Some people have sports, I have Supreme Court nomination processes. This week, US Supreme Court Justice Stephen Breyer announced he will step down from the bench after nearly thirty years—meaning President Joe Biden will now get to nominate a new judge.
Let the games begin!
Since the primaries, Biden has promised to put a black woman on the bench if given the chance, stating, “I’m looking forward to making sure there’s a black woman on the Supreme Court, to make sure we in fact get every representation.”
That’s a promise he seems intent on upholding. In remarks honoring Breyer’s retirement, Biden said, “The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court. It’s long overdue in my view. I made that commitment during the campaign for president, and I will keep that commitment.”
Identity politics are no way to choose one of the most powerful roles in the country, and statements like this undermine the hard work women, including black women, do to be seen as equals.
And while representation matters, there’s a type of diversity needed more urgently on the Supreme Court (and across lower courts in our nation) than that of gender or skin color. We need diverse backgrounds on the bench, particularly diverse work backgrounds.
What I mean by that is the vast majority of judges in this country are former prosecutors or otherwise worked for the government. According to research from the Cato Institute, “Former prosecutors outnumber former defense lawyers by a ratio of 4‑to‑1, with those representing government in criminal or civil proceedings outnumbering those litigating against the government by a ratio of 7‑to‑1.”
On the US Supreme Court, Ruth Bader Ginsburg was the only justice in recent memory who practiced solely as a civil rights attorney. Aside from her, Thurgood Marshall, who retired around the time I was born, was the last justice with criminal defense experience.
This is an abomination.
Those who’ve spent their careers arguing in favor of the government and its power are highly unlikely to view it skeptically. Groupthink is a powerful drug, and when one is also surrounded by former prosecutors (who tend to believe they are the good guys), it is a psychological improbability that those coming from these backgrounds will poke holes in the government’s arguments or feel biased towards the individual.
Instead, we need defense attorneys, pro bono economic liberty litigators, civil rights lawyers, and people who have stood with the marginalized and the powerless against an always overreaching, punitive, and corrupt government. We need people who come from poor backgrounds, who didn’t go to expensive elite schools. We need people who chose to work for meager wages because they cared more about the impact of their work than the input in their pocketbooks.
I don’t care what the gender or race is of the person Biden ultimately nominates to fill this Supreme Court position. I care that they have spent time working against the government instead of for it.