Representation Matters
The SCOTUS ideological breakdown will not change, but that's not what's important.
Every Supreme Court vacancy is an opportunity for a President - and to a lesser degree, their party, to shape the country in ways that will long outlast their administration. Sometimes these Justices, once confirmed, will still be serving in their judicial capacities well after the president that nominated them has passed away. A future congress and president can strike down landmark legislation, but Supreme Court nominations can last beyond a lifetime.
Likewise, the scars of a bloody confirmation battle can suck the political capital out of a presidency as we saw in Ronald Reagan’s 1987 nomination of Robert Bork to fill the vacancy created by the retirement of Justice Lewis Powell. Similairly, George W. Bush was a year into his second term when the retirement of Justice Sandra Day O’Connor led to his nomination of Harriet Miers to the high bench.
It didn’t take long for Senators in both parties, along with outside think tanks and analysts, to realize Miers was wholeheartedly unqualified for the lifetime appointment. Bush withdrew it, but not before his judgement and competence would be tarnished to the point where his public standing didn’t begin to recover until he started sharing shower pics of himself with the public after he had left office.
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Predictably, Joe Biden now has his moment in the sun to shape the Court. And it’s a much different court than Reagan or George W Bush contended with. Heck, it’s almost unrecognizable to the Court that was seated during his tenure as Barack Obama’s president. When Senate Majority Leader Mitch McConnell to give Obama-nominee Merrick Garland so much as a hearing, the Supreme Court dynamics changed forever.
Denying Garland while allowing Justice Amy Coney Barrett to be nominated and confirmed in Donald Trump’s last 15 minutes has altered both the Court’s role in American government as well as its credibility. So much so that Biden’s replacement for outgoing Justice Stephen Breyer will not shift any ideological balance as the conservative as a monumental 6-3 majority. That doesn’t mean it’s not going to be one of the most important moments in American history.
See, candidate Joe Biden pledged to nominate a Black woman to the Supreme Court, should a vacancy arise. Well, the vacancy is here and President Biden has reaffirmed that promise.
There have only been two Black Americans to serve on the Court. Thurgood Marshall from 1967 - 1991, and Clarence Thomas, who filled Marshall’s seat and remains there until this day. 120 people have been confirmed to the Court since it’s founding in the late 18th Century. We’re only going to see the third Black nominee some time in the near future.
And while three of the last five judges to be seated on the Court have been women, they were only the third, fourth, and fifth women Justices to ever be appointed, following O’Connor and Ruth Bader Ginsburg.
Biden’s eventual nominee will not save Roe v Wade. She likely won’t save Affirmative Action or, lets face it, basic civil rights. Yet the court will be replacing a geriatric white male jurist with a Black women of, we assume, a much younger vintage. This is in no way a disrespect to the remarkable service of Justice Breyer. His decisions and opinions have done more to further racial equity than Clarence Thomas has, and more to preserve a woman’s control over her body than Barrett ever will.
But the life experiences of affluent white males will still be heavily represented by the Court he leaves. Representation matters. If we expect the Supreme Court to be a reflection of America and her experience, we need to accept the fact that it won’t happen until the Court actually reflects what America looks like.
I won’t bother speculating on who the nominee will be - the shortlists are widely available - but she already has my support. It’s not a stretch to say American Democracy is on the brink. If we want to save it, we’ll need every arrow in our quiver.
And the diversity that makes up America is the fiercest arrow we have in the fight against authoritatianism.
Have a great Friday,
-Ed