Being Right: Two Problems with President Biden’s Supreme Court Nomination

Michael Hanratty, Contributing Writer

On Jan. 27, the retirement of Supreme Court Justice Stephen Breyer gave President Joe Biden a sorely needed lifeline. Floundering in the polls amid a bevy of crises and missteps, the opportunity to appoint Justice Breyer’s replacement is a necessary bright spot for the president as the midterm elections approach. And let’s face it: even the historically inept Biden administration will have a tough time fumbling this nomination. The three leading contenders, as reported by NPR — Ketanji Brown Jackson, J. Michelle Childs and Leondra Kruger — all have backgrounds worthy of a Supreme Court nominee. Any of them would fulfill Biden’s campaign promise to put the first Black woman on the Supreme Court. And the confirmation of Biden’s nominee will not change the Court’s ideological balance. All of these factors are likely to make this a relatively low-octane confirmation process. It’s difficult to imagine any Democrat opposing Biden’s nominee, and easy to envision a couple of moderate Republicans voting yes as well.

President Biden’s approach to the confirmation process, though, has been clumsy. His February 2020 campaign promise to nominate a Black woman to the Supreme Court may have been a politically astute one, since Black voters delivered Biden the South Carolina primary win that put him on the path to the Democratic nomination just a few days later. But it will have the unmistakable effect of making his nominee look like an affirmative action hire, selected on the basis of race and gender instead of intellect. Biden’s promise does a profound disservice to the woman whom he eventually nominates — each of the three candidates I mentioned above have the intellect and the resumé to warrant a Supreme Court nomination regardless of skin color. President Biden is wrong to saddle any of them with the baggage that will inevitably come from being an explicitly race-based selection. A Black, female Supreme Court Justice will be an exciting step for our nation, and one that is long overdue. Few would object to President Biden considering the symbolic importance of a Black woman on the nation’s highest court as part of his selection process. But by making an explicit promise, he could tarnish the monumental accomplishment of whichever woman he chooses.

More importantly, each of Biden’s nominees seems to come from a school of constitutionalism that is fundamentally incompatible with our nation’s founding principles. We are, at our core, a democratic nation; to quote Abraham Lincoln in his Gettysburg Address, a government “of the people, by the people, and for the people.” Policy decisions are driven by our direct representatives in Washington and, especially, in our state capitols and town halls — not a group of nine lawyers. Yet the liberal judicial mainstream, from which each of Biden’s potential nominees hails, seems content to use the Federal bench to wrest power from the people and make important political decisions for them. Judicial liberals, by and large, subscribe to a doctrine known as “living constitutionalism.” As explained by the outgoing Justice Breyer, it seeks to take the most general ideas of the Founding Fathers and apply them to modern society, adapting the Constitution’s ideas to modern times. Living constitutionalists readily admit that often, it means inventing new Constitutional rights from whole cloth. The theory may sound benign enough — it even makes some sense at first glance. But living constitutionalism profoundly errs by giving our courts the authority to rewrite our social contract. It is the job of the people, through our nation’s democratic instruments, to update our social contract and align it with the values of the day. This updating is, fundamentally, a political job — one that requires balancing the interests of many factions and making important decisions about tradeoffs. And when it requires us to change the Constitution itself, we have a process for that — a political one. A nation in which the Supreme Court dictates changes in the meaning and interpretation of our governing documents based on little more than a rough estimate of the prevailing cultural milieu is, quite simply, a judicial tyranny.

As he took office in the wake of the Watergate scandal, President Gerald Ford declared that the U.S. had emerged from an hour of constitutional crisis because “our great Republic is a government of laws and not of men. Here the people rule.” Living constitutionalists seem content to make the opposite true. Knowingly or not, they seek to create a nation of men, and not laws, where the Supreme Court rules. President Biden has a long history of supporting judges who hope for this sort of America. It’s a shame that he is about to nominate another to the highest court in the land.