My colleague asked me: Would it be constitutional for President Biden not to nominate Supreme Court justices due to their race or sexual orientation? The Court does not believe that race is a factor that should be taken into account in appointments. However, it has always insisted that any categorical quotas and other rules that are “makable” by the Court must not be applied to higher education.[e] ‘the factor of race … decisive'” are forbidden. According to the President, he will nominate a black female candidate.
I believe there is neither a constitutional problem nor any injustice. This is a statement I make as someone who opposes sex and race-based preference in contracting, government employment and education. In 1996, Prop. California’s Prop. 209 forbids such preferences. I spoke frequently in support of it in California; however, last year, my opposition to Prop. 16 which attempted to repeal Prop. 209.)
Maybe I am wrong on one or both of these posts, but high-ranking government positions are very different from regular hiring and education. Americans have the right to equality of treatment, regardless of race, gender, religion, and age. However, no one has any rights to equal treatment when they are appointed to high-ranking government offices.
Such appointments are a political matter, and political factors—including ones related to the identity of the candidate—may rightly play a role in that. This is why I believe these factors can be compared to, but not exactly identical to, political affiliation. For example, government officials are generally unable to hire, fire, or select students and contractors based upon political affiliation. Elrod v. Burns (1976); Rutan v. Republican Party (1990); O’Hare Truck Service against the City of Northlake (1996). However, that rule does not apply to the selection of cabinet members or similar state and local officials, judges, etc. Some people argue that the Religious Test Clause forbids religion from being considered in top-ranking appointments. However, I am skeptical and that is a single issue.
This has been an area that the Court hasn’t addressed directly, however, and it does suggest that other political decisions might be made. Please consider these factors Mayor of Philadelphia v. Educational Equality League (1974), in which the challenge was made to Mayor’s nominations to a nominating committee for school boards. Because there was not enough evidence to support racial discrimination by the Mayor, the Court didn’t decide the argument of the Mayor that judicial review of discretionary executive appointments violates basic separation of powers principles. The Court did note that “judicial supervision of discretionary appointments could interfere with an elected official’s ability to respond to his constituency mandate.” Carter v. Jury Comm’n Greene County(1970). “The difficulties that would arise in a Federal Court’s order to the Governor in a State exercising his discretion in a certain way.”
This leaves the possibility of the Equal Protection Clause or, as it doesn’t apply in the Federal Government, other principles regarding equality. Bolling v. Sharpe The 1954 Act prohibits discrimination in these appointments. Federal courts cannot intervene to change it. However, I believe there is a more fundamental principle at work here. The argument for an individual’s right to equality treatment of high-ranking appointed officials is weak. The case to allow elected officials to make these high-level appointments is a matter for hardheaded political judgement (in the most extreme case, statesmanlike judgement).
American practice is reflective of that. This includes American practice in recent decades. Famously, President Reagan nominated Justice O’Connor for her sex. Justice Thomas, who was nominated by Justice Marshall to succeed him, was clearly nominated. Justice Barrett was chosen to replace Justice Ginsburg due to her sexuality. Many believe Justice Scalia’s appointment was partly due to the fact that he is an Italian-American. However, this was less likely and definitely less important in the public political calculation. (See pp. 57 & 59 of this interview with Peter Wallison.) It wasn’t obvious, as far I can recall, that Obama would nominate Justice Sotomayor as a Hispanic at the time. However, the discussion was clearly about nominating a woman and it appears likely that Justice Sotomayor’s ethnicity played some role in that final decision.
Many believed that these appointments, which were identity-based or influenced by the president’s identity, were politically beneficial. However many also supported them on the grounds they were good news for the country. It is possible to debate whether this attention to identity at high-level posts in government is ultimately beneficial for the country. However, one must not forget that individuals have the right to equality of treatment. This seems like a reasonable argument.
It is difficult for prospective appointees to assess and compare their non-political attributes, while the qualities they bring to the table as Justices is hard to determine. For example, Thomas, who was a junior judge at that time and had a brief but interesting legal career, has become an engaging and thoughtful Justice. While it is wrong to choose a candidate who is truly unfit for the job purely on his or her identity, that commitment would likely not apply if many qualified candidates are available from all demographic groups.
These thoughts also appear plausible to me, not because they are a matter “affirmative” action but more of realpolitik. This may be able to cut against minorities as well as for them. Many political officers, such as those in the White House, are careful to determine when it is appropriate for them to appoint an official of a minority group or a group more popular than the rest of the population. While it’s not ideal that political officials must react in such a way to voter biases, I believe that there is no obligation for them to do so when it concerns high-level appointments.
Or to take a slightly different example, involving my own ethnic group, Jews: If for some reason the American-Israeli alliance goes sour, and Israel ends up a major political and military adversary, I wouldn’t expect the President to ignore whether a potential Secretary of Defense is Jewish in making his decision—whether because he thinks there’s a small chance that ethnicity will color even a cabinet member’s loyalty, or because he is worried that enough other people will think so. In the opposite situation, it is acceptable for the President to choose a Jew because that would send a message.
A President might conclude that appointing an Israeli Secretary of Defense will jeopardize critical alliances with anti-Israel countries. I find it sensible to reject a Jewish candidate, even though this is unfortunate. It is unfortunate that so much of reality can be described as such. Because I do not want the President to publicly acknowledge that decisions like these are made based on foreign preferences, I believe the President should keep this decision secret. But that isn’t a matter for equal protection principles.
His job as President is to make tough decisions regarding such matters with an eye only towards the best interests of the country. However, knowing that he is a politician and will also be considering what’s best politically, his focus is not on fair treatment for particular candidates. These factors will play an even greater role in the appointment of ambassadors, as they are legally allowed to.
Our commitment to impartiality when selecting students at public universities, and to merit selection for government workers is not a requirement that a president select the best candidate, regardless of political affiliation, nor to disregard ideology or political backgrounds in hiring Justices. The commitment to nondiscrimination on the basis of gender, race or religion should not extend to high-level appointments such as Justices.