'This Seat is Reserved': Quotas and the Supreme Court

Just over a week ago, President Joe Biden nominated Ketanji Brown Jackson to fill the Supreme Court seat being vacated by retiring Justice Stephen Breyer. Jackson is a black woman, as were the other two leading contenders -- J. Michelle Childs and Leondra Kruger. Nobody except black women were seriously considered, which was intentional. Two years ago, during the South Carolina presidential primary in 2020, Biden had pledged to nominate a “black woman” to the Court. Though such a justice had never served before -- making it, on paper, an unprecedented nomination -- Biden’s pledge was a clear attempt to shore up black votes in South Carolina at a time when his campaign was flailing.

However, Biden was hardly the first candidate to consider Supreme Court nominees based on their gender or race. Later that year, then-president Donald Trump nominated Amy Coney Barrett to the Supreme Court, to fill the seat vacated by Ruth Bader Ginsburg upon her death. Though Ginsburg was a woman, she was neither the first woman nor the only woman serving on the Court at the time. Two others, Sonia Sotomayor and Elena Kagan, were already on the bench, and Trump had made no prior pledge to keep the seat female. Yet, when Ginsburg died at the height of the 2020 election, Trump vowed that only a woman would take her place. Similarly, all the leading contenders -- Barbara Lagoa, Joan Larsen, and Barrett herself -- were women, and no judges except women were seriously considered at all.

Both nominations demonstrate that America’s long-running politicization of its Supreme Court has finally met identity politics -- the result being quotas on the Court. In ‘filling the shoes’ of the previous occupant, nominees are now expected to match not only their qualifications but also their race and gender. Their jurisprudence -- i.e., the way they view and interpret the law -- is no longer the essence of their selection and confirmation, as had been the case since 1987, when Reagan-nominee Robert Bork was voted down by the Senate for his conservative views. If anything, as Biden’s nomination of Jackson would suggest, the tide is turning in favor of identity. Jackson’s legal views have, so far, faced unusually little scrutiny by politicians and the press -- certainly less than what Barrett, Brett Kavanaugh, or Neil Gorsuch faced during their processes. Instead, Jackson is termed a “historic” -- in a bite-sized sense perfect for public consumption, with little else said.

Presidents’ motivations for these quotas are clear. The high-profile appointment of Supreme Court justices is now an act of brokerage to appease a specific group identity -- e.g., African-Americans, women, or other minorities -- with the nominee as its token. No longer is this just an insidious rumor of “affirmative action” whispered about minority nominees -- as was the case with Clarence Thomas (succeeding Thurgood Marshall, the first black justice) or Sonia Sotomayor, the first Latina to sit on the court. As Trump and Biden demonstrate, candidates of both parties are quite explicit in making identity the primary basis for a nominee's selection. Candidates are cashing in a ‘hyphenated-American’ nominee for vote banks during elections. There is no principle behind them; it’s a bald political transaction.

If this trend continues, we can expect to see the Supreme Court’s bench be permanently comprised of several informal quotas, where justices of one color and/or gender are perpetually succeeded by others of the same appearance, and nobody else. Such is the nature of quotas: once imposed, political pressure from the groups they represent makes them notoriously difficult to escape. Would a future Democratic president risk upsetting black or women voters with a white male nominee to Ketanji Brown Jackson’s seat? Likely not. Indeed, Jackson’s nomination only came after a years-long campaign by progressive activists to force Justice Breyer, an old white man, into retirement -- precisely so a Democrat could appoint a black woman in his place. They’re unlikely to relent the next time around. When the time comes, you can expect fierce demands that Sotomayor, Kagan, and Thomas be succeeded by judges of the same gender and race -- this time, for the sake of “equity” (as "history" has already been made). Even Republicans, in their populist lurch, are wary of upsetting these group identities -- as Trump demonstrated with his woman-pledge -- making a quota once established thus entrenched. In essence, this means that half of the Court’s seats will soon be reserved according to color, gender, and race.

Supreme Court nominations are rightly high-stakes moments in America. The Court is the final word on the most contentious questions of law -- from abortion rights to gun laws, religious freedom, immigration, and even the results of presidential elections.  A justice is one of nine Americans with a vote on these decisions, which can shape the course of history. The reason they have this power, however, is their separation from political trends. As Alexander Hamilton wrote in Federalist 78, “the independence of the judges may be an essential safeguard against… occasional ill humors in the society.” If justices are to be truly independent of these political headwinds, it follows that their appointment must be so, as well. Only then will the Court preserve the public legitimacy on which its power solely rests.

Yet, as America becomes more polarized, and the Supreme Court is politicized to absurdity, this last measure of confidence in the judiciary is being eroded. The bar for appointment as a justice is no longer the height of brilliance but has fallen to the color of one’s skin or gender of birth. This doesn’t mean that present nominees aren’t qualified; Barrett and Jackson are certainly jurists of excellent caliber. What it does mean, though, is that the American value of 'equal opportunity' is in decay at the highest level, for entire swathes of judges are excluded from nomination to the Court because they don't ‘look the part.’ It’s another damning blow to equality in American public life -- effectively, discrimination against every jurist outside one sex or race. They are the latest measure demolishing the principles that underpin Americans' faith in the Court's authority, at a time when they’re already under strain.

Dr. King famously spoke of a nation where people would “not be judged by the color of their skin but by the content of their character.” To stop the erosion of confidence in the Court’s character, identity cannot be the basis of nomination. Americans must expect their Supreme Court to be free of quotas, whose members are selected merely for their legal brilliance. Nothing else. In matters of appointment to the highest court in the land, we must better judge our judges.

Image: angela n

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