Don’t Attack Biden’s Supreme Court Nominees for Playing by the Rules

Don’t Attack Biden’s Supreme Court Nominees for Playing by the Rules

Don’t Attack Biden’s Supreme Court Nominees for Playing by the Rules

There have historically been few routes to legal-world success for Black women. Is it fair to change the rules on them now?


As we await Joe Biden’s nominee to replace Stephen Breyer on the Supreme Court, the battle lines are already being drawn. When Republicans nominate justices, the whole party tends to fall in line, but Democrats are not known for their message coordination and discipline. Indeed, one of the hidden reasons Republicans have been more successful at controlling the courts is that each of their constituent groups trusts the judges picked by the Federalist Society: The gun-loving ammosexual is happy to support the judge known more for their anti-gay opinions. But Democrats are always worried that one wing of the party doesn’t have the best interests of another wing at heart, and that paranoia is, sadly, often justified. Democrats have to do through coalition building what Republicans can do by fiat.

The Biden administration has been smart to take identity politics off the table by announcing that he’d be nominating a Black woman. There is no fight to be had between establishment forces pining for the most benign-looking white man available and every other group yearning for inclusion in the most exclusive legal circle in the country. Biden’s announcement has, counterintuitively perhaps, made the race and sex of the nominee irrelevant. He is nominating a Black woman, and everybody can come to grips with that in their own time.

With that out of the way, and notwithstanding some of the usual “progressive vs. centrist” arguments over the nominee, an unusual fault line has formed around what kind of experience Biden’s nominee should have. South Carolina Representative and Biden whisperer Jim Clyburn has promoted South Carolina District Court Judge Michelle Childs, arguing that her non–Ivy League background is a strength that would add much needed diversity to a court stocked with people who attended elite educational institutions. Many people, including many Black people I’ve talked to privately, have argued that treating Ivy League (or similar) qualifications as the standard for Supreme Court justices produces a court that is woefully out of touch with the country it serves and the real-world implications of their rulings.

I think the argument has merit. While I don’t know how “in touch” we can ever expect nine unelected, unaccountable justices to be, I certainly think that the court lacks intellectual and professional diversity (along with its lack of racial, ethnic, and religious diversity). One of the reasons I support court expansion is that I believe letting more people from more backgrounds with more perspectives be involved in making legal decisions results in better legal decisions.

But what I’m not going to do for this appointment is discount the potential nominees who did go to the so-called elite schools, nor act like educational credentials should somehow bar them from consideration. Granted, I’m biased, given that I am also the product of one of these private institutions. But it feels perverse to me to look at a crop of smart and talented Black women who have functionally never had the chance to be considered for a Supreme Court appointment, and then tell them that the very things they’ve been asked to do to prove that they are smart and talented are now demerits on their application.

People go to law schools like Harvard, Yale, and Stanford because they are told (rightly) that those schools are the gateways to opportunities and power within the legal system. If you want to be a federal judge with the ambition or audacity to even dream of one day being appointed to the Supreme Court, and you have the opportunity to go to one of these schools, you’d be a fool not to go. It’s irrational not to go to one of these places for law school, debt be damned, if they let you in.

And that goes doubly for minorities. People are already seeing the baseless, racist attacks being leveled by white people at the contenders for the nomination, and Biden hasn’t even picked one yet. Please know that these attacks, thrown at even the theoretical idea of a Black woman, are deployed against people of color and women throughout their legal careers: sometimes behind their back, sometimes to their face, sometimes in actual court.

There is a long and gross history of people conflating race with intelligence; there are still white guys invited into the civil discourse who are willing to measure Black skulls with protractors in the name of academic debate. Having elite educational credentials doesn’t shut down these attacks, but it sure makes them a lot quieter. Going to an elite school doesn’t make you smarter; it just makes it tougher for the ignorant people to denigrate your intelligence.

Going to an elite school also doesn’t mean you’ve lived your whole life as a pampered elite. There seems to be an impression that everybody who goes to an Ivy League school is a Winklevoss twin, and while I have certainly met a fair share of graduates from Harvard-Yale-Stanford who fit that description, there are many who don’t, and many of the people of color I’ve met from those schools come from low-income or working-class backgrounds.

People don’t understand that a school like Harvard can be among the cheaper options for college for some students. Middle-class kids, y’all are S(hit) O(utta) L(uck), but low-income kids sometimes find that these elite institutions are able to make up any “gaps” in federal financial aid or scholarship straight out of their own endowments, without blinking. My education at Harvard was a lot cheaper for me than if it would have been had I gone to Boston College or Tufts, because my aid package was basically “Whatever, you’re good for it. You will be. Mwahahaha.

You can see that reality when you actually look into the personal histories of some of the women Biden is considering, and not just the institution on their diploma. Take Eunice Lee, whom Biden nominated to the US Court of Appeals for the Second Circuit and is reportedly considering for the Supreme Court. Yes, she graduated from Yale Law School, but she worked her way through college at Ohio State. After she graduated from Yale, she worked as a federal public defender, representing over 380 indigent clients at the state and federal level. This is not the background of a Northeastern Brahmin who is unable to understand authentic experiences because she spent three years being credentialed at Yale.

Ketanji Brown Jackson, another potential Biden nominee, is the daughter of public school teachers from Miami. After attending Harvard for college and law school, she also worked as a federal public defender, and then on the US Sentencing Commission. These women could have stayed in private practice, making a ton of money, waiting for one of their law school buddies to tap them for a federal judgeship, but they didn’t.

Remember, every single federal judge needs to be appointed by a president and confirmed by the Senate. These women went to these schools because that is the way you show senators and presidents that you are ready to be a federal judge.

The question that I have yet to hear a satisfactory answer for is: Where should these women have gone to school if they wanted to be a Supreme Court justice someday? Is the argument that they should have gone to a state school, or an HBCU, to put themselves in a better position for an appointment? Is the argument that a candidate who did go to state school wouldn’t have gone to an elite private institution if they could have afforded it? If a young Black woman comes to me and asks where she should go to law school if she wants to snag a federal appointment someday, what should I tell her? It doesn’t matter?

It’s great to say that at the same time we’re asking America to expand its definition of what a Supreme Court justice can look like, we should also ask it to expand its definition of what schools a Supreme Court justice should come from. I get that. If this is the time to have that fight, I am ready for it. Biden could appoint a judge who didn’t go to law school at all (there’s no requirement that a Supreme Court justice be a law school graduate), and I would be ready to defend that. Again, I want a bigger court with more kinds of people on it and will defend that vision every day.

But that’s a two-front war in front of a 50-50 Senate. Many of these contenders went to Harvard or Yale because it closed off one flank against the indefatigable racist attacks on their credentials. If Biden wants to tell me that now is the time to appoint somebody who went to a state school, he needs to tell me he’s secured the votes of the two senators from that state. Then we’re cooking with gas.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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