With the retirement of Supreme Court Justice Stephen Breyer, President Joe Biden was immediately challenged by Democratic members to make good on his pledge during the 2020 presidential campaign to only consider black females for his first vacancy on the Court. When he made that pledge, some of us raised concerns that he was adopting a threshold racial and gender qualification for the Court that the Court itself has found unconstitutional or unlawful for admissions to schools or private employment. I raised the same concern with Breyer’s announcement in a column that was immediately challenged by some (including the New York Times) who insisted that Ronald Reagan made the same pledge to only consider a woman for his first vacancy. While it is always interesting to watch liberals citing Reagan as authority, the claim is misleading and indeed the Reagan example shows why Biden’s pledge was both unprecedented and unnecessary.
Notably, these critics do not contest that the Court would declare this threshold exclusion to be unlawful for any school or business. Instead, they insist that past presidents have also pledged diverse selections. The historical claims, however, fudge the facts a bit. Past president have pledged to seek diverse nominees but did not exclude candidates based on their race or gender.
The Biden Pledge
In his debate with Bernie Sanders, Biden made two pledges to voters and asked his opponent to do the same to nominate only a black woman for the next open Supreme Court seat and to choose a woman as his vice president. Notably, Sanders avoided such a categorical promise to exclude any male or non-black candidates from consideration.
As previously discussed in columns, the Supreme Court has repeatedly rejected such threshold exclusions on the basis of race or gender as raw discrimination. In 1977, the Court ruled in Regents of the University of California v. Bakke, that affirmative action in medical school admissions was unconstitutional. The justices declared that preferring “members of any one group for no reason other than race or ethnic origin is discrimination for its own sake” while adding that “this the Constitution forbids.”
Biden’s controversial use of racial and gender criteria will only grow in the coming months as the Supreme Court considers two new cases involving racial preferences in college admissions. Those cases may now be heard before a Court with one member who was expressly selected initially on the basis of not a racial preference but a racial exclusionary rule.
The response to this objection was fast and furious. Various commentators insisted that Biden did exactly what Reagan did in 1980 when he pledged to appoint a woman to the Court. The comparison, however, shows the opposite. Reagan did not exclude anyone other than women in being considered while making clear that he wanted to give one of his vacancies to a female candidate.
The Reagan Pledge
On Oct. 15, 1980, Reagan declared that “I am announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find. … It is time for a woman to sit among the highest jurists.”
Notably, it was Jimmy Carter who pounced on that pledge as creating a threshold gender criteria. Others noted at the time that Reagan was simply pledging that he would select a woman in “one of the first Supreme Court vacancies” rather than the first vacancy. Indeed, when a vacancy did arise, aides told the media that there was “no guarantee” that he would select a woman.
Reagan never pledged to only consider women and in fact considered non-female candidates for the first vacancy. One of the leading contenders was Judge Lawrence Pierce, an African American trial court judge. Newsweek and other media sites listed an array of males being actively considered including Robert Bork, Dallin H. Oaks, Malcolm R. Wilkey, Philip B. Kurland, and Edwin Meese III.
Nevertheless, Reagan clearly wanted a female candidate and reportedly told White House Deputy Chief of Staff Michael Deaver to “find a woman who was qualified and come back and discuss it if that wasn’t possible.” That person was Sandra Day O’Connor.
Reagan did what many universities do in seeking to add diversity in admissions while not excluding other applicants. The Supreme Court has allowed universities to use race or gender as a factor in seeking to create a diverse “critical mass” on campuses.
The Court may be on the brink of a bright-line rule that curtails the use of race in admissions after accepting review in Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina. Justices have complained for years that universities are effectively gaming the system after Bakke but continuing to put too much weight on race.
The Trump Pledge
Commentators have also claimed that Donald Trump made the same pledge. After Ruth Bader Ginsburg died, Trump announced that “I will be putting forth a nominee next week. It will be a woman.” However, he had already publicly released three lists of possible nominees of different races and genders. His staff had been working on vetting those on the list and the process led to Amy Coney Barrett. However, the final short list included a majority of male jurists.
Indeed, Trump’s choice was unclear to the very end and the short list included a male, Judge Amul Thapar of the U.S. District Court for the Eastern District of Kentucky, who would have been the first South Asian appointee,
Trump’s announcement at the rally came on September 19, 2020 after months of scrutiny of the public short list. That was just a week before the formal nomination and after many of us identified Barrett as a leading contender on the short list due to her conservative academic and judicial writings.
What is most striking about the Reagan-Biden comparison is how unnecessary it was for Biden to categorically rule out non-female and non-black applicants. He could have simply made clear that he wanted to add a black female to the Court and would make that a priority without promising that the first vacancy would be barred to other genders or races.
It was popular for many voters to say that “whites or males need not apply,” but it also meant that Biden would reject a Louis Brandeis or even a Thurgood Marshall because they are the wrong gender or race. It also meant that minority groups that have never had a justice would be also barred from Native Americans to Asians.
The Biden Record
Biden’s record on racial discrimination as president has not been good. It is the same type of threshold use of race that resulted in federal programs in the Biden Administration being struck down as raw racial discrimination, including prioritizing black farmers for pandemic relief.
There is also a current controversy in the Biden Administration’s use of race in distributing scarce Covid treatments. As with cities like New York, the Biden Administration has endorsed the use of race to give priority to African Americans in receiving such treatments. It was entirely unnecessary. The CDC has described those who are “more likely to get severely ill from COVID-19.” The obvious conditions are cancer, diabetes, obesity, heart conditions and other medical ailments. However, the CDC also discussed race as a factor due to “long-standing systemic health and social inequities.” Yet, there is no reason to make race itself a factor as opposed to the medical conditions. The Administration could simply prioritize on the basis of those conditions regardless of race. Ironically, given the higher rate of these conditions (and the lower rate of vaccinations) in minority communities, there would still be a higher priority given to many minority patients.
It is equally baffling why Biden needed to exclude other races and genders rather than include those issues as what the Court called a “plus” on admissions. Nothing, of course, prevented Biden from, like Reagan, seeking and selecting a female black candidate. That is why Biden’s decision to impose a racial and gender exclusionary rule was a political, not a practical choice. Yet, it will now unnecessarily add a controversy to this nomination. The short list of judges include some who would be natural candidates on any vacancy. President Biden has undermined a nominee is not required or request such a threshold exclusionary standard.