Three-quarters of Americans want Joe Biden to consider ‘all possible nominees’ for the Supreme Court vacancy, regardless of their race or gender. But Biden says he will only consider black women:
A new ABC News/Ipsos poll finds that … President Joe Biden’s campaign trail vow to select a Black woman to fill a high-court vacancy without reviewing all potential candidates evokes a sharply negative reaction from voters. . . .Biden pledged to nominate the first Black woman to the Supreme Court, if elected. . . just over three-quarters of Americans (76%) want Biden to consider “all possible nominees.” Just 23% want him to [consider only Black women] … only a little more than 1 in 4 nonwhite Americans (28%) wish for Biden to consider only Black women for the vacancy. Democrats are more supportive of Biden’s vow (46%) than Americans as a whole, but still a majority of Democrats (54%) also prefer that Biden consider all possible nominees.
Progressive journalists back President Biden’s promise to appoint a black woman to the Supreme Court, saying it is no more objectionable than President Reagan’s 1980 campaign pledge to name a woman to the Supreme Court. But there were no women at all on the Supreme Court back then; by contrast, today, the Supreme Court already has black and Hispanic justices.
Moreover, race-based appointments are less acceptable under the Constitution than gender-based appointments. Racial set-asides are subject to “strict scrutiny”; gender set-asides need only satisfy “intermediate scrutiny.”
Setting aside positions for a particular racial group is not allowed under “strict scrutiny” unless that minority group has been subjected to recent, intentional discrimination in access to those positions. Courts have emphasized that in striking down racial set-asides, in court rulings such as People Who Care v. Rockford Board of Education (1997) and Podberesky v. Kirwan (1994).
Blacks have not been discriminated against in appointments to the Supreme Court in recent years. Indeed, there has been a black Supreme Court justice ever since 1967, even though blacks are only 13.4% of the U.S. population.
Racial set-asides can’t be used to remedy discrimination that occurred long ago. Federal appeals courts have struck down racial preferences designed to remedy discrimination that happened 14 or 17 years earlier, saying that such discrimination in the distant past is irrelevant. (See Brunet v. Columbus (1993); Hammon v. Barry (1987)).
One progressive-leaning lawyer attacked critics of Biden’s vow to appoint a black woman, saying that by “my rough math, ~96% of” Supreme Court “justices have been men and ~98% have been white.” But this tally mostly reflects past centuries. Whether women and minorities were discriminated against 50 or 100 years ago is legally irrelevant now, when there are women and minorities on the Supreme Court.
Appointing an additional black justice to the Supreme Court is not justified as a way of remedying black “underrepresentation.” First, achieving proportional representation is considered an invalid reason for considering race, according to the Supreme Court’s Croson decision.
Moreover, if an additional black justice were appointed to the Supreme Court as Biden wishes, that would result in blacks being overrepresented on the Supreme Court. 22% of the Supreme Court would be black if a second black justice were appointed. That would make the Court more heavily black than the U.S. as a whole, which is only 13% black. Meanwhile, Asians would remain absent (and thus arguably “underrepresented”) on the Supreme Court.