaign for the Democratic presidential nomination, when he made two promises: If nominated, he would tap a woman as his running mate; and if elected, he’d pick a Black woman for the Supreme Court. These pledges were meant to alleviate the perceived reluctance of Democratic voters—a minority of whom are white men—to choose a white man as their nominee.
Invoking an imaginary Black woman as his desired SCOTUS pick may have helped Biden achieve his short-term goal (though I have trouble imagining the person whose objections to Biden as a candidate were easily assuaged by the race and gender of an imaginary Supreme Court nominee). At any rate, he won the Democratic nomination and, eventually, the White House. But those abstract promises needlessly tokenized the actual women who would step into those roles, dooming them to racist and sexist skepticism before they even got the nod.
As a campaign tactic, it was not only selfish but shortsighted. It gave Biden what may have felt like a boost in the moment, while creating a wide opening for criticism and doubts about the women who’d contribute to his presidential legacy.
Biden’s Supreme Court promise came during a Democratic debate in South Carolina at the urging of South Carolina Rep. James Clyburn, the highest-ranking Black member of Congress. “I’m looking forward to making sure there’s a Black woman on the Supreme Court,” Biden said in the debate. Clyburn reportedly would not endorse Biden until he made that commitment. Clyburn has credited the line with Biden’s win in the South Carolina primary, powered by Black voters, which gave him the momentum he needed to secure the Democratic nomination.
Now, predictably, conservative commentators are using Biden’s pledge to insinuate that anyone he picks will be underqualified for the court, just because he’s choosing from a smaller pool of candidates populated entirely by Black women. National Review went further and accused the president of discriminating on the basis of race and sex, “not a great start in selecting someone sworn to provide equal justice under the law.”
These kinds of bad-faith, racist objections should not be taken seriously. Presidents of both parties have historically taken race and gender into consideration when choosing Supreme Court nominees—as they should.
There are good, substantive reasons to take deliberate steps toward a judiciary that reflects the population. Diverse political institutions make more inclusive policies, for one thing. And men and white people have benefited from their own version of affirmative action for generations, in the form of racist and sexist biases that have kept other qualified individuals out of positions of power. As Sonia Sotomayor once said, in a line that was ghoulishly twisted by the right, life as a woman of color offers a “richness of … experiences” that brings great value to judicial decision-making.
Biden’s overly candid pledge was not bad because seeking a diverse Supreme Court is bad, but because it preemptively undersold his nominee. As my colleagues Dahlia Lithwick and Mark Joseph Stern wrote last week, because conservatives will assume that anyone chosen in part for her gender and race will not be the best candidate on the merits, “even before she has a name, Biden’s nominee will be tarnished as ‘lesser.’ ”
What would have been the harm in Biden simply nominating a Black woman for the court, without the premature, identity-specific fanfare? What if he hadn’t told everyone, before he’d even picked her—indeed, before he’d even been elected— that she’d only bested other Black women for the role, rather than the entire pool of possible nominees? Wouldn’t she have been better served by the perception that Biden had also considered white men for the slot, and found them wanting in comparison?
Only Biden has seen any potential benefit from his showboating pledge. Any way you look at it, his nominee will pay the price.
Nobody understands this better than Kamala Harris. In the presidential debate after he promised to nominate a Black woman to the Supreme Court, Biden said he would choose a woman as his running mate. When he eventually tapped Harris, that gimmicky pledge dulled the announcement’s shine. She wasn’t a historic choice with a unique set of accomplishments and skills—she was the fulfillment of a campaign promise. Ever since, Harris has struggled to overcome the notion that her primary utility to the White House lies in her “lived experience” as a woman of color.
Of course, any Biden running mate or SCOTUS nominee who was not a white man would have attracted racist and sexist criticism from the right. Barack Obama never said he’d been searching for a Latina when he nominated Sotomayor in 2009, but that didn’t stop conservatives from suggesting that her identity had given her an unearned leg up. Ilya Shapiro, now a vice president at the Cato Institute, wrote at the time that Sotomayor “would not have even been on the short list if she were not Hispanic,” though she had more judicial experience than any other sitting justice had at the time of their respective nominations. (Georgetown University Law Center, at which Shapiro was supposed to begin work this week, placed him on administrative leave after he tweeted last week that Biden’s SCOTUS pledge would elevate a “lesser Black woman” over an Indian American man.)
But if Biden hadn’t prefaced his nomination of a Black woman with a disclaimer, it would be a lot easier for him to refute claims that other capable candidates were not given their due, or that the nominee’s identity was the most salient part of her résumé. It would be a lot easier for reasonable people—not the knee-jerk racists—to accept a stellar nominee as a stellar nominee without doubting her qualifications. And it’s likely that 76 percent of the ABC News/Ipsos poll respondents would not have expressed misgivings about the process before Biden had even made his choice.
If Biden had nominated a Black woman without his self-interested pledge, any presumption that she was chosen in large part for her gender and race could have been rightly written off as sexist and racist. Instead, such belittling presumptions are taking the spotlight because, according to the president himself, they are correct.