President Biden will soon announce a Black woman as his nominee for the Supreme Court. Conservative commentators have criticized this plan, calling it “unprecedented and unnecessary” and saying that it “elevates skin color over qualifications.” So did some senators, among them, Senator Ted Cruz of Texas, who called Mr. Biden’s plan “offensive” and “an insult to Black women.”
There is, however, a long and important tradition of presidents taking into consideration the demographic characteristics of prospective justices — including geographic background, religion, race and sex — to ensure that the Supreme Court is and remains a representative institution in touch with the varied facets of American life. More fundamentally, our history shows that the process of reaching out to expand the personal backgrounds of the justices has often produced stellar jurists who made historic contributions to the court and our judicial system.
Take, for example, President Ronald Reagan’s appointment of Sandra Day O’Connor. As others have recently noted, Reagan made a campaign promise similar to Mr. Biden’s over 40 years ago: to appoint the first woman to the Supreme Court. (Some suggest that Reagan’s pledge is different because he had a “list” that included men. Of course he did. The administration’s conservative activists urged on him the names of conservatives such as Robert Bork and Antonin Scalia. But Reagan was steadfast: He promised a woman and he nominated a woman.)
Some will suggest that Mr. Biden will be choosing from a smaller set of potential nominees than Reagan did when he determined to choose Justice O’Connor from half the population. That point fails to account for the scarcity of women lawyers when Reagan made his commitment. The prime age for Supreme Court nominees is between 45 and 60 years old. That meant that Reagan was choosing from among those who entered law schools between roughly 1943 and 1958. In 1958, 3.1 percent of law school students were women. (In 2020, women made up 54 percent of law students in the United States.)
Even for the relatively few women lawyers of the right age in 1981, systematic discrimination had excluded them from the usual credentials possessed by Supreme Court nominees, such as major law firm partnerships and federal appeals court judgeships. Thus, Reagan necessarily had to expand the range of backgrounds from which to find the best woman. That expanded search led him to Justice O’Connor, in all likelihood the first intermediate state court judge ever elevated to the U.S. Supreme Court.
In nominating her, he brought to the court a woman who had performed a range of legal jobs other than practicing at major firms and had juggled children and a career; she took her children in strollers to campaign door to door for Republicans. Justice O’Connor was a state senator in Arizona and served for a time as that body’s majority leader. These experiences gave her a pragmatic perspective and unique legal skills, making her an outstanding addition to the Supreme Court. The Senate voted 99 to 0 to confirm her.
The key point is not that “Reagan did it too.” It is that Reagan was right to commit to naming a woman. Paying attention to demographics can strengthen, not weaken, the judiciary. Had Reagan not pledged to name a woman, it is unlikely he would have had a search that produced Justice O’Connor — a nominee who turned out to be as influential a justice as William J. Brennan (who, by the way, was chosen by President Dwight Eisenhower in 1956 because he wanted to appoint a Northeastern Catholic.)
Reagan’s fulfilled pledge was not unusual. From the court’s earliest days, presidents considered it essential that the justices represent various regions of the country. For instance, according to the Supreme Court scholar David M. O’Brien, from Justice John Rutledge’s appointment in 1789 until Justice Hugo Black’s retirement in 1971 (with the exception of Reconstruction), presidents ensured that there was always a Southerner — which meant a Southern white male — on the bench. Most recently, in 2020, President Donald Trump publicly committed to choose a woman (which turned out to be Justice Amy Coney Barrett) to fill Justice Ruth Bader Ginsburg’s seat.
This practice of considering prospective justices’ backgrounds and demographic characteristics — engaged in by presidents of both parties over the decades — is not some form of “quota” designed merely to appease political constituencies. Rather, it stems from bedrock principles of democratic governance. After all, the Supreme Court exercises immense power to issue decisions that affect and bind all Americans. For that power to be legitimate, and for Americans to continue placing faith in the court, its members must be representative of all of America. Mr. Biden recognized precisely this point when he explained during his campaign that the Supreme Court “should look like the country.”
Moreover, as the visiting Georgetown history professor Thomas Zimmer put it, “Biden’s public pledge represents an affirmation of multiracial pluralism. That’s why it matters. It’s an acknowledgment that the traditional dominance of white men was never the result of meritocratic structures, but of a discriminatory system that needs to be dismantled.”
Yes, Mr. Biden could have made a less categorical statement about his selection process. But that is not Joe Biden. By the time he doubled down on naming a Black woman, he knew how exemplary a group he would have to choose from. He knew he was going to do it, so he said so directly. Such candor is typical of him.
The truth is that there are extraordinarily accomplished and credentialed lawyers of all races, ethnicities, sexes and religions. Though nowhere near perfect, the American legal community has made strides to eradicate the discrimination that has long pervaded the profession, meaning that more women and people of color are graduating from top law schools, earning judicial clerkships and working in prestigious positions in government, law firms and academia and otherwise possessing the experiences that make for wise judging.
The Black women who President Biden is reportedly considering for the Supreme Court are all well respected and highly qualified potential nominees with sterling credentials. Regardless of race, they should and very likely would be found on any Democratic president’s short list. This list is but a small fraction of the extremely qualified Black women who could be appointed.
There are approximately 25,000 Black women attorneys in America. There is every reason to believe that President Biden’s nomination process will benefit by focusing on that extraordinary group for the next justice of the United States Supreme Court.
Walter Dellinger, an emeritus professor at Duke Law School, served as head of the Office of Legal Counsel and as acting solicitor general of the United States under President Bill Clinton. He a partner in the Washington office of the law firm O’Melveny.
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