Some commentators have complained that President Joe Biden acted improperly when he declared that he would only consider a Black woman to replace Justice Stephen Breyer on the Supreme Court. These critics doubled down on their complaints when the president chose Judge Ketanji Brown Jackson as his nominee. The naysayers asserted that choosing a judge should only be based on “ability” and “experience.” They complained that the president should look for the “best” person for the job and not someone who fits other criteria. Senator Ted Cruz grumbled that this was “racial discrimination.” The Texas Republican argued that Biden should be “nominating the person who’s most qualified” and that it was “actually an insult” to Black women to limit his choice to them. Mississippi Republican Senator Roger Wicker asserted that any Black woman on the Court would “have an inherent conflict of interest on the job” because the justices would be hearing affirmative action cases, which could affect both women and African Americans. Maine Republican Senator Susan Collins griped that Jackson’s nomination would “politicize the entire nomination process.” The conservative legal activist Ilya Shapiro, who was scheduled to join the faculty of Georgetown Law School, tweeted, “Because Biden said he’s only [going to] consider black women for SCOTUS, his nomination will always have an asterisk attached.”
But only a fool—or a cynical politician—would think that there is always a “best” candidate among the scores of potential Supreme Court nominees. In baseball, statistics can tell us who the “best” home run hitter is in any given year, but it’s harder to know who the “best” candidate is for a judgeship.
We might easily point out the hypocrisy in these complaints about Biden’s approach. After all, when Ronald Reagan announced that his first nominee to the Court would be a woman, there were no protests from conservative Republicans. No Republican could have said with a straight face that Clarence Thomas was the “best” nominee to the Court, although he may very well have been the best available Black Republican to replace Thurgood Marshall.
Being the “best” candidate has seldom been the criterion for choosing a jurist. The joke in law school is, “What is the definition of a federal judge?” The answer: “A lawyer who knew a senator.” The corollary: “What is the definition of a Supreme Court justice?” It’s a lawyer who knew a president, or the “right” lawyer (not necessarily the best) who is in the president’s party.
Almost all justices have been chosen for a variety of reasons, not solely because of their education, experience, or even “abilities.” Let’s look at the history.
Political affiliation is the most obvious prerequisite for serving on the Supreme Court. With very few exceptions, presidents have only nominated members of their own political party. From 1789 to 1909, only two justices were not members of the president’s party. George Washington and John Adams appointed only Federalists. Every president from Thomas Jefferson to James K. Polk appointed only members of their party, which was first called the Democratic-Republican Party and then just the Democratic Party. Millard Fillmore nominated a fellow Whig. Franklin Pierce and James Buchanan, both “doughface” Democrats (meaning northern politicians who supported slavery), deemed that only proslavery Democrats were suitable for the Court. Lincoln sent one Democrat to the Court but otherwise appointed Republicans. Benjamin Harrison, a Civil War general who became a Republican president, nominated a southern Democrat to the Court as Reconstruction came to an end. He seems to have believed that this reach across party lines would speed the nation’s post–Civil War healing.
Similarly, in 1909, Republican President William Howard Taft nominated Democrat Horace Lurton, a former Confederate sergeant major, to succeed Rufus Peckham. From then until 1971, eight presidents, Republicans and Democrats, appointed at least one justice who was not from their party or elevated a sitting justice from the other party to be chief justice. Taft elevated Edward White (a Democrat) to be chief justice, and Franklin D. Roosevelt did the same for Republican Harlan Fiske Stone. During this period, Woodrow Wilson nominated Republican Louis Brandeis. Warren Harding nominated the Democrat Pierce Butler. Herbert Hoover nominated Democrat Benjamin Cardozo, while Harry Truman nominated Republican Harold Burton and Dwight Eisenhower chose Democrat William Brennan Jr. for the Court. Richard Nixon reached across the aisle to nominate Democrat Lewis Powell Jr. However, since 1975, every new justice has been a member of the president’s party. So, for Joe Biden, like Donald Trump, Barack Obama, both Bushes, Bill Clinton, Ronald Reagan, and Gerald Ford, the “best” candidate has been a member of his party.
