By WAYNE O'LEARY
The awkwardness of identity politics Democratic-style has come back to smack President Biden and his administration full in the face and create a mini political crisis where none previously existed. At issue is the Supreme Court opening created by the pending retirement of Justice Stephen G. Breyer, a leftover Clinton appointee, whose seat Biden will now seek to fill.
Putting aside for the moment whatever roadblocks Senate Minority Leader Mitch McConnell will throw in front of any Democratic nominee to slow down and frustrate the process, the fact remains that the president is faced with a problem of his own making dating back to the 2020 campaign. Biden is in a box. He mortgaged his first Court selection to South Carolina’s Democratic political boss Rep. James E. Clyburn, whose loyal Black supporters pushed Biden across the line in that state’s pivotal presidential primary; now Clyburn is calling in payment for his crucial endorsement, the price Biden readily agreed to at the time — a Black, female appointment to the high court at the earliest opportunity.
Clyburn not only wants a Black woman justice, he’s already submitted his preference, further tying the president’s hands. The anointed choice is J. Michelle Childs, a South Carolina US district court judge and longtime Clyburn ally, who also has the backing of state Republicans (including GOP Senators Lindsey Graham and Tim Scott); it appears they would consider her a safely “bipartisan” (read: sufficiently conservative) selection.
If picked, Childs promises to continue what has become a party tradition in recent decades: the naming by Democratic presidents of relatively conservative justices to the high court, a pattern begun under Bill Clinton and carried on by Barack Obama. Childs’ sponsor, Rep. Clyburn, is a centrist Democrat — some would say a conservative — who would never counsel Joe Biden to pick an out-and-out liberal. His previous foray into national party politics was joining the successful effort last year to deny Bernie Sanders ally Nina Turner a congressional nomination for Ohio’s heavily black Cuyahoga County in favor of an establishment alternative.
At this writing, Biden’s Court selection remains to be announced, but if recent experience is any guide, it won’t be anyone especially progressive. Another leading contender, California State Supreme Court Judge Leondra Kruger, is described by The Economist as somebody who has often sided with conservative jurists. Other possible choices have similarly “moderate” records.
Over the last 50 years, Democratic presidents have submitted five Supreme Court nominations (Ruth Bader Ginsburg, Stephen Breyer, Sonya Sotomayor, Elena Kagan, and the non-confirmed Merrick Garland), none of them left-leaning in historical terms and each appearing “liberal” only in comparison to their Republican-appointed contemporaries. None of these Democratic jurists, furthermore, rank anywhere close ideologically to the most aggressively progressive Court members of the past century.
In 2016 and again in 2018, academic Court analysts, led by Prof. Lee Epstein of Washington University in St. Louis, positioned the modern-day justices along a left-right spectrum and concluded, based on their decisions, that only two, Sotomayor and Ginsburg, truly qualified as liberals, while Kagan and Breyer fell into the Court’s ideological middle, earning the label “median” justices. Notwithstanding Ginsburg’s media-driven reputation as a liberal feminist icon, Sotomayor was the furthest left of the group, with Breyer furthest right, followed by Kagan.
The ill-fated Garland, had he joined the Court, would have fallen close to the more conservative Breyer. Breyer, it should be noted, exhibited an annoying tendency to align himself with GOP members on questions involving corporations and business interests, a fact that should mute his departure celebrations; he voted the conservative position on cases over 40% of the time during his career.
The foregoing is another way of saying that Biden’s predecessors, Clinton and Obama, were not primarily motivated to seek out crusading liberal jurists. For both of them, the top priority appears to have been satisfying the needs of gender-based identity politics. Things are no different for Joe Biden in 2022 except that, in his case, race has been added to the mix.
Ideally, the president should be looking for the best possible legal mind available and, since he represents a liberal party presently submerged by right-wing jurisprudence, the most progressive confirmable nominee obtainable to help redress the balance. Sadly, however, legal philosophy doesn’t appear to be remotely a part of the White House calculations.
Instead, it’s all about racial politics. Whichever Black woman is selected will serve to pay off James Clyburn and his nonwhite constituency. To be fair, Republican presidents follow the same course. Recent Court addition Amy Coney Barrett was obviously picked in part to pay off the GOP’s conservative White evangelicals. Supreme Court nominations have regrettably become an occasion for stroking the respective party bases and massaging their group identities.
An ABC News/Ipsos opinion poll published on Jan. 30 suggested the public is far ahead of the politicians when it comes to the makeup of the Supreme Court. Three quarters (76%) of those interviewed agreed the president should consider “all possible nominees” for the high-court opening and not just Black women; those favoring a restricted selection process were a distinct minority.
It should be stressed that competence and credentials are not the issue here. As far as interested observers can tell, the Black women candidates mentioned are qualified for the bench. But the fact is so are representatives of other deserving groups lacking insider status, who’ve been neglected. Black women comprise approximately 6% of the US population; that leaves 94% of Americans, including many whose race or ethnicity has never been represented on the Court, among them Native Americans, Asian Americans, Mexican Americans, Polish Americans, Greek Americans, Franco Americans — to name just a few.
Or take religion. At present, the Court is made up entirely of Catholics and Jews. But what about Protestants, whose last representative, David Souter, retired in 2009? And what about unblievers? Atheists and agnostics comprise 20% of the population. Don’t they deserve a sitting justice? Surely, Muslims should be represented as well. It’s obvious that if we wish, identity politics as regards the law can be carried to absurd extremes.
It’s not a question of what racial-ethnic-religious affiliation a prospective justice has, but what their thought process is, how they view the law, and how they would fairly apply the Constitution to modern life. Someone tell Joe Biden.
Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.
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