Robert A. George: Reagan believed in Supreme Court diversity too
Summary: As a land of opportunity, America walks a fine line between its meritocratic ideal and an exclusionary history with respect to race, gender and other subjective factors that caused the Supreme Court reality to be a white, male and Protestant majority for the bulk of its existence. Trying to get the balance right now — and being explicit about one’s intentions — is no less unworthy of Joe Biden today than it was for Ronald Reagan four decades ago.
On July 1, 1991, I was a junior staffer at the Republican National Committee. At midday, a number of us gathered in an office staring at a small TV as the President George H.W. Bush walked out of the family compound at Kennebunkport, Maine, to address reporters. He was accompanied by Clarence Thomas, someone Americans would get to know only too well in the months ahead.
In announcing his decision to nominate Thomas to the Supreme Court, Bush repeatedly called the judge the “best person” for the position and dismissed the notion that race played a role in the decision — a claim that more than a few found hard to take at face value.
That included an RNC director who exclaimed jubilantly at Thomas’s appearance: “Thank goodness he picked someone really Black!” The only Black staffer in the room (me) was somewhat bemused by the comment.
Regardless of what Bush had declared to reporters, the comment was a blunt recognition that even a conservative administration recognized that representation matters — even if only from a political sense. Reverting to an all-white Supreme Court in 1991 would have been a bad look.
And so, to replace Black civil rights legend Thurgood Marshall on the high court, a Republican president nominated a brilliant Black lawyer and former agency official. After sitting on the federal bench for barely a year, Thomas met few contemporary criteria for "judicially qualified.” There were probably dozens of white male lawyers and judges more objectively suitable. But Thomas was the “best person” if you wanted to appoint a Black conservative with the legal background and willingness to go after the left’s sacred cows — especially affirmative action. Thomas' eight years running the Equal Employment Opportunity Commission — where he often clashed with the traditional civil rights establishment over issues such as the best way to address employment discrimination claims — showed him a good candidate for that.
Thirty years later, the strategy of placing on the court a Black person with a pointedly different ideological view than the man he was following succeeded better than any could have imagined. Critics may still see it as a cynical ploy, but to the chagrin of liberals and delight of many conservatives, the senior member of the court’s right bloc has proven to be one of the most influential justices ever. He's been the strongest adherent to conservative judicial philosophy in his decisions. And during Donald Trump's administration, former Thomas clerks dominated federal judgeship appointments.
The Thomas story is one of many that underscore the political hypocrisies of Supreme Court nominations.
Today, President Joe Biden faces criticism for his pledge to appoint a Black woman to the high court as Stephen Breyer steps down. “I’ve made no decision except the one person I will nominate will be someone with extraordinary qualifications, character, experience and integrity,” Biden said during a White House meeting where Breyer formally submitted his resignation. “And that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue.”
The promise has led to charges that Biden “politicized” the nomination — or that the pick would be a “beneficiary” of affirmative action just as the court is assessing the constitutionality of colleges accounting for race in admissions.
Oh, please. Can it really be the case, in 2021 — three decades after the Thomas selection — that we can pretend to be shocked that politics is involved in selecting a Supreme Court judge? Are we stunned that questions of representation surround the court?
A decade before the Thomas nomination, Ronald Reagan promised on the eve of the 1980 election to select the “most qualified woman” (who would eventually become Sandra Day O’Connor). While he did this as a defensive gesture — responding to criticism over his opposition to the Equal Rights Amendment and the lack of women in his administration as California governor — he employed a language of representation not out of place today: “I am also acutely aware, however, that within the guidelines of excellence, appointments can carry enormous symbolic significance. This permits us to guide by example, to show how deep our commitment is and to give meaning to what we profess.” How different is that from Biden’s statement last week?
Donald Trump didn’t just promise publically that a woman would replace Ruth Bader Ginsburg following her September 2020 death. Two years before, he reportedly told aides who wanted Amy Coney Barrett to fill Anthony Kennedy’s seat, “I’m saving her for [Ginsburg’s] seat.” In a sense, Barrett's eventual nomination replayed the Thomas rollout. And for a certain demographic (pro-life women), that selection held a representation sensibility similar to what Biden’s promise holds for many Black women. As in society at large, there can be a diversity in representation.
The Supreme Court is a political institution; politics governs who gets on. Presidents and political parties engage in chesslike moves to approve favored individuals — representative of certain groups — and keep others off. One notorious example: to prevent another Thomas-like success, Democrats filibustered George W. Bush’s 2001 nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia — the same bench on which Thomas previously served, and a stepping stone to the high court. Estrada, a conservative, would have been the first Latino appointed to that bench. Blocked for two years, Estrada eventually withdrew his name from consideration.
As a land of opportunity, America walks a fine line between its meritocratic ideal and an exclusionary history with respect to race, gender and other subjective factors that caused the Supreme Court reality to be a white, male and Protestant majority for the bulk of its existence. Trying to get the balance right now — and being explicit about one’s intentions — is no less unworthy of Biden today than it was for Reagan four decades ago.
Robert A. George writes editorials on education and other policy issues for Bloomberg Opinion.
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