For the past several decades, litmus tests have been used to judge the fitness of Supreme Court nominees, regardless of their experience or overall judicial ideology.
Roe v. Wade has been used to judge the fitness of every Supreme Court nominee for the last 30 years. Adherence to its precedent has become a prerequisite for a smooth affirmation, but any judge who is perceived as too cavalier about overturning it can expect a grueling floor debate in the Senate and a near-solid party-line vote when it comes time to confirm.
Now, race will more than likely become a fixture in future Supreme Court nominations.
President Joe Biden announced that he would make good his campaign promise to nominate a black woman to replace retiring justice Stephen Breyer. Some scholars have rightly pointed out that this is racist by ignoring merit in favor of the color of a nominee’s skin. So far, at least one has faced the full wrath of the intersectional crowd, but he will almost certainly not be the last before Biden’s nominee takes the bench.
It’s also unfair to the eventual nominee, who will know that she was chosen and confirmed by a cynical calculus that was not employed for her fellow justices. African American women make up about three percent of all sitting judges in the U.S., according to the Center for American Progress. From a numbers standpoint, Biden, by implementing his racial criteria, is basically telling his eventual nominee that she is the top choice from three percent of sitting judges. If he had not said anything about factoring in race, he could have maintained the implication that she is the top choice from 100% of judges. By bringing in race, Biden is unnecessarily degrading his nominee’s achievement.
Though the short term consequences of this appointment are egregious, the long term implications of Biden’s decision to base his choice on race will do far more damage to the federal judiciary.
Biden’s guarantee places the expectation on every future president, Republicans included, that they will similarly take the relative diversity of the court under consideration when choosing a nominee.
Once the first black woman judge is appointed, leftists will almost certainly move on to the first East Asian, then the first Indian American, then the first Middle Eastern, the first gay justice and the first trans judge.
It is curious to note that the president is about to bring affirmative action to the Supreme Court just as it is preparing to hear one of the biggest cases on the practice at elite universities in years. With the clear conservative majority of the current court, it could strike a major blow against affirmative action.
But it would seem the immutable characteristics of the judges will become immutable criteria for their admittance to the nation’s highest court.
For the last few years, the Supreme Court has represented one of the few remaining institutions where Republicans can remain competitive with Democrats. They can’t compete in Hollywood, Silicon Valley, college campuses, the legacy media or the federal bureaucracy. They’re rapidly losing the military with Secretary of Defense Lloyd Austin’s crusade against conveniently vague “extremism” in the ranks. Republicans can’t capture or hold a large enough majority in Congress to achieve lasting legislative victories, so the Court has seemingly become the last relibale buttress against the radical change leftists envision for the country.
This new expectation, and the pressure that will inevitably be placed on every future president to follow Biden’s example, may be the death knell of that hope. Because, true, Republican presidents can choose conservative minority judges to fill the seat, but it becomes a numbers game. Republicans probably won’t have the numbers in the Senate to confirm another conservative firebrand like Scalia or Thomas, especially with likely opposition from moderate Republican senators like Lisa Murkowski and Susan Collins. The abortion litmus test represents a formidable barrier to entry for right-wing judges that few have been able to overcome.
Additionally, Republican presidents have the unfortunate habit of nominating justices who turn out to be liberal. Earl Warren was nominated by Eisenhower, John Paul Stevens was nominated by Gerald Ford, David Souter was nominated by George H.W. Bush, and Harry Blackmun, the author of the majority decision in Roe v. Wade, was nominated by Richard Nixon.
The narrowing field of nominees available to a Republican president because of considerations on issues like abortion is strangled even further when race is foisted up as another guardrail. The narrower the field, the more likely a Harry Blackmun-level mistake will be made and the more likely it will have dire consequences for originalism.
The very notion that race should be considered as part of the criteria for a Supreme Court Justice is only one part of the decades-long transformation of the court into the one thing it was never supposed to be: partisan. Whenever the Supreme Court comes up in the media, it is almost always in the context of its liberal-conservative makeup, but it’s not supposed to be that way. The Court is supposed to be insulated from public opinion and generally stay out of Hill politics as much as possible. But that’s not how it works in today’s world where everything is inherently, first and foremost, political.
It stretches back at least to FDR’s plan to stack the court with liberal justices who would rubber stamp the New Deal.
As we have seen with the last three Supreme Court nominations under former President Donald Trump, Biden’s nominee will most likely receive a party-line vote in the Senate. The GOP doesn’t plan to put up much of a fight against Biden’s nominee since they can’t do much to block her, according to The New York Times, but this is a mistake.
Republicans can’t afford to let race-based SCOTUS appointments become precedent, for the sake of meritocracy and their own future strategic position. If they don’t fight as much as possible to deny Biden’s appointment, it will prove that they lack sufficient political forethought and represent a grave blow to the conservative judicial movement.
Hayden Daniel is the opinion editor at the Daily Caller.