What Would A Truly Merit-Based Supreme Court Nomination Look Like?

Updated: Apr 24

President Biden's pledge to choose a black woman to replace retiring Supreme Court judge Stephen Breyer reminds us how it's never been about the most qualified.


Alleged leading Biden nominee fave Judge Ketanji Brown Jackson, CC0 4.0 photo by Wikicago on Wikimedia Commons



President Biden's announcement he will choose a black woman (he may already have announced his pick by the time you read this) to fill the seat of retiring liberal U.S. Supreme Court Judge Steven Breyer has cued a predictable, and understandable chorus of 'tokenization' critiques.


Biden is fulfilling a campaign promise to black voters to appoint a black Supreme Court justice, and now it's time to deliver.


The predictable part is Republicans who've suddenly 'got relijjin' on the need for a 'merit-based' pick.


As if Supreme Court nominees have ever been entirely about merit and not identity politics, beginning with the first Supreme Court in 1790 consisting of one white male Chief Justice and five associate white male justices, which no one questioned. One initial nominee, Robert H. Harrison, declined to serve, and President Washington replaced him with James Iredell rather than asking, "Hey, I was just talkin' to Martha, maybe we should add a little representation for the other half of so-called free America. Whaddaya think of a woman?"


Back then, it was pretty inarguable who could serve. Leadership was 100% white men and women's place was quite specifically in the home. As for those few black freedmen? Not even under consideration, and pretty inarguably unqualified after a previous history of unpaid servitude and no political experience.


Then again, seven years after the end of the Revolution, a bunch of baby ex-colonials with no prior experience in running their own society without royal oversight were winging it as much as any white woman or black freedman would have.


Had they been allowed any input, one wonders how different America might look today.


The unspoken Supreme Court white-guy qualifications remained until 1981 when President Ronald Reagan fulfilled his own campaign promise to shake things up by nominating a woman. Sandra Day O'Connor broke a 191-year-old tradition. Conservatives howled over Reagan as they now do over Biden.


Funny how little they spoke of 'merit' in the late teens while a politically inexperienced and demonstrably ignorant President made the government safe for overprivileged, underachieving white men again.



Long detour off the Merit Parkway


Granted, Biden's optics aren't good today in the ultra-divided Disunited States of America, where both far sides of the political chasm play their own version of identity politics.


Ideally, we would pick the best of the best of anyone who'll have the job. Before 1981, the pool of qualified white men was fairly sizeable, and while the choices almost always closely matched the political ideology of the President, few could challenge them on merit alone. A nominee had to have serious legal chops to be considered.


It was only when Reagan specifically chose a woman that Americans wondered whether O'Connor was chosen for merit or her biology.


Did anyone think to ask whether we were ever truly getting the best and the brightest before anyone thought to nominate anyone other than a white man?


Probably there weren't any equivalent candidates among their ranks until women and POC were allowed into the hallowed halls of higher education. Arguably, American POC and women have a lot of catching up to do, having been held back by twelve generations of slavery and 12,000 years of male control.


Then again, none of the original white guys back in 1790 had any clue how to run a country as they hammered out whole new, untried ways to govern, including a separate judicial branch unattached to executive authority, apart from the President nominating replacements.


Choosing only white men, consciously or not, shut down the pool of opportunity from others who might have added real value and more importantly, an outside-the-box perspective.


The pool of prospective black female lawyers Biden is considering will almost certainly be more qualified and less 'problematic' than any of Trump's picks. Republicans weren't concerned about 'meritocracy' when they blocked confirmation hearings and votes for any Obama choice to fill Antonin Scalia's position when the Justice passed away in February 2016. Mitch McConnell claimed the people should 'have a voice' in who appoints the vacated seat, with the October election ten months away, rather than his stark terror Obama would choose a progressive nominee of any identity.


Republicans got lucky with the election outcome and Donald Trump appointed Neil Gorsuch to replace Scalia. Gorsuch was a nice (i.e., non-problematic) white former preppy who Trump correctly expected would vote quite reliably on the conservative end. Educationally and legally, he had the chops, and wasn't the worst conservative white man Trump could have chosen but not even close to the best of the best.


Next Trump appointed the morally-challenged Brett Kavanaugh, with a good but not exemplary legal background, credibly accused of crimes he could no longer be prosecuted for since his accusers had failed to report them the same century as they allegedly occurred. Without the sex crime allegations, Kavanaugh was at best, okay, but not superlative.


