The issue is exclusion. No one should be excluded on the basis of race or gender. The Senate is supposed to deliberate on the qualifications of each nominee and confirm or reject her or him on the merits. Photo: United States Supreme Court (Photo by Drew Angerer/Getty Images)
Imagine a president announcing that since no Muslim has ever been appointed to the Supreme Court, he pledges to nominate the first Muslim justice. That would undoubtedly be unconstitutional since Article VI of the Constitution specifies that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The spirit of that prohibition — coupled with the 14th and 19th amendments—would certainly seem to apply to race and gender as well. It is wrong, and perhaps unconstitutional, for a president to impose a racial or gender test for nomination to the Supreme Court. If a president were to announce that he intended to nominate only a white male, constitutional scholars would rightfully object. So, what is the difference?
Supporters of President Biden's announcement will argue that there is a big difference between prohibiting a person from serving based on religion, race or gender, and affirmatively giving preference based on these criteria. That is sophistry. By limiting his choice to a Black woman, President Biden has disqualified every non-Black woman and man in America. There are a considerable number of highly qualified Black women, and I would applaud the nomination of any one of them. But that is not the issue. The issue is exclusion.
The Supreme Court has a long history of exclusion. For more than a century-and-a-quarter after the religious prohibition was incorporated into the Constitution, presidents excluded all Jewish candidates and most Catholic candidates. The Supreme Court was an institution reserved primarily for white Protestant males. That was wrong and unconstitutional. But two wrongs, even if one of them is a "good" wrong, do not make a constitutional right.
The Black woman who is eventually nominated for the job will suffer reputationally from the president's announcement. She will not be regarded as the most qualified person to be nominated, but only as the most qualified Black woman. That is insulting, even if not intended to be.
Senator Charles Schumer compounded President Biden's error by announcing that regardless of who the president nominated, she will be confirmed by the Democratic controlled Senate. That, too, politicizes the Supreme Court nominating process. The Senate is supposed to deliberate on the qualifications of each nominee and confirm or reject her or him on the merits, not on the basis of who nominated her.
The Republicans engaged in partisan weaponization of the process when it refused to give a hearing to Judge Garland and then rushed through the confirmation of Judge Barrett. But again, two partisan wrongs do not make a constitutional right.
President Biden should direct Attorney General Garland to prepare a list of the 25 most qualified nominees. No one should be excluded on the basis of race or gender. Such a list, if fairly compiled would include several Black women. (It should not include Kamala Harris, because she might have to cast a tie-breaking vote on herself!) The president should then select his nominee from that list. In doing so, he might follow the example of President Herbert Hoover, who asked his Attorney General to prepare a list of nominees to replace the great Justice Oliver Wendell Holmes, Jr.
Historians recount that Hoover showed the list to Republican Senator William Borah. Benjamin Cardozo's name was at the bottom, along with the three reasons he should not be nominated, despite his great distinction:
"Cardozo [sic] – Jew, Democrat, New York" Borah glanced at it, and, believing Cardozo should be at the top, told Hoover, "Your list is alright, but you handed it to me upside down . . ." Cardozo belongs as much to Idaho as to New York." As for Cardozo's being a Jew, Borsh reportedly told Hoover, "Anyone who raises the question of race is unfit to advise you concerning so important a matter."
Cardozo was nominated and confirmed.
We live in an age of identity politics, when race and gender seem to count more than merit. The Supreme Court may soon confront that issue when it decides whether Harvard and the University of North Carolina violated the law by apparently preferring African American over Asian-American applicants. If the justices decide that race alone may not properly be considered as a factor in admissions, they may well send a message to President Biden and future presidents regarding race and gender as criteria for nominations to the High Court.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and served on the legal team representing President Donald Trump for the first Senate impeachment trial. He is the author of numerous books, including his latest, The Case for Color-Blind Equality in an Age of Identity Politics. His podcast, "The Dershow," is available on Spotify and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.