Source: Dennis L. Weisman

President Biden ignited a political firestorm last month when he announced that he would fill the Supreme Court vacancy created by Justice Stephen Breyer’s resignation with a Black woman. This was reportedly the result of a deal (political quid pro quo) that candidate Biden struck with Representative James Clyburn (D-South Carolina) in return for delivering the Black vote in the South Carolina primary.

President Biden did a huge disservice to both the integrity of the selection process in nominating justices to the high court and to the candidate that is ultimately chosen. The fact that Biden would enter into such a pact with Clyburn strongly suggests that these vacancies are for sale. It is worth noting that a former governor of Illinois (Rod Blagojevich) was impeached, convicted, and removed from office by a unanimous vote of the Illinois Senate (59 – 0) and spent considerable time in federal prison for “selling” the Senate seat that was vacated when Barack Obama was elected president. It matters not whether the bribe is denominated in dollars or votes.

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The disservice to the potential nominee is that regardless of her qualifications and subsequent performance on the court she will have great difficulty shaking the less-than-complimentary label of the “affirmative-action justice.” The necessary implication is that but for being a Black woman she would never have been nominated to serve on the court. This fact alone can be expected to endogenously and adversely affect the quality of the candidates that are willing to accept the nomination.

President Biden could have avoided the entire controversy by simply allowing the selection process to move forward in a comprehensive and objective manner without preordaining the outcome. He may have ultimately chosen a Black woman as the nominee, at which time he could have explained to the American people his reasoning for doing so. The consensus view may well be that the nominee was likely to be a Black woman, the qualifications of the other candidates notwithstanding, but preserving the integrity of the process (or at least the appearance thereof) is paramount. What is more, the fact that both the race and gender of the nominee were determined by the pact with Clyburn does not attest to Biden’s unwavering commitment to diversity, but to his unbridled (and unprincipled) ambition to be elected president.

Virtually every decision involves tradeoffs of one kind or another and nominees for the high court are no exception. As an example, suppose that there are both objective qualifications and another attribute deemed desirable for Supreme Court justices. The objective qualifications likely include the reputation of the law school from which the nominee graduated, class ranking, quality of judicial decisions, the infrequency of decisions being overturned, deference to the Constitution, legal scholarship reflected in law review articles and other writings, and American Bar Association ratings. The other attribute may be whether the nominee contributes to diversity on the court, broadly defined. The diversity attribute is multidimensional in the sense that it may transcend race, gender, and sexual orientation to include diversity of thought, socio-economic background, and various life experiences.

Assume for the sake of argument that President Biden’s nominee ranks first in the pool of candidates in terms of objective qualifications. The overwhelming majority of the American people would likely concur that placing a Black woman on the high court would add an important dimension to the court’s deliberations that it does not have at the present time. In this particular case, there is no trade-off between objective qualifications and diversity so the choice is seemingly without controversy, at least among fair-minded individuals.

Suppose now that Biden’s nominee ranks second in terms of objective qualifications and the individual that ranks first is a White (heterosexual) male. The majority of the American people would likely still concur with the president’s choice even though it entails a tradeoff between objective qualifications and diversity. This tradeoff (opportunity cost) represents the price that the American people would be willing to pay for increased diversity in terms of objective qualifications foregone. It is conceivable, although less likely, that the same sentiment would prevail if the President’s nominee ranked third in terms of objective qualifications.

The real controversy arises when the President’s nominee is ranked further down the list because the price that is being paid for diversity in terms of objective qualifications foregone is significantly higher. But note that the president has gone even further. His statement that he would nominate a Black woman to the Supreme Court full stop means that the President is willing to pay any price for increased diversity — a choice that only 23% of those surveyed in a recent ABC New-Ipsos poll agree with.

If we stipulate that diversity among the justices on the Supreme Court is an important consideration, then it necessarily follows that we must also be willing to recognize that the “optimal” nominee for the high court may not be independent of the current composition of the court, ceteris paribus. That is to say, putting a Black woman on the high court would be desirable provided that the price of doing so (as measured in terms of objective qualifications foregone) is not inordinately high. This suggests that the American people value diversity, but unlike the president they are not willing to pay any price, no matter how high, to achieve it.