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What Biden’s SCOTUS Nominee Will Face

The Supreme Court’s first black woman nominee will likely face a disproportionate number of questions on such issues as affirmative action, voting rights, law enforcement practices, and judicial activism.

March 15, 2022
Dawn over the entrance to the Supreme Court
Stafani Reynolds/Contributor
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This article first appeared in The Bulwark on Febru­ary 18th, 2022.

We do not yet know who Pres­id­ent Biden’s Supreme Court nominee will be, but there are two things we know for sure. The first is that she will be a black woman, the fulfill­ment of a Biden campaign prom­ise. The second is that those two descriptor­s—­black and woman—will play an outsized role in her confirm­a­tion hear­ing and the future of the Court.

To the first certi­tude, an offi­cial slate of candid­ates has not been released, but the White House confirmed it is focus­ing on four unnamed poten­tial nomin­ees. The consensus seems to be that judges Ketanji Brown Jack­son and Leon­dra Kruger are on the list, along with Michelle Childs, the favored candid­ate of her fellow South Carolini­ans Rep. James Clyburn and Sen. Lind­sey Graham.

To the second thing we know—well, we did not have to wait long to know it. Before the dust had settled on Justice Stephen Brey­er’s retire­ment announce­ment, Biden’s yet-to-be-named nominee was labeled “lesser qual­i­fied,” a recip­i­ent of an affirm­at­ive action handout, and an “offens­ive” quota choice. These were not personal slights, as there was no person to whom they could be direc­ted. Instead, they cast asper­sions on groups of people—­wo­men and black people—and on the legit­im­acy of the confirm­a­tion process. The Senate hear­ing has no date, but the polit­ical theater began imme­di­ately. And the sensa­tional mix of race, gender, and hyper­par­tis­an­ship was all that was needed for the typical char­ac­ters to seek out the spot­light.

While the confirm­a­tion hear­ings may well have dramatic moments, race and gender are more likely to figure into the proceed­ings in subtler ways. At least that’s what preced­ent teaches us: that race and gender will dictate the types of ques­tions the nominee will be asked, the bulk of them fixated on topics typecast as women’s issues or black concerns.

In their 2011 paper “May It Please the Senate,” law professor Lori Ring­hand and polit­ical scient­ist Paul Collins analyzed all the ques­tions asked by senat­ors and responses given by nomin­ees in every Supreme Court confirm­a­tion hear­ing from 1939 (when Felix Frank­furter became the first nominee to be ques­tioned in a public hear­ing) through 2009 (ending with Sonia Soto­mayor). Ring­hand and Collins demon­strate empir­ic­ally “that women and minor­ity nomin­ees face a signi­fic­antly differ­ent hear­ing envir­on­ment than do white male nomin­ees.” When the nominee is a racial or ethnic minor­ity and/or a woman, the senat­ors tended to put aside the cordial chat­ter more quickly and get down to busi­ness, to ask more substant­ive ques­tions, and to focus more intently on the nomin­ee’s judi­cial philo­sophy and posi­tions on civil rights and crim­inal justice.

This last point is crit­ical. Schol­ars have long noted female and minor­ity candid­ates are often saddled with a “presump­tion of incom­pet­ence.” It is the sort of view that leads people to imme­di­ately declare such candid­ates lesser qual­i­fied, a posi­tion situ­ated snugly between the soft bigotry of low expect­a­tions and the overtly racist notion that a group is natur­ally inferior. Given that there are no consti­tu­tion­ally mandated qual­i­fic­a­tions and no impar­tial set of stand­ards by which to assess whether a Supreme Court nominee is suit­able for the bench, the presump­tion is not groun­ded in any object­ive eval­u­ation of the merits. Rather, the confirm­a­tion process is inher­ently subject­ive and suscept­ible to the winds of polit­ics.

As such, nomin­ees are qual­i­fied when the Senate says so, which means partis­an­ship and polit­ical ideo­lo­gies determ­ine whether responses to hear­ing ques­tions are deemed accept­able. And when a woman or person of color is in the hot seat—as was the case five times during the period Ring­hand and Collins examined in their original 2011 paper­—those nomin­ees’ views on racial and gender discrim­in­a­tion and their judi­cial philo­sophy tend to receive dispro­por­tion­ate atten­tion. Minor­ity nomin­ees (Marshall, Thomas, and Soto­mayor) were asked a third more ques­tions on their judi­cial philo­sophy than white nomin­ees, and female nomin­ees (O’Con­nor, Gins­burg, and Soto­mayor) were asked a quarter more than male nomin­ees. On crim­inal justice, minor­ity nomin­ees get more than twice as many ques­tions as white nomin­ees. Moreover, these effects were even more pronounced when the nomin­ees were ques­tioned by members of the oppos­ing party. And in the one instance to date when the nominee was a minor­ity woman (Soto­mayor), Ring­hand and Collins, along with polit­ical scient­ist Christina Boyd, observed in a 2018 paper that she “received a higher percent­age of judi­cial philo­sophy ques­tions than the aver­age for all other categor­ies nomin­ees to the Court—white, minor­ity, male, and white female,” with Repub­lic­ans asking her nearly twice as many ques­tions as Demo­crats on how she inter­prets the Consti­tu­tion.

