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The utter banality of presidents considering representation when choosing Supreme Court nominees


The National Review has sent in the Baseball Crank to defend Ilya Shapiro’s assertion that literally any African-American woman Biden would nominate to the Court would inherently be “lesser” than an alternative candidate, with predictably unpersuasive results. But note in particular the nice fancy shuffling he has to do here:

The problem is not simply that Biden pledged to consider race or gender, or eventually make room for a black woman on the Court, but that he specifically said that for this job, his first criteria — sight unseen of who he would interview — would be to eliminate the great majority of the available candidates based solely on their race and gender. While presidents have had gender or state limitations in the past, this is a step further. 

The problem here, as Mr. Crank surely knows and more less implicitly admits, it that there is nothing new, at all, about what Biden is going here. “Eliminating the great majority of available candidates” ex ante has been done countless times. Dwight Eisenhower asked Herb Brownell to find him a Catholic nominee, and it is inconceivable that he would have been nominated if that was not for all intents and purposes the controlling criterion. Sandra Day O’Connor was selected because of Reagan’s pledge to nominate the first female justice, period. George H.W. Bush did not seriously consider anybody but Clarence Thomas to replace Thurgood Marshall for obvious reasons. And ditto with Amy Coney Barrett and Ruth Bader Ginsburg. By the way, what did NRO think about the nomination of Barrett — the most lightly credentialed Supreme Court nominee in decades — when it was made? Funny you should ask:

At any rate, there is absolutely no difference between what Biden did and what past presidents had done. And moreover there is nothing wrong with this, because there are hundreds of thousands of people fully capable of doing the job of Supreme Court justice (including every nominee I’ve just named, of course), and so considering representation is perfectly appropriate! And, by the same token, Shapiro asserting that somehow women of color can never be the imaginary One Most Qualified Nominee — and we can know this even before we know who the nominee even is! — cannot possibly be defended.

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