Of the 115 human beings that have served as Supreme Court Justices since the founding in 1789 108 of them have been White males. Yes, that leaves exactly 7 non-white male Justices in the entire 233 year history of the Supreme Court: Thurgood Marshall was the first African-American (1967), then Sandra Day O'Connor the first woman (1981), followed by Clarence Thomas (1991), Ruth Bader Ginsberg (1993), Sonia Sotomeyer the first Hispanic on the court (2009), Elena Kagan (2010) and Amy Coney Barrett (2020).
Now we know that it has been confirmed President Joe Biden has selected Ketanji Brown Jackson to the court and upon confirmation in the Senate she will be the first African American woman on the court.
It was no surprise then that when the news came down that Supreme Court Justice Stephen Breyer was retiring, after more than 27 years, the conversation quickly pivoted to President Biden's campaign trail pledge that he would nominate a Black women to the Court if given a Supreme Court nominee. While many applauded this and demanded Biden keep his word, others saw this as identity politics and raised the question of if Biden's pledge in and of itself is racist. Many conservatives called it discriminatory, an unfair quota or in the case of Missouri Senator Josh Hawley accused Biden of being "obsessed with race and gender". It is none of those things.
As a general rule I am not one who likes to unnecessarily inject race into situations where they aren't warranted. I can understand the general consensus that Biden should pick the best Justice for the job not simply the best Black Justice; however that simple notion ignores the reality of Supreme Court nominations. The President takes into consideration a number of factors when considering a Supreme Court Justice; Despite what many would want you to believe experience and qualifications, are NOT chief among them. Surprising to many there are no requirements for becoming a Justice at least according to the constitution. Justice James Byrnes, appointed in 1941 by Franklin Roosevelt, had never went to law school (he had not in fact not even graduated high school) while Justice Robert Jackson, also appointed in 1941, attended but never graduated law school and current Justice Elena Kagan was never a judge prior to her appointment.
No Justice, in the last few decades at least, has been chosen solely or primarily based on merit. They have been political appointments made to appease the party of the nominating President. The closest we get to a middle ground of sorts is when the other party also controls the Senate but it recent years (just as Justice Beyer has done) retiring Justices have made sure their party controls both the Presidency and the Senate so we end up with a very polarizing Justice who was selected primarily based on their ideology not qualifications. That is not to say they were not qualified, they all were, but so were hundreds of other Judges who were never considered because they did not have the same partisan beliefs or the party was unsure if they had the same partisan beliefs (nobody wants another Justice David Souter who was appointed by George Bush retired under President Obama and voted constantly with the liberal wing of the Court).
Justice's have also gotten younger as the decades have gone by and this is not by coincidence. It could be argued that more experience on the bench would equate to a more experienced or better qualified Justice but recent nominees like Amy Coney Barret or Clarence Thomas had very little experience on the bench when they were nominated to the highest court, Kagan as mentioned had none. What they did posses, outside of outspoken beliefs that were very much in line with their Party's priorities, was relative youth. Barret was 48, Thomas was 43 and Kagan 50. Brown-Jackson is 51, young enough that she can ostensibly shape at lest 20 years or more of future law. In the case of Clarence Thomas he was replacing the then only African-American Justice Thurgood Marshall, so does anybody really believe his race wasn't a factor in that decision? Same with Amy Coney-Barrett replacing Ruth Bader Ginsburg it was an open secret (that Trump shared out loud) that after appointing two White males, he was going to nominate a woman to replace Ginsburg.
So to put this all in context if you accept the conservative argument it is perfectly fine to consider: ideology, age acceptable, even gender is OK but race absolutely not unless it's for a Republican nominee like Thomas. That's a ridiculous, hypocritical position to accept. You can also throw out the qualified argument, Kentaji Brown-Jackson as a judge on the United States Court of Appeals for the District of Columbia, a former law clerk to Justice Breyer, a former public defender, private practice litigator and a graduate of Harvard Law School cum laude, she is more than qualified (likely more so than Coney Barrett, Thomas or Kagan all currently on the Supreme Court) to serve on the Supreme Court.
Biden was elected in large part due to African-American women he received over 90% of their vote. African-American women were also the group that pushed democrats to victory in the Georgia senate runoff elections that secured them a 50-50 Senate (with African-American female vice-president Kamala Harris breaking any tie votes). It is only right the he would reward them for their loyalty by trying to balance the racial and gender makeup of the court to better reflect the reality of the United States we all live in.
Congratulations Justice Brown-Jackson!
