Biden’s promise to nominate a black woman as a Supreme Court judge is in line with an old tradition. People think Biden is repaying a political debt to the African-Americans who voted him into the White House, rather than apologizing for a mistake that didn’t recognize a good judge.
Each of these could be true. Supreme Court judge nominations have always been filled with political issues, and they usually show how the country’s politics is going at a very high level. Thru the history of the United States, it has become clear that making politically smart decisions and choosing qualified judges don’t have to be the same thing.
Within the first few years of the Republic, the main differences in American politics have been based on where people live. Supreme Court judge also “rode the circuit,” which means they went to different parts of the country and presided over cases there. So it made sense to pick justices who came from very different areas. “Massachusetts seat,” “New York seat,” and so on were thrown together in the Supreme Court room.
Because the country started to split over slavery, the courtroom differences became more important. “A History of American Law,” by Lawrence M. Friedman, was written in 1973. In it, he says that presidents “appointed men because they were Southern or because they weren’t Southern, as the case is likely to be.” After Abraham Lincoln became president in 1861, he had to deal with a Supreme Court that was mostly made up of Democrats who wanted to keep slaves and Southerners who didn’t. In 1862, Lincoln had three vacancies on the court, so he tried to make the courtroom more diverse. He nominated Republicans from Iowa, Ohio, and Illinois to be on the court.
As the country changed because of immigration from Europe in the 1800s, Supreme Court Judge nominations started to reflect this change. A long line of Catholic judges started with Justice Roger B. Taney, who was the first one. Pierce Butler and Frank Murphy, both of whom were confirmed in the first half of the 20th century, were also in that line of Catholic judges. When President Dwight Eisenhower named William Brennan Jr. less than a month before he ran for reelection in 1956, it was widely seen as a way to win over Catholic voters.
In 1916, Louis Brandeis became the first Jewish judge, setting the stage for Benjamin Cardozo and Felix Frankfurter, as well as a lot of other people who did the same.
After the Civil Rights movement, there was a need for the first African American justice, Thurgood Marshall, who was appointed by President Lyndon Johnson in 1967.
When President Obama nominated Sonia Sotomayor in 2009, he made history. She was the first Hispanic to serve on the Supreme Court.
Isn’t it ironic that Republicans are now criticizing Biden for promising to put a black woman on the Supreme Court? Reagan made the same promise in his 1980 presidential campaign. He kept his promise to Sandra Day O’Connor, who was sworn in as a judge in 1981.
In other words, presidents have always chosen Supreme Court Judge as political moves. And their decisions have been in line with the politics of their time. Biden hasn’t gone in a new direction. He has just updated a practice that has been around as long as the American presidency itself.
