Overview

The conservative backlash before the nominee is even named is neither surprising nor without precedent.

When the actual nominee is named, the general dogwhistles will shift to a tried-and-true vocabulary that stands in for race and gender—their real concerns

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When a liberal Supreme Court justice announced his intention to retire, and the President pledged to nominate an African American to the court, condemnation from conservative senators was swift and predictable. The President is putting politics and race ahead of what is best for the country, they said, and should not expect their support in the confirmation process.

The year was 1967, the President was Johnson, the nominee Thurgood Marshall.

A legendary civil rights attorney, Marshall’s bona fides were beyond question. But conservatives of both parties, including segregationists Strom Thurmond and James Eastland, did their best to block the confirmation. Eastland even used his questioning to ask Marshall if he was “prejudiced against white people in the South.”

Fifty-five years later, the players have changed, but the roles are much the same. When Justice Stephen Breyer announced his retirement from the Supreme Court, President Biden immediately stated that he would be fulfilling a campaign promise to nominate a Black woman to the nation’s highest court.

Once again, the conservative backlash was swift and predictable.

“The fact that he is willing to make a promise at the outset that it must be a Black woman, I’ve got to say that’s offensive,” said Ted Cruz, Republican senator from Texas. “Black women are what, 6 percent of the U.S. population? He’s saying to 94 percent of Americans ‘I don’t give a damn about you, you are ineligible.'”

Senator Roger Wicker of Mississippi compared the pledge to affirmative action. “The irony is the Supreme Court, at the very same time, is hearing cases about this sort of affirmative racial discrimination and while adding someone who is the beneficiary of this sort of quota,” he said on The Paul Gallo Show. “The majority of the court might be saying, writ large, it’s unconstitutional. We’ll see how that irony works out. I’ll guarantee you this, Paul. This new justice will probably not get a single Republican vote.”

Bear in mind that Wicker “guarantees” this before the nominee is even known. Even if the President nominates a Black woman whose experience, record, and judicial temperament place her in a league of her own, far above any other potential candidate for the position, Wicker fully expects his party to unite in opposition.

Which makes the real issue crystal clear.

Biden has identified only two characteristics of the nominee he seeks: a Black person, and a woman. Which of those two characteristics gives Wicker such confidence in Republican opposition before the nominee is known? Or is it the two in combination?

Conservatives will of course clutch pearls at the very suggestion. The problem, they whistle, is that President Biden is instituting a racial and gender requirement for the court instead of simply selecting the best candidate for the job. Those making this claim often argue that they would never set quotas based on demographics. But this is at odds with recent events—meaning recent in geologic time. White males in Western cultures have benefited from unmarkedness for millennia, a designation of societal “normalcy” that invisibly tips the balance in uncountable decisions and amounts to a hidden quota of its own.

This hidden quota was on full display when President Trump appointed a smaller share of non-white judges than any President since George H.W. Bush. 189 of the 226 federal judges appointed by Trump were white (83.6%)—nearly 20% above the proportion in the country as a whole (64.1%).

For Black Americans, representatives on the bench have been few and far between. Pew Research notes that only 2% of all federal judges who have ever served have been Black women. Even in the post-civil rights era, white men are far more likely than anyone else to be selected for the federal bench, especially when Republicans control the Presidency. 

The Supreme Court hasn’t been dominated by white men by chance. It happened for the same reasons that white men and Christians have dominated all three branches of the federal government since the country’s inception. Contrary to what conservatives claim today, race, gender, and religion have long played key roles in determining who reaches the bench, which in turn has had immeasurable effects on how the courts have interpreted legislation throughout US history. If the courts had always reflected the nation’s racial and gender diversity, major historical rulings are likely to have had different outcomes. 

The Supreme Court hasn’t been dominated by white men by chance.

The Supreme Court today is also more Christian than the US at large. While 63% of Americans identify as Christian, 7 of 9 justices (78%) currently serving on the court are Christian—an over-representation that inevitably influences legal outcomes. Christian groups have a strong winning streak in the cases they have recently brought before the court.

In one of the most infamous cases, Roman Catholic Diocese of Brooklyn v. Cuomo, the court ruled that houses of worship could defy state rules intended to limit the spread of COVID-19. In the midst of a pandemic, the court pushed to give more powers to churches, even at the risk of broader public health. 

Would the court have come to such a decision if its demographics were more similar to the rest of the country?

Though expert speculation has identified many likely frontrunners for the nomination including Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit, California Supreme Court Justice Leondra Kruger, and Judge J. Michelle Childs of the U.S. District Court for South Carolina, Biden’s choice to fill Justice Breyer’s vacating seat is still unknown at this writing. When the nominee is identified, the conservative script can be relied upon to proceed to Act II: The Dogwhistles.

Rather than protest the elevation of a Black jurist, conservatives called Thurgood Marshall “too radical” and a “judicial activist”—veiled signifiers aimed disproportionately at nominees of color. Once Biden’s nominee is named, similar coded language can be expected to find its way into the protestations of today’s Thurmonds and Eastlands.

Standing in stark contrast are statements of support from the secular community. Monica L. Miller, Legal Director of the American Humanist Association’s Appignani Humanist Legal Center, has served as lead counsel in more than 25 federal cases, including before the U.S. Supreme Court. Miller sees progress in the prospect on more than one front. “Justice Breyer’s departure is an opportunity to welcome a justice more devoted to defending the wall of separation,” she said, “and one who is more reflective of our pluralistic society.”

Marginalized groups’ lack of political representation throughout US history has ultimately given white Christians disproportionate political power—a major reason that the conservative uproar over President Biden’s decision to choose a Black woman for the court is disingenuous. In making this choice, Biden is ensuring the court’s decisions will come a bit closer to reflecting the broader views of the American public. It’s the kind of political equality and commitment to pluralism that can make American institutions more representative of the nation itself.

Marcus Johnson

Marcus Johnson is a political commentator and a political science Ph.D. candidate at American University. His primary research focus is the impact of political institutions on the racial wealth gap.