During the nation’s first century, gender, race, religion, and ethnicity were also prerequisites to being placed on the Supreme Court. On September 24, 1789, George Washington nominated five justices for the Court. They had a lot in common. Each nominee was white, male, and a mainstream Protestant. All were of Anglo-Saxon and northern European heritage. There were some differences: Only three of the five owned slaves. One, James Wilson, was born in Scotland. Neither Washington nor any of the other leading politicians of the day thought there should be a Quaker, a Catholic, or a Jew on the Court, although there were good lawyers of all three faiths available. There were no women lawyers or African American lawyers at the time, so no one imagined a Black or female justice.
This set a pattern for almost half a century. The first 23 justices were white, male, Protestant, and almost universally traced their ancestry to the British Isles. About two-thirds of them were slaveowners. A majority came from southern states, even though by 1800, a majority of Americans lived in the North.
In 1836, President Andrew Jackson broke the mold—slightly—by nominating Roger Taney to succeed John Marshall as chief justice. Taney was a Roman Catholic (although married to the Protestant sister of Francis Scott Key, composer of “The Star-Spangled Banner”). Otherwise, he was like the others: a white slaveowner of English origins. And, like almost all of the previous justices, he was wealthy. The next 10 justices—all white, male Protestants of Anglo-Saxon origin—were evenly split between southerners and northerners.
After Taney died, no Catholic served on the Court until 1894, when Grover Cleveland nominated Edward Douglass White, a Catholic Confederate veteran from Louisiana. Cleveland was the only Democrat elected president from the Civil War until the election of Wilson in 1912, and most Catholics at this time were Democrats. (White was actually born Protestant in an Anglo-Saxon family in Louisiana, but he converted after his widowed mother married a French Canadian man.) In 1898, President William McKinley put Joseph McKenna, of Irish Catholic ancestry, on the Court. The next Catholic on the Court was Pierce Butler in 1923. Frank Murphy, the mayor of Detroit, was nominated by Franklin D. Roosevelt in 1940. In 1956, President Eisenhower nominated William Brennan of New Jersey. Brennan was a Democrat, but Eisenhower did not care. He wanted to put a northeastern Roman Catholic on the Court in anticipation of the 1956 election. Ike had his team find the best available northeastern Catholic. Brennan turned out to be a stellar choice. At the time, he was only the sixth Roman Catholic to serve on the Court, and he is generally considered among the greatest justices.
In 1916, Wilson, a Democrat, also broke the mold, nominating Louis Brandeis to the Court. Brandeis was one of the nation’s most important and successful progressive lawyers. Nominally a Republican, in the tradition of Theodore Roosevelt and Abraham Lincoln, he had supported Wilson in the 1912 election. His uncle, Lewis Naphtali Dembitz, a rare open opponent of slavery in Kentucky, had been one of the very few delegates from a slave state to attend the national convention of the antislavery Republican Party in 1860.
Opposition to Brandeis was strong. He was the first Jew nominated to the Court. Throughout his career, he had advocated for social justice, honest government, and fair wages and safe working conditions for laborers. Boston Brahmins despised him, in part because “the People’s Lawyer,” as he was called, so often defeated them in Court. The opponents of his nomination never talked about his religion but instead spoke in “code” about his work ethic (he worked too hard) and his modest lifestyle, despite his enormous financial success. (The code here was that he was frugal because, in the classic anti-Semitic canard, he liked money too much.) He was accused of being greedy, socialist, and, at the same time, too philanthropic. He was also accused of working too hard on behalf of his clients.
One Boston lawyer complained that he had not known that Brandeis was Jewish—presumably meaning that the esteemed attorney had a duty to disclose his faith to any lawyer he faced in court. Brandeis was accused of being “unethical,” but none of his critics could show that this was true. Illustrative of the anti-Semitism surrounding Brandeis’s nomination were complaints that he made “too much” money as a lawyer, and at the same time, he often took cases pro bono. It would have been hard to find any of his opponents asserting that they themselves made too much money as lawyers. Many Republicans complained that Wilson had nominated Brandeis only to secure the “Jewish vote” in the upcoming 1916 presidential election. Wall Street law firms inundated senators with form letters, protesting his nomination. Fifty-five Brahmin lawyers in Boston signed a petition complaining about his nomination. Almost all were members of law firms or tied to corporations that Brandeis had defeated in court. Seven former presidents of the American Bar Association—all elite Republican WASPs—signed a letter saying he was unfit for the Supreme Court, without explaining why.
