Justice Stephen Breyer had not even formally announced his retirement before Republicans and conservative legal operatives began their racist crusade against his as-yet-to-be-named successor. During the 2020 presidential campaign, then-candidate Joe Biden promised to nominate a Black woman to the first seat that came open. Biden has many extraordinary candidates on his short list. But for reasons that should surprise nobody who’s been paying attention to recent history, these early commenters do not appear to see these candidates’ impeccable credentials and extraordinary accomplishments. Instead, they have opted to prejudge any Black woman, and indeed all Black women nominees, as inherently inferior and underqualified.
Conservative critics—not content with a 6–3 supermajority achieved by holding one seat open for almost a year, then filling another in a matter of weeks—aren’t willing to graciously take their win while Biden confirms a new justice, which in no way affects the balance on the court. They aren’t even willing to wait for a name. And in a neat bit of gaslighting, they also claim that Biden and his defenders are the real racists. And in the event that you believe this is just a little confirmation-game bluster, consider that they are laying the groundwork to single out whoever this next justice will be as unqualified and inferior for decades to come. Think we’re imagining things? Just ask Justice Sonia Sotomayor.
Some background that is too often left out of these discussions: Women of color were locked out of the judiciary for most of American history. The first Black woman to serve on a federal court, Constance Baker Motley, was not appointed until 1966. Motley had a sterling track record of accomplishments: She argued before the Supreme Court on 10 occasions and won nine times, assisted Thurgood Marshall in litigating Brown v. Board of Education, and tried myriad cases in lower courts, including several in New York.* But as Harvard law professor and legal historian Tomiko Brown-Nagin has recently documented, the American Bar Association hesitated to approve Motley. Why? The white men who ran the ABA doubted whether she was sufficiently qualified. They ultimately gave her a lukewarm rating of “qualified” rather than “well qualified,” even though she was one of the most successful and experienced litigators of her era—an advocate so committed that she risked her life to defend her Black clients in the Jim Crow South.
Reading Brown-Nagin’s fantastic new biography of Motley today can induce a queasy sense of déjà vu. Her nomination was indisputably part of President Lyndon Johnson’s nascent effort to diversify the judiciary; she was chosen both because she was a Black woman and because she was a brilliant lawyer. (Attempts to bring genuine diversity to the federal courts did not truly take off until President Jimmy Carter’s quiet revolution.) Johnson, for all his flaws, understood that women, racial minorities, and especially women of color faced debilitating bigotry at every level that kept them out of the upper tiers of the legal profession. To remedy centuries of discrimination, he thus made a concerted effort to increase their representation on the bench. And then, as now, critics insisted that Johnson chose Motley solely on the basis of her identity rather than her professional accomplishments.
In truth, presidents had long nominated judges—and Supreme Court justices in particular—on the basis of demographics. President Dwight Eisenhower nominated Justice William Brennan because he was Catholic, and the White House believed he needed to shore up support among Catholics. The GOP’s revered President Ronald Reagan campaigned on naming the first woman to the Supreme Court; he followed through with Justice Sandra O’Connor, who was openly selected because of her sex. (By today’s standards, O’Connor—a judge on Arizona’s intermediate court of appeals—was underqualified.) Reagan picked Justice Antonin Scalia because he was Italian American. As White House counsel Peter Wallison later recalled, Reagan wanted a justice of Italian “extraction,” explaining, “We don’t have an Italian American on the court, so we ought to have one.”
All of these nominations took place before the conservative legal movement coalesced around a pernicious myth: Any time a Democratic president chooses a non-white-man for the Supreme Court, that nominee is inherently suspect—a presumptive unqualified beneficiary of affirmative action until proven otherwise. This toxic ideology emerged when President Barack Obama put forward Justice Sonia Sotomayor in 2009. Ilya Shapiro, a conservative lawyer and commentator who will soon teach at Georgetown University Law Center, smeared her as a blatant affirmative action pick. In a notorious CNN article published at the time of her nomination, he wrote that Sotomayor “would not have even been on the short list if she were not Hispanic. She is not one of the leading lights of the federal judiciary.” Obama never said he wanted a Latina for the spot, but Shapiro nevertheless deduced that she was selected on the basis of her race and gender. He could not believe Obama would nominate a Latina due to her accomplishments alone.
