With Supreme Court promise, Biden essentializes race and gender

Following Justice Stephen Breyer’s retirement announcement, the White House has already confirmed that President Biden will fulfill his campaign pledge to fill the Supreme Court seat with a Black woman. Biden’s reported shortlist includes several candidates with first-rate credentials. For example, Ketanji Brown Jackson graduated from Harvard Law School, clerked for Breyer and now sits on the U.S. Court of Appeals for the D.C. Circuit. Leondra R. Kruger graduated from Yale Law School, clerked for former Justice John Paul Stevens and serves on California’s Supreme Court.

Irrespective of their judicial philosophies, such nominees would bring the requisite intellect and legal experience to the Court, and either is worthy of nomination based on their credentials alone. As Black women, both judges would increase the diversity of the bench and constitute historic picks. But when Jackson, Kruger or another candidate is tapped by Biden, it’s their undisputed excellence that should earn them the nod, not a campaign promise that – while well-intentioned – risks undercutting their accomplishments and giving doubters reason to question their merit. 

Biden first promised to nominate a Black woman to the Court during the South Carolina primary debate in February 2020, when his campaign was floundering and he sought to bolster support among Black voters. He reiterated the pledge in subsequent months.

Of course, there are numerous qualified Black women whom Democrats might enthusiastically embrace as welcome additions to the Supreme Court. But regrettably, Biden’s pronouncement risks undercutting their achievements by explicitly putting their race and gender first.

Most obviously, Biden’s pledge to consider only Black women for the nation’s highest court detracts from the individual excellence of nominees by making their selection more about identity than merit. It essentializes their identities, failing to treat nominees as individuals with diverse opinions, accomplishments and experiences.

Further, the pledge restricts the shortlist to a particular subset of under-represented groups, precluding the selection of a Black man, as well as members of groups or identities not represented on the Court, including indigenous Americans, trans individuals and Asian Americans. 

Biden might have considered any number of diverse candidates with left-leaning judicial philosophies for the Supreme Court seat, including Sri Srinivasan, chief judge of the U.S. Court of Appeals for the D.C. circuit, who would be the first Indian-American nominated to the bench; and Paul Watford, a Black judge who serves on the U.S. Court of Appeals for the Ninth Circuit. Neither of these candidates may be clearly preferred to Jackson, Kruger or other accomplished Black women whom Biden is vetting. But neither should they (or any others) be precluded from consideration based solely on their identities. 

As some observers have pointed out, Biden isn’t the first president to bind himself to a Supreme Court nomination that placed identity at the core of the appointment process. In 1980, Ronald Reagan notably vowed to nominate the first female Supreme Court justice. Ultimately, that pledge resulted in the nomination of former Justice Sandra Day O’Connor. But this kind of promise was as wrong then as it is now. The practice hasn’t aged well, reifying race and gender in tokenistic terms, rather than emphasizing the merit of individuals. 

Biden’s explicit use of race and gender as criteria for choosing the next Supreme Court justice also raises legitimate legal questions, just as the Court has committed to hearing a high-profile affirmative action case involving race-conscious preferences in higher education. Federal law forbids private businesses and colleges from depriving applicants of opportunities based expressly on race. On the campaign trail in 2020, Biden made a similar promise to choose a woman as his vice presidential running mate, settling on Kamala Harris. The difference was that Harris’s selection was as a political candidate. The Supreme Court position is a federal government job. 

In the eyes of many liberals, a nominee such as Jackson or Kruger would, both substantively and symbolically, positively contribute to the Supreme Court. In recent years, the Supreme Court has played a pivotal role in helping to overcome persistent racial and gender divides in America, and the selection of a Black woman justice would mark another important milestone for progress. 

But when that moment does come, the appointment should be about excellence, not shrouded in a cloud of political obligation. Unfortunately, Biden’s insistence on placing gender and racial identity at the heart of the nomination process has already made that ideal impossible. 

Thomas Gift is associate professor of Political Science and founding director of the Centre on US Politics (CUSP) at University College London. Julie Norman is lecturer in politics and international relations and co-director of the Centre on US Politics (CUSP) at University College London.