During his run for the White House, Joe Biden vowed to nominate a black woman for his first Supreme Court pick. With Justice Stephen Breyer now set to retire, the president is widely expected to make good on that promise, most likely by elevating Judge Ketanji Brown Jackson from the U.S. Court of Appeals for the D.C. Circuit.
Conservatives have already begun their finger-wagging: how dare Biden factor race into account in choosing someone for the high court!
“Mr. Biden’s campaign promise that he’d appoint a black woman to the Supreme Court is unfortunate because it elevates skin color over qualifications,” the Wall Street Journal’s editorial board opined in a relatively polite example. (Trawl Twitter for the more grotesque versions.)
These complaints should scan as absurd to anybody with an even glancing familiarity with the history of Supreme Court nominations, which have long involved demographic considerations. Ronald Reagan explicitly promised to nominate a woman during his run for president before picking Sandra Day O’Connor. When George H.W. Bush had to fill the seat of the court’s first black justice, Thurgood Marshall, he went with Clarence Thomas. (“I don’t feel he’s a quota,” Bush said at the time.) And as Jonathan Chait noted Thursday, there were commonly acknowledged Catholic and Jewish seats on the court during the mid-twentieth century.
However, it was not until last night that I personally learned that Reagan chose Antonin Scalia—the father of originalism, the patron saint of conservative jurisprudence—for the court at least in part because he was “of Italian extraction.”
That fact was revealed by Reagan’s former White House counsel, Peter Wallison, in a 2003 interview for the Miller Center of Public Affairs’ Presidential Oral History Program, which was later republished by the Washington Post.* You really need to read and savor the full quote. Swish it around your mouth like a nice barolo. (Some parts bolded, for emphasis.)
“In the course of our discussion with Reagan the first time we were talking about the candidates … we had talked about Scalia. Reagan had asked me whether Scalia was of Italian extraction. I think he used the word ‘extraction,’ and I said, ‘Yes, he’s of Italian extraction.’ Reagan said, ‘That’s the man I want to nominate, so I want to meet him.’ We brought Scalia in… . The president met Scalia, and he offered Scalia the job right on the spot, in about 15 minutes, very little ceremony here. Scalia accepted on the spot. He was delighted. That was it… .
“I think [Reagan] felt that it would be great to put an Italian American on the Supreme Court. He had all the usual American instincts: ‘We don’t have an Italian American on the court, so we ought to have one.’ He really felt good about doing that. It wasn’t principle so much as that kind of emotional commitment.”
The American Prospect picked up on this quote back in 2010, when conservatives were busy defaming Sonia Sotomayor as an under-qualified affirmative action pick, and there isn’t a lot I can say now that the mag didn’t say then (“By modern Republican standards, this would make Reagan a racist, except that as Pat Buchanan might say, Scalia is white and ‘white men built this country,’” Adam Serwer wrote at the time). So I’ll just leave it at this: I am personally fine with Joe Biden following in Ronald Reagan’s footsteps by finding highly qualified nominees who also bring extra diversity to the bench, and conservatives ought to be as well.
Correction, Jan. 28, 2022: This article originally misstated that Wallison was interviewed by the Washington Post. The interview was conducted by the Miller Center and republished by the Post.
