Biden’s Imprudent Pledge to Nominate a Black Woman to SCOTUS

President Biden has pledged to nominate a black woman to the Supreme Court if he gets an opening.  Using race and sex to select SCOTUS Justices strikes me as somewhere between imprudent and perverse.  What happened to the idea that the selection should be based on experience, knowledge of the law, temperament, discipline, and fidelity to the text of the Constitution?  What do your skin color and your body parts have to do with it?

The answer should be, nothing.  But because Biden is now immersed in identity politics, which is bad enough, he how wants to plunge us into identity law, which is even worse.  This is not to mention that his criteria would limit the nominee pool to six percent of the population, pre-emptively dismissing ninety-four percent.  Does that seem smart?

Fifth Circuit Judge James C. Ho has some thoughts.

Testifying before the House Judiciary Committee recently, Judge Ho had this to say:

Once everyone has had full and fair opportunity to be considered, you pick on the merits. Both the Constitution and the Civil Rights Act make clear that it is wrong to hire people based on race.

That’s the law for a wide range of jobs. But it would be especially wrong to select judges based on race.

It is true that I am the only Asian American on my court. I’m also the only immigrant on my court.

But I would never suggest that a wise Asian would, more often than not, reach a better conclusion than a white judge. That would be antithetical to our legal system, and poisonous to civil society. No one should ever assume that I’m more likely to favor Asians or immigrants or anyone else—or that my colleagues are less likely to. . . .

I don’t say this because I think race is no longer an issue in our country. I’ve received racist hate mail and racially disparaging remarks because of positions I’ve taken in my career. I’ve been treated differently because of who I’m married to. And I also remember, back in high school, my college admissions adviser telling me that my grades, SAT scores, and activities were all strong enough to get me into my top choice of schools—if I wasn’t Asian.

Now, I’m not saying any of this here to complain. Whatever negative experiences I’ve had, they pale in comparison to my many blessings living in this great country. I was not born an American. But I thank God every day that I will die an American.

My point is just that I don’t come to my views because I think racism is behind us. Rather, I come to my views precisely because racism is not behind us. The last thing we should do is divide people by race. The last thing we should do is suggest that the racists are right. We don’t achieve equality of opportunity by denying it to anyone—we achieve it by securing it for everyone.

So make no mistake: It would be profoundly offensive—and un-American—to tell the world that you’re restricting a judgeship to members of only one race. It’s offensive to people of other races. And it’s offensive to people of that race—because you’re suggesting that the only way they’ll get the job is if you rig the rules in their favor.



5 Responses

  1. Douglas Berman says:

    I believe lawyers only represent about 0.4% of the US population, and I suspect there are lots of people in the other 99.6% with the kinds of “experience, knowledge of the law, temperament, discipline, and fidelity to the text of the Constitution” that could make them great Justices. Would you say it is foolish to be “pre-emptively dismissing” 99.6% of the population by only looking for lawyers to fill SCOTUS seats? On this topic, I have always been a fan of Adrian Vermeule’s advocacy for more “lay justices”:

    Heck, there are less than 200 federal circuit judges, which is less than 0.00001% of the population, and yet Prez Trump made all three of his SCOTUS selections from this tiny pool, seemingly dismissing more 99.999% of the possibilities. Are you calling that dumb, too?

    Of course, I am just having some fun with numbers here, and I actually agree that Prez Biden’s commitment to diversifying the Supreme Court is poorly framed. I am especially hopeful that he will pick persons with more diverse legal experiences than the all-too-usual DOJ/federal judiciary pipeline that I fear has sometime served to narrow the Court’s views on what matters merit its attention.

  2. Steve Milani says:

    I understand what Biden is doing, there is a historic lack of diversity on the supreme court bench and he wants to help change that. I also get where you are coming from, there was no need to state his intentions, it just sounds like pandering. Biden could stay silent, appoint who ever he wants for whatever reason he wants and no sane person would accuse him of appointing a justice on the basis of race or sex.

    • Bill Otis says:

      I’ve often stressed the need for lawyers to be more candid and forthcoming than they are, so it’s time for me to confess that I’m no fan at all of diversity. Indeed, I want a one-race Supreme Court — namely, Clarence Thomas and eight Thomas clones.

      • Steve Milani says:

        That would certainly simplify oral argument…

        • Bill Otis says:


          Yes, an argument with no questions is simple but unnerving. When, in the olden days, I would argue before the Fourth Circuit, the judges would ask questions just to be polite. When they’re saying nothing at all, it’s a pretty good sign that the case is already decided and it’s time for you to sit down.

          P.S. Every once in a while, I would get down to your neck of the woods in Abingdon (Widener’s old chambers), but it was a goodly drive from my base in Alexandria.