For nearly 180 years, every American president made an unspoken pledge to only nominate white men to the U.S. Supreme Court. Race and gender went unmentioned, because they were foregone conclusions.
Historical revisionists enjoy the performative amnesia of complaining about how “we used to judge Supreme Court nominees on the basis of qualifications, character, and fitness” while pretending not to know that whiteness and maleness were the very first items on the SCOTUS eligibility checklist, but that’s phony nostalgia for you. America has always gone hard on identity politics; it was just white men whose identity was valued above all others.
Now a lot of those white men are hopping mad, firing off racist responses the minute President Joe Biden reaffirmed his campaign promise to nominate the first Black woman to the Supreme Court, without even waiting to find out what Black woman they’re attacking.
Incoming Georgetown Law faculty member and former Cato Institute lawyer Ilya Shapiro made it clear that he thinks being Black and a woman adds up to being innately unqualified for the Supreme Court. In a since-deleted tweet, he lamented that his preferred candidate for the job “doesn’t fit into the latest intersectionality hierarchy so we’ll get a lesser black woman.”
Consider how much racist nonsense Shapiro managed to stuff into just one tweet. There’s his absolute certainty that a Black woman candidate will necessarily be “lesser” than other nominees. His illogical conclusion that there’s an unfair “intersectionality hierarchy” giving Black women an advantage, despite 232 years without a single Black woman on the court. His willingness to publicly announce that no matter how qualified a Black woman candidate might seem to be, there must be a more qualified nominee out there whose spot she’s undeservedly taking.
In a related Tweet, Shapiro said that Biden’s pick “will always have an asterisk attached” to her name — a kind of “affirmative action” scarlet letter on her permanent judicial record — as if there wasn’t a two-century white male affirmative action policy at the court. Shapiro is the same guy who in 2009 wrote that Sonia Sotomayor’s nomination “confirmed that identity politics matter… more than merit,” so this is in keeping with who he’s always been.
Other rightwingers took different, equally ugly tacks. Florida state Rep. Anthony Sabatini—most famous for wearing blackface, dressing up as a racist “Mexican” caricature, and requesting that every removed Confederate statue from around the country be sent to his home district—went the “reverse racism,” white grievance route, demanding that President Biden “be impeached for his anti-white racist exclusion of any white nominee to the Supreme Court.”
Then there’s George Washington University legal professor Jonathan Turley, who tweeted that Biden’s pick will cause all kinds of “jarring and incongruous moments” in the near term because “when the justices will hear arguments on the use of race in [college] admissions, one member will have been selected initially through an exclusionary criteria of race and sex.” Again, there’s that history of white men being picked through exclusionary criteria, which Turley can’t seem to see. But also, does Turley wonder about this problem when Justice Clarence Thomas hears a case involving race? Because if you want to talk affirmative action SCOTUS hires, you should start there.
Of course, Candace Owens—who racists call on only when they want a Black face to say the anti-Black stuff they also already say—took to Twitter to humblebrag about how Americans must want her on the court, and to claim that being “both black and female” are the only “necessary qualifications” Biden is looking for. Then again, those seem to be the only qualifications that the rightwingers nominating Owens—who doesn’t have a bachelor’s degree let alone a J.D.—on Twitter seem to care about.
Tucker Carlson also went on a super-sarcastic rant in which he rattled off a bunch of marginalized groups and suggested members should be nominated, because clearly that would be a hilarious thing to even consider. He closed by mockingly suggesting that Bridget Floyd—sister of George Floyd, who was murdered by police—should be nominated, adding that “she is not a judge or a lawyer or whatever, but in this case, who cares? Clearly, that’s not the point anymore – this law stuff.”
Get it? Because nominating a Black woman necessarily means you don’t care about candidate quality.
I’m not the first to point out that as a candidate, Ronald Reagan announced his plan to seat a woman on the court, but wasn’t met with this kind of blowback. Similarly, George H.W. Bush’s pick of Clarence Thomas was clearly made to keep Thurgood Marshall’s seat “Black”—while also putting in a jurist who would carry out the white conservative agenda to its most extreme ends. And when Trump announced he planned to appoint a woman to replace Ruth Bader Ginsburg, there were crickets from the right about his “identity politics.”
But now there’s all these fears about the competence of a Black woman, even before we know that woman’s name, from the same contingent that was silent as Trump put nine judges rated “not qualified” by the American Bar Association, seven of whom will serve lifetime appointments, on the federal bench? Surely the people who had nothing to say about Trump appointing fewer nonwhite federal judges than recent predecessors aren’t suddenly worried about racism? The exact same crowd that was fine with Amy Coney Barrett, who spent just three years on the bench and never saw a case through to verdict, being on the court, is suddenly fretting over qualifications? The people who are still trying to reinstall a president who was impeached twice and didn’t know how many Articles the Constitution had?
This is all fueled by misogynoir, pure and simple. We’re actually likely to see Biden choose a candidate whose talents, expertise, and skill are unassailable, because she will have already been scrutinized in ways her white and male peers never had to face. To have arrived at the point of being picked for a SCOTUS seat is to have already navigated a racist and sexist career minefield for any Black woman.
The problem isn’t that we’re going to have a Black woman nominated to the Supreme Court, it’s that it took this long for us to get here, and people are still effectively claiming it shouldn’t happen.