Supreme Court should look more like America, or so Republicans once thought

Following President Biden’s announcement that he would appoint a Black woman “with extraordinary qualifications, character, experience, and integrity” to replace Justice Stephen Breyer on the Supreme Court, Fox News performance artists and Republican politicians whipped out their dog whistles.

“Biden didn’t mention the Supreme Court nominee’s legal qualifications, judicial philosophy or ability to perform one of the most important jobs in the country,” Tucker Carlson declared. “All he said was she’s going to be Black and she’s going to be female because to him, that’s all that matters.” Given Biden’s statement, Carlson added, George Floyd’s sister was “the obvious choice” for the High Court. “She is not a judge or a lawyer or whatever, but in this case, who cares. Clearly that’s not the point anymore — the law stuff.”

Limiting consideration to persons of a single race or gender, Sean Hannity opined, might be “unlawful” or “unconstitutional.” Sen. Ted Cruz (R-Texas) called it “offensive. You know, you know, Black women are, what, 6 percent of the population. He’s saying to 94 percent of Americans, ‘I don’t give a damn about you, you are ineligible … If you’re a white guy, tough luck. If you’re a white woman, tough luck. You don’t qualify.’”

Sen. Josh Hawley (R-Mo.) warned Biden not to select a “woke activist” who will bless his “campaign against parents, his abuse of the FBI, his refusal to enforce our immigration laws, and his lawless vaccine mandates.”

Emphasizing that “to the degree President Biden received a mandate, it was to govern from the middle,” Sen. Mitch McConnell (R-Ky.) cautioned against “outsourcing” the choice of a nominee to “the radical left.”

Unlike Sen. Lindsay Graham (R-S.C.), who put himself “in the camp of making sure the court and other institutions look like America,” these white men do not mention that since 1789, 108 of the 115 Supreme Court justices have been white men. They seem not to have considered the possibility that a Black woman could be extraordinarily well-qualified to serve as a Supreme Court justice.

Nor have they acknowledged that Biden is one of many presidents, Republican as well as Democratic, to search for a Supreme Court nominee from a specific demographic group.

A few weeks before the 1980 presidential election, Ronald Reagan declared: “It is time for a woman to sit among the highest jurists. I will also seek out women to appoint to the federal courts in an effort to bring about a better balance on the federal bench.” On Aug. 19, 1981, President Reagan nominated Sandra Day O’Connor to be the first woman on the U.S. Supreme Court. O’Connor was confirmed by the Senate, 99-0.

White House Counsel Peter Wallison also revealed that before nominating Antonin Scalia to the court, Reagan asked if he (Scalia) was “of Italian extraction.” Displaying what Wallison deemed “the usual American instincts,” the president declared, “We don’t have an Italian American on the Court, so we ought to have one.”

In 1991, President George H.W. Bush insisted that race would play no role in his selection of a nominee to replace Thurgood Marshall, the first Black justice on the Supreme Court. In a semi-candid moment, however, an administration spokesman told reporters that Clarence Thomas got the nod because of “a semiconscious sense … that this was a black man to be replaced.” The aide then backtracked: “Strike that. He was the best person.” And, as Jonathan Chait has recently written, “it would take heroic levels of delusion” to believe that Thomas (none of whose opinions during his brief tenure as a federal appeals court judge “were of great moment,” according to conservative constitutional expert Bruce Fein) “was selected on the basis of his career accomplishments.”

During the 2016 presidential campaign, Donald Trump pledged that all of his judicial nominees would be “picked by the Federalist Society,” an organization for right-wing and libertarian lawyers who are certainly not interested in governing from the middle. In fact, it’s worth noting, all six conservative justices now on the court have ties to the Federalist Society and all six are Catholics, not at all a court that looks like America.

Days after the death of Justice Ruth Bader Ginsburg, President Trump announced, “I will be putting forth a nominee next week. It will be a woman — a very talented, very brilliant woman. We haven’t chosen yet, but we have numerous women on the list.” When he named Amy Coney Barrett, in a COVID super-spreader event at the White House, Trump boasted that she would be “the first mother of school-aged children ever to serve on the Supreme Court.” The main reason “I favor Barrett is the obvious one,” wrote Ramesh Ponnuru, editor of the National Review, “She’s a woman.”

Although, alas, they, too, often used racial, ethnic, and gender-based dog whistles, Reagan, Bush 41, and Trump were right to want the Supreme Court to look more like America. And to act affirmatively to make it happen.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”