•  •  •

So, what does this mean for the black woman who will soon face a confirm­a­tion hear­ing? It means she can expect to receive a dispro­por­tion­ate number of ques­tions from Judi­ciary Commit­tee Repub­lic­ans—all but one of whom are white men—on her judi­cial philo­sophy, issues of racial and gender discrim­in­a­tion, and crim­inal justice. And given the profes­sional histor­ies of the appar­ent top three nomin­ees—Brown-Jack­son, Kruger, and Child­s—the line of ques­tion­ing that might be most aggress­ively pursued for each nominee seems imme­di­ately obvi­ous.

Brown-Jack­son, a current federal judge on the D.C. Circuit Court, spent a couple of years as a public defender, served on the U.S Senten­cing Commis­sion, and had an incar­cer­ated family member.

Kruger, presently a justice on the Cali­for­nia Supreme Court, has notable decisions over­turn­ing death penalty sentences, protect­ing rights of the accused, and access to police bodycam foot­age.

And Childs, who is a federal district judge in South Caro­lina, has issued decisions that made absentee voting easier and recog­nized the consti­tu­tional right to same-sex marriage a year before the Supreme Court did, though her time repres­ent­ing corpor­a­tions in labor disputes has recently drawn some negat­ive atten­tion from progress­ives.

Consid­er­ing these profiles along­side the increas­ingly toxic polar­iz­a­tion of the parties and the cent­ral­ity of iden­tity polit­ics in our polit­ical discourse, ques­tions on such issues as affirm­at­ive action, voting rights, law enforce­ment prac­tices, and judi­cial activ­ism are likely to domin­ate. Though Repub­lic­ans will prob­ably tread care­fully in their ques­tion­ing to avoid feed­ing percep­tions of racial and gender intol­er­ance, the national stage that comes with these confirm­a­tion hear­ings can be catnip to those with pres­id­en­tial aspir­a­tion­s—such as Sens. Ted Cruz and Josh Hawley, both on the Judi­ciary Commit­tee. So the ques­tions on how the nominee applies the Consti­tu­tion to civil rights and crim­inal justice issues will surely be poin­ted and conten­tious at times.

What remains to be seen is how respons­ive the nominee will be to such ques­tions. In a forth­com­ing paper updat­ing their analysis, Ring­hand and Collins show that Donald Trump’s nomin­ees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—­dodged or declined to answer more ques­tions than any nomin­ees in the last fifty years. The Demo­crats’ edge in the Senate is razor-thin, so a respons­ive posture by the nominee in hopes of padding confirm­a­tion chances with a few Repub­lican support­ers in the Senate is more likely. But should she decline to answer more ques­tions than she responds to, we will see the extent to which a double stand­ard exists.

Assum­ing the nominee is success­ful, more consequen­tial than this confirm­a­tion hear­ing will be the historic moment when she is seated. Not only will it hold tremend­ous symbol­ism, partic­u­larly for the women forcibly excluded from the Fifteenth and Nine­teenth Amend­ments, it will be the first time in the nation’s history that the major­ity of justices are not white men: There will be four women justices, two black justices, and one Hispanic justice. While the ideo­lo­gical balance will not change—the conser­vat­ive side main­tain­ing its 6–3 advant­age—the Court’s legit­im­acy may well face new chal­lenges if, for example, contro­ver­sial opin­ions on civil rights are issued with white men compris­ing the dissent. Further, what will it mean if the progress­ive wing of the Court made up of three women—one black, one Hispanic, and one Jewish—is consist­ently on the losing side, their consti­tu­tional inter­pret­a­tion on issues of civil rights and crim­inal justice routinely defeated?

Long after the hear­ing has concluded and we have a Court that looks more like Amer­ica than it ever has, our newest Supreme Court justice will require the nation to confront a funda­mental ques­tion: Will the coun­try revere and protect our system of govern­ment when the face of demo­cracy is radic­ally differ­ent from its found­ing?