During the 2020 campaign, President Joe Biden pledged to nominate the first Black woman to the Supreme Court and he reiterated that promise after Justice Stephen Breyer announced his imminent retirement at the end of January.
“The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said. “I made that commitment during the campaign for president, and I will keep that commitment.”
This quickly produced unsurprising squeals from conservative corners about both “affirmative action” and “politicization.”
Sens. Josh Hawley (R-Mo.), Ted Cruz (R-Texas) and Roger Wicker (R-Miss.) all bashed Biden for advancing a nominee based on a “quota.” Editors for the conservative National Review wrote that Biden “disqualified dozens of liberal and progressive jurists for no reason other than their race and gender.” Sen. Susan Collins (R-Maine) took her criticism in a slightly different direction, calling Biden’s announcement that he would choose a Black woman “clumsy,” for adding “to the further perception that the court is a political institution like Congress, when it is not supposed to be.”
But Biden’s public statement that he would appoint someone to increase or maintain the diversity of the Supreme Court is nothing new. Ronald Reagan declared weeks before Election Day in 1980 that he would appoint the first woman to the Supreme Court if given the chance. And he did, appointing Justice Sandra Day O’Connor. Donald Trump also promised, weeks before the 2020 election, that he would fill the seat of the late Justice Ruth Bader Ginsburg with another woman.
In fact, the presidential selection of Supreme Court justices has always followed from political interests, and often in the pursuit of diverse representation. It’s just that the concept of diversity has changed as the nation — and the face of the electorate — itself changed. Meanwhile, the politicization of the court has been obscured by a phony narrative that elite qualifications are the only criteria.
To begin with, all but three justices from 1789 to 1900 were chosen solely from the pool of white men of Protestant faith. While constituting the vast majority of the U.S. electorate during this period, white Protestant men were then and remain now a minority of the overall U.S. population. With regional divisions as the primary challenge in the early republic, presidents sought to balance the court with regional diversity from within this specific demographic. Justices were chosen based on which region — New England or the South — or which state they hailed from. Furthermore, presidents generally wanted justices who would reflect their political party’s agenda. All of these limitations further limited the pool of potential candidates, sometimes so much that it was hard to find a candidate who fit the criteria and wanted the job.
Take, for example, President James Madison’s efforts to fill the seat of the late William Cushing in 1810. Since Cushing hailed from Massachusetts, Madison sought out another New Englander, preferably one amenable to his Republican Party. New England being a Federalist redoubt made for a small pool of potential candidates. After two candidates from Massachusetts refused the appointment and one from Connecticut was rejected by the Senate for lacking what they saw as the proper qualifications, Madison found success with Massachusetts’ Joseph Story.
This seat would be held by a New Englander for more than 120 years: three more occupants from Massachusetts and one each from Maine and New Hampshire. It would not be until 1932 that the New England seat passed to a justice not from that region, New York’s Benjamin Cardozo, the second Jewish Supreme Court justice.
Cardozo was not selected by President Herbert Hoover because he was Jewish, but his seat came to be known as the “Jewish seat,” as it passed to three sequential Jewish justices over the next 30 years, and exemplified a new era of diversity on the court.
Regional factionalism still played a role into the 20th century, but presidents increasingly sought to provide representation to new immigrant groups, including the massive influx of Catholics and Jews at the turn of the century, in order to secure their votes in elections.
Presidents including William McKinley, William Harding, Franklin Roosevelt and Dwight Eisenhower all chose Catholic justices with political considerations in mind. It was FDR who began the informal tradition of preserving a Catholic seat on the bench when he replaced Catholic justice Pierce Butler with the Catholic Frank Murphy.
When President Harry Truman replaced Murphy with a Protestant, he presented a political opportunity for Republicans to appeal to the Catholic vote. That’s what Eisenhower did when he chose William Brennan ahead of the 1956 election, both because he was a Catholic and a Democrat. Eisenhower explicitly sought out a Catholic justice. Upon the announcement of a coming opening on the court, Eisenhower told his attorney general to “start thinking again about [naming] a very good Catholic,” in a note.
The previous firsts for Supreme Court diversity were not made with the express intent of breaking a barrier. President Andrew Jackson didn’t make Roger Taney the first Catholic justice because he was Catholic. Nor did President Woodrow Wilson choose Louis Brandeis to be the first Jewish justice. President Lyndon Johnson did, however, pick Thurgood Marshall in 1967 because he wanted to appoint the first Black justice.
Marshall, eminently qualified as one of the most experienced lawyers in the country and an appeals court judge, provided Johnson an opportunity to continue to build on his civil rights legacy while also providing representation to Black Americans as they played an increasingly important role within the Democratic Party coalition.
Johnson didn’t just choose to appoint Marshall two years before he actually got the chance. He purposefully worked to further raise Marshall’s profile by appointing him solicitor general while also scheming to open a seat on the court for him: Johnson selected Supreme Court justice Tom Clark’s son as attorney general in order to create a conflict of interest, pushing Clark to retire.
Even though he had made up his mind early to appoint the first Black justice, Johnson never publicly stated his intention to do so prior to picking Marshall. Reagan, on the other hand, said in the final month of the 1980 election that he would put the first woman on the Supreme Court if elected. He won and selected Sandra Day O’Connor, a little known Arizona judge, in 1981.
Reagan’s campaign announcement that he would pick a woman justice was explicitly political, as it was meant to address his lagging poll numbers with women.
Since then there have remained at least one Black justice and one woman on the court. While George H.W. Bush denied selecting Clarence Thomas to replace Marshall upon his retirement because he is Black, Bush’s White House had previously stated to reporters that Bush’s next pick — after David Souter — would be Edith Jones. When Marshall retired, Bush did not select Jones, a white woman, instead picking Thomas, a Black man, to fill the only seat ever held by a Black justice.
And when Ginsburg died less than two months before the 2020 election, Trump immediately promised that her replacement “will be a woman.” He chose Amy Coney Barrett, who was rapidly confirmed ahead of the election.
Biden’s announcement that he will select a Black woman for the court in no way limits his choice than the decision previous presidents made to only appoint a justice from New England, say, or a justice who is Catholic, or who is Black, or a woman.
Nor is the fact that his decision stems from a campaign promise any different than the political calculations taken by numerous other presidents when they sought to appeal to regional factions, religious minorities or ideological blocs as Trump did in the 2016 election by releasing a list of justices he would consider that was prepared for him with the help of the conservative Federalist Society.
That’s because there is no single most-qualified nominee who is objectively superior to others. Indeed there exist no qualifications required to be a justice at all. Previous justices included ex-senators, ex-governors and even one ex-president. Most justices lacked law degrees, as such things did not exist for some time, and the majority of chief justices had no prior judicial experience.
The reality is that the Supreme Court does not exist outside of politics. Presidents have sought to mold it with representation of factions important to their — and their party’s — political and policy goals in mind. Biden is no different.
