Despite intentions, Biden’s Supreme Court promise is deeply misguided

President Joe Biden promised to name a Black woman to the Supreme Court… and I don’t think he should have.  

When I say that I don’t think he should have, I’m mindful of the fact that for generations, presidents would only name individuals of certain races and sexes to the Supreme Court — and those individuals were white men. Nor should we engage in false comparisons of the naming of exclusively white men to the court from the era of John Jay in 1789 until Thurgood Marshall in 1967 with Biden’s promise.   

There is a moral difference between conferring power onto an individual in whose demographic power is already concentrated and conferring power onto an individual because of their demographic’s lack of power.  

I’m also not blanching at the idea of liberalism run amok. Biden’s demographic reasoning possibly has its most recent analogue in former president Donald Trump. Trump reportedly said in naming white male Brett Kavanaugh as a replacement to white male Justice Anthony Kennedy that he was “saving” Amy Coney Barrett “for [Justice Ruth Bader] Ginsburg” — i.e. planning to name a white woman to the Supreme Court to replace another white woman. 

When I say that I don’t think he should have, I certainly don’t think that there aren’t multiple Black women as qualified to be Supreme Court justices as anyone else in the country.  

And finally, when I say that I don’t think he should have, I’m not condemning affirmative action. None other than Martin Luther King Jr., himself, observed that “a society that has done something special against the Negro for hundreds of years must now do something special for him, in order to equip him to compete on a just and equal basis.”    

But Biden’s promise is not affirmative action. Affirmative action is not promising that the one available spot in a government body or organization will be held by an individual of a specific race and sex. And by making such a promise, Biden misrepresents diversity, equity, and inclusion not as the extension of opportunity to previously sidelined groups but the sidelining of entire demographics of people from opportunity regardless of their worthiness.  

There are many promises I wish Biden would have made instead.  

I wish that instead of promising to name a Black woman, Biden would have drawn attention to the underrepresentation of people of color and women on the Supreme Court across time and vowed to conduct a proactively and innovatively inclusive search for the wisest legal mind. In the absence of injustice, surely a Black woman would have been on the Supreme Court by now, but so would a Native American of either sex, for example. How appalling that not one individual from this nation’s Indigenous peoples has ever sat on its highest court. (And by “Indigenous,” I mean someone claimed by a Native American community or nation, not merely of Native American ancestry).    

Biden could have promised to open the door to this most rarefied opportunity and privilege by swearing to search for legal brilliance where it has rarely been sought. For example, he could have considered candidates who serve as tribal nation judges. Responding to the bipartisan objection that Supreme Court justices are disproportionately alumni of Ivy League schools, he could have reached out to the faculty of Thurgood Marshall’s alma mater, Howard University School of Law, and other law schools that focus on serving students of color and asked them to recommend alumni suitable to replace Justice Stephen Breyer. He could have invited recommendations from civil rights organizations such as the Asian American Legal Defense and Education Fund or the Mexican American Legal Defense and Education Fund.  

And while I always insist that the goal of pursuing nonracial diversity must never be used to distract from antiracism, in the same spirit, I would have liked Biden to promise to consider nonracial diversity alongside proactively seeking non-white candidates. I long to know who the Deaf and Hard of Hearing Bar Association would have suggested, for example — or the Association of Muslim American lawyers.  

And I wish that rather than promising to name someone of a specific race and sex to the Supreme Court Biden would have promised to name someone whose career has been marked by fair-minded handling of the injustices in our country related to race, sex and other forms of oppression. I wish he would have invited the nation into a conversation on some of the most urgent legal issues of our time — from mass incarceration to the legal loopholes that allow non-Natives to commit many forms of sexual and physical violence against Native American individuals with impunity to our country’s legalized slaughter of civilians with drones and raids abroad — and promised to make a special effort to find candidates who have expertise on those issues.  

I wish Biden would have made diversity, equity and inclusion seem expansive and thoughtful rather than exclusionary and arbitrary.  

But I also wish that those condemning him would have the same zealousness that they do at the idea of one seat of power being reserved for a Black woman as they do for the tables upon tables of power at which — whether a promise was made audibly or not — somehow, almost only whites are seated.  

Shannon Prince is a lawyer at Boies Schiller Flexner and a legal commentator. She is the author of “Tactics for Racial Justice: Building an Antiracist Organization and Community.” The opinions expressed in this piece are the author’s and do not represent the views of Boies Schiller Flexner.