Boy, it didn’t take long for right-wing activists and pundits to jump into attack-dog mode once President Biden announced he would nominate a Black woman for the Supreme Court seat being vacated by retiring Justice Stephen Breyer.
Ilya Shapiro, a constitutional-law expert and an incoming Georgetown Law professor, decided to get a jump start by posting on Twitter ahead of Biden’s announcement:
“Objectively best pick for Biden is Sri Srinivasan, who is solid [progressive] and [very] smart,” Shapiro tweeted. “Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into last intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?”
Yes, you read that correctly, “Lesser Black woman.”
That’s not all. He also tweeted that if Biden will solely consider a Black woman to fill Breyer’s seat, his nominee “will always have an asterisk attached. Fitting that the court takes up affirmative action next term.” A third tweet included a poll in which Shapiro asked his followers if Biden is racist, sexist, both or neither for his commitment to selecting a Black female nominee.
Shapiro deleted his tweets, but not before his remarks garnered fierce push back and condemnation from Georgetown Law School dean William M. Treanor.
“The tweets’ suggestion that the best Supreme Court nominee could not be a Black woman and their use of demeaning language are appalling,” Treanor stated. “The tweets are at odds with everything we stand for at Georgetown Law and are damaging to the culture of equity and inclusion that Georgetown Law is building every day.”
Shapiro made similar remarks about identity following Supreme Court Justice Sonia Sotomayor’s nomination to the high court in 2009. “In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit,” Shapiro wrote.
Predictably, Shapiro had plenty of company from his right-wing compatriots. Fox News’s Sean Hannity said, “Biden said he will make his pick based purely on race and gender, which is possibly illegal.” Constitutional scholar Jonathan Turley, in a Wall Street Journal article, claimed that Biden’s promise is unconstitutional discrimination.
Fox News host Tucker Carlson argued: “It’s possible we have all marinated for so long in the casual racism of affirmative action that it seems normal now to reduce human beings to their race.” The frequently bigoted Ben Shapiro called it “definitionally affirmative action and race discrimination.” The National Review said, “In a stroke, [Biden] disqualified dozens of liberal and progressive jurists for no other than race and gender.”
The reality is that such racially charged commentary is nothing short of nonsensical. Such pronouncements have had long historical precedent, nor do they violate the law. Where were the objections when former President Trump announced at a MAGA rally that he “intended to appoint a highly qualified woman to the Supreme Court.”
Truth be told, the majority of recent Republican presidents made similar declarations with virtually no resistance from conservative quarters. In the final months of the 1980 presidential campaign, President Reagan promised that he would nominate a highly qualified woman to the Supreme Court if the opportunity provided itself adding: “It is time for a woman to sit among the highest jurists.”
His successor, George H.W. Bush, echoed similar sentiments when he nominated Clarence Thomas, but took care to say his pick would not be based on a “quota” or anything other than the best person for the job.
Did Sandra Day O’Connor, Clarence Thomas or Amy Comey Barrett conjure up discussion of asterisks being ascribed next to their names? Did the same right wingers who are now suddenly crying bitter alligator tears lash out in unhinged rage when Trump made his promise less than two years ago? Of course not.
What makes President Biden’s potential nominee any different? In the eyes of many in conservative right wing media and their base of voters, only white or white adjacent people should be considered for the Supreme Court.
There are numerous Black women who are immensely qualified to serve on the nation’s highest court. At the moment, the short list likely consists of Ketanji Brown Jackson, Leondra Kruger and J. Michelle Childs.
Black women have been the most reliable and dedicated base of voters in the Democratic party. Black female representation on our nation’s most esteemed legal body is long overdue.
Elwood Watson is a professor of history, Black studies, and gender and sexuality studies at East Tennessee State University.
