This February, which is also Black History Month, there is a vacancy on the United States Supreme Court. Justice Stephen Breyer, who has been sitting on the Court for nearly 30 years, announced his retirement a few weeks ago – giving President Biden his first opportunity to fill a vacancy on the nation’s highest court. As a candidate, Biden pledged to appoint a black woman to the next vacant seat on the Court. Perhaps galvanized by Black History Month, it appears that Biden plans to make good on that promise.
I cannot help but wonder what Clarence Thomas – the second Black justice in the Court’s history, and its most conservative current member – would think of Biden’s promise. Thomas has been the Court’s most outspoken critic of using race as a factor in virtually any scenario. He has excoriated affirmative action policies over the years.
In a concurring opinion in Adarand Constructors, Inc. v. Peña, Thomas wrote: “In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice.” To a man like Thomas – one who attended one the nation’s most exclusive law schools, but whose abilities as a jurist were unfairly questioned on the grounds that he may have benefited from affirmative action early in his legal career – it may seem unfortunate that some will inevitably view his newest colleague’s appointment with an asterisk.
What gets lost in debates over affirmative action and political posturing by both parties is that there are countless talented black female candidates who are unquestionably qualified to sit on the highest court in the land based on their talents and irrespective of their race or gender. Given this large talent pool, it is certain, and rightly so, that a black female jurist will – on the basis of her merit – soon sit on the Supreme Court. Two of the candidates most often mentioned as Biden’s potential nominees – Judge Ketanji Brown Jackson and attorney Leondra Kruger – are eminently qualified and would be worthy nominees under any circumstances, even if Biden had not so severely limited the pool from which he would choose his nominee.
Government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice.
Judge Jackson is certainly qualified on paper. She holds degrees from Harvard University and Harvard Law School, clerked for three federal judges (including Justice Breyer), and has been a judge on both the district court and court of appeals for the District of Columbia. Jackson also served as a public defender, an appellate litigator, and was confirmed by the Senate to be Vice Chair of the United States Sentencing Commission.
Ms. Kruger is arguably even more qualified. Although she would become the youngest sitting justice, at 45 years old, Kruger has significant experience. She has a stellar academic record, clerked for Justice John Paul Stevens, worker in private practice and as an assistant professor at University of Chicago Law School. Most significantly, she has served as Principal Deputy Solicitor General of the United States and as an Associate Justice on the Supreme Court of California.
Both of those women, in addition to the others Biden is considering, are extraordinarily qualified by any traditional measure: both are intelligent, talented, experienced jurists. There is every reason to believe either might earn a place on the Supreme Court, without Biden artificially limiting the number of candidates under consideration. All indications are that Justice Thomas, who recoiled at the notion of his having been given special treatment, would not want to be appointed in that manner. He might feel that his selection had an unfair asterisk next to it because, despite his immense talent, an immutable characteristic like race played a role in his selection. When Joe Biden inevitably congratulates himself for selecting a black female justice, people should remember that whoever he nominates also deserves to be there because of her experience, skills, and intellect.
This Black History Month, I hope that African Americans like Clarence Thomas,Thomas Sowell, Glenn Loury and countless others – including whoever President Biden nominates to the Supreme Court – are also commended for their indelible contributions to this country. The Washington Post recently dismissed Clarence Thomas as a jurist whose thinking is in line with that of “white conservatives.” Maybe Thomas is just a conservative, and his race has nothing to do with his thinking.
Both of those women, in addition to the others Biden is considering, are extraordinarily qualified by any traditional measure: both are intelligent, talented, experienced jurists.
Black conservatives like Thomas and Sowell are often omitted from museum exhibits or lists honoring great African Americans. I hope that during this Black History Month, all African Americans can be equally acknowledged for their contributions to America rather than solely those who align ideologically with the President.