Do Equality Norms Constrain Presidential Appointments?

 by Michael C. Dorf

The right-wing freakout over President Biden's commitment to naming a Black woman to the seat from which Justice Breyer will retire is racist and hypocritical--as Professor Colb argued on the blog Monday. Still, it provides an occasion to interrogate longstanding practices of presidents in making SCOTUS and other nominations. In today's essay, I'll suggest three ways of understanding those practices.

But first, a brief description is in order. As numerous other commentators have noted, President Biden's commitment to naming the Court's first Black woman to the Breyer seat is hardly unprecedented. President Reagan promised to name the Court's first woman and delivered on that promise with Sandra Day O'Connor. Reagan also reportedly named Antonin Scalia at least in part because he was of "Italian extraction." Whatever President Bush 1 said about his selection of Clarence Thomas, everyone knows that it was important to Bush to name a Black Justice to replace Justice Thurgood Marshall.

Perhaps most glaringly, for some time it was common to speak of a "Jewish seat" on the Court. Two Jews (Brandeis and Cardozo) sat on the Court in the 1930s, but then the succession of Cardozo to Frankfurter to Goldberg to Fortas while no other Jews sat on the Court cannot have been a coincidence. And that's despite the clear language of the Constitution's Article VI: "no religious test shall ever be required as a qualification to any office or public trust under the United States." Yet from the 1930s through 1960s, it appears that there was an express religious test: only Jews were considered for the Jewish seat; only Christians were considered for the other eight seats; no Muslims, Hindus, Buddhists, or persons of other faiths were considered at all. (I set aside non-believers because I'm using religious identifiers here to reflect affiliation, not necessarily beliefs, although no self-described atheist has ever served on the Supreme Court.)

By applying a religious test and taking national origin, sex, and race into account in ways that go substantially beyond a plus factor, have presidents been violating the Constitution for decades?

(1) One way to get to a "no" answer to that question would be to conceptualize Supreme Court appointments as falling outside the scope of the Constitution's equality norms. Yet why would we do that? Certainly the language of Article VI is categorical. And as part of the original Constitution, adopted at a time when a higher percentage of federal office holders were subject to presidential nomination and Senate confirmation than today (because the federal government was much smaller then), the religious tests clause certainly appears to apply to offices requiring presidential nomination and Senate confirmation--including Supreme Court justices.

Nor would we (or at least I) want to say that clearly invidious discrimination in nominations is permissible based on some unspoken exception for either Supreme Court nominations, judicial nominations, or nominations for principal officers (requiring Senate confirmation) more generally. For most of U.S. history, presidents were obviously discriminating in SCOTUS nominations against everyone other than white male Christians. (Most of those Christians were Protestants, although there were some notable Catholics, including, most problematically, Roger Taney.)

Accordingly, the notion that no constitutional anti-discrimination principles apply to SCOTUS (or other) nominations is unappealing.

(2) A better answer might be to say that constitutional equality norms do indeed apply to SCOTUS nominations but that they present non-justiciable political questions. Unlike a person passed over for a job or a promotion with a private company or even within the government for other kinds of positions, someone whom the president fails to nominate to the Supreme Court, a lower federal court, or other position requiring Senate confirmation cannot sue for a Title VII or equal protection violation, even if they can credibly allege discrimination based on race, religion, sex, national origin, or some other invidious classification.

The point isn't simply that some statutory provisions don't apply in some contexts. For now I'm assuming that at least the constitutional norms do constrain presidential nominations. What I'm suggesting is that there is no judicial remedy and for reasons broadly similar to the reasons why the Supreme Court found in Nixon v. United States that challenges to impeachment are non-justiciable. There the Court worried about, among other things, the limbo into which the nation would be thrown if, say, a president were impeached, convicted, and removed, only to be reinstated months later following judicial review. And as in Nixon--which involved impeachment of a federal judge--there is also a worry about the courts supervising another process--judicial appointments--that also serves in part as a check on the judiciary.

Hence, it seems plausible to say that constitutional equality norms apply to appointments but that the exclusive mechanism for vindicating those norms is constitutional politics affecting the president and the Senate.

(3) To say that constitutional equality norms apply (even if they're not justiciable) tells us little about the content of those norms. What do they forbid? There is likely to be disagreement on that point.

I think that affirmative action is constitutionally permissible as a general matter. Thus, I also think that the consideration of race, sex, and other factors for the purpose of expanding the range of SCOTUS Justices is generally permissible. To be sure, I think that presidents were acting unconstitutionally for those many years when they gave no consideration to anyone other than white men. I'm also troubled by the "Jewish seat," although I'm more troubled by the fact that it was a ceiling than that it was a floor. But my views about affirmative action for SCOTUS nominees are not very different from my views about affirmative action in other contexts.

More puzzling are the attitudes of conservatives who favor color-blindness and gender neutrality in most contexts but are untroubled by Reagan's looking exclusively at women for his first nominee and President Trump's doing the same for the Ginsburg seat. We might be able to explain their acceptance of Reagan's counting Scalia's national origin as a major plus on the ground that Reagan did not look exclusively at Italian Americans, but that would require us to characterize the conservative view of affirmative action as allowing plus factors but not quotas/exclusions. However, the orthodox conservative position--reflected in the first question posed by the cert petition that the Court granted in the Harvard affirmative action case--is that even plus factors for characteristics like race and national origin are forbidden.

Thus, I conclude that the conservative freakout over Biden's determination to nominate a Black woman to the Court is at least consistent with the orthodox conservative view of race-based and sex-based affirmative action. The real hypocrisy was (and remains) their acceptance of such an approach by Republican presidents.