• Curt Levey

When Filling Breyer’s Seat, Biden Should Put Race & Gender Aside


January 27, 2022


The Committee for Justice released the following statement by its president, Curt Levey, on President Biden’s commitment to replace Justice Breyer with a black woman:


On Monday, the Supreme Court agreed to review the constitutionality of racial preferences in university admissions, signaling a likely end to the practice of selecting applicants based on their skin color. Yesterday, the White House moved in the opposite direction, as Jennifer Psaki announced that President Biden will stand by his promise to nominate a black woman when selecting a nominee to fill Justice Breyer’s seat on the Supreme Court.


That promise is more than a racial or gender preference. It is a narrow, rigid quota. It’s essentially a sign on the White House door saying “men and members of all other races need not apply.”


The Supreme Court has been clear that quotas violate the Constitution’s Equal Protection Clause and the federal statute banning discrimination in hiring. But let’s put legality aside and focus on why this quota is harmful.


For one thing, President Biden’s quota is not about helping minorities. In fact, it pits minority groups against each other, much like in the admissions cases before the Court, where Asian-American applicants are suffering the biggest disadvantage from race-based admissions. It is not clear why the Court needs a black woman more than its first Hispanic male or its first Asian or disabled appointee, for example (note that when Republicans were hoping Miguel Estrada would be the first Hispanic on the Court, Senate Democrats cut off his path by endlessly filibustering his nomination to the D.C. Circuit).


This is not a partisan issue. Presidents of both parties have made race or gender major factors in their selection of a Supreme Court nominee.


It is true that Biden has taken it a step further, limiting potential nominees to a narrower demographic category—excluding more than 90% of the legal profession—and announcing an inviolable quota. But regardless of degree, it is time to move beyond the "sordid business [of] divvying us up by race,” as Chief Justice Roberts has said and as the Supreme Court signaled Monday.


In that spirit, the Committee for Justice calls on both President Biden and future presidents to exclude no qualified person from consideration as a Supreme Court nominee based on their race, gender, or membership in any other identity group.


We understand the political temptation to appeal to this or that identity group by promising a Supreme Court nomination. But it is a particularly bad idea at a time when our nation is suffering from the division born of identity politics.


The more a president narrows his choices demographically, the more he has to compromise on other selection criteria, including legitimate qualifications. And the more the nominee is stigmatized as chosen because of something other than being most qualified.


Diversity on the Supreme Court is a positive, but it should and will happen organically as the number of talented women and minorities on the lower courts continues to increase.


Justice Breyer has repeatedly expressed his hope that the legitimacy of the Supreme Court be protected against the perception of politicization. That goal can best be served if Biden and future presidents select nominees based solely on their qualifications.