On Wednesday, I ran a column in the Wall Street Journal noting that President Joe Biden was imposing a race and gender qualification for the Supreme Court that has been rejected as either unconstitutional or unlawful by the Court for schools and businesses. While I noted that Biden could have made diversity a preferential rather than an exclusionary rule, the response was furious as commentators claimed that other presidents made the same pledge. Specifically, they claimed that Presidents Ronald Reagan and Donald Trump also confined their choices for seats to women. In fairness, both presidents did make public comments on the expected gender of their possible nominees. However, as I wrote later, the underlying claims are false. Now commentators have claimed President George H.W. Bush did the same thing with the appointment of Clarence Thomas. That is also untrue. Indeed, it is an even weaker historical defense.
The response to my Wall Street Journal piece initially focused on Reagan for a fair reason. Reagan did say that he wanted to appoint a woman to one of the vacancies in his next term. However, Reagan did not promise to only consider women and did not commit to such a nominee in the next vacancy. In fact, Reagan had a short list with various male candidates and the White House repeatedly said that Reagan’s desire to appoint a female was “no guarantee.” He did what other presidents have done. He made diversity a preference while not refusing to consider people on the basis of their gender.
Commentators then insisted that Trump did the same thing. He did not. Trump actually released a series of short lists that were updated as his staff did initial vetting and inquiry. While diverse, most on the list were men. Trump told a crowd shortly before his announcement on the replacement for the late Ruth Bader Ginsburg that the nominee would be a women. However, he never limited the list to women and actively considered men for the position. Indeed, his 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 included a majority of male candidates. 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.
Reagan and Trump show precisely that it was unnecessary to exclude others on the basis of race or gender, as did Biden. Other presidents have sought diversity on the Court while maintaining that they are seeking the best candidates regardless of such criteria.
During the primary, Biden wanted to garner support with black voters by saying that he would only consider black women for the next seat. He made the pledge after Rep. James Clyburn pushed him to do so during a break the presidential debate — Biden turned around and made the commitment when the debate resumed according to a new book. Clyburn then gave Biden his critical endorsement that many (including Biden) attribute his victory to in the key South Carolina primary.
Instead, the latest claim is that George H.W. Bush did the same thing. “Whataboutism” is something that we all do. However, it can backfire when the “whatabout” turns out to be “that not what it’s about.”
That is the case with George H.W. Bush. While many in the media painted Clarence Thomas as someone entirely picked due to his race (something that they would unlikely do with a Democratic nominee), Bush never said that he would only consider African-American nominees. Indeed, New York Magazine acknowledged as much (while curiously still citing this as support for Biden): “George H.W. Bush did not openly say he needed a Black jurist to replace Thurgood Marshall, but it would take heroic levels of delusion to believe Clarence Thomas was selected on the basis of his career accomplishments.”
The distinction proves the opposing point. Bush never did what Biden did. He never said that he would exclude other candidates based on their race. Like other presidents, he clearly viewed race as a factor but never publicly declared it would be an exclusionary factor. As with the replacement of Ginsburg with a woman, the replacement of Thurgood Marshall was viewed as likely to be an African American. However, Bush did consider other non-black candidates.
Indeed, in his prior pick (that went to Justice David Souter), Bush reportedly wanted to appoint the first Hispanic to the Court. However, he did not limit the search and decided Souter was the best qualified. The New York Times reported on that short list:
Mr. Bush’s list included about nine people of varied backgrounds and degrees of ideological conservatism, including several Hispanic judges, two women, at least two white men and at least one black man, Judge Clarence Thomas, 43 years old, of the United States Circuit Court of Appeals for the District of Columbia. ‘An Interesting Mix’
Several suggested that Mr. Bush was leaning toward nominating a Hispanic judge for the seat. “It’s an interesting mix, I think,” said a senior Administration official who has seen the list but refused to disclose its contents.
Then came the vacancy with Marshall. Again, Bush never pledged to exclude any other race. That short list also included non-African Americans. Indeed, the media reported that Bush was still interested in appointing a Hispanic candidate and the list included figures like Ricardo Hinojosa, a federal trial judge in Texas and Ferdinand Fernandez, a federal appeals court judge in Los Angeles.
The argument that “we all knew it would be an African American” is entirely untrue. However, regardless of his preferences, Bush did not declare that candidates would be excluded on the basis of their race or gender. Indeed, his small list was not racially exclusionary.
The preference given to diversity is not a new factor. What is new is the categorical promise not to consider anyone else due to their race or gender. That may seem a subtle difference to many but it is precisely the difference that has motivated thousands of lawsuits. While courts struggle with patterns of discrimination in hiring, they have consistently rejected threshold, express exclusions on the basis of race or gender.
Notably, in all of the commentary that followed the column, no one is contesting the primary point: that this type of exclusionary rule has been found unconstitutional or unlawful in schools or businesses. While there may be legitimate points of distinction with a Court appointment, there is little discussion of why we should use a threshold exclusionary rule for admission to the highest court that the Court would not allow in any admission to a school or business.