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The Divider-in-Chief

President Biden has announced that he will nominate a black woman to fill retiring Justice Stephen Breyer’s seat on the Supreme Court.Such an appointment, he said, is “long overdue, in my view. I made that commitment during the campaign for President, and I will keep that commitment.”

If the head of a U.S. corporation were to make a similar pledge—for example, that her company will, for the first time in its history, choose a black woman to be the corporation’s next chief legal counsel—it would violate Title VII of the Civil Rights Act of 1964 for the corporation to honor that pledge. The question then arises: Is it fitting and proper that the President, in choosing a nominee for a lifetime appointment to our highest court, should follow a procedure which, if followed in the private sector, would violate federal civil rights laws?

One preliminary point: I use the “fitting and proper” formulation because Title VII does not, as a technical legal matter, apply to the nomination and confirmation of a Justice. But one might still ask whether the concerns that underlie and justified passage of Title VII should be given any substantial weight by Pres. Biden, even when he is not legally bound by that Act.

A second preliminary point: Questioning whether the President’s pledge was fitting and proper in no way implies that there are no black women who are fully qualified to sit on the Court. I am sure there are. Nevertheless, it is one thing to say that there are black women who are fully qualified, and it is a very different thing to say that one will consider and ultimately nominate only a black woman. Surely there are non-black, non-female persons who also are qualified.

So, is it fitting and proper for the President to pledge to nominate a black woman? I think not. As a nation, we are striving to make real the ideal implicit in our Declaration of Independence: All men (and women) are created equal by their Creator and should be treated equally by their government. Even in these fractious times, the President is the singular head of a government dedicated to making that ideal a reality. By singling out one small fraction of the American population—black women—for exclusive consideration for the high honor of a Supreme Court nomination, he retreats from that ideal.

Moreover, one might well ask why it’s just precisely the presence of a black woman on the Supreme Court that is “long overdue.” A black woman on the Court would be the third African American to serve as a Justice (after the late Justice Thurgood Marshall and the present Justice Clarence Thomas). Her confirmation would mean that, together with Justice Thomas, two of the nine sitting Justices (22.22%) would be African Americans. But black Americans constitute 13.4% of the population, so black women make up approximately 7% of the population.

According to the U.S. Census Bureau, Latino or Hispanic Americans comprise 18.5% of the population, but they have had only one Justice (Sonia Sotomayor) on the Court. And Asian-Americans, who constitute 5.9% of the population, have never had even one Justice. Why is the appointment of an African-American woman (representing approximately 7% of the population) any more “overdue” than the appointment of the first Asian American or the second Hispanic American? How does one gauge which race and/or sex is more or less “overdue” than any other? The President’s pledge invites these distasteful—one might even say, un-American—racial metrics.

It was, moreover, entirely unnecessary for the President to have made the pledge.  He could have reached the same result—the nomination of a black woman—without making any pledge at all. He could consider any candidate he wishes and then make his choice, and that choice of course could be a black woman. Why would any sensible person unnecessarily interject divisive categories of race and sex into the selection process, when nothing is gained thereby? The answer, as Pres. Biden’s own words reveal, is politics on steroids: He made a campaign promise, and he wants the whole world to know that he is keeping it.

When Ronald Reagan ran for President in 1980, he said that, if elected, he would nominate a woman for “one of the first Supreme Court vacancies in my administration.” And he did indeed nominate the first woman Supreme Court Justice, Sandra Day O’Connor. But that pledge related only to “one of the first” nominations, not specifically to the first. And, before actually nominating O’Connor, Reagan never pledged to consider only women for the open seat. So, unlike Biden, Reagan never made a pledge that would have violated Title VII of the 1964 Act if made in the private sector. Moreover, Justice O’Connor was the first female Justice in U.S. history, and women account for more than half of the population.

Then-Pres. Trump announced, upon Justice Ruth Bader Ginsburg’s death, that he would nominate a woman to fill the vacancy. Like Biden, Trump would have violated Title VII if he had been an employer filling a vacancy in the private sector, and it isn’t Biden’s standard operating procedure to mimic Trump. Moreover, with Justice Ginsburg’s death, there were only two remaining female Justices (Sonia Sotomayor and Elena Kagan). So, adding a third woman (Amy Coney Barrett) to a nine-member Court still left women substantially under-represented. There is, I think, an important difference between seeking full representation for the sex that comprises more than half of the general population, and proposing controversial and divisive racial criteria for the selection process.

In his inaugural address, Pres. Biden used the words “unity” and “uniting” a total of eleven times.  Does it truly unite a heterogeneous nation of 330 million people to sort them into categories by race and sex, and then announce that, with regard to a high honor, the only persons eligible will be those of one particular race and one particular sex? The President apparently believes that “E Pluribus Unum” is correctly translated as: Out of Many, More.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2523973
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