[Global Focus] Diversity Over Merit? Controversy Over Nomination of Black Female US Supreme Court Justice

42 Lifetime Judges Nominated by Biden
75% Women, 2 out of 3 Are People of Color

Focus on Racial and Gender Diversity
"Race Over Merit" Criticism
Concerns Over Reverse Discrimination Against Top Candidates

[Asia Economy Reporter Cho Hyun-ui] The United States is expected to soon have its first Black female federal Supreme Court justice. President Joe Biden promised during his presidential campaign that he would appoint a Black woman to fill any vacancy on the federal Supreme Court. With the retirement of the current oldest justice, Stephen Breyer, at the end of the Supreme Court term this coming June, President Biden will be able to fulfill his campaign promise.

Since taking office, President Biden has focused on increasing diversity among federal judges. In June last year, he nominated the first Muslim federal judge in U.S. history. Seven months later, last month, the first Muslim female federal judge was appointed. In November last year, he also drew attention by nominating the first female LGBTQ federal appellate court judge.

Looking at the 42 lifetime judicial appointments he has made since taking office, over 75% are women. More than 66% are people of color. Only two are white men. He has also emphasized professional diversity. In a federal judiciary mostly composed of former prosecutors and corporate lawyers, he has nominated a series of criminal defense attorneys. Notably, he has appointed a large number of public defenders with at least three years of experience. They make up about one-third of all appointments, which is unprecedented compared to the 1% and 11% during the Trump and Obama administrations, respectively.

◆ "Mechanical Diversity Causes Reverse Discrimination" = The issue is that President Biden faces criticism for prioritizing race and gender above all else in his selections. Critics argue that by focusing on mechanical diversity rather than merit, several excellent potential candidates are preemptively excluded from consideration.

Republican Senator Susan Collins said, "Race or gender cannot be the first or second priority in selection," adding, "There are plenty of qualified Black women for the position, but the Democrats prioritize race and gender and have somewhat succeeded in labeling Republicans who oppose this as 'anti-Black'." Carrie Severino, president of the conservative Judicial Crisis Network, also stated, "While pursuing diversity benefits judges, excluding excellent candidates based on race is unacceptable."

President Biden's approach has put the Republican Party in a difficult political calculation. The New York Times reported, "The Republicans face the challenge of actively opposing the nominee without appearing racist or sexist."

Especially since Biden's choice is unlikely to significantly shift the court's ideological balance, Republicans are debating whether to engage in a full-scale confrontation or adopt a more restrained approach. During his term, former President Trump appointed three conservative justices, resulting in a 6-3 conservative-liberal split on the Supreme Court. Even if a Black woman is appointed to replace the liberal Justice Breyer, the strong conservative tilt will remain.

◆ Democrats' Efforts to Diversify Courts Since the 1960s = The Wall Street Journal analyzed that President Biden's pledge to appoint a Black woman to the federal Supreme Court vacancy is part of the Democratic Party's ongoing plan to diversify the federal judiciary. According to the Federal Judicial Center, among the 3,483 federal judges in total, only 70 are Black women, accounting for less than 2%. However, since President Lyndon Johnson appointed Constance Baker Motley as the first Black female federal judge in 1966, Democratic administrations have consistently sought to include Black women in the federal judiciary.

Just over a year into his presidency, as of the 1st of this month (local time), President Biden has appointed the third-highest number of Black women to the federal judiciary, totaling 11, which is one out of every four nominees. The top two are former Democratic presidents Barack Obama and Bill Clinton, who appointed 26 and 15 Black women respectively during their eight-year terms. However, as a percentage of total nominees, their rates were 8% and 4%, significantly lower than Biden's.

Republican presidents such as Donald Trump (2), George W. Bush (8), George H.W. Bush (2), and Ronald Reagan (1) have also appointed Black women, but these appointments accounted for only 1-2% of their total nominees, representing a small minority within the judiciary. The Pew Research Center reported on the 2nd that "Republican presidents generally are less likely than Democratic presidents to appoint women or minorities as federal judges."

Even when appointed as federal judges, most Black women have served at the district court level. Only 13 have served on the appellate courts, one level below the Supreme Court. Biden's securing of five positions for Black women not only on the Supreme Court but also on the federal appellate courts since taking office marks a significant change. Once these appointments are finalized, the number of Black women on the appellate courts will double.

President Joe Biden is removing his mask to speak at the retirement ceremony of Supreme Court Justice Stephen Breyer held at the White House in Washington DC on the 27th of last month (local time).
[Image source=AP Yonhap News]

◆ Third Black and Sixth Female Supreme Court Justice Imminent = If President Biden appoints a Black woman as a new federal Supreme Court justice, she will be the third Black justice after Thurgood Marshall and Clarence Thomas, with Thomas currently serving on the court. She will also be the sixth female justice following Sandra Day O'Connor, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett.

Meanwhile, President Biden must nominate a successor by the end of this month, and several Black female legal professionals in their 40s and 50s are being considered as leading candidates. Among them are Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit who gained prominence for rulings including the release of White House documents related to the January 6 Capitol riot; Leondra Kruger, a California Supreme Court justice who declined to join the Biden administration's White House team; and Jay Michelle Childs, a labor law expert and federal district court judge in South Carolina who graduated from a state university law school.

This content was produced with the assistance of AI translation services.