Not so in this case, though. This is standard liberal palaver about how judges should approach jurisprudence, encouraging them to begin with a progressive outcome and then work backwards to find some legal justification for it. “Living Constitution” fever — catch it:
Hirono stated, “What I’m looking for is a justice who can be fair and impartial and who does not have an ideological axe to grind, which is what we saw — as far as I’m concerned — in President Trump’s nominees, including to the Supreme Court. So, yes, I am expecting a fight, but there you have it. And I’m looking for someone who’s going to be, not only highly qualified, as all of the people that you already talked about are, but who really brings to the judiciary the kind of diversity that I’d like, that — someone who will consider the impact, the effects of whatever decision-making is on people in our country so that they are not making decisions just based on — which I would like them to base it on law, which would be nice and precedent and who are not eagerly trying to get rid of decades of precedent that would protect a woman’s right to choose, for example, and voting rights, etc. But I’d like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.”
If you watch the clip at Breitbart, you’ll find that that was a little more coherent when spoken than it reads on the page. Emphasis on “a little.” Still, consider it a moral victory that in the course of rambling about abortion rights Hirono felt obliged to de-emphasize law while focusing on outcomes. Even staunch abortion supporters know that Roe’s legal reasoning is a house of cards.
I read Hirono’s comment as a sign that we’re about to see a reprise of the “wise Latina” episode from Sonia Sotomayor’s confirmation. Remember that? Some years before she was nominated to the Court, she famously said this in a speech:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
Sotomayor’s belief that a nonwhite justice will produce better rulings because of her personal experience with racial prejudice will be widely shared among the left as a key argument in favor of Biden’s nominee, even if few Democratic pols will be willing to say so as bluntly as Sotomayor did. Sotomayor’s comment went beyond the idea that judges functionally can’t lay aside their own experiences when approaching a legal issue — they’re only human, after all — and argued that they shouldn’t try, ending up endorsing the idea that experience might be an important (the most important?) qualification in itself. Living judges might as well produce a “living Constitution,” right?
There’s a running debate on political Twitter today about whether Biden’s insistence on appointing a black woman to Breyer’s seat is a form of outrageous discrimination or just par for the course in how SCOTUS seats have traditionally been doled out. Presidents have always considered identity politics in nominating justices, and not just Democratic presidents. Reagan pledged to appoint the first woman justice before the 1980 election. When George H.W. Bush appointed Clarence Thomas, he did so under heavy pressure to name an African-American judge to fill Thurgood Marshall’s vacancy. In the days after Ruth Bader Ginsburg died, Trump assured Americans that he’d replace her with another woman.
Biden’s own party seems eager to see a black woman justice appointed for the first time in American history:
Black voters and progressives are two of the most disappointed constituencies within the Democratic Party right now. Biden can give both something to smile about by keeping his promise to appoint a black woman to the Court.
On the other hand, it is unusual for a president to promise to make race an absolute qualification for an important government job, eliminating hundreds of qualified non-black candidates from consideration in one fell swoop. In practice, that’s probably how Bush 41 operated in choosing a successor to Marshall; but as far as I recall, he never explicitly ruled out nominating a non-black judge the way Biden seemingly has. Democrats would point out that Biden’s only applying the same standard forthrightly that presidents for most of U.S. history applied implicitly to everyone who wasn’t white, disqualifying them from key positions on the basis of race, and of course they’re right. But even so, it’s jarring in 2022 to see a president engage in overt discrimination on the basis of race. Charlie Sykes considers who’s been eliminated from contention:
No black men — not even Barack Obama.
Jews, probably not.
Ditto for white women. No credential, no jurisprudence, no brilliant legal scholarship can override their racial identity. So no Elena Kagen.
And here’s the kicker:
Under these limits, Ruth Bader Ginsburg — or rather the next generation RBG— would be ineligible for consideration because of the color of her skin.
Biden will earn some goodwill back from his own base with his appointment, which may be enough to make it a political win for him. But by stressing the race of the nominee as a prerequisite, it’s anyone’s guess how this will play with independents. Stay tuned.