Trump appointed his least-meritocratic pick, Antonin Scalia protegé Amy Coney Barrett, hardly exemplary as a legal mind and who had been a 'handmaid' in a traditionalist religious group. 'Handmaids' in the People of Praise performed pastoral care, gave some community advice and organized aid, the usual 'church lady' activities. The group changed 'handmaids' to the awkward-sounding 'women leaders' after the popular Hulu TV series attached an unsavory association to the word. Former members describe the People as pretty firmly entrenched with male leadership and the man as the head of the household.


Which is pretty much how Trump views women: Created by Who-Cares to serve men, and part thy legs on command.


Barrett likely looked like a loyal 'good girl' who would continue to do what men directed her to do.


If ever there was an argument against concern for merit for any government position, let alone the Supreme Court, it was during the Trump years, when the least-qualified human being in America was President.



Diversity of perspective matters too


The U.S. Supreme Court Justice position is a little like the astronaut profession. Many might aspire to it, but only a handful ever get the job.


America doesn't look the same as it did in 1790. White men don't own people and women and POC have more power than they did back then.


An all-white Supreme Court doesn't properly represent the country over whose lives they create the ultimate rulings. Neither does an all-male Court. A black female nominee deals a blow both to the male-heavy and nearly-white history of the Court and will introduce a new intellectual, legal experience the Court has never had before.


When Americans ask why Biden is specifically targeting a black woman for the role, I'm reminded of the answer Canadian Prime Minister Justin Trudeau gave when asked a similarly weird question after his party won an election seven years ago.


Political perspective diversity matters as much as legal qualifications and experience in government, where entrusted others make decisions affecting all our lives. Is it 'affirmative action'? Not necessarily, and it doesn't necessarily mean 'less-qualified'. No one will ever agree on who was 'most qualified' but it's pretty much a given whoever President Biden nominates will be better qualified than a guy who behaved during his investigation hearing like the beery, entitled, affluenza-addled adolescent preppy boy he was, along with a woman whose religious group reinforced traditionalist, anti-feminist views of women.



What would a truly merit-based Supreme Court pick system look like?


Let's pretend we're somewhere in the future, we don't know how far and it's not important. America is more equal than it was back in the 2020s, even if it's not perfect and we've recognized true parity may never be achievable. We've reached a point where we acknowledge women and POC have caught up enough that we can now introduce a more merit-based system.


Who knows, maybe the imbalance by then will be not enough white representation. (The Atlantic disagrees.)


I'm fascinated by Malcolm Gladwell's description of 'blind auditions' for symphony orchestras in Blink: The Power of Thinking Without Thinking.


He details 1950s criticism that orchestras were heavily white and male, that musicians seemed chosen by favoritism, sexism, and racism rather than talent and ability. Ergo, 'blind auditions' were set up in which candidates auditioned behind a wall or a curtain and were judged solely on their performance. It took a little tweaking; orchestras remained stubbornly male until someone realized the characteristic clicking of female high heels was subconsciously biasing the judges. Once required to remove one's shoes for a silent walk to the chair, and suddenly merit won the day.


Some have disputed the blind audition story but studies have supported subconscious bias in hiring overall and I wonder: What if we had an AI system in the future, far more sophisticated than the ATS's (Automatic Tracking Systems) hiring managers use today?


One in which reports are generated on a Supreme Court candidate's qualifications and background experience but all identifying information is stripped out. The President's recommendations could be included as well. The Senate sees or hears these reports and then interviews the candidates as they always have done, except behind a wall and with a device to alter the voice to sound like every other candidate's.


Some senators might recognize a candidate by their experience, or the way they spoke; for example, if someone speaks with an accent, a particular dialect, or is known for certain catchphrases. The nominees might be coached, or seek coaching, to learn how not to give subtle cues away.


It wouldn't be perfect, but it might introduce a genuine return to 'merit' choice from a much broader pool of people and bring us much closer, if not completely, to true parity.


No matter what, the U.S. Supreme Court won't be as white anymore and there WILL be better 'identity' representation.


The only problem it doesn't resolve is political diversity, which also matters more than we acknowledge. It's not fair, nor is it in the best interests of the country, to be over-represented by any one political point of view. Liberal, conservative, Libertarian, contrarian, even centrist ideology doesn't have all the answers. That might be the much bigger question in our future Supreme Court Justice appointment scenario: How diverse, ideologically, is the Court?


In the end, that will likely matter far more than any personal identity 'merit' choices do today.


Or ever have been.


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