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Analysis

Diversity Has Always Been a Factor in Supreme Court Nominations

President Biden is taking Supreme Court demographics into account. So did Reagan and Eisenhower.

February 22, 2022
Diversity Has Always Been a Factor in Supreme Court Nominations
The Washington Post, Fotosearch/Keystone/Stringer, Bettmann, David Hume Kennerly/Getty, The Washington Post, Jeff Chiu, Charles Dharapak/AP
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Dwight Eisen­hower appoin­ted Bill Bren­nan to the Supreme Court, sight unseen, because he was a young Cath­olic Demo­crat from a swing state, the “Cath­olic seat” was vacant, and it was an elec­tion year. Thank good­ness. Bren­nan went on to become one of history’s greatest jurists. My employer, the Bren­nan Center, was created in his honor. 

On the wall in my Bren­nan Center office is a portrait of another personal hero: Louis Bran­deis. He was well known at the time of his appoint­ment — dubbed “The People’s Lawyer” before the advent of modern public interest law — but Woodrow Wilson chose him largely to appeal to Jewish swing voters. Bran­deis faced fierce anti-Semitic oppos­i­tion. Sen. Henry Cabot Lodge privately complained, “If it were not that Bran­deis is a Jew, and a German Jew, he would never have been appoin­ted.” (Lodge, of course, also authored the import­ant voting rights bill to protect the rights of Black Amer­ic­ans, which was defeated by a fili­buster in 1890. History is complic­ated.) 

Repres­ent­a­tion is part of the Supreme Court nomin­a­tion process. As has been noted, Ronald Reagan prom­ised to appoint a woman, and he did. Not all repres­ent­a­tion is good, of course. Asked about Nixon nominee G. Harrold Carswell, Sen. Roman Hruska memor­ably replied, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little repres­ent­a­tion, aren’t they, and a little chance?” That “praise” more or less doomed the nomin­a­tion. 

Supreme Court nomin­a­tions inten­ded to make the Court look a bit more like the coun­try it serves have a long proven­ance. And they are often accom­pan­ied by a dollop of over­blown indig­na­tion. So let’s not be surprised when some people huff and puff about Pres­id­ent Biden’s commit­ment to nomin­ate a Black woman to the court. 

The value of diversity in the judi­ciary is unar­gu­able. Stud­ies have shown that greater repres­ent­a­tion of Black judges on the bench height­ens the perceived legit­im­acy of the court among Black Amer­ic­ans, and that judges with differ­ent life back­grounds often issue differ­ent rulings. As my colleague Alicia Bannon and Douglas Keith write, “[T]he answers to diffi­cult legal ques­tions, espe­cially those that reach the Supreme Court, demand good judg­ment — and that is neces­sar­ily informed by life exper­i­ence.”

Soon we will know who the nominee is. Any of the names most prom­in­ently floated — Kentanji Brown Jack­son, Leon­dra Kruger, or J. Michelle Childs — are superbly qual­i­fied. I may be wrong, but I have a sneak­ing suspi­cion that the nominee will have a relat­ively easy time of it. 

In part that is because, as admir­able and history-making as such a choice would be, it will not change the funda­mental fact about the Court. It is now domin­ated by a hyper-conser­vat­ive super­ma­jor­ity, the first time in decades that an ideo­lo­gical faction has the Court so firmly in its grip. Already last July the justices gravely under­mined what was left of the Voting Rights Act. By inac­tion they have allowed Texas, the second-biggest state, to effect­ively outlaw abor­tion. They appear poised to greatly expand gun rights and over­turn Roe v. Wade — all by the time the next justice takes her seat.