After Associate Justice Stephen Breyer announced his retirement, speculation immediately began on who Biden would appoint to replace him on the Supreme Court. Breyer endured immense pressure from the left to retire in order to give Biden the opportunity to appoint an Associate Justice and offset the possibility of Breyer living long enough that a Republican president would be in a position to replace him, thereby cementing even further the conservative majority on the Court for decades to come.
Well, Breyer is retiring, and Biden has announced that the person he nominates will be the first African American woman to be nominated to serve on the Supreme Court. Biden’s announcement has stirred a great deal of controversy because it suggests that whoever he nominates will be considered first and foremost on the basis of skin color and gender. This is much like his promise to choose a woman as Vice President and, following the riots of 2020 after George Floyd’s murder, it became clear that Biden’s only option was to choose a Black woman. His choice of Kamala Harris, a former rival for the Democratic nomination for president who received so little support among Dems that she bowed out even before the first primary, has been almost universally acknowledged as a poor choice.
Biden has done whomever he nominates a severe disservice. Regardless of qualifications and experience, whomever he nominates will now be hampered by the impression that she was nominated because of her gender and skin color. When George H. W. Bush nominated Clarence Thomas, everyone knew he was chosen at least partly because he was a Black man replacing Thurgood Marshall, the first Black to serve on the Supreme Court. But Bush never said that he chose Thomas in part because he was Black, though everyone knew that Bush had to choose a Black man to replace Marshall. In long decades ago, it was understood that there would be a “Jewish seat” on the Supreme Court. So, whenever a Jewish justice died or retired, a Jewish judge was nominated to replace him. This was understood, though not stated. What Biden has done is said the quiet part out loud, casting a shadow on whomever he nominates and reducing his nomination to a matter of virtue signaling.
In a matter of only a few years, the United States has turned from a country moving steadily, if sometimes only limping, toward a future where all people would be considered on the basis of the content of their character and not on the basis of their skin color, to one where skin color seems to matter most, and this from the political side that constantly preaches diversity, equity, and inclusion. We now have separate graduation ceremonies for people of color, separate college dorms for people of color, separate spaces and restaurants where only people of color are allowed, jobs that are only open to people of color. Now, the highest Court in the land has been infected with this misplaced priority of choosing candidates on the basis of gender and skin color.
Biden could have simply said that he intended to nominate the most worthy and qualified candidate, and then chosen a Black woman for the position. No one doubts that there are ample numbers of Black female jurists in our country who are well qualified to sit on the Supreme Court. No one would have questioned Biden’s motives in choosing a well-qualified Black woman. Now, however, there will always be a cloud over this person’s head. Why are you here? What qualifies you? Are you really the best candidate for the job, or were you chosen simply on the basis of your gender and skin color? No one deserves that, least of all one who will be in a position to make the difficult choices that will impact so many for generations to come. In his usual clumsy, clueless way, Biden has placed a burden on the back of whomever he nominates that will only add to the perception that the Supreme Court is being transformed into a political body rather than an unbiased arbiter of justice.
That’s too bad. This could have been a historic moment for the Court. Instead, it will always have something of a sour taste to it.
Be Christ for all. Bring Christ to all. See Christ in all.