SCOTUS picks should be about more than race

Home Opinion SCOTUS picks should be about more than race

Associate Justice of the Supreme Court of the United States Stephen Breyer will step down this year to make room for another liberal appointee. Breyer’s retirement served an ulterior motive, and so did President Joe Biden’s choice of replacement. In a Jan. 27 tweet, Biden announced that his pick –Judge Ketanji Brown Jackson– would be “the first Black woman nominated to the United States Supreme Court.” 

According to SCOTUSblog.com, Breyer began facing calls from Democrats to retire  immediately after the 2020 presidential election. Since Biden is simply replacing one liberal judge with another, Breyer’s replacement will not change the ideological makeup of the court. Instead, publicly announcing his intentions to exclusively consider Black women for the job gave Biden an opportunity to virtue signal while installing someone younger and more liberal, who will be an asset to the Democratic Party for decades to come. 

Due to his Jan. 27 tweet, Biden’s choice of replacement has been controversial before Jackson’s identity was even revealed.

Ilya Shapiro, an administrator at Georgetown University Law Center, was “canceled” after tweeting that South Asian federal circuit court judge Sri Srinivasan would have been the best choice for Breyer’s replacement.

“But alas [he] doesn’t fit into the latest intersectionality hierarchy so we’ll get [a] lesser black woman,” Shapiro’s tweet read. 

While the tweet is poorly worded, Shapiro likely meant that choosing a candidate based exclusively on race would result in a lower-quality candidate, not that Black women are inherently “lesser” than South Asian men. 

According to the Washington Post, Shapiro confirmed this reading of his tweet, saying
“he regretted his ‘poor choice of words,’ but called it a shame that ‘men and women of every race’ will be excluded from the president’s nomination process.” 

Shapiro’s concerns about Biden’s exclusionary criteria are well-founded. Blatantly advertising that the search for one of the nation’s highest offices would be restricted to roughly six percent of the population is very troubling, and unconstitutional to boot. 

According to Jonathan Turley writing for The Hill, the 1977 case of Regents of the University of California v. Bakke found that quota and affirmative action admission policies based on race were not legitimate. 

“While the justices were fractured on the logic, a clear plurality on the bench supported the view that preferring ‘members of any one group for no reason other than race or ethnic origin is discrimination for its own sake […] this the Constitution forbids,’” Turley reported. 

Biden has since defended his decision, saying in a speech on Feb. 25 that the selection process would be “rigorous” and that he would pick “someone extremely qualified, with a brilliant legal mind, with the utmost character and integrity.” However, the damage has been done. While Jackson is no doubt equipped for the role – she graduated from Harvard Law School and serves on the U.S. Court of Appeals for the D.C. Circuit – her qualifications will always be secondary to her race, not because of Ilya Shapiro and other critics, but because of Biden and his need to be validated by the Democratic Party. His desire to virtue-signal created a situation that is unfair to everyone involved. It is unfair to Jackson because she is now being regarded as an affirmative action pick when, regardless of her political views, she is as qualified as any other Supreme Court judge. And it is unfair to the 94% of the population who are not black women and were therefore eliminated from the race before it even began.