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Should race matter when choosing Supreme Court justices?

(Alan Dershowitz, Gatestone Institute, 28 January 2022)With the announced resignation from the Supreme Court of Stephen Breyer, Joe Biden announced he would be appointing a black woman to the post. But is this unconstitutional? One of the most prominent Democrat affiliated constitutional law experts explores this issue.

Actually the author is a bit out of favour with the Democratic mainstream, despite a lifetime affiliation to the party, for going off-script on a number of issues, as when he testified in opposition to the second Trump impeachment trial in 2020.

Now he is doing it again, rejecting the spurious attempt to distinguish between the prohibition of a candidate on racial grounds, and affirmatively preferring someone on that basis. The two are equivalent—restricting a choice to one category effectively excludes all others.

Apart from which, as Dershowitz argues, injecting race and gender as selection criteria is morally odious and retrograde. Among other things, it will undermine the credibility of the successful nominee, who will be seen as the best black woman candidate rather than the best on the merits.

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Supporters of President Biden's announcement will argue that there is a big difference between prohibiting a person from serving based on religion, race or gender, and affirmatively giving preference based on these criteria. That is sophistry. By limiting his choice to a Black woman, President Biden has disqualified every non-Black woman and man in America. There are a considerable number of highly qualified Black women, and I would applaud the nomination of any one of them. But that is not the issue. The issue is exclusion.

The Supreme Court has a long history of exclusion. For more than a century-and-a-quarter after the religious prohibition was incorporated into the Constitution, presidents excluded all Jewish candidates and most Catholic candidates. The Supreme Court was an institution reserved primarily for white Protestant males. That was wrong and unconstitutional. But two wrongs, even if one of them is a "good" wrong, do not make a constitutional right.

The Black woman who is eventually nominated for the job will suffer reputationally from the president's announcement. She will not be regarded as the most qualified person to be nominated, but only as the most qualified Black woman. That is insulting, even if not intended to be.

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