In the summer of 2020, while campaigning for president, Joe Biden promised to nominate a Black woman to the Supreme Court. At the end of January, when Justice Stephen Breyer announced his retirement, President Biden repeated the pledge: “The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court.”
After Biden picked Judge Ketanji Brown Jackson, few of the president’s critics could find fault with her sterling credentials—including two degrees from Harvard University, editorship of the Harvard Law Review, prestigious clerkships, and her service on the U.S. Court of Appeals for the D.C. Circuit, the nation’s second-most-powerful court. Instead, the Republican National Committee called her a “radical, left-wing activist,” and the The Wall Street Journal compared her nomination to racial “affirmative action”—a matter the Court will soon consider in a case regarding her alma mater.
The problem with these arguments—disingenuous though they may be—is that diversity and representation, along with partisan pressures, have always shaped Supreme Court picks. Since George Washington appointed the first Supreme Court in September 1789, presidents have weighed two factors when nominating a new justice: constitutional interpretation and political expediency. Lyndon Johnson applied these factors to select Thurgood Marshall, the first Black justice; so, too, did Ronald Reagan when he nominated Sandra Day O’Connor, the first woman to serve on the high court. Supreme Court nominations, in other words, have always been political—and for good reason.
Washington established this model, and he appointed more justices than any other president. He both created the first Supreme Court and filled regular vacancies at a time when justices rarely served on the bench for more than a few years. On September 24, 1789, Washington sent six carefully selected nominees to the Senate: Chief Justice John Jay, John Rutledge, James Wilson, William Cushing, Robert Harrison, and James Blair.
As the president of the Constitutional Convention and a supporter of the proposed federal government, Washington had kept a close eye on the ratification debates in the states. Whenever he read a particularly compelling argument or a publication in favor of the Constitution, he mailed them to David Stuart, an editor of a local newspaper, for publication and distribution in Virginia. Among the writings selected by Washington were the Federalist Papers authored by John Jay and John Wilson’s speech at the Pennsylvania Convention. When making his Supreme Court appointments, Washington selected two justices who had forcefully articulated arguments in favor of the Constitution that aligned with his own ideas.
There were no political parties in 1789, and Washington had no base like we would think of today. Instead, he focused on building support and emotional ties between the states and the fledging federal government. Accordingly, he picked one justice each from New York, South Carolina, Pennsylvania, Massachusetts, Maryland, and Virginia—the biggest, most influential states in the new nation. Their support for the government was essential, and the appointments helped local citizens buy into the new political project.
In 1835, President Andrew Jackson used similar considerations when he selected Roger Taney as his Supreme Court nomination. Taney had originally served as Jackson’s second attorney general and had played a pivotal role in the president’s fight against the Second Bank of the United States. In 1832, Taney had advised Jackson to withdraw all federal funds from the bank, which would have rendered the institution incapable of operating on a national scale. When Treasury Secretary William Duane refused to follow orders to withdraw the funds, Jackson fired him and appointed Taney as acting secretary. Although the Senate refused to confirm Taney’s full appointment, he used his short tenure to move federal funds to commercial ventures and ensured that the bank would fail. Two years later, when a Supreme Court vacancy occurred, Jackson nominated Taney in return for his loyalty and in honor of their shared commitment to destroy the bank and prevent its reemergence.
Like Jackson, Woodrow Wilson used Supreme Court appointments to reward important political associates. In 1912, Louis Brandeis had helped create Wilson’s platform for the upcoming presidential election, known as the “New Freedom,” and then crafted the new Federal Reserve Act in his capacity as White House adviser. In return for this support, Wilson appointed him to the Court in 1916.
Brandeis and Wilson also shared political ideology. Brandeis was a formidable progressive and had wielded his considerable powers in the courtroom on behalf of female workers, to defend the labor interest, and to challenge Big Business—all important tenants of Wilson’s progressivism.
Despite Brandeis’s considerable qualifications, the nomination of the first Jewish justice was so controversial that for the first time the Senate held hearings to evaluate a nominee. Many of the objections were couched as concerns about his militant progressivism, similar to the recent Republican National Committee’s description of Jackson as a “radical, left-wing activist.”
While critics used radicalism to cudgel Brandeis, his religion was at the root of most objections. Former President and future Justice William Howard Taft criticized the nomination as “an evil and a disgrace.” He criticized Brandeis personally as a “hypocrite” and “cunning.” One of the other justices, James Clark McReynolds, refused to speak to Brandeis for three years after Brandeis’s confirmation. Undeterred, Wilson wrote to the Senate Judiciary Committee on behalf of his friend. He didn’t address the concerns about Brandeis’s Judaism directly but said, “I cannot speak too highly of his impartial, impersonal, orderly, and constructive mind, his rare analytical powers, his deep human sympathy, his profound acquaintance with the historical roots of our institutions and insight into their spirit.”
In 1967, Lyndon Johnson considered underrepresented voices and political power bases when making his nomination. He was more explicit than some of his predecessors when he selected a historic “first” candidate. In his speech nominating Thurgood Marshall, LBJ listed Marshall’s extensive credentials and already-secured place in history. He then nodded to the unprecedented nature of the appointment: “I believe it is the right thing to do, the right time to do it, the right man and the right place.” Johnson’s choice reflected his commitment to civil rights and ensuring that Black voices were included in the administration. In addition to Marshall, Johnson appointed the first Black cabinet secretary, Secretary of Housing and Urban Development Robert Weaver. Johnson’s appointments also revealed the importance of Black voters as a core bloc of the Democratic Party.
Ronald Reagan, one of the main heroes of the conservative movement, adopted LBJ’s approach when he nominated the first woman to the Supreme Court. In the 1980s, the Republican Party and the new religious right pursued suburban women as a key element of their electoral strategy. Like Biden, Reagan had pledged during his campaign that he would nominate a woman to the highest court. In his announcement of Sandra Day O’Connor, he acknowledged that promise: “During my campaign for the presidency I made a commitment that one of my first appointments to the Supreme Court vacancy would be the most qualified woman that I could possibly find.” Just as Biden did this year, Reagan touted O’Connor’s credentials regardless of her gender, but he did not shy away from the historic nature of his choice: “I pledged to appoint a woman who meets the very high standards that I demand of all court appointees. I have identified such a person.”
From George Washington to Joe Biden, presidents have always considered the historic and political value of Supreme Court justice nominations. While Biden was explicit about the unprecedented nature of Ketanji Brown Jackson’s background, he is certainly not the first president to emphasize the value of raising underrepresented voices. Nor is he the first president to use Supreme Court nominations as a campaign strategy. Rather than expecting presidents to select Court justices with no consideration for politics, we should instead examine whether they are prioritizing the correct political values. With Jackson’s nomination, Biden has chosen wisely.