If given the chance, Joe Biden would nominate the first black woman to the Supreme Court. The announcement that he'd consider both race and sex in selecting a Supreme Court nominee, rather than blind to those characteristics, was perhaps. It was the same thing as President Ronald Reagan's pledge to put the first woman on the Supreme Court.
President Biden promised from the White House that he would replace Justice Breyer with someone with extraordinary qualifications.
The charges from the right that Biden's pledge was offensive was met, perhaps predictably.
What will be asked of Ketanji Brown Jackson during her confirmation hearings?
There is every reason to believe that the President would have chosen Judge Jackson. Judge Jackson is superbly qualified. She's a brilliant legal mind, but also as well-credentialed as a nominee can be, with top legal degrees and clerkships, broad and deep experience in both government and private practice, and nearly a decade of distinguished service on the federal bench.
Why did Biden keep his selection criteria explicit? Black women are an incredibly significant political constituency for the Democratic party and for Biden personally, and appointing the first Black woman to the Supreme Court both communicated Black women's political importance and provided a tangible deliverable. Biden's insistence that the Supreme Court should look like the country reflected an important set of substantive commitments: that all Americans should be able to see themselves reflected at the highest levels of government.
President Biden was engaging in an act of presidential constitutionalism in centering race and gender in his selection process. Presidents shape constitutional meaning beyond their selections of justices who will make decisions in constitutional cases. President Thomas Jefferson's refusal to initiate prosecutions under the Sedition Act was due to his belief that the law violated the Constitution. Presidents since FDR have issued executive orders prohibiting discrimination and requiring affirmative action. The announcement that the President had concluded that the Defense of Marriage Act was unconstitutional and that his Administration would no longer defend it was both indicative of the President's views and may have impacted the Supreme Court.
The Supreme Court could be brought to justice by Ketanji Brown Jackson.
Critics of Biden's pledge to consider race and sex are aligning themselves with the conservative majority on the Supreme Court, which has suggested that all considerations of race by government are constitutionally suspect. Next term, the Justices may be poised to codify that view into law, first in a pair of cases involving race-conscious admissions in higher education, in which the Court may well overturn its 2003 decision in Grutter v. Bollinger.
If the Supreme Court invalidates one or more of these policies, its rulings will likely be based on the logic that all considerations of race are the same, and that there is no constitutionally distinct difference between policies that consider race in order to promote values like classroom diversity and the production of graduates
The History of the First Black Woman Supreme Court Justice.
Sometimes the Supreme Court viewed things this way. The Court has been involved in a debate about how and why different uses of race should be scrutinized differently. For a brief moment, a majority of the Court agreed that certain uses of race were subject to only one interpretation. In 1995, Justice John Paul Stevens wrote a dissent that said there was no moral or constitutional equivalence between a policy that seeks to eradicate racial subordination and one that perpetuates a caste system. It is because of a legacy of discrimination that we must allow the institutions of this society to consider race.
Many conservative commentators and a majority of the Supreme Court do not see the distinction between invidious racial discrimination and race-conscious actions that seek to address past discrimination. That doesn't obligate the President to accept that view. When it comes to selecting a Supreme Court Justice, there is a broad agreement that the President's authority is at its apex. Biden's views of the principles and values of the Constitution should inform his selection process, and his public embrace of those values represented an important use of the bully pulpit to advance an expansive and context-sensitive vision of constitutional equality.
We can be reached at letters@time.com.
All Rights Reserved © 2024
