No, Screening for Race Is Not Like Screening for Ideology

By Charles C. W. Cooke

Tuesday, February 01, 2022

 

Echoing a line that has been deployed widely since President Biden confirmed that he would screen by race and sex in his search for a new Supreme Court justice, the Bulwark’s Bill Kristol took to Twitter last week to offer up a nonsensical conflation of ideas. “I say this as someone who would prefer no prior public limitation by race or gender of the field of possible Court nominees,” Kristol wrote, but “what about Trump limiting his picks to a list produced by the Federalist Society?”

 

What, indeed?

 

In making this comparison, Kristol is showing that he badly misunderstands the objection to discrimination predicated upon race and sex. As he may have noticed, the president’s conservative critics have not offered up the inverse critique — i.e. that it would be illegitimate for President Biden to exclude FedSoc-approved judges from consideration, as he undoubtedly intends to do — but have focused instead on Biden’s promise to search only for an African-American woman. Why? Because, as should be obvious, those two things are not in the same category. In almost every walk of life — the Supreme Court included — there are wholly rational reasons to discriminate against job applicants based upon their approach, their temperament, their qualifications, or their philosophy. By contrast, there exist almost no circumstances in which it is rational to discriminate on the basis of race or sex — yes, even when doing so is ostensibly benign. The news that a public official is screening applicants by race and sex should be — and, apparently, is — reflexively disgusting to the American public. The news that a public official is screening applicants by ideology should not be. There is a reason that the 14th Amendment applies to race, rather than to ideas, and that reason is that ideas matter a great deal, while race does not.

 

Suppose that the Third Amendment Society were searching for a new president. It would be presumptively rational for such an organization to insist that any candidate who sought the position be opposed to the quartering of troops in private houses in peacetime, but presumptively irrational to insist that any such candidate be white. So it is with the Supreme Court. Clearly, both President Biden and the majority in the U.S. Senate have strong opinions about the sort of federal judges they wish to elevate to the courts. And, clearly, the Federalist Society’s list is not helpful in pursuit of that goal. But, while there will be no acceptable candidates within Leonard Leo’s Rolodex, there most certainly are Biden-esque judges of all races and sexes. It is, of course, possible that the best Biden-esque judge available will happen to be a black woman. But, if that is the case, then Biden has done her a profound disservice. We do not put demographic representatives on the Supreme Court; we put people on it. “Best” is a valuable descriptor. So are “most qualified,” “most suited,” and “most philosophically sound.” Unless one wishes to argue that we should judge Americans primarily by the color of their skin, “black woman” is not. Worse still, it’s demeaning.

 

At present, the originalist Right is engaged in an intramural fight over whether future Republican-appointed judges should be more like Justice Scalia or Justice Thomas. Without getting too deep into the weeds, the position one takes within this debate tends to come down to where one stands on core jurisprudential questions, such as whether the Court should respect bad precedents (Thomas doesn’t; Scalia did), whether the Declaration should be relevant to constitutional outcomes, whether one considers the vagueness doctrine to be useful or bogus, and how one interprets the parts of the Bill of Rights that pertain to criminal justice and free speech. It does not — you’ll be shocked to discover, no doubt — rest on whether one prefers black Southerners from Georgia or Italian-Americans from New Jersey.

 

And if it did? Well, then it would be a movement that was worthy of condemnation. There were many things wrong with President Donald Trump, but his willingness to appoint judges who are committed to the original meaning of the Constitution was most certainly not among them. The most appropriate habit for an American president is to consider any judge who exhibits fealty to the law and to reject any judge who does not, without reference to race, sex, or any other characteristic so wholly unconnected with the law. It is encouraging to learn that the American public overwhelmingly agrees with this sentiment. It is distressing that neither our president nor his apologists in the press are included in that majority.