Morris: Picking a Court Nominee

January 31, 2022

by Leo Morris

A presidential candidate promises to put a woman on the Supreme Court. Some idealists say it is identity politics at its worst. But pragmatists know it is a naked political strategy, meant to address weakness in a certain segment of the constituency.

Ha, ha, got you. I’m talking not about Joe Biden’s pledge that will result in the court’s first black female justice and get him back in the good graces of his zealous leftist base, but about Ronald Reagan’s pledge that made Sandra Day O’Connor the first woman on the court and shored up his support with female voters.

Just trying to get you ahead of the curve on where this conversation will go. Republicans will decry the sins of woke politics, pointing out along the way the irony of the court hearing an affirmative action case at a time when the newest justice is an affirmative action appointment. Democrats will dish out a giant helping of the logical fallacy tu quoque, which is Latin for, “So’s your old man!”

In addition to Reagan, Democrats will surely drag George Herbert Walker Bush into the debate. When it came time to replace Thurgood Marshall on the bench, Bush did not pledge to replace him with another black man, but to do otherwise would have required the kind of political bravery that does not get one to the White House.

Bush kept insisting that, despite the narrowness of his search, the resulting pick of Clarence Thomas gave us the most able constitutional scholar imaginable, a claim that was met with widespread derision. Biden will make the same claim, and get the same reaction.

Republicans just lucked out with Thomas in that he turned out to have a brilliant mind and a fierce devotion to constitutional principles. Some of the arguments he’s made in dissent will live long after the political turmoil that spawned them.

Joe Biden should be so lucky.

Presidents do not always get what they expect in a judicial appointment. Just consider Dwight D. Eisenhower, who chose unassuming moderate Republican Earl Warren, who joined the court and promptly turned the country upside-down with a series of decisions that used the Constitution as a living-document plaything.

I’m reminded of a scene in “Bananas,” one of the films from Woody Allen when he still made comedies.

The brave, defender-of-the-downtrodden head of the freedom fighters has just won the war to liberate his country from the evil dictator’s whims and makes his first speech as the new president:

“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now . . . 16 years old!”

There was a lot of crazy lurking in that freedom fighter, and all it took to bring it out was the sudden realization that he was now supreme leader for life. Not unlike the crazy that can be unleashed in a Supreme Court justice who suddenly grasps the implications of a lifetime judicial appointment.

This brings up a serious point. For the good of the country, we do need the best nominee, and for that to happen, a president needs to search the widest possible field. Any time the search field is narrowed, for whatever reason, the odds of getting the best candidate are reduced.

That is the essence of the whole affirmative-action debate. Supporters insist they are widening the field to include previously overlooked groups. The truth is that they are narrowing it by ensuring that those previous groups get no serious consideration this time around.

And we generally get what we aim for. If the goal is the best people possible, we will have that but are guaranteed nothing else. If the goal is the most diverse group possible, we will have that but are guaranteed nothing else. We can insist on individual rights, one of those pesky constitutional principles, or throw it overboard. Pick one.

Ha, ha, got you. You probably think I was referring to the fact that, in committing himself to choose a back female lawyer, Biden was narrowing the field of candidates to about 2 percent of the population. I meant his nominee will likely come from an even smaller percentage, lawyers who graduated from Yale or Harvard, which also describes every current court member but one,

The exception is the newest member, Amy Coney Barrett, who graduated from Notre Dame Law School in South Bend and was on the faculty there when tapped by Donald Trump. How in the world did she sneak in?

Don’t get me wrong. I’m glad a Hoosier is on the court, even a non-native who came to Indiana later in life. She’s certainly more representative of the state than Chief Justice John Roberts, who grew up and went to private school here before moving on and becoming just another Ivy League member of the ruling class. Judging from their actions on the bench so far, we are much less likely to see latent crazy erupting from Barrett.

But she is a lawyer.

The Constitution doesn’t require justices to be lawyers. It doesn’t require anything in fact, not regarding age or gender or race or even citizenship. We could, following the advice of William F. Buckley, just pick someone at random out of the phone book, if we still had phone books. That would truly widen the field to everyone in the United States.

Which, yes, I know, means we would likely get a nominee that knows little and cares less about the Constitution.

Like that’s never happened.

Leo Morris, columnist for The Indiana Policy Review, is winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at leoedits@yahoo.com.



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