The smear did not end with her confirmation. For the entire time she has been on the bench, Sotomayor—who graduated summa cum laude and Phi Beta Kappa from Princeton—has been derided as a dim bulb affirmative action pick. Conservative commentators accuse her of stupidity and ignorance for making uncontroversial points that could only upset a bad faith pedant. She exists in a space that has no equivalent for a white man on the Supreme Court. She must earn the respect of conservative commentators every single day on the job.
What’s especially noxious about this myth of “affirmative action” picks is that it is inevitably suspended each time a Republican enters office. President Donald Trump repeatedly claimed that he nominated Justice Amy Coney Barrett because she was a woman and a mother of young children. Her rollout announcement was deliberately modeled on Justice Ruth Bader Ginsburg’s, and conservatives raced to co-opt RBG’s feminist legacy and affix it to Barrett. But that wasn’t tawdry pandering. Suddenly it was principled commitment to diversity. Conservatives cheered the choice to play “identity politics” just as Reagan had done with O’Connor. As National Review editor Ramesh Ponnuru wrote, “The main reason I favor Barrett” is “the obvious one: She’s a woman.” Ponnuru echoed the conservative legal movement’s hope that a woman would overturn Roe v. Wade. Identity politics at its finest. Wise Latinas need not apply.
It should be no surprise that once Trump left office, the right’s suspicion of all non-white-male nominees reemerged with full force. In since-deleted tweets, Shapiro preemptively declared that Biden’s nominee, whoever she is, will not be qualified. He asserted that the president would pick a “lesser black woman” on account of “latest intersectionality hierarchy,” adding that she “will always have an asterisk attached.” After critics (including one of us) pointed out the racism inherent in these presumptions, Shapiro’s allies leapt to his defense. It is the left that is racist, they whined, for taking the skin color of a nominee into account.
Shapiro’s sentiments are already saturating the conversation. Nikki Haley, Trump’s United Nations ambassador, tweeted: “Would be nice if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test.” Tucker Carlson was quick to lament, “It’s possible we have all marinated for so long in the casual racism of affirmative action that it seems normal now to reduce human beings to their race.” The New York Times credulously repeated right-wing warnings that Biden is nominating a “strikingly disproportionate” number of Black women (in a judiciary where vanishingly few served until 2021).
It is extraordinary that the real injury here is to the white men who will go “unrepresented” on a Supreme Court that has had an approximately 95 percent white male composition throughout history. It is extraordinary that no one thinks of this enduring overrepresentation of white men as the ultimate expression of “identity politics.” It is yet more extraordinary that even before she has a name, Biden’s nominee will be tarnished as “lesser” and for raising urgent “quality concerns”—lies that will be invoked against her from the right for decades to come.
It didn’t have to be this way. Imagine a gracious acceptance by the conservative legal movement of a historic nominee that could have been. Imagine if the temptation to dip into race-baiting, white supremacy, and fake grievance had been avoided in a country already roiled by racism and racial violence. Imagine if the well-documented and widely understood benefits of having a diverse judiciary that looks like America could be acknowledged and celebrated across partisan lines. But the larger doctrinal project here includes eradicating affirmative action (as Shapiro acknowledged), equal suffrage, and decades of progress toward racial equality. That project requires the continued insistence that the only victims left in America are white conservative men. The howling and insults you’re hearing about underqualified women of color and the feigned offense that Biden prioritizes diverse experience don’t just serve to diminish and degrade the eventual nominee, although that is surely part of the allure. They also serve to reinforce a conservative legal fantasy that holds that willful blindness to centuries of discrimination is the only true kind of equality.
Correction, Jan. 27, 2022: This article originally misstated that Constance Baker Motley argued 12 cases before the Supreme Court. She argued 10.