Alan M. Dershowitz – January 28, 2022
Imagine a president announcing that since no Muslim has ever been appointed to the Supreme Court, he pledges to nominate the first Muslim justice. That would undoubtedly be unconstitutional since Article VI of the Constitution specifies that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The spirit of that prohibition — coupled with the 14th and 19th amendments—would certainly seem to apply to race and gender as well. It is wrong, and perhaps unconstitutional, for a president to impose a racial or gender test for nomination to the Supreme Court. If a president were to announce that he intended to nominate only a white male, constitutional scholars would rightfully object. So, what is the difference?
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.
Senator Charles Schumer compounded President Biden’s error by announcing that regardless of who the president nominated, she will be confirmed by the Democratic controlled Senate. That, too, politicizes the Supreme Court nominating process. The Senate is supposed to deliberate on the qualifications of each nominee and confirm or reject her or him on the merits, not on the basis of who nominated her.