Brandeis had graduated from Harvard Law School with the highest grades in the school’s history. He was brilliant, and everyone knew it. Wilson nominated him for his intellect and, equally important, because he was a progressive. In that sense, he was similar to Lincoln’s choice for chief justice, the antislavery lawyer Salmon Chase (nicknamed the “Attorney General for Fugitive Slaves”), the civil rights lawyer Thurgood Marshall, and the women’s rights pioneer Ruth Bader Ginsburg. But putting a Jew on the Court angered traditional Protestant conservatives. In private, former President Taft complained about Brandeis and his Jewish background.
After the longest confirmation process in Supreme Court history, the Senate confirmed Brandeis. He is generally recognized as one of the nation’s greatest jurists.
In 1932, a Republican president, Herbert Hoover, nominated the distinguished chief judge of New York, Benjamin Cardozo, to the Court. That he was Jewish no longer mattered. Nor was it an issue when other Jews were nominated for the highest court.
The 1967 nomination of Thurgood Marshall, the man who had argued and won Brown v. Board of Education in 1954, generated some opposition based on race. Still, in the wake of Lyndon Johnson’s overwhelming victory in the 1964 election and the massive national rejection of southern segregation, Marshall was easily confirmed. Only 10 southern Democrats, and one Republican, voted against him. However, when John F. Kennedy had nominated Marshall to the Second Circuit Court of Appeals in 1961, it was a very different story. The arch-segregationist Senator John Eastland of Mississippi, a Democrat, bottled up the nomination in a subcommittee that he controlled for almost a year. Finally, in late 1962, a bipartisan coalition of senators from outside the South forced the nomination to the floor, where Marshall was confirmed. Racism was the obstacle on Marshall’s road to the Supreme Court, even though 69 senators voted to confirm him.
In 1981, Ronald Reagan finally broke the glass ceiling with Sandra Day O’Connor after announcing during his campaign that his first nominee to the Supreme Court would be a woman. Conservatives at the time did not assert, as Ted Cruz has about Jackson, that it was insulting for Reagan to say in advance that he would nominate a woman. No conservative law professor asserted that there would be an asterisk next to her name, as Ilya Shapiro has done. Ironically, when Richard Nixon had contemplated putting a woman on the Court, Chief Justice Warren Burger threatened to resign. Nixon never nominated a woman, and Burger remained on the bench. No one seriously opposed O’Connor because of her gender, and in 1981, Burger welcomed her to the Court.
Were Brandeis, Brennan, Marshall, or O’Connor—or, for that matter, Justice Sonia Sotomayor, the first Hispanic American on the Court—the “best” candidates for the position? Certainly, many equally talented lawyers were also available. All five were qualified, and all served, or are serving, with distinction. They were put on the Court in part to give a voice to outsiders who had been ignored and rejected by American political culture.
Is Ketanji Brown Jackson qualified for the Court? Of course she is. She has been a successful Court of Appeals judge, has an elite pedigree from Harvard College and Harvard Law, and has a distinguished record of public service. She has relatives who have served in law enforcement and one who served time in prison. She is “of the people” and will interpret the Constitution “for the people.” Does she give a “voice” to a segment of America that has never had a voice on the Court? Absolutely. The Court is not a “representative” body, but it does have an impact on all Americans. For most of its history, there were no Catholics, Jews, Blacks, women, or Hispanics on the Court. For most presidents, the “litmus test” for the Court was white, male, Anglo-Saxon, and Protestant. Presidents Wilson, Eisenhower, Johnson, Reagan, and Obama rejected this narrow history. Admirably, President Biden now joins them.