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With Justice Stephen Breyer’s coming retirement, an odd controversy has swirled around President Joe Biden’s campaign pledge to appoint a Black woman to the first vacancy. Critics have compared the promise to college admission quotas; supporters have pointed out that President Ronald Reagan fulfilled his own campaign vow to appoint the first female justice when he nominated Sandra Day O’Connor.
The supporters have the better case. From the earliest days of the republic, presidents have always sought to craft a Supreme Court that looks like America. All that’s changed is what they think America looks like.
Presidents have long sought diversity on the bench. It just used to be geographic diversity. In a book published in 1928, Chief Justice Charles Evans Hughes made the case for taking into explicit account the nominee’s state of origin: “The confidence of the country should be maintained by selections which so far as practicable will represent all parts of the United States.”
Hughes knew what he was talking about. At that time, the need for geographic representation was central to public debate over the proper composition of the Supreme Court.
In 1923, for example, President Warren Harding’s nomination of Edward Sanford was sharply criticized because it would give the Supreme Court a second Tennessean. And the problem wasn’t just two justices from the same state. Shortly before Sanford’s nomination was officially announced, the press reported a different geographic objection: “New York republicans protested on the ground that their state, having the largest population of any in the union, was without representation on the nation’s highest tribunal.”
But of course. President Theodore Roosevelt’s 1902 selection of Oliver Wendell Holmes was motivated in large part by the need to keep electoral-vote-rich Massachusetts happy. Ditto with President Herbert Hoover’s 1930 nomination of Owen Roberts of Pennsylvania.
Then there’s the case of Justice Benjamin Cardozo. In 1932, under enormous pressure to put Cardozo on the court, Hoover told a visiting senator that he couldn’t nominate the prominent New York jurist … “on account of geography.” Hoover favored William Mitchell, his attorney general, who hailed from Minnesota. The president changed his mind — but only after receiving assurances from Western senators that regional jealousies would not lead them to oppose the nominee.
Then there’s President Franklin Roosevelt’s appointment of Hugo Black in 1937. What we tend to remember nowadays is Black’s earlier membership in the Ku Klux Klan. What we too often forget is that FDR planned all along to appoint a Southerner, his way of placating powerful congressional Democrats from the region who had fought so hard for his doomed court-packing plan. The president was expected to nominate Joseph T. Robinson, the Senate’s majority leader. Senate Democrats, who in the words of one historian had by that time “all but usurped the power of appointment,” were swift to adopt a resolution endorsing Robinson’s candidacy. Black’s path to the high court was cleared only by the majority leader’s sudden and unexpected death before his name could be placed in nomination. With Robinson gone, FDR still needed a Southerner.
In the 1950s, Sen. William Langer of North Dakota, a member of the Judiciary Committee, waged what legal scholar Henry Abraham called a “perverse” six-year campaign of “opposing any and all nominees to the Court until someone from his home state (which had never been so honored) received an appointment.” (In 1950, Langer had given a speech on the Senate floor lamenting that no major executive branch appointment had ever gone to a North Dakotan.) Yet few at the time few seemed to find it peculiar.
Small wonder, then, that when Lyndon Johnson chose Thurgood Marshall in 1967, some critics argued with straight faces that although they had no objection to the nominee’s race, the president trod dangerous waters by selecting a New Yorker to replace a Texan.
All of which brings us back to Justice O’Connor. As Biden supporters have been noting, President Reagan appointed her in 1981 to fulfill a campaign pledge to appoint the first female justice. Fair enough. But here’s the interesting part. After her first visit with Reagan, O’Connor expressed doubts that she would be chosen. Why? Because the Supreme Court already included a justice — William Rehnquist — who hailed from O’Connor’s home state of Arizona. To add another, she said, would be “politically inopportune.”
But Reagan wisely nominated her anyway, recognizing that there are a lot of different ways to look like America.
Stephen L. Carter is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
This content was originally published here.