Below is my column in the Wall Street Journal on President Joe Biden’s promise almost two years ago that he would only consider a black female for the first vacancy on the Supreme Court. The column produced a significant response from commentators. However, 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. It is worth discussing even if one believes that the Court membership is a type of bona fide occupational qualification or if one simply rejects the very premise of the Court’s barring such criteria in past cases. The benefit of having a diverse Court is obvious but, if we want to use an express exclusionary rule, we should be able to discuss why it is appropriate for the Court and those institutions or businesses barred in past case.
Instead, commentators suggested that I ignored that prior presidents made such preferential picks. That is not true. My point was that Biden’s pledge was entirely unnecessary since he could have stated that he wanted to appoint a black female without barring consideration of other candidates on the basis of their race or gender. It is the difference between a preferential and exclusionary process. Commentators insisted that Ronald Reagan, Donald Trump, and George H.W. Bush made the same pledge. That is also false. While seeking to appoint women and African Americans, none of the three excluded other races or genders from consideration and had diverse short lists. Yet, even if they did, the question remains: should admission to the Court be based on an exclusionary threshold qualification that the Court has rejected as unconstitutional or unlawful for schools and businesses?
Here is the column:
The announcement of Justice Stephen Breyer’s retirement has whistled the start of that Washington blood sport known as a Supreme Court confirmation. While the filibuster-free process guarantees President Joe Biden that he has the votes to pick anyone acceptable to all Senate Democrats, this fight is different from any in history in one respect. As a candidate, Mr. Biden pledged to select the next justice first and foremost on race and sex.
“I’m looking forward to making sure there’s a black woman on the Supreme Court, to make sure we, in fact, get every representation,” he said in a South Carolina debate. This reportedly helped win him the key endorsement of Rep. Jim Clyburn, the House majority whip.
With the court set to rule on racial preferences in college admissions, it raises the question of whether it is appropriate for a politician to use a criterion that the court itself has found unconstitutional for public educational institutions and unlawful for businesses.
It also means Mr. Biden’s short list will be much shorter than usual. The three leading candidates are Justice Leondra Krueger of the California Supreme Court, U.S. Circuit Judge Ketanji Brown Jackson and U.S. District Judge Michelle Childs. These are all worthy candidates who could have been considered for any vacancy without declaring that they were qualified by virtue of filling a quota—an unfortunate implication for the ultimate nominee.Mr. Biden could have learned something from the universities now defending their admissions policies in Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. For decades, universities have avoided the type of outright quota the court held unconstitutional in Regents of the University of California v. Bakke (1978). “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake,” Justice Lewis Powell wrote. “This the Constitution forbids.”
In the following years, the court struck down some racial preferences in college admissions, but others survived such scrutiny by relying on “diversity” rationales, in which race was a factor but not the dominant one. While critics have argued that these universities evaded Bakke and later cases, the stated rationale of preserving a “critical mass” of diversity has made it difficult for challengers to allege racial discrimination.
In 2003 the justices considered two different University of Michigan admissions programs. In Grutter v. Bollinger, they upheld one that evaluated applicants based on individual merit, then used race as a “plus factor.” In Gratz v. Bollinger, they rejected one that applied individual considerations after a “threshold” use of race. (Justice Breyer voted with the majority in both cases.) Mr. Biden, by contrast, promised not only to take account of race (and sex) before all other criteria, but to exclude all male or nonblack nominees regardless of their credentials. Similar uses of race—including prioritizing black farmers for pandemic relief—have prompted courts to strike down Biden administration programs as raw racial discrimination.
Mr. Biden’s use of such threshold exclusions is neither unlawful nor judicially reviewable. Yet it’s also unnecessary. Mr. Biden could have selected a black woman for the court while maintaining, as universities do, that he would consider all possible candidates on the totality of their records. He wanted to go beyond other candidates and expressly pledge to apply what is by definition a discriminatory threshold criterion. It was a pledge meant to blunt criticism from other Democrats, including Sen. Kamala Harris, that he had opposed school busing and affirmative action early in his career. In 1975, for example, Sen. Biden declared “I do not buy the concept, popular in the ’60s, which said, ‘We have suppressed the black man for 300 years and the white man is now far ahead in the race for everything our society offers. In order to even the score, we must now give the black man a head start, or even hold the white man back, to even the race.’ ”
Mr. Biden is now going to create one of the more jarring and incongruous moments in the history of the Supreme Court. This fall, in the Harvard and University of North Carolina cases, the justices will hear arguments that the use of race in admissions is unlawful discrimination. One of them will have gained her seat in part through exclusionary criteria of race and sex.
Justice Powell declared in Bakke that “preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” By keeping his 2020 pledge, Mr. Biden will engage in discrimination for his own sake.
Mr. Turley is a law professor at George Washington University.