During the March 15 democratic presidential debate, Joe Biden promised to nominate a Black woman to the U.S. Supreme Court. Later, he promised to select a Black woman as his running mate. He followed through on the latter promise with the selection of Kamala Harris. Whether he has an opportunity to follow through on his promise to nominate a Black woman to the Supreme Court is out of his hands. There would have to be a vacancy and, if so, a majority of the Senate willing to confirm his nomination.
President-elect Biden’s desire to open two doors previously closed to Black women is admirable — and long overdue. The centuries-long absence of Black women from the vice presidency and from membership on the Supreme Court is not because none was qualified. Instead, women, let alone Black women, simply were not considered. Until Justice Sandra Day O’Connor was nominated in 1981, no woman was seriously considered for a Supreme Court appointment. Until Geraldine Ferraro was nominated in 1984, no woman was seriously considered for the vice presidential nomination of a major political party.
But there is something disquieting about Biden’s explicit exclusion of more than 93 percent of the U.S. population from eligibility for two of the highest- ranking jobs in American government. Equal opportunity may be a defining characteristic of the American creed, but apparently not in his mind when it comes to filling these two important positions.
Everyone understands that many factors influence the selection of candidates for a political office such as the vice presidency. For example, a prospective candidate from a populous state might be preferred to one from a thinly-populated state with the hope of garnering the larger state’s Electoral College votes. But Biden never would have acknowledged publicly that he selected Sen. Harris (D-Calif.), over, say, Gov. Steve Bullock of Montana because California has 55 electoral votes and Montana only three. No, he would have proclaimed Harris to be the most qualified American for the position.
We also understand that Supreme Court nominations reflect considerations beyond competence for the position. Benjamin Cardozo was succeeded by Felix Frankfurter who was succeeded by Arthur Goldberg and then Abe Fortas, all Jewish justices in what came to be called “the Jewish seat” on the high court. But in no case did the nominating president proclaim that only Jews were eligible.
It is one thing to take political and other factors into account in the selection of candidates for high office. It is something quite different to proclaim — indeed to promise — that only people with particular gender, racial or religious qualifications will be considered for any position in government, let alone the highest positions. Biden’s willingness to make such promises reflects his understanding of today’s identity politics, but it disserves America’s commitment to equal opportunity and e pluribus unum.
If there is to be a Black women’s seat on the Supreme Court, it must be presumed that Justice Sonia Sotomayor will be succeeded by a Latina woman and Justice Clarence Thomas by a black man. But then, what about the Latino men and the Asian, Native American and Pacific Islander men and women? And what about the gay black women, and so on? Court packing would be required just to meet the demands of identity politics.
Biden’s promises also disserve those selected for high office. Vice President-elect Harris became not the best person for the job — not even the best woman for the job — but the best Black woman for the job. A Biden nominee to the Supreme Court will be not the best person, but the best Black woman for the job. As with several of Biden’s Cabinet nominees, the first thing reported about Harris was that she will be the first of her multiple identity groups to serve as vice president, not that she has the necessary qualifications for the position. The same will be true of any nomination of a Black woman to the Supreme Court, should Biden get the chance to do so.
By all means, a Black woman would be a welcome addition to the Supreme Court. But Biden would better serve America’s diverse population and those he appoints to high office by foregoing the perceived benefits of identity politics and proclaiming instead that his administration and the courts will be staffed by the most qualified Americans willing and able to serve.
James L. Huffman is a professor of law and the former dean of Lewis & Clark Law School in Portland, Ore. He was the Republican nominee in the 2010 U.S. Senate election in Oregon. Follow him on Twitter @JamesHu41086899.