We do not yet know whom President Biden will nominate for the soon-to-be vacant seat on the U.S. Supreme Court (SCOTUS). But it appears that many Republicans want him to name a person who does not actually exist. In response to Biden’s commitment to appoint the first Black woman in the court’s 232-year history, some conservative critics have demanded that he instead nominate the “most qualified” candidate, without regard to race or gender.
One conservative commentator identified a male appellate court judge as the “objectively best pick,” calling everyone on Biden’s list a “lesser Black woman.” In truth, however, there is no such individual as the “objectively best pick” or the “most qualified” nominee. Instead, there are dozens of lawyers and judges, and probably more, of all backgrounds, who are supremely qualified for SCOTUS. It makes perfect sense for Biden to determine that it is past time for one of the many remarkably gifted African American women to be seated on the court.
Supreme Court justice is among the most demanding jobs in U.S. government. It calls for an extraordinary breadth of knowledge, exceptional open-mindedness, deep perception, wide experience, omnivorous curiosity, keen insight, outstanding intelligence, a great work ethic, excellent writing skills, interpersonal savvy and (although some would deny it) profound compassion, along with as much candor, even-handedness and humility as can be achieved in the circumstances.
Nearly all lower court judges, and a good many lawyers, have at least a handful of these attributes; far fewer have them all. Even so, it would be impossible to rank the essential qualities of a justice to come up with a metric that places one potential nominee ahead of all others.
It is reasonable for presidents and senators of the same party to extol the virtues of their nominees. But it was just silly when Sen. Charles Grassley (R-Iowa), then chair of the Senate Judiciary Committee, declared that Brett Kavanaugh was the “most qualified Supreme Court nominee in our nation’s history.” What does that say, after all, about Neil Gorsuch, whom President Trump named the year before he nominated Kavanaugh? Should we conclude that Gorsuch, by Grassley’s lights, must have been a “lesser” white man?
The idea that someone can be the “most qualified” has been a running theme among Republicans. President Reagan announced the nomination of Sandra Day O’Connor by calling her “the most qualified woman that I could possibly find,” which probably sounded more enthusiastic in those days than it does now. At the time, O’Connor was a justice on Arizona’s intermediate appellate court, an important but low-visibility position, and not a job that ordinarily leads to SCOTUS consideration.
Most recently, Sen. Richard Shelby (R-Ala.) said Amy Coney Barrett was “the most qualified Supreme Court nominee that I have encountered in my 34 years in the United States Senate.” Shelby did not explain the standard he used to place Barrett ahead of Republican nominees Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch and Brett Kavanaugh (contradicting Grassley), although I suppose it is understandable that he thought less of Democratic nominees Elena Kagan, Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg, all of whom were confirmed during his tenure in the Senate.
By any standard, it is implausible that two successively “most qualified” nominees just happened to be white men – Gorsuch and Kavanaugh – who graduated two years apart from the same elite prep school. Or that three of the “most qualified” Republican-nominated justices – Kavanaugh, Barrett and Chief Justice Roberts – just happen to have been on the legal team for Bush v. Gore, the case that successfully put President George W. Bush in the White House. Is there any doubt that something beyond so-called objective qualifications influenced their nominations?
It is healthy for justices to be skeptical of their own press clippings. When President George H.W. Bush announced the nomination of Clarence Thomas in 1991 to succeed Justice Thurgood Marshall, he said “the fact that he is black and a minority has nothing to do with this sense that he is the best qualified at this time.” At age 42, Thomas was among the youngest nominees in the court’s history. He had been a federal appellate court judge for a little over a year and had previously been chair of the Equal Employment Opportunity Commission in the Reagan administration. Despite Thomas’s lack of judicial experience, Bush insisted that he was the “best man for the job on the merits.”
As revealed in his memoir, Thomas himself “had my doubts about so extravagant a claim.” He later asked Bush’s White House counsel whether the president really believed he was the “best qualified” for the job. Yes, came the answer, in part because he could be “counted on not . . . to change his views after being appointed to the Court.” That isn’t everyone’s definition of “the merits,” but Thomas has surely proved his worth.
There will always be exaggeration in politics. The great danger, however, arises when inflated claims on behalf of one nominee morph into accusations of lesser quality among others. Biden’s short list of potential justices is impressive from beginning to end. Every one of them would be a superb choice, not because they are politically connected and dependable, but because they have all the qualifications that make a justice great.
Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”