Stop it. They’re All ‘Qualified’

Terry H. Schwadron

Jan. 30, 2022

Three things seem clear about Joe Biden’s selection of a U.S. Supreme Court nominee to replace Justice Stephen Breyer:

Democrats will have the votes to name a justice, Biden’s pledge to name a Black woman justice will diversify a still-conservative court majority, and Republican opponents are coalescing on, even mocking the racial identity promise even before there is an actual nominee. We expect bruising fights over nominees, but how about even before there is a nominee.

The cruel irony of what Republicans are criticizing as an affirmative action hire to the same U.S. Supreme Court that just agreed to hear a case that will challenge racially based affirmative action admissions at Harvard is hard to resist.

Sure, then-candidate Joe Biden could have used language –as he did this week — that he will hire a fully credentialed and experienced legal jurist who happens to be a Black woman, but in the campaign debate where he first offered his position, he was answering a question. Still, he was clear and forthright, and he since has showed in selection of Kamala Harris as running mate, and in his Cabinet and White House staff a serious commitment to diversity and inclusion in hires.

The idea being floated by any number of conservative speakers that Biden would name a measurably unqualified is simply nuts. You can find examples among Biden’s appointees of a few cases in which Republican senators declined to confirm appointments for outward partisan policy reasons, but none of the appointments Biden has sought are considered unqualified by background or orientation.

In short, it is difficult to see the current spate of conservative critique in advance of even seeing the name of the nominee based on race and gender in any way that is acceptable. That wasn’t the argument a year ago when Donald Trump said he would name a woman before nominating Amy Coney Bryant, from conservative legal ranks or even a generation ago when Ronald Reagan said the same thing in nominating Sandra O’Connor.

Criticize Biden, if you want, for wanting to keep the court majority from shifting, but lowering the discrimination boom is over the line. Criticism by Republican senators towards Biden’s Black women nominees for the Fed and agency leadership positions is a pattern by now.

The Conservative Line

Despite near-immediate publication by news outlets of many fully qualified Black women candidates, the Republican argument on identity politics was clear.

“Almost immediately, some conservatives did signal an early battleground: attacking Biden for supposedly making Breyer’s replacement an affirmative action hire.,” noted The Washington Post.

“Some even ventured to argue that Biden’s promise to appoint a Black woman constitutes illegal discrimination. It’s a very selective argument,” the news outlet said before listing out comments of leading conservative voices.

· Fox news commentator Sean Hannity said, “Biden said he will make his pick based purely on race and gender.”

· Conservative constitutional lawyer Jonathan Turley now has written multiple op-eds suggesting that Biden’s promise is unconstitutional discrimination.

· Tucker Carlson added, “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.”

· Ben Shapiro called it “definitionally affirmative action and race discrimination.”

· The editors of the National Review said, “In a stroke, [Biden] disqualified dozens of liberal and progressive jurists for no reason other than their race and gender.”

· Former Trump United Nations ambassador Nikki Haley tweeted, “Would be nice if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test.”

Press critic site Media Matters noted, “once the news of Breyer’s retirement broke, right-wing media were quick to attack Biden’s promise. Through outright racist language, tangential broadsides at Vice President Kamala Harris, and far-fetched comparisons between Biden’s pledge and affirmative action, right-wing figures have been dismissing the future nominee.”

It was almost by contrast that Mitch McConnell, the Senate Minority Leader, was among those Republican voices to warn that his caucus would not support extreme left-leaning candidates, without mention of race or gender.

That skips over the idea that Biden’s nominee would replace a “liberal” judge on the lesser side of the current 6–3 conservative majority, meaning that it is doubtful that any single appointment would change the ideological trajectory of the court.

White Men Dominate

As we know, the nine members of the Court include three women, one Black justice, one Latina justice and a whole lot of degrees from Yale and Harvard Law Schools. Diversity might cut in a lot of directions here.

About 5 percent of lawyers are Black and about 5 percent of federal judges are Black women. Justice nominees are usually chosen from among sitting federal judges.

There’s only one way to reflect diversity and inclusion in hiring — by doing so.

That Republicans are focused on the racial identity criticisms without even having a candidate speaks volumes about the state of White fragility and brittleness over our changing national demographics.

It is easy to see that over the years, selection of White men has dominated. Few presidents select an older candidate for a lifetime judicial seat, and there have been political ruckuses in the past over the religious background of various justices. It makes sense that who is making up those nine individuals to rule not only on strictly legal matters, but the rules by which our society operates, must somehow reflect the experience of the nation.

Moreover, it turns out that three Republican senators voted just last year to advance then-federal district court Judge Ketanji Brown Jackson, one of the candidates, to the U.S. Court of Appeals for the D.C. Circuit. Or that both Republican senators from South Carolina see U.S. District Court Judge J. Michelle Childs, another Black woman, as a great candidate from their state. California Supreme Court Justice Leondra Kruger, a third candidate, is viewed as a moderate on that court, Reuters reports, having held conservative-leaning views on criminal cases.

The idea that aiming Republican criticism over choosing a Black woman without recognizing that she will arise among a slate of candidates who will undergo much scrutiny for their legal backgrounds is offensive.

The court’s recent decisions already are running well to the right of policies like abortion that most Americans support, and polls show a growing trust issue. Diversity hires could only help repair that trust issue.




Journalist, musician, community volunteer

Love podcasts or audiobooks? Learn on the go with our new app.

Recommended from Medium

Hillary Clinton Calls Trump ‘Illegitimate President’ — Supports Impeachment

Why are so many more Americans dying, and about to die, from covid-19, compared to Europe?

The Three Reasons Why the US Postal Service is In Trouble

Trump Slaps Gag Order on Coronavirus News

Whatever Happened to Dr. Ben Carson?

Mass Incarceration

Lemmings are small creatures and do not reach high above the ground, limiting their view ahead.

The best argument against social democracy?

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store
Terry Schwadron

Terry Schwadron

Journalist, musician, community volunteer

More from Medium

Rod Serling, the last Liberal of America

Travelling The World While Black Is a Tricky & Dangerous Proposition

An Unintended Polemic

Teaching DEI, Part I